The Surprising Number of Legal Rules Pertaining to Displaying a United States Flag

washington-monumentFifty white stars on a field of blue (one for each state) and 13 horizontal stripes, alternating red (7) and white (6) for the original 13 colonies, the U.S. flag is a revered symbol by many of the nation. And in recognition of the honored place Old Glory holds, in 1947, Congress passed a series of laws, specifically proscribing how the flag should look, be cared for and respected.

Found near the beginning of the codified version of the statutory laws of the United States (called the U.S. Code) in Title 4 (out of 54), the provisions relating to the flag are numerous and detailed. For example, the Code has specific rules for when civilians can display the flag, and these allow that it may be set out for 24 hours at a time, should be raised quickly and lowered “ceremoniously,” and unless an all-weather flag, should not be displayed during bad weather. 4 U.S.C. § 6.

Moreover, the Code instructs that, in addition to the dates of admission of the States, State holidays and those days “proclaimed by the President,” the Flag “should be displayed” on the following days:

  • New Year’s (January 1)
  • Inauguration Day (January 20)
  • MLK Day (third January Monday)
  • Lincoln’s Birthday (February 12)
  • Washington’s Birthday (third February Monday)
  • Easter Sunday
  • Mother’s Day (second May Sunday)
  • Armed Forces Day (third May Saturday)
  • Memorial Day – at half-staff until noon (last May Monday)
  • Flag Day (June 14)
  • Father’s Day (third June Sunday)
  • Independence Day (July 4)
  • National Korean War Veterans Armistice Day (July 27)
  • Labor Day (first September Monday)
  • Constitution Day (September 17)
  • Columbus Day (second October Monday)
  • Navy Day (October 27)
  • Veterans Day (November 11)
  • Thanksgiving (fourth November Thursday)
  • Christmas (December 25)

In addition, two types of institutions, schools and polling places, should always display a flag when operating. Id.

There are also rules about how to display the Flag in a procession (like a parade), and it should either be to the right or in front of a line of flags, and should never be placed on a parade float except on a staff. 4 U.S.C. § 7. It also should not be draped over the hood, sides, or back of a car, but may be “fixed firmly to the chassis or clamped to the right fender.” Id.

Except for church services for Navy personnel when a church pennant may be hung above it, the Flag should never be displayed below another one, other than at the United Nations headquarters. Id.

The Code also explicitly commands respect for Old Glory, directing that the Union should only be displayed on the bottom “as a signal of dire distress,” the flag should never touch “the ground, the floor, water, or merchandise,” it “should never be used as wearing apparel,” or for a costume. (4 U.S.C. § 8.)  In fact, only patriotic organizations, policemen, firemen, and military personnel are allowed to wear the flag as part of their uniform or costume, and under no circumstances is the flag to be made part of an athletic uniform, despite that even some major athletic organizations do this very thing on occasion. (4 U.S.C. § 8.)

Moreover, it is noted in this same section “The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature” and that “The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.”

On that note, while the Code, which explicitly notes, “No disrespect should be shown to the flag of the United States of America” may prohibit such things as desecration of the Flag, its use in advertising, or on temporary merchandise like napkins (flag napkins and paper plates commonly found at any 4th of July party). etc., for various reasons, those sections are not enforced. For example, the Code’s § 3 was specifically identified in a 1925 Attorney General Opinion to apply only to activities within the District of Columbia. 34 Op.Atty.Gen. 483.

Despite this, the Flag Code does state in the most verbose way possible,

Any person who, within the District of Columbia, in any manner, for exhibition or display, shall place or cause to be placed any word, figure, mark, picture, design, drawing, or any advertisement of any nature upon any flag, standard, colors, or ensign of the United States of America; or shall expose or cause to be exposed to public view any such flag, standard, colors, or ensign upon which shall have been printed, painted, or otherwise placed, or to which shall be attached, appended, affixed, or annexed any word, figure, mark, picture, design, or drawing, or any advertisement of any nature; or who, within the District of Columbia, shall manufacture, sell, expose for sale, or to public view, or give away or have in possession for sale, or to be given away or for use for any purpose, any article or substance being an article of merchandise, or a receptacle for merchandise or article or thing for carrying or transporting merchandise, upon which shall have been printed, painted, attached, or otherwise placed a representation of any such flag, standard, colors, or ensign, to advertise, call attention to, decorate, mark, or distinguish the article or substance on which so placed shall be deemed guilty of a misdemeanor and shall be punished by a fine not exceeding $100 or by imprisonment for not more than thirty days, or both, in the discretion of the court. The words “flag, standard, colors, or ensign”, as used herein, shall include any flag, standard, colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, colors, standard, or ensign of the United States of America.

However, even if § 3, like § 8, did apply throughout the nation, it’s doubtful either law could ever really be enforced, as activities related to the Flag have been interpreted by the United States Supreme Court as being protected “speech” under the First Amendment, and, therefore, not subject to punishment by the government. See Texas v. Johnson and United States v. Eichman (holding flag burning as Constitutionally-protected speech).

And speaking of flag burning, according to the Code, this is actually the preferred way to destroy a flag that is “in such a condition that it is no longer a fitting emblem for display.” However, a requirement of this flag cremation is to do it “in a dignified way.”

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Bonus Fact:

  • The Pledge of Allegiance is also set out in the Code, which provides that only “men” not in uniform should remove their “non-religious headdress with their right hand” when reciting it. 4 U.S.C. § 4. All, however, are instructed to put their right hands over their hearts when reciting it. It should also be noted that those members of the military in uniform should not recite the words, but instead remain silent, giving the military salute.
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One comment

  • “specifically proscribing how the flag should look, be cared for and respected.”

    Surely, that should be “prescribing”???

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