There is a two-sided and important relationship between efforts to ban flag burning or flag desecration and the use of the flag in advertisements, commercials, and other business contexts. Hardly anyone today is aware of this relationship, but understanding it is important because it reveals some very important things about the movement to ban flag burning and desecration.
The first thing to note is that the cult around the American flag did not exist during the earliest years of the American Republic. People respected the American flag, but there were few efforts to sanctify it and treat it akin to a religious icon. All of that started during the period leading up to the Civil War when the American flag was contrasted with the newly formed Confederate states. Thus did the flag become deeply associated with true patriotism and America’s cause — which, of course, was also God’s cause in the world.
Politicians associated themselves with the flag — they didn’t just wrap themselves in the flag, they had their pictures placed on the flag, as if they themselves were symbolic of American values. The demand for flags at the start of the Civil War was so strong that suppliers couldn’t keep up. Women left at home invested a lot of time sewing small flags to send to soldiers at the front lines. For both soldiers and citizens, the American flag represented the victorious American nation, blessed by God to bring freedom and Christianity to the world.
Of course, nothing so popular and universally esteemed could avoid being used for other purposes, which brings us to our second item: soon after the Civil War, businesses began to use images of the flag in their advertisements. True Believers in the American cause were outraged that this image of America was used to sell everything from flour to beer. This, for them, was a desecration of the American flag and they were determined to stop it.
Thus the very first laws controlling the use of the flag didn’t first appear until the late 1800s and were aimed primarily at “commercial exploitation” of the flag. The flag had become such a holy symbol to people that the government wanted to prohibit its use in advertising, awnings, and to decorate places of “immoral character.”
It might seem strange that this would be a problem, given how common the use of the flag in advertisements is today, but it’s true. Few questioned efforts to restrict people’s commercial speech because government suppression of unpopular political speech wasn’t even seriously opposed until after World War I.
In Free for All: Defending Liberty in America Today, Wendy Kaminer writes:
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Magazines glorified loyalty to our “sacred flag,” which was said to remind us that we are born “not of the flesh but of God.” ... Some thirty years later... an advocate for flag desecration laws declared, “Three sacred jewels — the Bible, the Cross, and the Flag — command the national reverence.”
So which is a greater “desecration” of the flag, using it in an advertisement for overpriced used cars or burning it in a political protest against American policies that violate human rights? Is it worse for a politician to wrap themselves in the flag in an effort to amend the Constitution to limit free speech, or to put in on the ground and wipe dirty boots on it? All of it is arguably objectionable; yet if that’s the case, then there is something fundamentally wrong with only trying to ban one set while letting the other continue unabated.
I’ll let you in on a little secret: using the flag for advertising, or putting advertising on the flag, is still a crime in most states. Most of these state laws may technically be unenforceable because of the Supreme Court decisions in Texas v. Johnson and United States v. Eichman. A few, though, might still be valid — it's just that no one cares enough to bother enforcing them. Isn't it strange that widespread use of the flag in commercial advertising isn't important enough to use potentially valid laws to stop, but very rare acts of flag burning during political protests is important enough to pass a constitutional amendment to stop?
Perhaps we should welcome the commercial exploitation of the flag. Every time someone uses the flag to sell a used car or puts it on a pair of underwear, it’s a direct refutation of the idea that the flag should be revered as something sacred. It’s not enough to simply stop legislative efforts to abridge free speech, we also have to encourage changes in people’s attitudes. Ideally, we should get people to stop seeing the American flag as a holy, religious icon. Commercial speech typically has fewer protections than other forms of speech, but this is an example of why that may not always be such a wise situation.
