A Solution to the Flag Debate

I have a bipartisan solution to the flag controversy. It is a way for Congress to penalize those who desecrate the American flag while having the Supreme Court uphold the law, and liberals and conservatives alike applaud the initiative.

How? Let's examine how Congress defines desecration by looking at the provisions of the Flag Code (U.S. Code, Title 4, Chapter 1). The Flag Code, first adopted by Congress in 1923 and reaffirmed many times since, as recently as 2002, lists a number of ways the flag can be dishonored. One is the use of the flag for advertising.

Section 8, "Respect for flag" warns (i) "The flag should never be used for advertising purposes in any manner whatsoever."

Section 3 formally links advertising flags to physical desecration in its title: "Use of flag for advertising purposes; mutilation of flag." The section declares any person "within the District of Columbia" who "shall (have) attached, appended, affixed, or annexed … any advertisement of any nature" to the flag, "shall be deemed guilty of a misdemeanor …"

The Supreme Court twice has struck down state and federal laws against defacing or destroying the flag, once in 1989 and again in 1990. But the court's ruling was not comprehensive or absolute. When the flag's misuse was part of a public political demonstration, the First Amendment protected the individual's action. But it is unclear whether the court would rule that when the desecration of the flag is for commercial purposes, the First Amendment would protect the company's actions.

The Supreme Court, to be sure, has slowly extended protections for commercial speech, most recently in 2001, when it overturned a Massachusetts law banning tobacco advertising. Nevertheless, commercial free speech is not yet viewed as identical to individual free speech. Liquor companies do not have a First Amendment freedom to advertise on television, for example.

The proscription of the use of the American flag for advertising purposes, as every American will discover on July 4, is universally ignored. A recent Google search of the words "advertising" and "flag" came up with 31 million hits. Many companies, like americanflagstore.com, formally invite firms to "advertise your business with advertising flags."

Congress has declared the use of the flag for advertising purposes a desecration and even a mutilation. Companies that blatantly violate the Flag Code dishonor the flag. Their behavior is unpatriotic.

We don't need a Constitutional Amendment to enforce the Flag Code's contempt for the use of the flag for advertising. If Congress passed a law to this effect, it may well gain the support of a majority of the Supreme Court.

A national debate over such a law could prove immensely instructive. For at this historical moment there seems to be widespread confusion as to what freedoms our troops have fought and died for. Have they been fighting to preserve our freedom to shop? If we believe that, then let's amend the Flag Code to eliminate the proscription against the use of the flag in advertising. Such a change would be consistent with President George W. Bush's initial counsel to Americans after 9/11 that the best way we could demonstrate our fortitude in the face of terrorism was to go out and shop.

The flag debate so far has raged between conservatives who want to honor the flag by penalizing those who would desecrate it, and liberals who want to honor the flag by preserving intact the First Amendment. A law penalizing the use of the flag for advertising satisfies both concerns and should receive bipartisan support. Could the American Legion and the ACLU cooperate on this?

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