Is it a crime for Boise to break Idaho’s new flag law if there’s no punishment?
The rainbow pride flag fluttered in the wind Wednesday along tree-lined Harrison Boulevard and outside of Boise City Hall, despite a new Idaho law banning most flags from flying on government property.
After the law went into effect, Boise Mayor Lauren McLean said that because there’s no enforcement mechanism in the law, it’s not a crime for the city to fly the Pride flag. But is that true?
According to two local law professors, yes. It’s still illegal to break the law, they say. But a crime requires a criminal punishment, like a fine or jail time. The flag-ban law has neither.
The law limits state and local governments to flying only certain flags, including the American flag, the Idaho flag, military flags and the “official flag” of a government entity. Other countries’ flags can be flown for special occasions.
As legislators considered the bill, its sponsor, Rep. Heather Scott, R-Blanchard, distributed photos of pride flags along Harrison Boulevard to show what flags would be removed.
The city has been flying the pride flag at City Hall since David Bieter was mayor. And for years, the city has allowed the flag to be flown during June, Pride Month, along with the U.S. and Idaho flags on the city-owned flagpoles along Harrison.
After the law took effect April 3, McLean kept the City Hall pride flag up anyway, along with a Donate Life flag encouraging organ donations. Her decision prompted Idaho Attorney General Raul Labrador to write an open letter to her. It said in part: “Though you are required to govern the city in accordance with the law, you have instead chosen to defy the Legislature … and to act as though your personal political views exempt you from compliance.”
But Labrador didn’t accuse McLean of a crime.
Crimes vs. violations vs. unenforced laws
The difference between crime and mere illegality may be a bit confusing, because many people view any unlawful action as a crime, the two legal experts told the Idaho Statesman.
Felonies and misdemeanors are considered crimes, and a conviction creates a criminal record for the offender. Lesser incidents such as parking tickets or growing your grass to high can lead to civil penalties but aren’t crimes.
The new flag law is something different, an example of what are commonly called “unenforced” laws, which can cause problems, according to McKay Cunningham, a lawyer and a professor at the College of Idaho.
The concern comes from people seeing others get away with illegal acts and therefore having less respect for the law, Cunningham said.
On Easter weekend, far-right activists covered up the pride and Donate Life flags and added the “Appeal to Heaven” flag in darkness. The flag dates to the American Revolution but is now often associated with groups who still believe the 2020 election was stolen.
McLean came down to Boise City Hall herself Easter morning, April 20, to remove the new flag and uncover the pride and donor flags.
Ada County Sheriff Matt Clifford has criticized the law, saying it is unclear how police could enforce it.
It’s not unusual for flag laws to have no enforcement mechanism, Richard Seamon, a professor of law at the University of Idaho, said by phone.
The federal law for how to treat the U.S. flag is known as the flag code. The law includes provisions for good flag etiquette, such as not to fly the flag when the weather is bad and or without proper lighting at night. But the law has no enforcement provisions. In fact, the Supreme Court has said that private citizens have a First Amendment right to violate it, even disrespectfully.
“In the broader scheme of things, it is unusual for a law to impose a ‘thou-shalt-not” but not to explain the consequences,” Seamon said.
Labrador’s letter did say the city could lose state money if it kept flying unauthorized flags like the pride flag, because state legislators could add penalties in their 2026 session.
Does Boise’s official-flag change comply with the law?
Boise and Bonners Ferry found what they believe are ways around the ban. In Boise, the City Council declared the Pride and organ-donor flags as “official” city flags. Bonners Ferry’s council created a year-round special occasion to fly the Canadian flag.
Did the workarounds actually bring cities into compliance?
Not according to Labrador. The attorney general’s office didn’t respond to a Statesman request for comment. But in a May appearance on Idaho Reports, a weekly show on Idaho Public Television focused on policy, Labrador said both cities’ actions still violated the law. That’s in part because the law intends for cities to fly only the official flag of a city, not multiple official flags, he said.
And turning the special-occasion exception into an everyday occasion is “outside of the intent of the legislation,” he said.
Boise’s lawyers could point out in court as a defense that they believe the intended purpose of the law is to target the pride flag and therefore potentially unconstitutional, Cunningham said. But from a free-speech perspective, the law seems to be written neutrally, and not banning any specific viewpoint, he said.
The implementation of the flag law has been chaotic since it went into effect in early April. The law led the Parma Police Department to take down its Thin Blue Line flag, which represents the idea that police officers are what stands between order and chaos in society.
In Boise, people argued, cheered, hurled insults and booed during the City Council’s May 6 meeting to make the pride flag official. A local right-wing provocateur tried to burn a pride flag on a cross.
And in late May, conservative residents tried to join the board of the North End Neighborhood Association, seemingly to prevent pride flags from going up along Harrison Boulevard.
(Incidentally, while Harrison’s flagpoles belong to the city, the medians where they stand belong to the Ada County Highway District, according to previous Statesman reporting.)
“That flag, we’ve flown for nearly a decade. It has not been an issue in Boise,” McLean previously told the Statesman. “In fact, it is beloved in Boise, because it is a symbol of how we put people first, and everyone in this community matters.”