February 9, 2017

It’s a Grand Old Flag, but Should it Be in Your Ad?

By Bryan K. Wheelock, Principal

United States Statutes purport to restrict the use made of the American flag.

4 USC § 8 – Respect for Flag

No disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor.

    (a) The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.

    (b) The flag should never touch anything beneath it, such as the ground, the floor, water, or merchandise.

    (c) The flag should never be carried flat or horizontally, but always aloft and free.

    (d) The flag should never be used as wearing apparel, bedding, or drapery. It should never be festooned, drawn back, nor up, in folds, but always allowed to fall free. Bunting of blue, white, and red, always arranged with the blue above, the white in the middle, and the red below, should be used for covering a speaker’s desk, draping the front of the platform, and for decoration in general.

    (e) The flag should never be fastened, displayed, used, or stored in such a manner as to permit it to be easily torn, soiled, or damaged in any way.

    (f) The flag should never be used as a covering for a ceiling.

    (g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.

    (h) The flag should never be used as a receptacle for receiving, holding, carrying, or delivering anything.

    (i) 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 otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.

    (j) 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. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart.

    (k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

A Senate Report from 2008 provides an excellent summary of federal statutes and regulations.

There is no penalty for violation of the statute, however.  There are corresponding restrictions on the use of the American flag in the statutes of several of the states, some of which includes penalties. While these statutes are still on the books, they are of questionable enforceability, and one does not have to look very far to find the flag used on clothing (compare 4 USC § 8(d)); on costumes and uniforms (compare 4 USC § 8(j)); and in advertising (compare 4 USC § 8(i)).  The collection of U.S. Patents has several of these examples:

D771519

D771,519 American Flag Ball

D696493

D696,493 American Flag Novelty Headwear

D651538

D651,538 American Flag with Three Dimensional Stars

D585775

D585,775 Scoreboard in the Form of an American Flag

D549032

D549,032 American Flag Style Cover for Barbecue or the Like

D516730

D516,730 American Flag Bandage

D515628

D515,628 American Flag Duct Tape

D507843

D507,843 American Flag Lantern

D487180

D487,180 American Flag Pole Cover

D482144

D482,144 American Flag Colored Light Bulb

D463998

D463,998 Lighted American Flag

D459860

D459,860 American Flag Hat9