In Which I Sort of Defend Rep. Allen West from a Charge of Illegal Flag-Wetting

The Daily Pulp accused Rep. Allen West of violating the law against letting the US flag get when when he took a flag Scuba diving in order to be photographed planting it on a reef.

It seems Politifact had nothing better to do than to consider this important question, and in the process of exhaustively considering it, they gave me a call. You can see their report at Bloggers say West violated federal law by diving with American flag, in which they rate the claim as “False”.

Which is sort of true. It’s certainly true that there is a zero percent chance that anyone would be prosecuted for taking a flag underwater, as the US Supreme Court has ruled that a statute (18 U.S.C.A. § 700) banning flag burning was unconstitutional. United States v. Eichman, 496 U.S. 310 (1990), and earlier Texas v. Johnson, 491 U.S. 397 (1989). From the flag burning decisions it surely follows that any attempt to prosecute someone for violating 4 USC § 8 by taking a flag under water would fail. [We won’t even discuss the question of submarines’ hulls…]

In any case there appears to be no legal penalty for violating that section (as contrasted to, say, 4 USC § 3, which creates a penalty for using the flag for advertising in the District of Columbia).

Furthermore § 8 is preceded by § 5 which says in part:

The following codification of existing rules and customs pertaining to the display and use of the flag of the United States of America is established for the use of such civilians or civilian groups or organizations as may not be required to conform with regulations promulgated by one or more executive departments of the Government of the United States.

Plus, § 8 (like §§ 5-7) uses the word “should” which also suggests this is not a legally binding rule.

So it’s pretty clear to me that this rule is advisory, or normative, but, not mandatory unless referenced somewhere else in the code, which I don’t believe it is.

This creates the odd (but not unique) circumstance that something can be a violation of a provision in the US Code, yet not a violation of a law that you can actually get arrested or fined for violating. Thus, from an enforcement perspective the rules are, as I told Politifact, an issue of decorum, not law.

Unlike Politifact, though, I’m a bit more sympathetic to the Daily Pulp story, which I’d say was carefully drafted in an attempt to be technically true. The one thing one might question is this sentence: “The Flag Code constitutes federal law, although there is no penalty for breaking this law.” (And I guess the headline too.)

But that just highlight the philosophical question: can you have a “law” that there is no penalty for breaking? If you think that everything in the federal code is “federal law” then the Pulp piece is almost true, subject to the additional complexity that this “law” would be unconstitutional if enforced (it’s not actually unconstitutional only because it is not in fact enforced).

On the other hand, if you don’t buy that — and I think I don’t — then you think the advisory parts are not really “law”. But doesn’t that maybe make the Daily Pulp story maybe “mostly true”. After all, the Daily Pulp article does immediately say the “law” is not an enforceable rule. It’s not as if they falsely suggested Rep. West was facing even a ticket, much less a court date. I’d let them off gently.

On last thought: with coral reefs being endangered, was the flag planting in compliance with environmental law? A quick search suggest it might be so long as the divers didn’t take any coral home with them, nor hit it with a boat.