Republican Lee County Commissioner Kirk Smith has suggested that Central Carolina Community College basketball players “ignored Federal Law” by locking their arms in what the school has described as a non-political “show of unity” during the national anthem before a recent game against Sandhills Community College, according to emails obtained by the Rant.

Smith was one of two local Republicans whose reactions to the display the Rant flagged in a post last week.

Now, Smith has cited the U.S. Flag Code, asked that the team’s action be “rectified” by the college and suggested that he would “address this with our local Veterans groups and the media” if it was not.

In an email sent Friday, Smith wrote “perhaps I should address this with our local Veterans groups and the media highlighting the total disrespect for our nation by a taxpayer funded institution. I await your response hopefully rectifying this behavior.”

In response, CCCC President Bud Marchant reiterated that the students and coach had “assured me that they in no way mean any disrespect” and that “the team is showing unity.” That stance is consistent with the college’s earlier statements on the matter.

“We have checked with the National Junior College Athletic Association as well,” Marchant continued. “This is not an uncommon practice among both two and four year athletic teams.”

Nevertheless, Marchant told Smith had “placed the matter on the agenda of the next board of trustee (sic) meeting.”

Smith replied “I believe 36 U.S. Code 301 supersedes any team’s display for unity” and that given the military population in the area, “it was embarrassing to read our teams (sic) display of unity at Sandhills ignored Federal Law.”

“Do I need to explain this in any clearer terms?” Smith closed the email.

Smith’s contention that the U.S. Flag Code “supersedes” the team’s right to show unity – or any other display that would be covered by the First Amendment – is, of course, shaky at best. While the code cited by Smith does state that “all other persons present (during the playing of the national anthem) should 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,” legal experts have pointed out that the code does not specify any mechanism for enforcement of the law, nor proscribe any punishment for “violating” it:

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.

Smith is no stranger to antagonism of local schools, frequently calling them “public education collectives” in an apparent reference to Soviet communism. In the mid-2000s, he was critical of Lee County Schools’ Mock United Nations program, and a decade later he raised eyebrows by suggesting the district save money on food by feeding low income students peanut butter and jelly sandwiches at lunchtime. Just last month he was the only commissioner in three counties to vote against the Lee County Promise program, which provides CCCC scholarships to qualifying high school graduates.

We look forward to the response to Smith’s “concerns” from the college’s Board of Trustees.