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I came across an interview where a person mentioned 36 U.S. Code § 301, which according to https://www.law.cornell.edu/uscode/text/36/301 mentions how a person should respond to the National anthem.

Is this technically a law or a suggestion? And would breaking it be illegal?

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It is a law, as it is part of the US Code, but there are no penalties listed as part of the statute, so there are no criminal implications to not following the statute.

The key words to understand in the statute are "should" and "may." Those do not mean "must." If the statute stated "must," then we can assume there would be a penalty mentioned.

The document to read, which covers all pertinent aspects of flag etiquette and suggested behavior during flag ceremonies and the pledge of allegiance (as well as legal history) is Federal Law Relating to Display and Associated Questions - usflag.pdf (my emphasis) :

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 civilan groups....

The Federal Flag Code does not purport to cover all possible situations. Although the Code empowers the President of the United States to alter, modify, repeal, or prescribe additional rules regarding the flag, no federal agency has the authority to issue “official” rulings legally binding on civilians or civilian groups. Consequently, different interpretations of various provisions of the Code may continue to be made. The Flag Code itself, however, suggests a general rule by which practices involving the flag may be fairly tested: “No disrespect should be shown to the flag of the United States of America.” Therefore, actions not specifically in the Code may be deemed acceptable as long as proper respect is shown.

It's possible that bills may be passed by Congress or attempts made by presidential executive order (EO) to criminalize behavior related to flag etiquette, but if such laws or EOs became laws, they would conceivably need conflicts with the First Amendment settled by the courts.

  • Well if POTUS changes the words "may" and "should" to "must" and lists penalities then will it be illegal to kneel down during anthem ?? – Aashish Loknath Panigrahi Oct 18 '17 at 23:57
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    POTUS could try to directly amend US Code, but his Executive Power would be called into question by a lawsuit and the matter would be resolved in numerous courts. – BlueDogRanch Oct 19 '17 at 1:38
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    @AashishLoknathPanigrahi the text of the code is set by congress, either with the consent of the president or after overriding his veto. The president cannot unilaterally modify the code. – phoog Oct 19 '17 at 9:24
  • For reference, Congress did pass a legal ban on flag-burning in the past, with prescribed penalties. However, this ban was been found to infringe upon free-speech rights in the US Supreme Court. See United States v. Eichman, from 1990. If a new flag-etiquette law was passed, it'd have to be crafted in such a way that the Supreme Court could overlook this precedent. – Michael Seifert Oct 19 '17 at 18:12

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