A Republican hailing from Alabama with his own past of misunderstanding the law inaccurately claimed that football players kneeling during the national anthem can be held legally accountable.
“It’s against the law, you know that” said Roy Moore, the Republican candidate for Senate in Alabama, during an interview with TIME. “It was an act of Congress that every man stand and put their hand over their heart. That’s the law.”
Moore, who was ousted from the Alabama Supreme Court Bench twice, cited a section of U.S. Code that he said backed his claim.
“If they didn’t have it in there, it would just be tradition. But this is law,” he said.
Not quite, according to the code’s actual text. While the “Star-Spangled Banner” is playing, individuals who are not veterans or members of the Armed Forces “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.” (Those in uniform, veterans and members of the Armed Forces who are not in uniform are given different guidelines on saluting.)
The operative word in the text is “should,” according to legal experts.
Eugene Volokh is a law professor at the UCLA School of Law. He authored a textbook called “The First Amendment and Related Statutes” and teaches free speech law as well as a First Amendment amicus brief clinic.
“It’s not clear to me that 36 U.S.C. 301 was ever meant to be legally binding — it says what people ‘should ‘do rather than what they ‘shall’ or ‘must’ do,” Volokh said to CBS News.
To try and enforce it as a requirement would go against the First Amendment, Volokh added.
“The court held in West Va. Bd. of Ed. v. Barnette (1943), held that even public school students can’t be required to salute the flag; likewise, people can’t be required to stand at attention, put their hand over the heart, or remove their hats during the national anthem,” he explained.
The Alabama GOP senate nominee’s Facebook page contained a meme, which stated: “Want to stop riots Play the National Anthem. They’ll all sit down.”
A document presented by the Congressional Research Service in 2000 also describes the U.S. Code as setting forth guidelines — not legally binding requirements. According to “The United States Flag: Federal Law Relating to Display and Associated Questions,” “the Flag Code does not prescribe any penalties for non-compliance nor does it include enforcement provisions; rather the Code functions simply as a guide to be voluntarily followed by civilians and civilian groups.”
The Flag Code presents “a general rule,” according to the CRS.
“Therefore, actions not specifically included in the Code may be deemed acceptable as long as proper respect is shown,” the document notes.
Colin Kaepernick, former quarterback for the San Francisco 49ers, began taking a knee during the national anthem last year to bring attention to racial issues in the U.S., notably the treatment of Black men — and women — by police officers. This season, several players have taken similar action.
Even by the NFL’s standards, refusing to stand during the national anthem, while widely interpreted as being a slight to the flag or the military, is not currently a punishable offense. TIME reported in September that an NFL spokesperson cited the game operations manual as stating:
“The National Anthem must be played prior to every NFL game, and all players must be on the sideline for the National Anthem.
“During the National Anthem, players on the field and bench area should stand at attention, face the flag, hold helmets in their left hand, and refrain from talking. The home team should ensure that the American flag is in good condition. It should be pointed out to players and coaches that we continue to be judged by the public in this area of respect for the flag and our country. Failure to be on the field by the start of the National Anthem may result in discipline, such as fines, suspensions, and/or the forfeiture of draft choice(s) for violations of the above, including first offenses.”
Even if Moore’s comments were referring to players being required to be on the field during the anthem, the offense is not “illegal” by federal standards. According to the 2017 NFL Rulebook, “Where the word ‘illegal’ appears in this rule book, it is an institutional term of art pertaining strictly to actions that violate NFL playing rules. It is not meant to connote illegality under any public law or the rules or regulations of any other organization.”
Roy Moore was also removed from the Alabama Supreme Court — twice — for his extreme views and also called Islam a “fake religion.”
Moore, for his part, has demonstrated a lack of understanding when it comes to the law. He was removed from the Alabama Supreme Court bench on two separate occasions. Last year he was ousted permanently when he demanded judges refuse marriage licenses to gay couples. Despite the Supreme Court’s nationwide ruling legalizing same-sex marriage in 2015, Moore said the ruling did not necessarily apply to Alabama, citing “confusion and uncertainty.” And in 2003 he was removed from the bench for refusing to follow an order to remove a Ten Commandments statue he put in the Supreme Court building.
Moore also has a suspicious financial history, according to recent analyses by The Washington Post and The Associated Press. Moore was promised $180,000 a year for his part-time work with the Foundation for Moral Law, a religious freedom charity, despite previously alleging he did not collect a “regular salary.” Moore served as the organization’s president for six years. Between 2007 and 2012 Moore was entitled to more than $1 million from the organization. The charity was essentially created to financially serve Moore and his family.
Birther Republican Senate candidate Moore previously told a jury he does not collect a “regular salary” from the charity, which also employs two of Moore’s children.
Notably, another part of the U.S. Code also suggests ways to respect the flag that have seemingly been ignored by many people. These guidelines, outlined in 4 U.S.C. 8, are preceded with “should” as well. Among them:
The flag should never be used as wearing apparel, bedding, or drapery.
The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard.
No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart.