Is it Legal to Wear American Flag Apparel?

In 1968 Abbot "Abbie" Hoffman interrupted the House Committee on Un-American Activities, which had gathered to investigate the Chicago riots, by wearing an American flag shirt. His shirt was removed and he was arrested by local authorities. It is believed that Hoffman was the first and only person in U.S. history to be arrested for wearing a flag shirt and charged with the crime of desecration of the flag. Indeed, 50 years later, the American flag is splashed across all sorts of apparel - bikinis, shirts, socks, party favors, and election campaign merchandise. This, in fact, has become our own American tradition. Hoffman was initially convicted of the charges, but the decision was overturned on appeal.

History of the Flag

The American flag was initially used just by the military, until it became a staple in American households after the Civil War. In the 1800s, advancements in printing allowed for the image of the flag to appear on several types of products. Not surprisingly, these items became a symbol of commercialism and patriotism. That being said, the rampant advertising using the American flag upset patriots, causing individual states to pass flag-protection laws. In the late 1800s, Flag Day was proposed, and the Pledge of Allegiance was created.

It was not until 1942 that the U.S. Flag Code—a set of non-legal guidelines around the proper display and use of the U.S. flag - was established. Some guidelines in the code included

frowning upon commercial use of the flag. This includes clothing, bedding, and drapery as well as not using the flag as an athletic uniform or a costume - to name a few. Under specific circumstances, patches and lapel pins are allowed. The code also notes that the flag should not be used on embroidered items or anything that is disposable.

The Supreme Court of the United States (SCOTUS) ruled flag-protection laws unconstitutional in Smith v. Goguen. In Smith, a six to three majority ruled in favor of a Massachusetts man who was jailed for wearing a small cloth version of the American flag sewn on the seat of his jeans. Writing for the majority, Justice Lewis Powell said the law was vague and therefore unconstitutional. The decision stopped short of addressing First Amendment issues regarding flag desecration and free speech.

Wearing the Flag is Legal

In short, it is now legal to wear the flag as part of your apparel. In fact, Tommy Hilfiger and Ralph Lauren are two iconic American clothing designers who are well known for using stars and stripes in their designs. Back in the 2000s, the retailer Target issued an entire line of American flag motifs for a patriotism-themed collection designed by Stephen Sprouse. That being said, American flag apparel has had its moments of controversy; artists and other celebrities have used it as a form of protest or ironic commentary on our nation’s issues.

If you have more questions about the law and the use of the American flag or if you have any other legal issue you are facing, contact Parry & Pfau. Our skilled attorneys have represented clients across the state of Nevada, and can explain your rights and obligations under the law that applies to your particular case.

(image courtesy of Camylla Battani)