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60 Ky. L.J. 885 (1971-1972)
Flag Profanation and the Law

handle is hein.journals/kentlj60 and id is 905 raw text is: Flag Profanation and the Law By EMMET V. MIT-LEBEELER* I. INTRODUCTION Recent years have seen numerous deliberate acts of mutilation or destruction of one of the most cherished of all American emblems-the flag of the United States of America. These have been performed in public, often before a sympathetic crowd, and nearly always for the purpose of protesting a current policy or action of the government or a social practice or custom. Use of the flag or flag design in unconventional ways, as in clothing, decorations, and advertising, even where no political protest is intended, has also become prevalent. Both types of flag abuse-desecration-have presented vex- atious constitutional questions, especially in regard to freedom of expression. Questions about such freedom of course are not new but now they involve an especially unique and respected object- the flag. A widespread body of citizens venerates the flag with an almost religious fervor. Extreme adherents of this body in times past have sought to enforce outward respect, as by com- pelling the saluting1 or pledging of allegiance2 to the flag, in public schools. Incidents have been recorded in which private individuals, acting without color of law, have forced unpopular persons to manifest outward obeisance to the flag.' To persons - B.A., 1936, LL.B., 1939; J.D., 1970, University of Louisville; M.A., 1950; Ph.D., 1951, University of Chicago. 1 The place of flag salute cases in American constitutional history is well known. The two principal Supreme Court decisions in this area are West Virginia State Board of Education v. Barnett, 319 U.S. 624 (1943), and the case which it overruled, Minersville School District v. Gobitis, 310 U.S. 586 (1940). See also D. MANWARING, RNDER UNTo CAnsAm: Tim FLAG SALUTE CONTROVERSY (1962). 2 The pledge of allegiance to the flag, thought to have been written by Rev. Francis Bellamy, was adopted by Congress in 1942. June 22, 1942, ch. 435, Sec. 7, 56 Stat. 380 and December 22, 1942, ch. 802, Sec. 7, 56 Stat. 1077. It was altered somewhat December 28, 1945, ch. 607, 59 Stat. 668. The words under Cod were added by H.R.J. Res. 243, June 14, 1954, P.L. 83-396. The present form appears in 36 U.S.C. § 172 (1970). 3 See e.g., Ex parte Starr, 263 F. 145 (D. Mont. 1920) and Johnson v. State, 163 S.W.2d 153 (Ark. 1942). The tribulations of Jehovahs Witnesses in this respect have been widely publicized. See e.g., McKee v. State, 37 N.E.2d 940 (Ind. 1941).

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