By Dan Murphy
As Americans across the USA celebrate our nation’s 247th anniversary on July 4, we see across Westchester the United States flag proudly displayed in front yards and municipal buildings across the county.
But did you know that there is a Federal law which regulates where the American flag can be flown in relation to other flags on government property?
The “flag code” is the federal law that sets forth guidelines for the appearance and display of the U.S. flag. Specifically, Section 7 of the Flag Code reads,
§7. Position and manner of display: (c) No other flag or pennant should be placed above or, if on the same level, to the right of the flag of the United States of America,
We inform you about the Flag Code because of a dispute in the Village of Croton on the Hudson. Several residents in this small community of 8,000 have raised objections to the location of the American Flag, and the Pride Flag, both of which are flying outside Village Hall on different flagpoles.
The complaint is that the Pride flag is flying higher than the American flag, and that the Pride Flag is on a flagpole that is more prominently displayed outside Village Hall, while the American Flag is on a flagpole in a less visible location.
We have obtained emails sent to the Village and Village Mayor Brian Pugh. -THE AMERICAN FLAG IS RELEGATED TO A SECONDARY POLE IN THE BACK SIDE OF THE BUILDING AND IN 2 TO 3 FEET lower than the American Flagpole. We had a professional measure it,” wrote one email.
Originally, we thought this was an oversight by the Village, who would rectify it before the Fourth of July weekend. Instead, Croton Village Mayor Brian Pugh responded, in an email that we have obtained, “Our Village is NOT in violation of federal law. As the Congressional Research Service explains, “[t]he “flag code” is the federal law that sets forth guidelines for the appearance and display of the U.S. flag…Most of the flag code contains no explicit enforcement mechanisms, and relevant case law would suggest that the provisions without enforcement mechanisms are declaratory and advisory only.”
“Although not enforceable, we do try to adhere to the guidelines regarding the display of the flag and our current arrangement does not contradict the code. The US flag is located on its own pole (which I believe it shares with the POW/MIA flag). Another pole holds other commemorative flags (Pride, Juneteenth, Tree City, etc.). I do not know why you chose to characterize the latter pole as the principal pole. From the perspective of the memorial cenotaph at the Municipal Building, the former pole, the one carrying the US flag would be the principal one and it has the most prominent position being highly visible for those approaching the building coming down Old Post Road,” writes Pugh.
The question raised by Croton residents is, Is Violating the Flag Code Illegal? Kenneth R. Thomas Legislative Attorney for the Congressional Research Service, wrote, “No. While the U.S. Flag Code is a federal law, guidelines are only stated within the voluntary and non-binding language such as, “should” and “custom,” meaning there is no penalty for violating any of its provisions.
Another question-Can Prohibitions on Flag Misuse or Desecration Be Enforced?
Thomas writes, “The Supreme Court has repeatedly struck down the application of flag improper use or desecration laws on free speech grounds. In Street v. New York, 38 the Court considered a challenge to a law that made it a misdemeanor to “publicly mutilate, deface, defile, or defy, trample upon, or cast contempt upon either by words or act [any flag of the United States].” 39 In Street, the defendant, learning of the shooting of civil rights activist James Meredith, burned a flag on a Brooklyn street corner while stating “Yes; that is my flag; I burned it. If they let that happen to Meredith, we don’t need an American flag. Finally, the Court concluded that freedom of speech protected public expression of opinions about the flag, even if such opinions are defiant or contemptuous.”
Another interpretation of the Flag Code is that while “the U.S. Flag Code is a federal law, guidelines are only stated within the voluntary and non-binding language such as, “should” and “custom,” meaning there is no penalty for violating any of its provisions. This is because of the Supreme Court’s act in declaring the law unconstitutional in United States v. Eichman,” writes Thomas. In Eichman, the Court invalidated a Federal law against flag desecration on First Amendment grounds.
So while Mayor Pugh may be on firm legal ground, we question his political skills and inability to find compromise. He ignored the wishes of his own residents, and now that this story is out, Westchester residents and Veterans are outraged.
“As a Korean war veteran of the U.S. Navy Submarine service, and past commander of Armonk American Legion post 1097, my impression of Mayor Pugh’s comments was “pugh.” (definition in American English— Collins dictionary.” an explanation of disdain, contempt, or disgust,” writes Anthony Futia, of North Castle.
Former Westchester County Executive Rob Astorino, on his 770 AM WABC radio show on Saturday at 4pm said, “There is one flag for all of us, fly it the right way. This is how crazed the left has become.”
One Croton resident said, “For the Mayor to say, we don’t have to obey the Law because we can’t be punished is unreal. Public Officials and Public Property are supposed to set an example by following the law, enforceable or not.”
“Prevailing Federal law is on the books, and ample enforcement mechanisms are available. All that is needed is a US Attorney willing to enforce US Constitutional law against recalcitrant and lawless local officials who seem to think that they can abuse the rights of citizens of New York and the United States,” said New Rochelle resident Steve Mayo.
We leave you with Section 8 of the Flag Code which reads, “No disrespect should be shown to the flag of the United States of America.” We wish Everyone a Happy Fourth of July.
