Constitution Daily

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Does the United States or other countries compel National Anthem etiquette?

August 31, 2016 by Scott Bomboy


The recent stance by National Football League player Colin Kaepernick about standing for the national anthem is drawing a lot of attention to the customs and legal issues  related to a person's behavior during the anthem’s playing.

nfl-nationalanthem535Kaepernick, 28, is sitting down during the playing of "The Star-Spangled Banner" during the NFL preseason. Kaepernick told the NFL Network his actions were a protest against violent acts taken against people of color.

The NFL, in a brief statement, said that "players are encouraged but not required to stand during the playing of the national anthem” and Kaepernick doesn’t face league sanctions. But there is plenty of debate in the public arena about Kaepernick’s decision, the First Amendment, and the behavior of any citizen when the anthem is played, especially in the presence of an American flag.

Another NFL player, Rashad Jennings of the New York Giants, doesn’t agree with Kaepernick’s stance and Jennings says he’ll continue to stand for the anthem.

“I would say that it’s nice to know that we live in a country where sitting down during the anthem won’t land you in jail or worse. But I personally choose to stand and honor the anthem for what I hold it to represent to me,” Jennings told the New York Daily News.

In the United States legal code, there are statutes that apply to flag etiquette, the Pledge of Allegiance, and the National Anthem. Currently, these statutes don’t include language that would make it a criminal offense to disobey the guidelines, but the rules are widely followed.

That hasn’t always been so. In 1968, Congress approved the Federal Flag Desecration Law after a Vietnam War protest. The law made it illegal to “knowingly” cast “contempt” upon “any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it.” But in 1989, a deeply divided United States Supreme Court upheld the rights of protesters to burn the American flag in a landmark First Amendment decision.

A second Supreme Court decision in 1990 struck down a new federal law that made it a criminal offense to burn American flags in protest. “If there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable,” said Justice William Brennan at the time.

The National Anthem statute now on the books, known as 36 U.S. Code § 301, acknowledges that the Star-Spangled Banner is the official national anthem; and that military members should salute as it plays or is performed, while “all other persons present 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.” In all cases, the attention given to the anthem should be the same, regardless of the presence of the flag at the location.

These rules and customs are similar to those followed for the Pledge of Allegiance. In 1943, the Supreme Court invalidated a West Virginia state law that required members of the Jehovah’s Witnesses group to salute the flag and recite the Pledge.  “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein,” said Justice Robert Jackson.

But in other countries, as Jennings alluded to in his comment to the Daily News, there are legal penalties for violating etiquette related to national anthems.

In India, for example, there has been an ongoing debate about whether citizens there can be punished under the “Prevention of Insults to National Honor Act” for disturbing the anthem’s playing. Offenders could face up to three years in prison for a disturbance.

Russia fines citizens for the offense of mocking its national anthem, and its government is considering adding criminal charges of up to one year of imprisonment or hard labor for the “deliberate distortion of the musical arrangement or lyrics of the national anthem of the Russian Federation.”

In Japan, some public school teachers in recent years have refused to stand for that nation’s anthem, objecting to its connection to Japan’s former military regime. Japan’s Supreme Court ruled in 2012 that schools could force teachers to sing the anthem, but punishments for teachers refusing to sing can't be excessive.

Scott Bomboy is the editor in chief of the National Constitution Center.

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