HomeMy WebLinkAbout06/02/2009 03C Citizen Service Request Response RE: Upside Down American Flag at Cinco de Mayo Parade CITYOFYAKIMA G
LEGAL
DEPARTMENT
200 South Third Street, Yakima, WA 98901 -2830 (Phone) 509 - 575-6033 (Fax) 509 - 575 -6160
MEMORANDUM
May 27, 2009
TO: David Edler, Honorable Mayor
Yakima City Council Members
FROM: Cynthia Martinez, Senior Assistant City Attorney
SUBJECT: Upside Down American Flag
Washington State does have a law prohibiting the desecration of the American
flag:
RCW 9.86.030. Desecration of flag
(1) No person shall knowingly cast contempt upon any flag, standard, color,
ensign or shield, as defined in RCW 9.86.010 by publicly mutilating, defacing,
defiling, burning, or trampling upon the flag, standard, color, ensign or shield.
(2) A violation of this section is a gross misdemeanor.
It is unclear whether hanging the American flag upside down would qualify as an
act of desecration under the Revised Code of Washington. Arguably, hanging
the American flag upside down could be considered a symbolic act, as opposed
1 09.86.010. "Flag," etc., defined
The words flag, standard, color, ensign or shield, as used in this chapter, shall include
any flag, standard, color, ensign or shield, or copy, picture or representation thereof,
made of any substance or represented or produced thereon, and of any size, evidently
purporting to be such flag, standard, color, ensign or shield of the United States or of
this state, or a copy, picture or representation thereof.
Memo to Mayor and
City Council
May 27, 2009
Page - 2
to a sign of disrespect. The argument being that the topic of protest has placed
America in distress. In fact if you Google "upside down flag," there are a number
of instances around the Country of an upside down flag being displayed to
protest American, actions or policy.
The upside down U.S. flag is an official signal of distress. It is not meant to be, and
is not officially recognized as any type of disrespect when so displayed for the right
reasons. To the contrary, here is the relevant' part of the US Code of Laws
regarding how to fly the flag when in distress:
1' FLAG CODE
Title 36, U.S.C., Chapter 10
As amended by P.L. 344, 94th Congress
Approved July 7, 1976
§ 176. Respect for flag: No disrespect should be shown to the flag of the United
States of America; the flag should not be dipped to any person or thing.
Regimental colors, State flags, and organization or institutional flags are to be
dipped as a mark of honor.
(a) The flag should never be displayed with the union down, except as a signal of
dire distress in instances of extreme danger to life or property.
Regardless, had the Chief of Police observed the flag being desecrated during
the protest, there is little he could have done to prevent that act. The United
States Supreme Court has held that burning a flag during a protest is protected
under the First Amendment. See below. Since this Court decision some
members of Congress have talked about amending the United States
Constitution to exclude flag desecration from First Amendment protection.
Supreme Court of the United States
TEXAS, Petitioner
v .
Gregory Lee JOHNSON.
491 U.S. 397, 109 S.Ct. 2533, 105 L.Ed.2d 342, 57 USLW 4770
Argued March 21, 1989.
Decided June 21, 1989.
Defendant was convicted in the County Criminal Court No. 8, Dallas
County, John C. Hendrik, J., of desecration of venerated object,
and he appealed. The Dallas Court of Appeals, Fifth Supreme
Judicial District, 706 S.W.2d 120, Vance, J., affirmed, and
defendant petitioned for discretionary review. The Texas Court of
Criminal Appeals, 755 S.W.2d 92, Campbell, J., reversed and
remanded, and certiorari was granted. The Supreme Court, Justice
Brennan, held that: (1) defendant's act of burning the American
flag during a protest rally was expressive conduct within
protection of the First Amendment, and (2) State could not justify
2 The Chief indicates he did not observe the flag displayed upside down.
Memo to Mayor and
City Council
• May 27, 2009
Page - 3
prosecution of defendant based on interest in preventing breaches
of peace or to preserve flag as symbol of nationhood and national
unity.
Affirmed.
cc. Dick Zais, City Manager
Jeff Cutter, City Attorney
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