The media has been trying to gin up a lot of mileage regarding a report from the New York Times about an American flag being flown upside down outside of Supreme Court Justice Samuel Alito's home. Looking further into the details, that wasn't something that happened recently. In fact, the photo of the flag was taken more than three years ago, shortly after the Capitol Hill riots. So how did it take so long for us to hear about it, assuming you're even concerned to begin with? As it turns out, the Washington Post had the photo and the story almost immediately. But as the Associated Press pointed out yesterday, the editors at the Post opted not to run the story. This all sounds like much ado over (almost) nothing, but given all of the current antipathy on the left toward the conservative members of the court, we're probably going to keep hearing about it, so we should dig a bit further into the details.

Nine days after The New York Times reported about the political symbolism of an upside-down American flag that flew at U.S. Supreme Court Justice Samuel Alito’s home, the Washington Post acknowledged it had the same story more than three years ago and decided not to publish it.

The Post’s story was both an extraordinary example of journalistic introspection and an illustration of how coverage of the Supreme Court has changed since the incident itself, shortly after the Jan. 6, 2021, Capitol insurrection.

That day, some of the demonstrators who marched in support of former President Donald Trump carried the upside-down flag. Both newspapers reported that the same symbol was displayed outside of Alito’s home in Fairfax County, Virginia, before President Joe Biden’s inauguration.

This episode raises questions about how the media has handled this story at various stages and whether or not the underlying incident was really all that big of a deal to begin with. The WaPo claims that they originally examined the story but concluded that "it appeared Alito’s wife was responsible and that it was not clear the neighborhood argument was over politics." This is in response to Justice Alito's claim that his wife hung the flag that way as a message to neighbors who had put disparaging signs about the Alitos near their property. Frankly, that sounds pretty unlikely to me, but unless someone can track down those neighbors and interview them, we may never know.

But if that was true three years ago, then how did the New York Times determine it was an appropriate story to run now? The Gray Lady is claiming that they only acquired the photo "recently." Does that sound very likely? If someone has what appears to be a potentially hot bit of gossip about a Supreme Court justice and it went to the Post, how would it not also be slipped to the Times? I would argue that both of the papers had the story three years ago, but elected to keep it in their back pockets. But now that we're drawing close to a presidential election where Joe Biden is trailing and trying to warn people about the potential of Donald Trump appointing more justices in the mold of Alito, the MSM probably sees more usefulness in putting the story out there. The AP piles on a bit by posing the question, "Should a public official’s family be held to the same standards as that official themselves?"

Whether Alito or his wife hung the flag like that probably doesn't matter all that much. If Alito did hang it himself in sympathy for the January 6 rioters, then he's making up a story now to cover his tracks. If his wife really did hang it, unless he never went out of his front door, he would have seen it. If it bothered him that much he could have taken it down, but apparently he didn't.

So how much of a "wrong" was committed at the Alitos' home? Anyone who has ever served in the Navy is probably familiar with the flag rules in this specific instance. The American flag is allowed to be flown upside down on naval vessels in the event of a dire emergency when you are in danger of losing the ship. Beyond that, we can turn to the Flag Code for guidance. In Section 8 we are informed that "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 union" refers to the blue field with white stars. In other words, upside down.) Those found to have violated the code may be punished with a fine of up to $100 and/or a jail term of up to thirty days. 

So it would appear that either Samuel Alito or his wife violated the flag codes since neighbors posting annoying signs on their own property would not qualify as "extreme danger to life or property." I suppose that could qualify as being newsworthy to someone. But as sad as it may be, the flag codes are not laws that are enforced in any meaningful fashion outside of military bases. I looked and was unable to find any instances in the modern era where anyone was jailed for abusing a flag. Even the Supreme Court found in Texas v. Johnson that you're allowed to burn the thing under your right to free speech. (Burning the flag is also a violation of the code unless it is a damaged or worn-out flag and it's done in a specific, respectful fashion.) So is this story really that big of a deal? Probably not, and I doubt it's going to be changing anyone's vote in November.