An individual has the right to fly an American flag upside down. The First Amendment of our Constitution not only ensures freedom of speech in the traditional sense, but also protects conduct, symbols, and non-verbal speech that convey an idea or a particularized message. Since 1989, the Supreme Court has acknowledged that conduct pertaining to the flag, including flag burning, is expressive conduct within the ambit of First Amendment protection. Texas v. Johnson, 491 U.S. 397 , 404-6 (1989). As recently as four months ago, in Congine v. Village of Crivitz, the United States District Court for the Eastern District of Wisconsin extended citizens’ expressive rights by holding that it is a constitutional violation to forbid the public display of an upside down American flag.
It is uncertain whether or not the Supreme Court will weigh in on the “upside down flag” issue. Nevertheless, given that the Supreme Court continuously upholds expressive conduct regarding displays of the American flag, it is likely that it will agree with Wisconsin District