Yes, Virginia, Kaepernick is Breaking the Law

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Published on: September 7, 2016

Is Colin Kaepernick breaking the law by refusing to stand for the national anthem? Absolutely.

Will he get thrown in jail for it? No.

Will he get fined? That’s up to the NFL. Should he get fined? Of course. If they can insist that he respect a yellow flag, they can insist that he respect the American flag.

There is no question that Kaepernick is violating federal law by kneeling or sitting rather than standing and placing his hand over his heart while the national anthem is played.

The prescription for “conduct during playing” of the national anthem is found in the U.S. Code. According to Wikipedia, the U.S. Code is “The Code of Laws of the United States of America is the official compilation and codification of the general and permanent federal statutes of the United States.” (Emphasis mine throughout unless otherwise noted.)

According to Merriam-Webster, a “statute” is “a law enacted by the legislative branch of a government.” So the directive for the observance of the national anthem is a law. It is a statute, which is another word for a law. It’s not a recommendation. It’s not just a nice idea, it’s the law.

According to 36 U.S. Code Section 301, the expressed declaration of Congress is clear and straightforward. After directions to members of the military – “individuals in uniform should give the military salute at the first note of the anthem and maintain that position until the last note” – explicit directions are given to every other American:

“(A)ll other persons present 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.”

I find nothing remotely ambiguous about this statute. Americans “should” stand with their right hand over the heart during the anthem. If you look up the word “should” in the dictionary, the first meaning you’ll read identifies it as a word “used to indicate obligation (or) duty.” In other words, it’s not a suggestion.

In fact, the word “should,” as we pointed out, is also used with regard to directions to members of the military. The civilians have the same obligation to stand and place the hand over the heart as military members have to stand and salute.

Now to be sure there is no penalty prescribed for the failure of citizens to obey this federal law. (There is no penalty prescribed for members of the military, either, but soldiers would quickly discover the military would straighten them out in very short order.)

The fact that there is no penalty prescribed means you won’t get in trouble with the federal government for not obeying. But just because you won’t get it in trouble doesn’t mean you are not violating federal law. Kaepernick can transgress this law with impunity, but that doesn’t change the plain fact that he is disobeying the law.

When conservative voices pointed this out, low-information media outlets such as the Atlanta Journal Constitution were quick to bellow that everything here is “voluntary” and this code is only “advisory.” Forbes indignantly sneered that this law is nothing more than a “guideline.”

But hilariously, in one explanatory paragraph, the AJC uses the word “law” four times, apparently not realizing they were making our very point:

“How long has this been the law?

“Until 1923, there was no law governing the display of the flag of the United States or direction on how to conduct yourself around it. On June 14 of that year, the National Flag Code was adopted by the National Flag Conference. Led by members of the Army and Navy, 66 groups came together to decide on procedures to display the flag and how to conduct oneself around the flag. It wasn’t until 1942 that Congress passed a joint resolution to make the standards Public Law 829: Chapter 806. That law spells out the exact accepted use, display, expected conduct in the presence of the flag, and pledge to be made to the flag.”

Now while the federal government is not going to crack down on Kaepernick, there is nothing to prevent the NFL from disciplining him. If the NFL can honor the military week in and week out, they can certainly tell Kaepernick to honor the flag. If the league can tell you what kind of socks you have to wear and what kinds of decals you can’t, it’s absurd to think it cannot tell you what posture to adopt during the national anthem. Coaches tell NFL players what to do every day, and these players discover every day what happens when they don’t.

The NFL can’t make Kaepernick patriotic, but it can make him wish he was. (If you’d like to sign AFA’s petition to the NFL, urging the league to discipline Kaepernick, you can do so here.)

To paraphrase Mark Twain, patriotism means loving your country all the time and supporting your government when it’s right. The flag doesn’t stand for this administration or any other, it stands for our one indivisible nation under God. If I had to agree with this administration in order to honor flag and country, I’d have been sitting on my fanny for the last eight years.

No, the anthem and the flag is about our country and our allegiance to it. This is a lesson that Colin Kaepernick has yet to learn.

(Unless otherwise noted, the opinions expressed are the author’s and do not necessarily reflect the views of the American Family Association or American Family Radio.)

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