U.S. Flag Laws

As we approach the July 4th holiday, I thought it might be interesting to have a short article about the U.S. flag. As a symbol of our country, the design of the U.S. flag has changed throughout history.

Flag usage and design is outlined in the U.S.C., Title 4, section 1-10. The American Legion has an extensive Flag Display FAQ that covers the following issues of proper flag ettiquete:

1) Can a flag that has covered a casket be displayed after its original use?
2) What is the significance of displaying the flag at half-staff?
3) When the flag is not flown from a staff, how should it be displayed?
4) How are unserviceable flags destroyed?
5) Can the flag be washed or dry cleaned?
6) Are you required to destroy the flag if it touches the ground?
7)  What is the proper method for folding the flag?
8) May a person, other than a veteran, have his or her casket draped with the flag of the United States?
9) What is the significance of the gold trim seen on some U.S. flags?
10) Is it proper to fly the U.S. flag at night? 

More details on these topics can also be found in the 2008 Congressional Research Service Report: The United States Flag: Federal Law Relating to Display and Associated Questions. 


Flag Related Cases From the Oyez Supreme Court website:


Minersville School District,  310 U.S. 586 (1940) - Did the mandatory flag salute infringe upon liberties protected by the First and Fourteenth Amendments?

In an 8-to-1 decision, the Court declined to make itself "the school board for the country" and upheld the mandatory flag salute. The Court held that the state's interest in "national cohesion" was "inferior to none in the hierarchy of legal values" and that national unity was "the basis of national security." The flag, the Court found, was an important symbol of national unity and could be a part of legislative initiatives designed "to promote in the minds of children who attend the common schools an attachment to the institutions of their country."

West Virginia Board of Education, 319 U.S. 624 (1943) - Did the compulsory flag-salute for public schoolchildren violate the First Amendment?
In a 6-to-3 decision, the Court overruled its decision in Minersville School District v. Gobitis and held that compelling public schoolchildren to salute the flag was unconstitutional. The Court found that such a salute was a form of utterance and was a means of communicating ideas. "Compulsory unification of opinion," the Court held, was doomed to failure and was antithetical to First Amendment values. Writing for the majority, Justice Jackson argued that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."

Texas v. Johnson,  491 U.S. 397 (1989) - Is the desecration of an American flag, by burning or otherwise, a form of speech that is protected under the First Amendment?

In a 5-to-4 decision, the Court held that Johnson's burning of a flag was protected expression under the First Amendment. The Court found that Johnson's actions fell into the category of expressive conduct and had a distinctively political nature. The fact that an audience takes offense to certain ideas or expression, the Court found, does not justify prohibitions of speech. The Court also held that state officials did not have the authority to designate symbols to be used to communicate only limited sets of messages, noting that "[i]f there is a bedrock principle underlying the First Amendment, it is that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable."

United States v. Eichman,  496 U.S. 310 (1990) - Did the Act (Flag Protection Act) violate freedom of expression protected by the First Amendment? 
In a 5-to-4 decision, coming on the heels of a similar holding in Texas v. Johnson (1989), the Court struck down the law because "its asserted interest is related to the suppression of free expression and concerned with the content of such expression." Allowing the flag to be burned in a disposal ceremony but prohibiting protestors from setting it ablaze at a political protest made that clear, argued Justice Brennan in one of his final opinions.

Please note that the Law Library be closed on July 4th, 2012 since it is considered a University holiday.

Written by Patty Wellinger, Reference Services Coordinator