CONSIDERING OUR FLAG

As of late, there has been a lot of talk in the country about what is and is not disrespectful to the American flag, initiated by athletes “taking a knee” during the national anthem. As such, I think it’s important to take a look at the language of the Flag Code and see just what’s going on.

The Flag Code is federal legislation, developed by the American Legion in 1923 and enacted in 1942. However the Flag Code is advisory only and is not enforced. The Flag Code provides as follows:

– The flag should never be flown upside down except as a signal of dire distress in instances of extreme danger to life or property

– The flag shall never touch anything beneath it (e.g. the ground, water, merchandise, etc.)

– The flag shall never be carried horizontally or flat, but always aloft and free

– The flag shall never be used as any sort of apparel, bedding or drapery. The red, white and blue bunting that we see on podiums and other areas as a decoration is permitted with the blue on top, white in the middle and red on the bottom

– The flag shall not be used as a ceiling cover

– The flag shall not have any mark, insignia, drawing, design, etc. placed upon it

– The flag shall never be used as a receptacle to carry or receive anything

– The flag shall not be used for any advertising purposes of any kind. It shall not be embroidered on napkins, cushions, etc., and it shall not be printed on anything that is designed for temporary use and then discarded. No advertising signs should be attached to a staff or halyard from which the flag is flying

– When flying multiple flags, the American flag shall be placed at the highest height of them all, with the exception of other nations flags during a time of peace. Each national flag shall be flown from a separate pole, be of the same size and flown at the same height

– The flag cannot be used as a costume or athletic uniform, though a flag patch may be affixed to the uniforms of military personnel, firemen, policemen or members of a patriotic organization. A lapel flag pin must be worn on the left side close to the heart, as the flag is considered a living entity

– When the flag reaches a condition that is no longer fit for display, it should be disposed of in a dignified way, preferably by burning

Looking at all of the above provisions, which incidentally are not comprehensive, it is clear that the flag is treated and has become an item of merchandise, something far from the actual purpose of the flag. Perhaps people cherry pick their instances of disrespect to the flag, becoming enraged at kneeling and flag destruction, but ignoring numerous other actions in contravention of the flag code. There is no prohibition against kneeling at a flag presentation.

Also, flag burning or other desecration has been held lawful by the US Supreme Court as these acts are protected speech within the First Amendment. Those cases are Texas v Johnson, 1898 and US v Eichman, 1990.

With the above to be considered, in my opinion, the most important thing to remember is that you should know what is and isn’t disrespectful to the flag, and what is legal, before taking to social media or otherwise to denounce anyone else.

Zach Opsitnick

COVID-19 FORESEEABLE?? WAIVABLE?? IT AIN’T GOING AWAY

COVID-19 has dramatically affected every aspect of our lives since mid-March, though it appeared in January and February. Nothing can be done to turn the clock and the calendar back, so as to make this pandemic not have attacked the world, or at least to have minimized its deadly effect that continues.

But, consider whether or not COVID-19, more precisely a viral pandemic of whatever variety was foreseeable? By foreseeable, I mean both in the factual (could we or should we have known that a pandemic would strike) or the legal context. A brief definition of legal foreseeability would be an event such that a person of ordinary prudence would expect a global pandemic with devastating death, illness and economic destruction.

Well, let’s consider the films that discuss, contemplate and/or predict this very catastrophe. Here is a (less than complete) list of films that predict what we are enduring right now:

– Virus (1980) (Japanese)
– The Mad Death (1983) (Miniseries)
– 1918 (1985)
– The Dolphin’s Cry (1986) (Soviet)
– Epidemic (1987) (Danish)
– 12 Monkeys (1995)
– Outbreak (1995)
– Virus (1995)
– Doomsday Virus (1996) (Miniseries)
– Quarantine (2000)
– Infection (2004) (Japanese)
– Fatal Contact: Bird Flu in America (2006)
– The Host (2006) (Korean)
– Have Mercy on Us All (2007) (French)
– Pandemic (2007) (Miniseries)
– Blindness (2008)
– Doomsday (2008)
– Carriers (2009)
– The Crazies (2010) (Remake of 1973 version)
– Contagion (2011)
– Infected (2012)
– Flu (2013) (Korean)
– 93 Days (2016)
– The Hot Zone (2019) (Miniseries)
– Virus (2019) (Indian)

And as my research assistant pointed out, this does not consider the flood of zombie movies. So, this pandemic was in the mind of filmmakers. Perhaps more significantly Bill Gates, in a 2015 TED talk hit the nail squarely on the head in predicting and discussing preparations for a pandemic. You may or may not like Gates, but undoubtedly, he is a brilliant man and spends his hours reading and educating himself.

My conclusion is that the COVID-19 pandemic was most foreseeable and “we” failed to prepare. There will be many legal actions stemming from the coronavirus and the issue of foreseeability will be front and center.

On a related issue, the Trump campaign held its first campaign rally in months recently in Tulsa, Oklahoma. Leaving politics aside, as my interest is in elections administration, so no matter whom you favor, get out and vote, by mail or in person on November 3, the Trump campaign required a coronavirus waiver of all who registered to attend. The waiver language is as follows:

“By clicking register below, you are acknowledging that an inherent risk of exposure to COVID-19 exists in any public place where people are present. By attending the Rally, you and any guests voluntarily assume all risks related to exposure to COVID-19 and agree not to hold Donald J. Trump for President Inc., BOK Center, ASM Global or any of their affiliates, directors officers, employees, agents, contractors, or volunteers liable for any illness or injury.”

Is this waiver effective and enforceable? If I accompanied someone and did not execute the waiver, am I bound? As well, the waiver language extends beyond COVID-19 and arguable extends, for example, to a fall because of a defective condition at the rally site. Also, while many entities are within the scope of the waiver, the president himself is not. Might President Trump be vulnerable to a claim by a person that contracts COVID-19 or incurs an injury at the rally.

Much to consider and process. Much more to come.

Allan Opsitnick