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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
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
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.

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