AVIS DE DROIT PROTECTION DES SIGNES NATIONAUX

ETATS-UNIS
particularized message was present, and whether the likelihood was great that the message
would be understood by those who viewed it.” 323 If so, we must then ask whether the
governmental regulation (on a state or federal level) of the conduct is related to the
suppression of expression or if the governmental interest to be protected by the statute was
unrelated to the suppression of free expression. If the statute were of the former type, it
would be subject to strict scrutiny. If the statute were of the latter type, the government
would need only show that it furthers an important or substantial governmental interest, and
that the restriction of First Amendment rights is no greater that is essential to the furtherance
of that interest. 324
Any governmental regulation concerning the use and treatment of the flag, then, may have
Constitutional repercussions. In addition to the applicable legislation, there is a substantial
amount of case law (much of which surrounding flag burning as a form of political protest
against the war in Vietnam) concerning the issue. 325
The Flag Code
Either Congress or a state legislature may, under the police power granted by the Constitution,
prohibit or regulate the use of the national flag of the United States. 326 The power to
reasonably regulate usage and display of the flag does not, however, entitle the government to
appropriate the colors red, white and blue and the depiction of stars and stripes. 327 Contentneutral
time, place and manner flag statutes or ordinances which advance substantial
government interests are valid. 328 Federal statutory provisions cover the design of the United
States flag, as well as its display and use. 329
Congress adopted the Flag Code, a guide for all handling and display of the Stars and Stripes,
in 1942. The Federal Flag Code, however, is merely advisory and is not intended to proscribe
conduct. 330 With the exception of 4 U.S.C. § 3, it does not impose penalties for misuse of the
United States Flag. That is left to the states and to the federal government for the District of
Columbia. 331
The Flag Code provides that the flag should not be used as wearing apparel, bedding or
covering for a ceiling, for advertising purposes in any manner whatsoever, nor should
advertising signs be attached to a staff or halyard from which the flag is flown. Similarly a
flag should not be embroidered on a cushion or printed on paper products nor should any part
of the flag be used as a costume or athletic uniform. A flag patch may, however, be affixed to
323
Texas v. Johnson, 491 U.S. 397, at 405, (1989).
324
See United States v. O’Brian, 391 U.S. 367, 377 (1968).
325
See, e.g. Texas v. Johnson 491 U.S. 397 (1989), United States v. Eichman, 496 U.S. 310 (1990).
326
Halter v. State of Nebraska, 205 U.S. 34 (1907).
327
Parker v. Morgan, 322 F. Supp. 585 (W.D.N.C. 1971).
328 th
American Legion Post 7 of Durham, N.C. v. City of Durham, 239 F.3d 601 (4 Cir. 2001) as cited in
36A C.J.S. Flags §3.
329
4 U.S.C. §§ 1-10 available at:
http://www.ushistory.org/betsy/flagetiq.html#5.
See also http://www.suvcw.org/flag.htm.
330 th
Dimmitt v. City of Clearwater, 985 F.2d 1565 (11 Cir. 1993).
331 See “droit regional”, infra.
206