Why are people flying upside-down flags? Symbol's controversy goes beyond Justice Alito, Trump and Brittany Aldean

Upside-down flags are back in the news cycle for anyone following two remaining court cases involving former President Donald Trump.

The symbol is connected with false claims that the 2020 election was stolen from Trump. Currently, the United States Supreme Court is deciding two cases relating to Trump's efforts to overturn the results of the election, decisions that will affect the criminal election interference charges pending against Trump.

Samuel Alito, a Supreme Court justice weighing in on the cases, is facing criticism after he declined to recuse himself from those cases after an upside-down flag was flown at his home.

Justices are supposed to avoid politics, and some argue the display did just the opposite.

In a statement to The New York Times, Alito said he “had no involvement whatsoever in the flying of the flag" and he could not control what his wife chooses to display at their home.

The upside-down flag's symbolism isn't new. It's represented various causes and sentiments over the country's history and in the wake of the Jan. 6 insurrection at the U.S. Capitol.

What does an upside-down flag mean?

There was once a time where flags played vital roles at seas. The origins of ships were most easily expressed by the flag on their mast. When the flag was upside-down, or inverted, it signals they were in distress, according to the Free Speech Center at Middle Tennessee State University.

In America's history, the use of an upside-down flag became protected in 1974 when the Supreme Court upheld the right of a student to display the symbol at his dorm room to protest the Kent State shooting. Since then, burning the flag has also become a protected act by the Supreme Court.

Alito, who was appointed by President George W. Bush in 2006, said his wife raised the flag in connection to a neighborhood dispute, not the "Stop the Steal" movement. Alito is considered one of the more conservative justices on the court and received praise from Trump May 30 for his refusal to recuse himself from the cases involving the former president.

In 2022, demonstrators used the upside-down flag to protest the overturning of Roe v. Wade, the case that upheld a person's right to abortion. That same year, the symbol was used by supporters of Trump to protest the FBI search of his Mar-a-Lago residence which was related to classified documents he took after leaving office.

Why is it a problem that Justice Alito had an upside-down flag at his home?

Alito may not normally face high levels of criticism for the flag at his home but since he's a Supreme Court justice, he's held to a different standard.

Justices are supposed to avoid politics, according to their own code of conduct established in 2023.

Kathleen Clark, a legal ethics expert at Washington University in St. Louis, who emphasized that she’s not an authority on the significance of an upside-down flag, said justices are not supposed to publicly display support or opposition to partisan political candidates.

“If it means `Stop the Steal,’ then it seems like he didn’t mind that ideological message going out to the world,” she said of the flag. “That’s political activity, arguably.”

And there have been calls for Alito to recuse himself from the court's cases involving the insurrection.

“By displaying the upside-down and ‘Appeal to Heaven’ flags outside his homes, Justice Alito actively engaged in political activity, failed to avoid the appearance of impropriety, and failed to act in a manner that promotes public confidence in the impartiality of the judiciary,” Senate Majority Whip Dick Durbin of Illinois and Sen. Sheldon Whitehouse of Rhode Island wrote in a letter Friday to Chief Justice John Roberts.

On the other hand, some experts told USA TODAY they doubt Alito knew the flag was flying upside down or, if he did know, wasn’t aware of the “Stop the Steal” connection.

“I don't believe Alito would have allowed this to happen if he did know,” Stephen Gillers, a judicial ethics expert at New York University’s law school said. “While Alito's explanation for how it did happen is hard to believe, it is more credible than the view that he knowingly chose to fly the flag upside down knowing its meaning to the 'Stop the Steal' crowd.”

Brittany Aldean uses upside-down flag in merchandise, prompting criticism

Brittany Aldean, the wife of country music star Jason Aldean, posted to Instagram in support of Trump after he was convicted of 34 felony charges relating hush money payments made before the 2016 election. She created merchandise, including a baseball hat with the upside-down American flag.

The post gained traction and received over 4,600 comments as of June 4. Mixed in with messages of support, many commenters expressed discomfort and anger over the American flag being disrespected.

"Don't ever disrespect the flag millions Americans died for (because) you're mad a man was held accountable for his actions," one user wrote.

Are there legal consequences for mistreating the flag?

There are no legally enforceable consequences for mistreating the American flag for expressive conduct. That means as long as a person is not harming others through their display and as long as their display has a purpose, they can't face consequences.

But there is a flag code that establishes guidelines for the display and treatment of flags. The code specifies, among other things:

• Flags are displayed from sunrise to sunset, but a properly illuminated flag may be displayed at night;

• Flags should be displayed daily near the main building of public institutions;

• Flags should not be displayed during inclement weather unless an all-weather flag is used.

Allie Feinberg reports on politics for Knox News. Email her: allie.feinberg@knoxnews.com and follow her on X, formerly known as Twitter, @alliefeinberg.

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This article originally appeared on Knoxville News Sentinel: Why are people flying upside-down flags? Behind the controversy