Fifty years ago today, President John F. Kennedy was assassinated. In remembrance of this somber occasion, President Obama recently issued a proclamation naming this past Friday a Day of Remembrance and directing the flag to be flown at half-staff*. Thousands of buildings and residences across the United States dutifully recognized this presidential proclamation and displayed their flags at half-staff. I began to wonder how this happens and when it happens.
It’s no trivial question, actually. Owners of properties leased entirely to the federal government must display the American flag. If you are such a property owner you’ll find this brief clause in your lease:
If the Government is the sole occupant of the building, a flag pole shall be provided at a location to be approved by the Contracting Officer. The flag will be provided by the Lessor, as part of shell rent and replaced at all times during the Lease term when showing signs of wear.
Though the clause does not state it explicitly, the lessor is also responsible for proper display of the flag. There is no need to state this in the lease because proper display of the American Flag is established by federal law in Title 4, Chapter 1 of the United States Code, more commonly known as the “Flag Code”. In fact, it is the Flag Code that also requires federal leases to include the mandate that government buildings must have a flag pole. U.S.C. Title 4, Chapter 1, Section 6(e) states:
The flag should be displayed daily on or near the main administration building of every public institution.
So, you own a building that is entirely leased to the federal government. You must not only ensure that you have a flag pole on your property, you must also properly display the flag. The basic rules for flag display are well-known–how the flag should be fastened to the pole (above other flags), when it should be raised and lowered (sunrise and sunset, unless illuminated), how it should be handled (don’t let it touch the ground!) and even how worn flags should be disposed (in a dignified way, preferably by burning).
But how do you know when to fly the flag at half-staff? That is important too. Section 7(m) of the Flag Code offers some guidance, providing a lengthy description of the appropriate periods the flag must be displayed half-staff upon the death of principal figures of the federal government as well as Governors of the various States or U.S. territories. For instance, in the event of the death of a current or former U.S. President, the Flag Code designates that flags must be flown at half-staff for 30 days. If the deceased is the current Vice President, the Speaker of the House or a Supreme Court Justice, the flag shall be displayed at half-staff for 10 days (the passing of former Supreme Court Justices also warrants a 10 day remembrance). The demise of any current U.S. Representative or Senator only merits half-staff flag display on the day of their death and the day following.
But, of course, it’s more complicated than just that. Governors (and the Mayor of the District of Columbia) may order flags flown at half-staff as a mark of respect for a former or current state official who has died, or for a member of the armed forces who gave his/her life in active duty. In the event that a State Governor declares that flags shall be flown half-staff, all buildings in that State must comply–including federal buildings. There are also certain annual events when the flag must be flown at half-staff. The most obvious of these is Memorial Day (though on that day, the flag must be raised to full height at noon).
Also, at any time the President of the United States may issue a proclamation or executive order ordering flags lowered to half-staff. This is what President Obama did on November 21st when he declared last Friday a Day of Remembrance honoring the 50th anniversary of John F. Kennedy’s death. The proclamation was necessary because nothing in the Flag Code otherwise recognizes this event.
OK, so it’s a little complicated but, worst case, just keep an eye on your neighbors and follow what they do, right? Uh oh, that might not be such a good idea either. Violations of the Flag Code are rampant. Upon the death of Steve Jobs, Apple flew its flags at half-staff to honor their tech hero, and Microsoft and Disney World joined in. Yet, the display was technically illegal because no proclamation had been issued by the President allowing it. New Jersey’s Governor Christie similarly violated the law when he ordered flags in New Jersey lowered to half-staff in remembrance of Whitney Houston. This was a violation of law because the proclamation exceeded the Governor’s limited authority to issue such orders relative to the death of state officials or active armed services personnel. Even Congress can confuse matters since leaders of both the House and Senate may, reportedly, choose to lower the flags above their respective chambers.
The safest thing to do is to check the web daily to see if any legitimate half-staff proclamations have been issued. One such resource relied upon by property managers is halfstaff.org, which provides daily federal and state bulletins.
Thankfully, there is no criminal penalty for failure to properly comply with the Flag Code because the Supreme Court has ruled that such enforcement would violate the First Amendment. You would, however, be in violation of your lease. Be alert!
* “Half-staff” is the proper non-nautical term for flying a flag halfway up the flag pole. At sea, the term is “half-mast”, a nod to the tradition of flying flags from the ship’s mast.