Will Department of Justice Prosecute Flag-Kneelers?

Nick Infante, College Athletics Clips Editor, writes today: “I do not think it is unreasonable to foresee the big foot of the Department of Justice to insert itself more forcefully into this issue.  You heard it here first?”

I’m taking Nick’s handoff and running a few yards. 

The U.S. Code regulates the use of, and respect for, the flag. In brief, the main part of the Code that criminalized flag desecration was ruled unconstitutional in a flag-burning case, Texas v. Johnson (1989).

A key passage stated: “Under the circumstances, Johnson’s burning of the flag constituted expressive conduct, permitting him to invoke the First Amendment. ... Occurring as it did at the end of a demonstration coinciding with the Republican National Convention, the expressive, overtly political nature of the conduct was both intentional and overwhelmingly apparent.”

This ruling would clearly apply to flag-kneelers.

But what if President Trump wants to stoke the culture war by ordering his Attorney General to prosecute a player?

The closest section appears to be this:

§177. 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 except those in uniform should face the flag and stand at attention with the right hand over the heart.

I’ve underlined two parts. “Should” can never be a predicate for a criminal offense. The essence of a criminal law is “mens rea,” meaning the intention or knowledge of wrongdoing that constitutes part of a crime.

But President Trump loves to cherry pick concepts and themes—especially when his paper-thin skin has an allergic reaction to blowback. And he loves to divide Americans. He might focus on the “stand at attention with the right hand over the heart.”

Another possibility: The Flag Code authorizes a president to issue an executive order. The Code says:

§178. Modification of rules and customs by President

Any rule or custom pertaining to the display of the flag of the United States of America, set forth herein, may be altered, modified, or repealed, or additional rules with respect thereto may be prescribed, by the Commander in Chief of the Armed Forces of the United States, whenever he deems it to be appropriate or desirable; and any such alteration or additional rule shall be set forth in a proclamation.

This is pure speculation on my part-- and hopefully, an unnecessary post. 

Two concluding points. These approaches would (1) be legally futile, and (2) advance the core message of flag-kneelers: America is plagued by racial injustice.