A Brief, Annotated, Defense
3 min read
a brief, annotated, defense of the use of an upside-down flag.
Whether done to signal other sailors of distress, or as political speech by the likes of Supreme Court Justice Samuel Alito or employees of the National Park Service in Yosemite National Park, an upside-down U.S. flag has long been a sign of dire distress and versatile symbol of protest.(1) Historically, it was even used by Henry David Thoreau on stage with Sojourner Truth, and William Lloyd Garrison during an anti-slavery protest in 1854.(2)
Does flying the American Flag upside-down violate the U.S. flag code? Yes. The code states, “the flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.” However, the code is only advisory and has been struck down multiple times by the Supreme Court.(3)
Without getting into the minutiae of case law, there are significant Supreme Court cases which have upheld a person’s right to use the American Flag as symbolic speech in expressive conduct and social protest. Please refer to Tinker v. Des Moines (1969), Texas v. Johnson (1989), United States v. Eichman (1990), and especially Street v. New York (1969) where SCOTUS ruled that the American Flag could be burned in protest.(4)
The right to fly a flag upside-down was affirmed in Spence v. Washington (1974). Here a student was flying an upside-down flag from their dorm room.
So now that we have discussed the history and the case law, I am now curious. Did you feel that flying the American Flag upside-down was so disrespectful on January 6, 2021? The sight of upside-down flags was common after Joe Biden defeated Donald Trump in the 2020 election, especially with the stop the steal movement. As I mentioned earlier, an upside-down American flag was displayed at the home of Justice Samuel Alito.
As I hope I have demonstrated, the use of an upside-down American Flag as a constitutionally protected form of free speech and protest, has been used for much of our country’s history by both people who consider themselves liberal and those that consider themselves conservative.
Perhaps, it is not the display of the flag that is disrespectful, but the conduct that triggered the protest that is disrespectful.
And to the person that prompted this post, I wish you peace, understanding, education, and knowledge through your travel towards enlightenment.
(1)“Upside-down flag at Justice Alito’s home another blow for Supreme Court under fire”, LINDSAY WHITEHURST and GARY FIELDS, May 17, 2024, https://apnews.com/article/justice-samuel-alito-upsidedown-flag-trump-jan6-f5809b9fd3be19b2359907f7b16651e5
(2)“How Election Deniers Claimed the Upside-Down Flag”, Michael Levenson, May 17, 2024, https://www.nytimes.com/2024/05/17/us/upside-down-american-flag-alito.html
(3)“Why is that American flag flying upside down?”, April 22, 2025, https://www.cleveland.com/open/2025/04/why-is-that-american-flag-flying-upside-down.html
(4)“Flying Flag Upside Down”, JOHN R. VILE, May 20, 2024, https://firstamendment.mtsu.edu/article/flying-flag-upside-down/
