Was it legal to fly the flag upside-down at Samuel Alito’s house?

Media reports that Supreme Court Justice Samuel Alito’s house displayed an upside-down American flag, a traditional sign of political dissent, after the storming of the Capitol on Jan. 6, 2021, set off a firestorm of criticism over whether the move was a political statement that compromises his impartiality. 

Hanging the flag upside down is technically against U.S. law. But legal experts say Alito likely did not act illegally.

The initial May 16 New York Times article reported that the upside-down flag, a longstanding sign to communicate distress in "instances of extreme danger to life or property," was by then a common symbol for supporters of outgoing President Donald Trump’s effort to overturn his 2020 election loss. "A flood of social media posts exhorted Trump supporters to flip over their flags or purchase new ones to display upside down," the Times reported.

The justice later told Fox News that he had no role in the flag being flown in that manner. Rather, he said, his wife, Martha-Ann Alito had raised the upside-down flag "for a short time" as a response to verbal attacks by her neighbors.

As the controversy developed, Alito’s Democratic critics urged him to recuse himself from cases involving Trump and his actions during that period, saying the justice’s impartiality could not be assured. Supreme Court recusals are up to the justice, with no external mechanism to require them.

But the episode has spotlighted an even more basic question: Was flying the flag upside down against the law?

In a technical sense, perhaps. In a practical sense, no, legal experts say.

U.S. law lays out lengthy instructions for the proper display and treatment of the flag. 

For the Alitos, the most relevant portion of U.S. Code is: "No disrespect should be shown to the flag of the United States of America. … 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."

The notion of hanging a flag upside down to communicate distress has a long history in maritime culture, likely dating back to the British Isles in the 17th century, according to the North American Vexillological Association, an organization of flag scholars and enthusiasts. Ships commonly used it through the 18th and 19th centuries until more effective communication systems, notably radio, were developed. 

By now, "neither the International Code of Signals nor U.S. inland rules of the road recognize the inverted ensign as a distress signal," and "signal books published by the U.S. maritime agencies specifically discourage its use." (Today, ships in dire distress are supposed to signal with "N" and "C" international code flags — which stand for "November" and "Charlie" — or other specified flags.)

As a result, an inverted flag "has largely become a political signal," the association has written.

For instance, prior to becoming an election-denial symbol in 2020, "many Cuban-Americans in Miami used it to protest the federal government taking Elian Gonzalez from his Miami relatives and sending him back to his father in the spring of 2000," said Howard M. Wasserman, a Florida International University law professor.

But despite being part of U.S. law, it provides no enforcement mechanism for flying the flag right side up. In addition, the flag code’s text uses the softer term "should" when it discusses how flags should be treated, rather than "shall." 

"The U.S. Flag Code can be understood as an etiquette manual," Ted Kaye, the North American Vexillological Association’s secretary, told PolitiFact. 

And even if U.S. law did specify an enforcement mechanism, it would be impractical to charge all violators with criminality. 

For instance, another portion of the flag code forbids flags from being "used for advertising purposes in any manner whatsoever" and being printed "on paper napkins or boxes or anything that is designed for temporary use." This is a common practice today and is never prosecuted. 

A big reason for the hands-off approach: Several rulings, most recently Texas v. Johnson in 1989, affirmed First Amendment protections for mistreating a flag. Since the 1989 decision, efforts to amend the Constitution to allow the prosecution of flag burning have come to naught.

"Punishing someone for flag misuse or desecration violates a bedrock free speech principle — that government has no power to punish a speaker based on the message they seek to convey, including through the potent symbol of the U.S. flag," said Timothy Zick, a William & Mary law professor.

"Flying the flag upside down to send a political message is protected by the First Amendment," said Gregory P. Magarian, a law professor at Washington University in St. Louis. 

With the Supreme Court having taken the flag’s mistreatment out of the legal realm more than three decades ago, questions of flag-display propriety shift instead to the world of norms, Magarian said.

"Alito couldn’t be prosecuted for altering the flag to send a political message," he said. "However, the statute still makes a normative statement about behavior of which society should disapprove. I think that’s the likeliest sense in which the statute could be relevant for the present discussion."