The Supreme Court (Højesteret) has ruled that a man from Kolding did not break the law when he raised the United States national flag, the Stars and Stripes, at his home in April 2018.

Many homes in Denmark have flagpoles but it is only permitted to raise the Danish flag, Dannebrog, unless dispensation is given to raise other flags. For example, special permission was given several times last year to raise the Ukrainian flag at private Danish homes and businesses in support of Ukraine.

Denmark does not normally permit flags other than its own to be flown unless the Ministry of Justice gives permission. There are some exceptions: the Greenlandic, Faroese or other Nordic nations’ flags or the EU and UN flags can all be flown freely without special permission.

But the Supreme Court found that the law gave no basis for sentencing the man in the Stars and Stripes case, which has spent several years in the appeal system since an original ruling against the man at the Kolding District Court.

Instead of punishing him, though, the Supreme Court ruled that flying the flag of other countries cannot be seen as a breach of the section of the law that the prosecution had sought to apply.

The section in question relates to violating bans that “have been given for the protection of the defence or neutrality provisions of the state” (in the original Danish legalese, this read as måtte være givet til værn for statens forsvars- eller neutralitetsforanstaltninger).

Laws against flying foreign flags in Denmark go back to a royal order issued by King Frederik VI in 1833 and were most recently updated in a parliamentary directive in 1915.

The Supreme Court’s decision was made on the grounds that there was not sufficient continuity between the original royal order, the directive and today’s criminal law. As such, there was no basis to issue a penalty.

In 1833, Frederik VI ruled a pre-constitutional Denmark by the power of absolute monarchy. As well as today’s Denmark, the king also ruled the duchies of Schleswig, Holstein and Lauenborg in modern-day Germany.

The order to forbid the flying of foreign flags came in response to requests from Russia and Prussia to fly their flags at their consulates in Denmark. The king refused and doubled down by issuing an order stating that “no privateman may let any flag fly from their properties in the towns or the countryside”.

Frederik VI’s order didn’t just apply to foreign flags – private individuals were also forbidden to fly their own Danish flag, the Dannebrog, partly because of the king’s concerns it might become a symbol of rebellion, as had been the case with France’s tricolore in the French Revolution.

The Danish flag later became a symbol that more closely represented the people, rather than the ruler, particularly after the introduction of democracy and the end of the absolute monarchy in 1849.

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In 1854, parliament changed the law through a royal resolution, allowing anyone to fly Dannebrog, but foreign flags remained banned.

Some 60 years later, parliament in 1914 passed a law banning other countries’ flags from being flown because it did not want to jeopardise Denmark’s position as a neutral state in World War I.

The 1915 directive, mentioned above, was to a similar effect, but functioned as a renewal of the 1854 resolution. It forbade “using the flag of warfaring nations for decoration or in other ways”.

It is this final directive that prosecutors accused the Kolding man of breaching, and thereby breaking modern criminal law, when he raised the Stars and Stripes five years ago.

But the Supreme Court said the directive itself was closely related to the situation before and during the First World War. It also noted that raising a flag may be protected by free speech rights.

As such, raising foreign nations’ flags in Denmark can not generally be considered an offence, it concluded.

It should be noted that the ruling mentions national flags specifically, not flags of all designs which could carry logos or other messages.

“The Supreme Court’s view is that the raising the national flag of foreign countries by private persons today can generally not be seen as a violation of a ban ‘given for the protection of the defence or neutrality provisions of the state’,” the court concluded.