Monday, May 28, 2012

Displaying the Flag: Half-Staff

In raising the flag, it should be hoisted or posted briskly.  Conversely, it is to be lowered or removed ceremoniously, so says Section 6(b) of the Flag Code.  Section 7(m) speaks to when the flag is flown at half-staff.  It should be first hoisted to the peak for an instant, and then lowered to the half-staff position, in tribute.  At the time of lowering, it should be again raised to the peak before it is lowered for the day.  More elaborate, though, are the rules related to when half-staff display is appropriate.

On Memorial Day, the flag should be displayed at half-staff until noon only, and then raised to the top of the staff for the remainder.  The flag is also generally flown at half-staff on Peace Officers Memorial Day.

The flag is to be flown at half-staff for 30 days from the death of a President or former President; and 10 days from the date of death of the Vice President, the Chief Justice or a retired Chief Justice, or the Speaker of the House of Representatives.  Lesser times are prescribed upon the death of persons holding other, specific government positions.  Separately, by order of and as instructed by the President, the flag is flown at half-staff “as a mark of respect to their memory” on the death of principal figures of federal government, state governors, or other officials or foreign dignitaries.  A state governor has similar authority within his or her state’s borders for state government officials.  Finally, on June 29, 2007, President Bush signed the “Army Specialist Joseph P. Micks Federal Flag Code Amendment Act of 2007,” which permits state governors to order the flag to be flown at half-staff in tribute to a member of the Armed Forces from that state who dies while serving on active duty.

Question:  I have a small, stationary flag posted at my home, not one that is hoisted and lowered on a flag pole.  This is to say that I cannot fly my flag at half-staff.  Is it appropriate for me to display the flag in this manner on days or on occasions where the flag should be at half-staff?

Answer:  Unfortunately, there is no set law or rule that addresses your question, and you should know that when there are unanswered questions, we always turn to the underlying purpose and significance of the Flag Code, rather than its specifics.  Based on that, our view is that the half-staff rules invoke protocols that are of greater symbolism than mere display, but otherwise elaborate upon the display of the flag generally.  As a result, we view it appropriate for flags that are not capable of being displayed at half-staff to be displayed in any event, in whatever form that may take.  A flag displayed at half-staff is a particularly reverent event, and it in no way cheapens the circumstance to display a flag in the ordinary course that is otherwise incapable of being flown at half-staff.  To the contrary, in its own way, any display of the flag is symbolic.  If done as a tribute to an event which otherwise requires half-staff display, it itself is a tribute to that event.

Tuesday, May 1, 2012

The Flag and the First Amendment

Question:  I believe there should be a Constitutional Amendment against flag burning in protest.  What is your view of that?

Answer:  You refer to modern history, which has spawned a class of people who seek to provoke the public not by passive disregard of the flag, but by outright public desecration of the flag, as a display of contempt for our nation.  Examples, including flag burning, are as diverse as the human imagination and not worthy of civil elaboration: they are objectively incendiary.  They anger those who revere our country and who are humbled by the freedoms they cherish.  They outrage those like the authors who have a father/grandfather who was wounded in battle.  They inflame and callously trivialize those whose loved ones never came home, the honor and memory of who seem cheapened by this outrageous gesture.

Nevertheless, in 1989, the U.S. Supreme Court invalidated prohibitions against flag desecration based on the First Amendment, which provides:  “Congress shall make no law…abridging the freedom of speech.”  It held that the act of flag burning is a form of expression akin to speech, and its effectiveness in provoking the sentiment of the public was precisely the reason it could not be Constitutionally prohibited.  Justice Brennan observed that: “[w]e do not consecrate the flag by punishing its desecration, for in doing so we dilute the freedom that this cherished emblem represents.”

Should there be a Constitutional Amendment prohibiting flag burning?  Perhaps, but that is a political issue for another day.  Come what may, we merely observe that one cannot enact reverence, nor can one legislate wisdom:  stupidity is innate.  If one desecrates the symbol of that from which their right to do so is derived, it’s clear this is one who either has not given, or is incapable of giving that gesture much thought.  Still, it was Voltaire in his Essay on Tolerance that said:  "Think for yourselves and let others enjoy the privilege to do so too.”

We do not like this result…not at all.  However, when we encounter these village idiots, we pause only to thank God (for surely they have not) that we live in a country where they are not shot where they stand for their conduct.  We then shake our heads, smile, say “God Bless America” to ourselves, and move along.