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I received an email from a Police1 reader. Jill described herself as “just a plain ’ole citizen from southwestern Indiana.” She reached out to me because she’d read my Police1 articles about the First Amendment and the limits of free speech for public employees acting in their official capacity.
Citizen concerns
Jill’s concern was with officers and departments flying the Thin Blue Line flag ‒ an American flag in black and white except the white line under the stars is blue.
Jill wrote, “I’ve seen it on uniforms, patrol cars, letterheads, business cards, the walls of police stations and even run up poles at the same level as our red, white and blue.”
A former school color guard, who takes the U.S. Flag Code seriously, Jill’s question for me was, “How is this allowed to continue?”
Jill believes this is a “desecration” of the American flag, which she holds dear. She doesn’t single out law enforcement. As she explained, “It’s not just the blue line though, red, yellow and every other color line that is used in any type of official capacity makes my stomach knot up.”
Jill isn’t alone. Others who hold the “red, white and blue” dear share her concern.
I wish my Dad were alive so I could ask him what he thought about the Blue Line flag. Dad was a career Marine who served in ’Nam as an “old man” in his 40s in charge of the Military Affiliate Radio System (MARS) in Da Nang. Mom, my brother and I stayed behind in Northern Virginia and drove by a statue of the Marines raising the flag at Iwo Jima whenever we went on base at Quantico, Virginia. Dad went to ‘Nam as a Master Gunner E-9 and returned a Chief Warrant Officer, mainly because they needed CWOs to replace the ones who were killed.
The U.S. Flag Code and U.S. v. Eichman
The provision of the Flag Code that opponents of the Blue Line flag say it violates is:
“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.”
Violation of the Flag Code originally contained a criminal penalty of a fine and up to one year in jail. But in 1990, in U.S. v. Eichman, addressing flag burning, the Supreme Court invalidated the federal law against flag desecration as violating free speech under the First Amendment. The current amended U.S. Flag Code has no penalty provision and is considered advisory flag etiquette.
Supporters of the Blue Line flag are not insensitive to the Flag Code’s standards. They argue that it’s not a desecration of the American flag, because it’s a completely different flag. But in numerous places where it’s sold online, it’s called the Thin Blue Line American Flag or the American Thin Blue Line Flag.
So, before a department sanctions displaying a Blue Line flag, administrators may want to consider that, while not illegal, many citizens, including those who strongly support law enforcement, have a negative reaction to this appropriation of the American flag. They may also want to consider whether they think it violates the U.S. Flag Code’s standards.
Free speech?
For officers, they must understand the difference between the free speech of private citizens the Supreme Court addressed in Eichman and their more limited free speech as public employees of the government.
If your department decides a Blue Line flag shall not be displayed, your decision to display it is not protected free speech unless it meets a three-prong test set by the Supreme Court. Here’s a whole article about that – Why “free speech” keeps costing cops their careers. If you look at some court cases that have applied this test, you’ll see it’s not easy to meet.
Lastly
I invite officers to contact us on law enforcement’s use of the Blue Line flag.
And, as always, thank you, officers, for your devotion to protecting and serving and your willingness to make the ultimate sacrifice.
This article, originally posted September 30, 2019, has been updated.
