Thanks to Nike’s new ad featuring former football player Colin Kaepernick (and the endless stream of Facebook memes parodying the ad) the nation is once again in an uproar regarding the propriety of Kaepernick’s decision to protest racial inequity in the criminal justice system by taking a knee during the national anthem. This is one of those rare instances where there is a major political controversy and I don’t really take a side. I can sympathize with points made by both sides of the argument, but I don’t have enough of an opinion to take sides. But since everyone seems to think that military veterans have some sort of special insight into issues about respecting the flag (a view that I do not agree with) here is this grouchy former Marine’s rant about the flag.
I don’t get too worked up when people disrespect the flag to make some sort of political or social point, such as burning a flag or kneeling during the anthem. I think that it is a stupid, ineffective way to make a point, and you are far more likely to alienate people than changing their minds, but whatever, American history is full of all sorts of stupid, disrespectful, and potentially alienating protests. While intentionally disrespecting the flag may be stupid, it is most certainly constitutionally protected speech, and the government absolutely cannot outlaw such expressions. It’s a free country and every idiot in the world is entitled to disrespect the US and its flag without fear of government reprisal.
While I largely just shake my head at misguided attempts to win hearts and minds by intentionally disrespecting the flag, there are things that people do with flags that drives me absolutely bonkers: people who unintentionally disrespect the flag through their lazy and ignorant attempts at patriotism. A few examples I have seen: American flag paper plates and napkins, which you cover in food and dump in the garbage; sticking hundreds or thousands of tiny little flags into the ground along public streets for the 4th of July or Memorial Day and then just leaving them there as litter to be picked up with discarded cigarette butts; continuing to fly a faded, ragged, or torn flag because you are just too cheap to buy a new one; and of course what better way is there to show your respect for the flag than to cover your ass with American flag boxers (or not cover it with an American flag thong). As far as I am concerned, each of these is infinitely worse than a football player taking a knee during the anthem.
For several years the local McDonalds near my old house in Maryland seemed to be on a mission to find every possibly way to fly an American flag incorrectly (obviously this was an elaborate conspiracy to personally aggravate me on my daily commute). For months on end they flew a tattered old flag, with the stripes literally coming apart at the seams. With every storm the flag got worse and worse. By the end I don’t know what was holding it together. When they finally replaced the flag they bought a bigger flag, but they didn’t adjust the distance between the two clips holding the flag to the rope, so it would not fly properly and instead just looked like a sail. Then for some occasion I don’t remember flags were lowered to half-mast for a day, and while McDonalds lowered the American flag to half-mast, they kept the McDonalds flag on the adjacent pole at full-mast (which, for those of you who are not up to date on your flag etiquette, is a big no-no). Then the next day they tried to raise the American flag back up to full-mast, but they were too lazy to finish the job, so it only got to about ¾-mast, with the McDonalds flag still flying over the Stars and Stripes. It stayed like this for months. As my poor wife can attest, I griped about this incessantly, and for several years I boycotted McDonalds (of course I rarely eat at McDonalds, so my “boycott” was just as brave, self-sacrificing, and effective as those who are now buying Nike products in order to burn them on social media). I have no idea why a global fast-food chain feels the need to put on some fake patriotic display by flying the flag, but if they are going to do it they can at least do it in a way that does not disrespect the flag.
If you want to be a real stickler about respecting the flag then you need to familiarize yourself with the U.S. Flag Code, which is codified into law at 4 U.S.C. §§ 1-10. Of course, once you read the Flag Code you realize that probably half of the ways that people use and display the flag in their lazy attempts at patriotism are legally considered disrespect to the flag. Are you really going to confront your neighbors for violating § 6(a) because they leave the flag flying outside their house at night without ample lighting? Are you going to boycott companies that include the flag in their advertising and marketing strategy in violation of § 3 and § 8(i)’s command that “[t]he flag should never be used for advertising purposes in any manner whatsoever”? Are you going to write your Congressman and demand that the Post Office stop printing American flag stamps, which manages to violate both § 8(g) when it stamps a postmark on top of the flag and § 8(i) when it prints the flag on something that is designed for temporary use and discard? Are you going to call out people who ignore § 8(d) by wearing the flag on clothing, or those who defy § 8(j) by placing a flag pin anywhere other than “on the left lapel near the heart”?
And since it was patriotic displays at football games that started this whole discussion, are you aware that the hugely popular act of unrolling a giant American flag that covers the entire field is in fact an act of disrespect? Section 8(c) states as plainly as possible that “[t]he flag should never be carried flat or horizontally, but always aloft and free.” Unless my eyes are greatly mistaken, in the photo below (which I believe comes from the 2017 Holiday Bowl) at least a company’s worth of U.S. Marines, in Dress Charlie uniforms, are publicly disrespecting the flag in open defiance of U.S. law. Who, dare I ask, will be writing to the Commandant of the Marine Corps to demand that these mutinous Devil Dogs be punished?
Of course, the U.S. Flag Code does not contain any sort of enforcement provisions or punishments. Indeed, any attempt to enforce the Flag Code would almost certainly be struck down as a violation of the First Amendment under such cases as Texas v. Johnson (holding that burning the flag was constitutionally protected speech) and West Virginia State Board of Education v. Barnette (holding that schoolchildren could not be forced to pledge allegiance to the flag). Much like the Pirate Code in Disney’s Pirates of the Caribbean, the Flag Code “is more what you would call guidelines than actual rules.” It is something that you invoke when it is convenient, typically in order to accuse your opponents of violating it, and it is something that you quickly abandon whenever it is too burdensome for you or your friends.
All of this leads me to the conclusion that the vast majority of those who oppose and criticize Colin Kaepernick don’t actually care about the fact that he disrespected the flag. People disrespect the flag all the time and the only people who care are neurotic former Marines turned attorneys like myself. I suspect that Kaepernick’s real sin in the eyes of his critics is that he voiced an opinion that they didn’t want to hear: that he doesn’t think black people get a fair shake in our criminal justice system. We can and should have a civil debate about whether or not Kaepernick is right about this. But unless you are actually willing to equally criticize those Marines at the Holiday Bowl, and every other Flag Code violation, please just drop the self-righteous attack on Kaepernick for disrespecting the flag and the troops.