Legal Issues Regarding Respect for the US Flag

Public Law 94-344, Title 4 USC, Flag Protection Act of 1989, DoD Directive 1344.10, et al

Subj: Participation of Law Enforcement, US Military Personnel at events that disrespect the flag, represent political causes, especially when sanctioned by the event host organization.

Please see legal research: “The United States Flag: Federal Law Relating to Display and Associated Questions”, Updated April 14, 2008, John R. Luckey, Legislative Attorney American Law Division

Discussion:

LAW ENFORCEMENT OFFICIALS: While mostly directed of below is directed to Federal and Military personnel, law enforcement officials should also be concerned about the use of uniformed personnel at events that include sanctioned political causes and approved protests. Consider too whether the event is a for-profit or advocacy group and their policy on political protests at the event by employees and/or athletes. Consult our legal advisor. To be clear, there is no constitutional right of employees and/or athletes to protest at most athletic or similar events. Various state laws may also apply. Consider too if the personnel or equipment used is a result of federal funding where the grant or funding may restrict political use. Finally, there are no known cases where a law enforcement agency is obligated to supply personnel to such an event so discretion, above minimum legal issues, may be exercised.

Commanders and all military personnel are urged to avoid any event where their military personnel become part of any spectacle, cause or protest that disparages the image of the service, violates the law, or otherwise presents a negative image of the service or implies agreement with any political protest or cause. The presence of an Honor Guard, for example at a “Take a Knee Protest” could imply military agreement or approval of the protest. Such should be avoided.

So the participation (Honor Guard, singer, Fly-Over, official uniform presence, etc) in a “Disrespect the US Flag”, “Black Lives Matter”, or any other political cause, especially where it is known in advance that such a protest or cause will take place, could be construed as supporting the cause or activity. This may be especially true where the host, usually a for-profit organization, i.e. the NFL, has a stated policy of allowing such political activity.

Where a private entity requests the presence of military personnel in uniform (i.e. Military Appreciation Night an Honor Guard, National Anthem singer, fly over or similar) a commander or those in charge should review OSD guidance on DoD Directive 1344.10 to include:

Members on Active Duty should not engage in partisan political activity, and members not on active duty should avoid inferences that their political activities imply or appear to imply official sponsorship, approval, or endorsement. DoDD 1344.10, para 4.

Members of the Armed Forces may not wear the uniform during or in connection with furthering political activity or when an inference of official sponsorship for the activity may be drawn. DoDI 1334.01, para 3.1.2.

Source: ogc.osd.mil/defense_ethics/resource_library/deskbook/political_activities_ppt.pdf

Commanders are advised to inquire in advance as to the nature of the event and if such flag disrespect will be part of the event, the host policy on such actions by employees or athletes (not attendees).

Military personnel, at a minimum should not be ordered to participate in such a protest. Most of these events are private, for-profit events such as sporting venues and Commanders have an obligation to restrict participation. Likewise there should be a plan if such activity occurs, i.e. withdraw the colors, leave the event.

Commanders should reach out to their JAG/ Legal Counsel for advice but beyond legal issues, the moral issue should guide them to avoid any such participation. Further, legal research clearly shows there is absolutely no right of free speech to protest from players or employees. Those are employment issues that can and may be curtailed by the employer or contract. Thus Commanders have a right to be concerned when they lend uniformed personnel to any such event.

While well established, that we as veterans fought for the right of the general public exercise of free speech and disrespect the flag; laws still exist that affect government employees and US Military personnel. It would seem clear that US Military personnel who violate DoD regulations (1344.10), USC, PL 94-344, etc may be subject to disciplinary sanctions. No commander should conspire or allow his/her troops to participate in any such event.

Title 4 USC:

§ 9. Conduct During Hoisting, Lowering or Passing of Flag.

During the ceremony of hoisting or lowering the flag or when the flag is passing in a parade or in review, all persons present in uniform should render the military salute. Members of the Armed Forces and veterans who are present but not in uniform may render the military salute. All other persons present should face the flag and stand at attention with the right hand over the heart, or if applicable, remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Citizens of other countries present should stand at attention....

It is worth noting for example that at many so-called Military Appreciation Nights, the for-profit motivation maybe to increase revenue while in reality they offer no special discount for military or veteran attendees. It seems they really appreciate our money, not our service. As such a Commander would be right to inquire as to the true benefit to ay veteran attending any military appreciation event.

Jeffrey D. Church

*Jeff Church is a retired USAF officer and a retired Police Sergeant and VFW Life Member. Views are his and do not necessarily reflect those of the DoD or US Air Force. Concerned persons should seek qualified legal guidance.

LEGAL ISSUES - US FLAG