Fact Check: Judge Roy Moore Is Right About the Law And The National Anthem

Judge Roy Moore sparked headlines for comments he made regarding the controversy of NFL players kneeling for the national anthem.

In an interview with Time, Moore stated the following:

It’s against the law, you know that? It was a act of Congress that every man stand and put their hand over their heart. That’s the law. If they didn’t have it in there, it would just be tradition. But this is law. If we disobey this, what else are we going to disobey?

While the former Alabama Supreme Court Justice was criticized for his remarks, he isn’t wrong.

36 U.S. Code § 301 legally recognizing the Star Spangled Banner as America’s national anthem does, in fact, instruct all present to:

face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart.

Those instructions are placed in the legal code, and there is obviously no penalty for failing to follow them. It is worth noting that Judge Moore did not suggest that players should face criminal penalty for engaging in their protest.

Of course, while Moore is correct in what the law says about standing for the anthem, the notion that individuals should blindly follow the law that is one all Americans should reject. In fact, Moore’s own example of courageously standing up in the face of improper Federal judicial rulings against him is a reason the Liberty Conservative chose to endorse him in the Alabama Senate race.

Interestingly enough, Moore’s own record regarding matters of criminal justice, including issuing opinions against overly harsh rulings levied against minorities, is another reason he is a candidate deserving of support from libertarians, and why he will be an effective ally for Rand Paul and other reform advocates in the Senate.

Without question, Roy Moore’s actions as a Supreme Court judge have done more for those hurt by America’s police state than Colin Kaepernick and his fellow protesters are likely to ever do.


  1. Well if that is an actual law, it is one that must be disobeyed, and repealed. One question on this being a crime. Who is the victim? Who may I confront in a court of law, should I be charged with this tyrannical nonsense? No victim, no crime. And being that there is ‘no penalty’ why is it a law?

    When injustice becomes law, resistance become duty.

    And I will not, ever, under any circumstances, worship a false idol. I answer to the Most High ONLY. If man’s law contradicts or violates Gods law, then I will answer to man. And will do so proudly.

    Lastly, that law, on so many levels, is so blatantly un-Constitutional, it defies logic, regardless of there being no penalty. Get that junk off the books.

    • You have every right to be a disrespectful asshole, but I wouldn’t recommend it.

      The Constitution NOWHERE says legally defined crimes need to have a victim, so you lose on the un-Constitional point, other than the minimalist government it envisions should have few if any such laws.

      When injustice becomes law, resistance become duty. Roe v.. wade and 60 million dead innocent babies. That calls for more than mere resistance. Answer to “The Most High Only” about your omission.

      We must respect life, liberty, and the right to property. We must also respect lawful, righteous authority that the anthem and flag and other symbols represent (thing about burning bibles). We don’t have to respect un-law (see MLKjr’s letter from a Birmingham Jail), but it must be more clear than bad posture disrespecting a moment others hold sacred.

      No one is going to kneel over the 3000 dead babies every day as far as I know.

      • Actually, the Sixth Amendment outlines that one has the right to confront witnesses, so yes by definition there must be a victim. The ‘state’ is not a victim, so that cannot legally hold weight. As for being a disrespectful asshole, you might not recommend it, but I do. Rosa Parks could be called a disrespectful asshole, but what she did was highly noble. On to your infanticide reference. You make it seem as if I support the wholesale slaughter of innocent children. And that has nothing to do with anything, but I do not, nor will I partake in that evil ritual, and I speak against it whenever it calls for it. As for respecting authority, no i do not have to respect ‘authority’ that has zero respect for human life. And I will not respect the false idols of flag and anthem. Besides the fact that nowhere in the Constitution, nor the oaths of office & military is flag or anthem mentioned. The Constitution is however mentioned. And in that Constitution is the right to protest. And the right to protest does not end because some people might hold something dear, such as the false idols of flag and anthem. You do not have the right to not be offended in this Republic. You do have the right to offend people however. And again, the infanticide issue has nothing to do with this. Just because they are protesting something you can’t or won’t understand, or something you don’t agree with, does not mean they do not have the right to do it.

