This post examines the highly misunderstood laws surrounding the U.S. Flag. There are two main articles regarding U.S. flag laws: the United States Flag Code and the Flag Protection Act.
Many people only know the main purpose of the Flag Protection Act; that it is illegal to desecrate the flag. However, what many people don’t seem to know is that this is no longer a valid law. The Flag Protection Act was passed in 1968 as a reaction to flag burnings taking place during Vietnam protests. All but two states passed similar laws making flag desecration virtually illegal in the entire country. This remained law until 1989 when the Supreme Court ruled on Texas v. Johnson. Gregory Lee “Joey” Johnson was arrested for burning a flag in a protest outside of the 1984 Republican Convention in Dallas. In a 5-4 decision, the court ruled that the law unconstitutionally prohibited public expression. In response to the Supreme Court, Congress shortly passed another Flag Protection Act in 1990 that made flag burning illegal again. Later that year, two cases involving flag burnings (one involving Johnson again) were combined into Eichman v. United States in 1990. The Supreme Court again found in favor of the defendants, making flag burning legal. Since then, Congress has made several attempts to pass a Flag Desecration amendment without success. The latest attempt was in 2006.
Much of the U.S. Flag Code deals with how to properly display the flag, with such rules as the flag must never touch the ground and the flag should be flown above state flags. But the code also includes laws prohibiting what many people consider expressions of patriotism. One is that a flag should never be used for advertisement purposes. All of those local car dealership commercials featuring an untrustworthy guy in front of a poorly green-screened American flag are technically illegal. The same goes for using the flag as clothing or clothes that feature the likeness of an American flag. So that drunk guy running around using the flag as a cape while wearing his flag boxers on July 4 is breaking the law as well. Even good old Uncle Sam hasn’t seemed to get the memo. The only exceptions to this are flag lapel pins (they are seen as replicas), flag patches on the uniforms of soldiers, emergency responders, and members of other patriotic organizations, and draping a flag on a coffin.
My favorite law broken on every Sunday in the fall and winter is that the flag should never be carried horizontally or vertically but should be allowed to hang freely. This means that ultimate display of patriotism before every football game when they stretch a 100-yard flag across the field while F-16s fly over head and a bald eagle is released is illegal.
Fortunately (or unfortunately considering some of the American flag clothing available) the penalties for breaking these laws are not enforced and serve more as a guideline. So whether you want to burn the flag in protest or run around the block in only an American flag thong, you’re good to go.