Q: An advertiser wants to use the American flag in a display ad marketing its products. Is that OK?

A: Both federal and state law limit or prohibit using the flag in commercial advertising, and some readers could be offended by commercial use of the flag.

Under federal law (4 U.S.C.A. §3), the American flag cannot be used for commercial advertising purposes. Although First Amendment grants significant protections for speech that uses the flag, commercial speech, like advertising, is subject to stricter control. Flag use is generally considered commercial speech for constitutional purposes when: (1) it is contained in an advertisement; (2) refers to a specific product or service; and (3) the speaker has an economic motivation. The federal restrictions on commercial use of the flag prohibit the flag from being marked or written upon in an advertisement or desecrated in any manner. Illustrations of the flag are also prohibited. The federal flag rules are a “code of conduct,” however, and do not carry penalties for violation. 

Pennsylvania enacted a similar statute which prohibits use of the United States or state flag for advertising purposes. See 18 P.S. §2102.  This law makes it a misdemeanor to use the flag improperly. There are exceptions to the general rule, however, including that the flag may be used in “any patriotic or political demonstration or decorations.” 18 P.S. § 2102(b)(4).

Although these statutes are rarely enforced, publishers should be aware of them. 

It is also important to remember that improper use of the flag could also offend readers. 

Because of state and federal law as well as potential reader issues, some news organizations suggest alternatives to the flag such as patriotic banners, bunting or streamers as well as patriotic colors. 

As always, this is not intended to be, and should not be construed as, legal advice. Please call the PNA Legal Hotline at 717-703-3080 or your news organization’s corporate attorney with questions or to request prepublication review.