        I would never burn a Bible, but it is one’s right to do so. I would never burn any religious text, but it is one’s right to do so. I would never burn a flag, but it is one’s right to do so. Hell, if one want’s, it is their right to even burn a copy of the Constitution. In a free nation, one cannot be mandated to stand or sit, or whatever. That is freedom. Anything less is tyranny. So do you believe in liberty? Or do you believe in tyranny?

        Lastly, as for me answering to the Most High, my conscience is clean, and your nonsense about an omission is just that, nonsense. What do you propose I do? Murder doctors who perform that butchery? Burn down Planned Parenthood buildings? Because that violates many aspects of the Constitution. I am not judge, jury & executioner. They must deal with the Most High when judgement comes, not me.

        • The Kneelers are protesting, apparently that the constitution doesn’t seem to extend to blacks during police encounters, though there was nothing similar to roe v. wade that declared blacks “not persons under the constitution”.
          You can kill blacks – in the womb – without it being a crime, and Police can do so and apparently they won’t be charged (or convicted) of a crime.

          The right to life comes from God, but is apparently not in the emanations and penubras, or even the obergefell rainbows of the bill of rights for infants or blacks.

          I think life should be protected.

          Doing disrespectful things to the flag or during the anthem will not advance it.

          And I never said there was no right to protest, but do look what happened to the people at the #UniteTheRight – the police pushed them into Antifa and a Meele ensued where both sides used violence (see all the phone vids), but only the whites trying to use their 1st Amendment rights were arrested, and many denied bail not because of any flight risk but because of their speech. Example: Christopher Cantwell. He turned himself in so can’t be a flight risk, was granted, but later denied bail BECAUSE OF SPEECH.

          It’s easy to take a knee. But there are those in jail now denied bail which denies the amendment against excessive bail, because they tried to speak. They aren’t rich glitterati celeberty athletes expressing politics on their employer’s time. I have to put the discussion in this context.

          Pro-lifers are also often jailed for expressions in front of clinics. They go to jail.

          I’m tired of whiny millionaires acting like assholes complaining about it. They could actually do something, but rather virtue signal.

          • I agree with you on this 100%, right up to the point where you bring in the ‘millionaire’ slur. Because they are rich, they don’t have the right to do something? Because that seems to be the consensus. They are not claiming they are victims. When asked last year, Colin stated he is acting as ‘the voice of the voiceless.’ You are correct on the employer aspect as well. But until the employer draws the line, they can do whatever.

            Let me finish by saying this. Everybody says sports is no place for politics. Fair enough. Eliminate the pre-game military worship then. Problem solved.

          • If they are rich, they can buy platforms. Those kneeling can buy two page ads in the center of the main (if not the Sports) section of the NYT, USA Today, WaPo, and have them appear on every page Google’s ad servers are used on.

            Instead they do a poor man’s protest. They have 50x what MLKjr did but aren’t marching and aren’t ending up in jail for civil disobedience.

            If I could do cartoons, I would show their butlers and maids take a knee while they sat and sipped some fine wine.

          • That would be the lamest cartoon ever. And their platform is perfect. A huge amount of people will see it. Readership of print newspapers is dying, so not a good venue. Their wealth is completely irrelevant. You are now saying, ‘yes they can protest, but they have to do it in such a way that satisfies my jealously of their wealth.’

      • The Supreme Court has ruled on several issues of unconstitutionality. In US vs Eichman it was determined that the prohibition of burning a flag was unconstitutional. It has also been ruled that is unconstitutional to require students to say the pledge. Do you really want the US to be a country that mandates blind devotion to a flag or a song?

        • A prohibition on burning the flag IN PUBLIC. And in PUBLIC i.e. GOVERNMENT SCHOOLS. Private companies have more control. Most can fire anyone at will if it doesn’t specifically involve the civil rights or a labor act.

          I wish the US would be a country that was blindly devoted to liberty, rights, reason, evidence, and logic. The flag at least represents the first two, as does the song about that flag.

          It is difficult to disrespect a symbol of the liberty and rights granted by the country it represents without disrespecting the rights and liberty itself.

          By kneeling, they are in essence saying “I hate my right of free expression”.

  2. “improper Federal judicial rulings against him….”

    Is Shane smoking crack?

    There’s a reason he’s tied with Doug Jones here in Alabama. Even Alabama folks won’t touch him.

