Is Colin Kaepernick breaking the law by not standing for the National Anthem?

On Friday, prior to a National Football League preseason game, San Francisco 49ers’ quarterback Colin Kaepernick opted not to stand during the playing  of the “Star-Spangled Banner."

Kaepernick explained following the game, “I am not going to stand up to show pride in a flag for a country that oppresses Black people and people of color. To me, this is bigger than football and it would be selfish on my part to look the other way. There are bodies in the street and people getting paid leave and getting away with murder.”

As controversy over Kaepernick's decision spread, the NFL issued a statement over the weekend saying, "Players are encouraged, but not required, to stand during the playing of the National Anthem."

While the NFL doesn’t require you stand when the anthem is played, the federal government has a different take on whether you should.

Here’s a quick look at what the United States Code says about how we should be conducting ourselves in the presence of the country’s flag and at the playing of the Star-Spangled Banner.

Are American citizens required to stand during the National Anthem?

According to Title 36 (section 171) of the United States Code, “During rendition of the national anthem when the flag is displayed, all present except those in (military) uniform should stand at attention facing the flag with the right hand over the heart. Men not in uniform should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart. Persons in uniform should render the military salute at the first note of the anthem and retain this position until the last note. When the flag is not displayed, those present should face toward the music and act in the same manner they would if the flag were displayed there.”

The question, of course, is whether “should” in the first sentence means “must” or “shall.”

So does it, and what’s the penalty if I don’t stand?

No, it doesn't. Section 171 does not specify nor impose penalties for violating the section of the code. According to a Congressional Research Service report to Congress in 2008, “The Flag Code is a codification of customs and rules established for the use of certain civilians and civilian groups. No penalty or punishment is specified in the Flag Code for display of the flag of the United States in a manner other than as suggested. Cases ... have concluded that the Flag Code does not proscribe conduct, but is merely declaratory and advisory."

In other words,  the Flag Code serves as a guide, and it is followed on a voluntary basis. You won't be forced to stand for the National Anthem, nor hauled off to jail if you don't. Cases brought because of something in the code --  mainly ones that involve defacing the flag  -- have made their way to the U.S. Supreme Court where the justices have upheld that such conduct is protected  by the First Amendment.

There are no provisions in the code for either enforcement nor penalties.

(A side note:  In Massachusetts, singing the National Anthem, "other than as a whole and separate composition or number, without embellishment or addition … or, as dance music, as an exit march or as a part of a medley of any kind, shall be punished by a fine of not more than one hundred dollars." Same goes for enforcement here, no one will be arrested for dancing to the anthem.)

See other stories about Colin Kaepernick and the National Anthem:

>>Intense fan burns Colin Kaepernick jersey in protest

>>Victor Cruz criticizes Kaepernick's decision to sit during anthem

>>Colin Kaepernick's national anthem protest ignites debate on social media

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.

What did Kaepernick say about staying seated?

From ESPN, here is a transcript of what Kaepernick said about this decision to remain seated during the National Anthem (the questions have been edited for length).

Why did you choose to do this?

People don't realize what's really going on in this country. There are a lot things that are going on that are unjust. People aren't being held accountable for. And that's something that needs to change. That's something that this country stands for freedom, liberty and justice for all. And it's not happening for all right now.

Is this something that's evolved in your mind?

It's something that I've seen, I've felt, wasn't quite sure how to deal with originally. And it is something that's evolved. It's something that as I've gained more knowledge about, what's gone in this country in the past, what's going on currently. These aren't new situations. This isn't new ground. There are things that have gone on in this country for years and years and have never been addressed, and they need to be.

Will you continue to sit?

Yes. I'll continue to sit. I'm going to continue to stand with the people that are being oppressed. To me this is something that has to change. When there's significant change and I feel like that flag represents what it's supposed to represent, this country is representing people the way that it's supposed to, I'll stand.


There's a lot of things that need to change. One specifically? Police brutality. There's people being murdered unjustly and not being held accountable. People are being given paid leave for killing people. That's not right. That's not right by anyone's standards.

So many people see the flag as a symbol of the military. How do you view it and what do you say to those people?

I have great respect for the men and women that have fought for this country. I have family, I have friends that have gone and fought for this country. And they fight for freedom, they fight for the people, they fight for liberty and justice, for everyone. That's not happening. People are dying in vain because this country isn't holding their end of the bargain up, as far as giving freedom and justice, liberty to everybody. That's something that's not happening. I've seen videos, I've seen circumstances where men and women that have been in the military have come back and been treated unjustly by the country they fought have for, and have been murdered by the country they fought for, on our land. That's not right.

Do you personally feel oppressed?

There have been situations where I feel like I've been ill-treated, yes. This stand wasn't for me. This stand wasn't because I feel like I'm being put down in any kind of way. This is because I'm seeing things happen to people that don't have a voice, people that don't have a platform to talk and have their voices heard, and effect change. So I'm in the position where I can do that and I'm going to do that for people that can't.

Are you concerned that this can be seen as a blanket indictment of law enforcement in general?

There is police brutality. People of color have been targeted by police. So that’s a large part of it and they’re government officials. They are put in place by the government. So that’s something that this country has to change. There’s things we can do to hold them more accountable. Make those standards higher. You have people that practice law and are lawyers and go to school for eight years, but you can become a cop in six months and don’t have to have the same amount of training as a cosmetologist. That’s insane. Someone that’s holding a curling iron has more education and more training than people that have a gun and are going out on the street to protect us.

Do you think you might get cut over this?

I don’t know. But if I do, I know I did what’s right. And I can live with that at the end of the day.

How does that song go, again?

"The Star-Spangled Banner"

Oh, say can you see by the dawn's early light

What so proudly we hailed at the twilight's last gleaming?

Whose broad stripes and bright stars through the perilous fight,

O'er the ramparts we watched were so gallantly streaming?

And the rocket's red glare, the bombs bursting in air,

Gave proof through the night that our flag was still there.

Oh, say does that star-spangled banner yet wave

O'er the land of the free and the home of the brave?

Here's Whitney's version