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Halter v. Nebraska (1907)

Banning Use of the American Flag in Commercial Advertisements

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Contemporary efforts to “protect” the American flag from “desecration” focus on burning the flag in political protests, but the earliest such laws focused on use of the flag to sell merchandise commercially. Many states and municipalities passed laws banning “base” uses of the American flag in commerce. The Supreme Court decided in the case of Halter v. Nebraska that such laws were constitutional; today many remain on the books, though few people seem to realize this.

Halter v. Nebraska: Background

In 1903, Nebraska made it a crime to “sell, expose for sale, or have in possession for sale, any article of merchandise upon which shall have been printed or placed, for purposes of advertisement, a representation of the flag of the United States.” Images of the flag that weren’t used for advertisements — for example, on books and newspapers — were exempted. More than half the states had their own laws criminalizing such “desecration” of the American flag.

Halter, owner of a bottling company, was charged in 1905 with selling a bottle of beer on which was printed an American flag for the purpose of advertisement. Harlan did not see this as disrespectful, but did not argue that the law violated his freedom of speech. It would be 20 years before the First Amendment was to state governments in this manner. Harlan probably never thought the use of the American flag would ever be an issue of “free speech” or personal liberty.

Halter argued that the law violated the principle of federalism: the American flag is designated by the national government and represents the whole of America; therefore, the authority to regulate use of the flag lies with the federal government rather than with the states.

Halter v. Nebraska: Decision

The Supreme Court ruled 8-1 to uphold Halter’s conviction, that state governments do have the authority to ban desecration of the American flag, and that use in commercial advertisements can be categorized as desecration. Justice Harlan rejected Halter’s primary argument, saying “If Congress has not chosen to legislate on this subject, and if an enactment by it would supersede state laws of like character, it does not follow that, in the absence of national legislation, the state is without power to act.”

Despite Halter not raising arguments about personal liberty, Harlan went further and stated that it was difficult to see how the Nebraska law “infringes any right protected by the Constitution of the United States.” Harlan noted the existence of so many state laws banning desecration of the American flag, especially by using it in commercial advertisements, and didn’t find this to be the least bit remarkable.

    For that flag every true American has not simply an appreciation, but a deep affection. No American, nor any foreign-born person who enjoys the privileges of American citizenship, ever looks upon it without taking pride in the fact that he lives under this free government.

Note that true Americans have a “deep affection” for the flag because it represents a “free government.” If one experiences shame or embarrassment when they look at the flag — perhaps because of government actions — they must not be “true American” anymore. This attitude is shared by those who seek to “protect” the flag today: only one sort of meaning should be permitted for the flag, namely a respectful and patriotic one.

    One who loves the Union will love the state in which he resides, and love both of the common country and of the state will diminish in proportion as respect for the flag is weakened. Therefore a state ... will be impatient if any open disrespect is shown towards it. ... It is familiar law that even the privileges of citizenship and the rights inhering in personal liberty are subject ... to such reasonable restraints as may be required for the general good.

The state’s interest in protecting the flag from disrespect is not abstract: according to Harlan, it is necessary for the “general good” that no one use the flag in a manner that encourages disrespect for either it or the nation. It’s difficult to see how such an argument could not be used against other forms of expression which do not use the flag, but which also serve to encourage disrespect towards the flag or the nation.

Halter v. Nebraska: Significance

This was the first Supreme Court case on laws regulating use of American flags and it was a victory for those who sought greater government regulation rather than greater personal liberty. Halter didn’t defend his acts on the basis of personal liberty, but the Court chose to comment on that issue and found that there are no significant personal liberty interests in using the American flag to communicate a message which override the interests of the state to maintain respect, affection, and reverence for both the flag and America.

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