The Flag Rules

It’s finally Summer (the summer solstice is June 21), prime time for flying flags and displaying and using all sorts of flag-themed merchandise. In 1942, enacted rules, later codified in Title 4 of the U.S. Code, designed to prevent disrespect to the flag. About half of the states adopted similar rules.

Herewith, a few of the things you are not supposed to do with the flag of the United States:

• “The flag should never be used as wearing apparel, bedding or drapery.” 4 USC §8(d).

• The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or impressed on paper napkins or boxes or anything that is designed for temporary use and discard.” 4 USC §8(i).

• No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations.” 4 USC §8(j).

So why is it that we see the flag on everything from boxer shorts to paper goods of every description? Most of these uses suggest the flag, but do not reproduce it, and so would not implicate the Federal Flag Code. And even if a use did reproduce the flag, an attempt to penalize that use would very likely raise a constitutional issue under the free speech clause of the First Amendment.

In a case decided in 1989 (Texas v. Johnson, 491 US 397, 1989), the US Supreme Court ruled that burning a flag as an act of protest was protected speech, and did not violate a Texas law that prohibited flag-burning. If you can burn a flag as an act of protest, it is difficult to prohibit other uses that function as expressions of viewpoint, whether of pride, joy or mockery.

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