    • I don’t want to see your religion’s “ten commandments” when I walk into the statehouse or your courtroom. And no one should have to. It’s state sanctioned religious preference over another. And if two homosexuals want to marry then they have that right – especially according to the Supreme Court – in which I agree with. The fact that he chooses his beliefs over the law of the land is not supporting everyone’s rights under the constitution.

    • and I understand – you’re a whiny libertarian who won’t stand and fight for anything. Thankfully, Roy Moore is not cut from the same cloth as the likes of you.

    • anyone who thinks their beliefs supersede the constitution is no friend to the constitution and you’re a fraud for liberty. Free to not have to recognize some judges religious beliefs. But the law of the country. Not gods law. Take that crap home.

    • “We have abundant reason to rejoice that in this Land the light of truth and reason has triumphed over the power of bigotry and superstition… In this enlightened Age and in this Land of equal liberty it is our boast, that a man’s religious tenets will not forfeit the protection of the Laws, nor deprive him of the right of attaining and holding the highest Offices that are known in the United States.” – George Washington

    • and you havent directly refuted my claims of roy moore and how his beliefs supersede the constitution so ill assume its your personal opinion and not based on any historical precent or fact.

    • Daniel, Going back to your original point, Shane is quite right here.

      There was no 1st Amendment violation with the installation of the 10 Commandments statue at the Alabama Supreme Court house, because the establishment clause says nothing about government support for religion – only that the Federal Congress has no ability to do so. (This is why state governments had established religions under this Constitution.)

      The second point was regarding the gay marriage ruling – but the Federal Supreme Court has no Constitutional authority over measures within the state under an originalitist interpretation.

      If you believe in orginalism, Moore was in the right – regardless of your thoughts on the specific issues. If you believe in the Constitution as an evolving document, the rulings were correct.

    • I don’t want to see your religion’s “ten commandments” when I walk into the statehouse or your courtroom. And no one should have to. It’s state sanctioned religious preference over another. And if two homosexuals want to marry then they have that right – especially according to the Supreme Court – in which I agree with. The fact that he chooses his beliefs over the law of the land is not supporting everyone’s rights under the constitution. These safeguards should be protected by the federal government. Oh if the tables were turned and it were Quran passages in the state rotunda. Or sharia law… because it’s “gods law.”

    • By the way Shane G Trejo, a fox poll put them at 41-41. Two other polls have since come out.. the local raycom station down here did one and had Moore by 9… another had Moore by 6… understand there are more than one poll and they are somewhat an indication but by no means the end-all-be-all. Take the 2016 potus election. Soooo yeah…

    • Instinctually, Roy is a theocratic fascist. You have freedom, if you conform. You have liberty, as long as you are like everyone else. You have freedom of religion, as long as you believe only certain things.

  3. they left out the part in the code right before their quoted section where it says SHOULD stand, not MUST stand. you cant be forced to show respect to the flag, if you do force someone to show respect, it is not respect but subjugation.

    • The same section of code also names the national flower (rose), march (the Stars and Stripes Forever) and tree (oak). This is as important and has all the impact of congressional resolutions naming this day or that day “National Holstein Cattle Day” or “National Amusement Park Ride Day”.

  4. The law about the national anthem is the American equivalent of Nebuchadnezzar’s instructions to the worshippers of his statue and should be rejected for the same reason.

  5. The legal distinction between “should”, “shall”, and “must” seems to be lost on him. Saying a person “should” follow prescribed decorum is very different than saying one “must” do so.

  6. If you’re going to pretend the First Amendment doesn’t exist, you might as well be consistent about it. Any criticism about this violation of the law of the land?

  7. The US Flag Code is advisory rules for the ceremonial aspects of displaying and handling the flag. You will notice that the key word about standing and placing the hand over heart says “SHOULD”, not “MUST”. If someone wants to claim patriotism and refusal to allow the flag to be respected, and following “Rule of Law”, then why is no one up in arms when they display a giant flag laying on its side covering basically the entire field? When people wear flag designed clothing? What about the fact that the code says the flag shall not be used for any type of advertising while the Dept of Defense paid the NFL millions to have the players come out and make a spectacle of patriotism to boost their recruitment efforts? Stop pretending to be a super patriot. Stop playing the damn Anthem at an entertainment sporting event.

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