Tomi Lahren, the young conservative star and Fox News contributor, is facing ongoing criticism for posting a photo of herself in a patriotic Halloween costume that includes “wings” that look like parts of the American flag.
“What am I?” Lahren asked on Instagram before answering, “If you’re a conservative, I’m American AF. If you’re a lib, I’m ‘offensive.’ ”
The post kicked off a national debate about whether Lahren’s costume violated the U.S. Flag Code, which prohibits the use of the flag as part of any costume. The code says the flag should never be used “as wearing apparel, bedding or drapery” and “should never be drawn back, nor up, in folds, but always allowed to fall free.”
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Hundreds of commenters called the display disrespectful to the flag and pointed out that kneeling during the anthem, an action of which Lahren has been fiercely critical, is not illegal, yet flag code violations could be considered illegal. One of her critics included GQ commentator Keith Olbermann, who said she was in violation of the code.
Lahren’s defenders included Donald Trump Jr., who shared a photo of Olbermann himself draped in an American flag. “Life is hard,” Trump wrote. “It’s even harder when you’re stupid.”
Lahren called her critics “selective snowflakes” and posted a screenshot of an explanation from the American Legion that said a violation would only take place if the article of clothing was made from an actual U.S. flag.
So what’s the answer? Is Lahren’s costume a violation of the Flag Code?
The U.S. Flag Code is a set of rules that govern the care and display of the flag of the United States of America. The code prohibits allowing the flag to touch the ground, burning, trampling or physically defiling the flag, using it as clothing or using it in a way it could become easily damaged, or using it as advertising. It also prohibits the use of the flag on things like napkins, where the image would be spoiled and then thrown away. The penalty for desecrating the flag is a fine or up to a year in jail, or both.
But the punishment cannot be enforced. The Supreme Court ruled in United States v. Eichman in 1990 that flag laws that prohibit expression – in particular laws prohibiting the burning of the flag –are unconstitutional violations of the First Amendment. The code has remained as a system of suggestions and etiquette.