I feel a little like the Arizona Republic's Clay Thompson in discussing this issue, raised via e-mail by someone involved in the effort to recall state Senate President Russell Pearce. But here goes.
Some have suggested that Pearce, who proclaims himself to be a great patriot, has been in violation of federal code 4 U.S.C. § 8 for wearing a United States flag shirt in public on more than one occasion.
The most infamous of these was during an anti-immigrant wing-ding at the state Capitol in 2008, when I witnessed him working the crowd with his then bosom companion J.T. Ready, Arizona's best known neo-Nazi. I here include one of the photos of Pearce that I snapped in his offending garb as "people's exhibit: A."
Federal law addresses the display of the flag, but is a little vague when it comes to the use of flag images as clothing. The statute above states, in part, that,
"The flag should never be used as wearing apparel, bedding, or drapery. It should never be festooned, drawn back, nor up, in folds, but always allowed to fall free. Bunting of blue, white, and red, always arranged with the blue above, the white in the middle, and the red below, should be used for covering a speaker's desk, draping the front of the platform, and for decoration in general."
The statute also prohibits the use of the flag as "a costume or athletic uniform," though "a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations." A lapel flag pin is OK, as long as it's on the left lapel near the heart.
Additionally, the law declares that, "No disrespect should be shown to the flag of the United States of America," and that, "The flag represents a living country and is itself considered a living thing. "
So has Pearce disrespected the flag he proclaims to love by making a classic redneck fashion statement and using a tacky version of Old Glory to cover his belly?
Well, even if he has, there's no criminal or civil penalty associated with this statute. Otherwise, we'd have to arrest Kid Rock, Ted Nugent, Lady Ga Ga, and numerous other celebrities and ordinary folk for running afoul of federal code.
Some guidance can be found in a 2008 Congressional Research Service report, which addresses the issue of the flag as clothing:
"While wearing the colors may be in poor taste and offensive to many, it is important to remember that the Flag Code is intended as a guide to be followed on a purely voluntary basis to insure proper respect for the flag. It is, at least,questionable whether statutes placing civil or criminal penalties on the wearing of clothing bearing or resembling a flag could be constitutionally enforced in light of Supreme Court decisions in the area of flag desecration."
As alluded to in this quote, the U.S. Supreme Court has ruled more than once that flag burning and other forms of its desecration are protected as symbolic speech under the First Amendment to the U.S. Constitution. This pretty much renders the whole debate moot.
I suppose one could argue that unless Pearce's shirt was made from an actual American flag, he would not be in violation of the law. But then you get into the whole idea of the flag as a concept versus a specific thing in and of itself. Hairsplitting, at best.
On second thought, maybe we should arrest flag desecrators such as the Muttonhead from Mesa. After all, the law is the law. Sure, it's a minor violation of federal code. But then, so is illegal immigration.
Lastly, I should note that the Arizona state criminal code includes 13-3703, "Abuse of venerated objects," of which a flag (any flag, apparently), would be one. It's a class 2 misdemeanor and could result in four months in the slammer or a $750 fine.
Of course, federal law and attendant court precedents trump state law, generally, but isn't Pearce all about states rights?
