Senate candidate Roy Moore claims kneeling during national anthem violates federal law

|The Volokh Conspiracy |

Roy Moore, GOP Senate candidate and former chief justice on the Alabama Supreme Court, speaks during the annual Family Research Council's Values Voter Summit at the Omni Shorham Hotel on Oct. 13 in Washington. (Mark Wilson/Getty Images)

Time (Nash Jenkins) reports:

In an interview with TIME magazine, the Alabama Republican argued that NFL players and others who have protested police violence are violating a section of the U.S. code which outlines how people should conduct themselves when the anthem is played. …

"It's against the law, you know that?" he said. "It was a act of Congress that every man stand and put their hand over their heart. That's the law." …

"I back the President in upholding respect for the patriotism for our country, on two grounds," he said. "One, it's respect for the law. If we don't respect the law, what kind of country are we going to have? Two, it's respect for those who have fallen and given the ultimate sacrifice. I'm surprised that no one brought this up."

He added that it's a matter of the "the rule of law."

"If they didn't have it in there, it would just be tradition. But this is law," he said. "If we disobey this, what else are we going to disobey?["]

Here's my thinking:

1. The federal statute appears to be 36 U.S.C. § 301, which provides,

During a rendition of the national anthem –

(1) when the flag is displayed—…

(C) all [people present who are not in uniform, not armed forces and not veterans] should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart …

The statute says "should," and that is often the mark of a law that is merely hortatory—setting forth a recommended practice—rather than legally binding (which is what the words "must" and "shall" would usually signal), especially because the provision doesn't say anything about a violation being criminal. Thus, for instance, the court in Sadlier v. Payne (D. Utah 1997) held that the federal Flag Code (36 U.S.C. § 176) is not binding:

[Some] suggest that displaying an American flag with a yellow fringe is a violation of 36 U.S.C. § 176(g), which provides that "[t]he 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." Apparently, the fringe is considered to be a "design" that is attached to the flag. This part of Title 36, commonly known as the "flag code," is not, however, intended to proscribe conduct. See Holmes v. Wallace, 407 F.Supp. 493, 496 (M.D.Ala.), aff'd, 540 F.2d 1083 (5th Cir.1976) (Mem.). The repeated use of the word "should" throughout § 176 indicates a lack of penal purpose and its advisory nature. Id. In addition, § 176 does not proscribe any remedy for its violation.

Likewise, more generally, there are statements such as this (though I acknowledge that some courts have held otherwise, though not as to flag or anthem etiquette): "The term 'should' indicates a recommended course of action, but does not itself imply the obligation associated with 'shall.' " Qwest Corp. v. FCC (10th Cir. 2001); see also Barnhart v. Peabody Coal Co., 537 U.S. 149, 185 (2003) (Thomas, J., dissenting) (noting that the word "should" signifies that Congress is speaking in a hortatory way, not a mandatory way).

2. In any event, even if the statute were seen as binding, it would violate the First Amendment: The court in West Va. Bd. of Ed. v. Barnette (1943) held that even public school students couldn't be punished for refusing to engage in a flag salute. The logic of that case equally applies to punishing people for refusing to stand for a flag salute, see Lipp v. Morris (3d Cir. 1978) (en banc), and likewise as to the national anthem. That too is "law"; indeed, under Articles V and VI of the Constitution, the First Amendment is part of "the supreme law of the land."

3. People are generally required to stand when a judge enters the courtroom; but if that is constitutional (a matter that isn't entirely certain, especially as to parties who have to be before the court), that is only because First Amendment rights in general are sharply reduced in a courtroom, government property used by the government for government functions. You can be held in contempt for saying things out of turn in court. You can be held in contempt for not saying things, in the form of remaining silent when ordered to testify (and when you have no privilege excusing you from testifying). It's not surprising that you might be held in contempt for not engaging in certain symbolic expression, such as rising for the judge. But none of this would apply to people refusing to stand for the national anthem at an NFL stadium.