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Diary of a Mad Law Professor

Semaphore

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Some years ago, artist Dread Scott presented a controversial installation titled "What Is the Proper Way to Display a U.S. Flag?" In one area of the gallery he invited visitors to write down their thoughts while standing on what he described as a real American flag spread on the floor. The entire exhibit was designed to pose the question of what a flag is, really. What's an unreal flag? A fictional flag? When is its image "art" or advertisement or re-creation for the purpose of commentary or individualized expression? If it is iconic, then what is the representative American story embodied in its iconicity?

About the Author

Patricia J. Williams
Patricia J. Williams
Patricia J. Williams, a professor of law at Columbia University, was born in Boston in 1951 and holds a BA from...

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This year, the Fourth of July comes at a vexed moment for our national symbol; frankly, if I were the flag, I'd be completely tuckered out. The marketplace for patriotism has the Stars and Stripes working overtime—in the form of bumper stickers, T-shirts, wind socks and chest tattoos. The World Cup ushered in a healthy harvest of flag-emblazoned windbreakers, headbands, jockstraps and leather balls. One can find automotive dealers using the flag to sell trucks; Christian Identity churches using the flag to promote white supremacy; and supermarkets using the flag to push chicken breasts, swizzle sticks, tortilla chips and toilet paper.

When The New Yorker ran its controversial cover of the then-campaigning Obamas in radical drag, complete with an image of the flag "crisping" in the Oval Office fireplace (as editor David Remnick described it), many readers cited "bad taste." It is interesting that collectively we seem to have greater tolerance for bad taste when the flag is used in, say, a wrestling competition, wrapped around the fist of He-Man the Hulk as he punches Ruli the Russki repeatedly.

While I believe that every one of the uses cited above is in poor taste, I think the more interesting issue is that they are all technically against the law, as described in our Flag Code: the flag should never be used as "wearing apparel, bedding, or drapery." It should never touch "the ground, the floor, water, or merchandise." It should not be placed anywhere it could be "easily torn, soiled, or damaged in any way," nor should it be "used as a receptacle for receiving, holding, carrying, or delivering anything." No part of the flag should be used in any "costume or athletic uniform," nor should it be "used for advertising purposes in any manner whatsoever" or "embroidered on such articles as cushions or handkerchiefs" or "printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard."

I suppose it goes without saying that this implicates the propriety of a coffin encrusted with red, white and blue rhinestones arranged in the shape of the Stars and Stripes. (Who's first to throw a shovelful of dirt on top of that entombment of the dearly departed?) But as we celebrate the birth of our nation with parades across America, it also indicts the inevitable aftermath—that litter of miniature paper flags on little sticks, stained with ice cream and children's fingerprints, covering the ground like flower petals, like crumpled paper napkins, so symbolic one moment, so entirely disposable the next.

Fortunately for all of us, the Flag Code is hortatory or advisory only. US Code, Title 4, Chapter 1, Section 8, details the rules of etiquette by which the flag should be handled, but the Supreme Court has consistently ruled that transgressions of those rules are protected by the First Amendment and are therefore not punishable either civilly or criminally.

Figurative expression is always an issue with or without the First Amendment. Whether one gets more upset because an antiwar protester burns the flag, or a neo-Nazi displays it next to a photo of Hitler, or an artist invites the public literally to stand on it is itself representative of the fluidity of cultural context and the diversity of American identity. The distress that for many accompanies some of these actions highlights as well the varied investments in iconoclastic, rather than multiple—including ironic—readings.

Indeed, perhaps the most powerful and interesting part of the Flag Code—Section 8, subsection (j)—says, "The flag represents a living country and is itself considered a living thing." This is why, according to the act, "the lapel flag pin, being a replica, should be worn on the left lapel near the heart." So even a "replica" must be worn next to the heart, the metaphoric circulatory center of our constitution. But again, this all begs the question of what a "real" flag is, and what a "replica" is, to say nothing of an artistic representation.

This question is particularly interesting given the proliferation of customized flags generated by the Tea Party movement. There are scads of variations: the field of stars replaced by a picture of a teacup or a teapot or a giant Roman numeral II (supposedly indicating a second revolution) or a rattlesnake or President Obama's face, X'ed out. For those who ostensibly revere the flag and its traditions, these creative renderings ought to pose at least a bit of a dilemma in view of the language of Section 8, subsection (g) of the Flag Code: "The 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."

We Americans must marvel at the ecumenism of ends to which our flag is put. Ours is a secular faith whose expressive freedom blossoms not only in the tacky little toothpick flags protruding from all those burgers and bacon-wrapped hors d'oeuvres but also in the quiet allowance of such variation. Let's hope that this variety is understood as pluralism rather than division and as the expression of an American identity that is the sum of its many parts, the mending of multiples and the tolerant engagement from which a living nation grows.

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