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Source: Omaha World-Herald
Date: October 29, 2007
Byline: Joe Dejka

Nebraskans' beer label brought flag fracas to head

One hundred years ago, a beer bottle from Nebraska came under scrutiny of the U.S. Supreme Court.

Ever since, the history of flag protection in America cannot fully be recounted without mention of an Omaha bottling company.

"Halter and Hayward lose their case," shouted the headline in the March 5, 1907, issue of The Omaha World-Herald.

Nicholas Halter and Henry Hayward had printed their beer bottles with a representation of the U.S. flag. They were convicted of violating a 1903 Nebraska law prohibiting use of the flag in advertising.

Violation was a misdemeanor. Halter and Hayward were fined $50 each.

They appealed to the U.S. Supreme Court, claiming that the law was unfair because it allowed newspapers, magazines and books to print flag images. They also argued that the law infringed on their 14th Amendment liberties. The 14th Amendment guarantees due process and equal protection under the law.

The high court upheld the law. It found that a state has a right to cultivate patriotism and that putting the U.S. flag on a beer bottle "tends to degrade and cheapen" it and defeat the objective of maintaining it as an emblem of national power and honor.

Over the next 100 years, the court gradually would embrace a variety of unofficial uses of the flag, all in the name of free speech, though not without controversy.

Here are some highlights of the past century of flag protection, drawn from Robert Corn-Revere's "Implementing a Flag-Desecration Amendment to the U.S. Constitution":

1917 — Amid the passions of World War I, Congress makes public mutilation of a flag a misdemeanor in the District of Columbia.

1917 — Flag-protection groups lobby Congress for passage of the Civilian Flag Code, a guideline for displaying the flag and punishing its desecration.

1942 — Congress passes a joint resolution endorsing a voluntary common flag etiquette code; code violations carried no penalties.

1943 — U.S. Supreme Court determines the state cannot punish individuals for encouraging students and others who attempt "to create an attitude of stubborn refusal to salute, honor, or respect the national and state flags and governments."

1968 — Congress passes a law that imposes criminal penalties on anyone who "knowingly casts contempt upon any flag of the United States by publicly mutilating, defacing, defiling, burning or trampling upon it."

1969 — U.S. Supreme Court overturns the conviction of veteran Sydney Street, who burned a flag in protest after learning that activist James Meredith had been shot.

1974 — U.S. Supreme Court overturns the conviction of a teenager who wore a flag patch on his pants, determining that a Massachusetts law prohibiting "contemptuous" use of the flag was vague. The same year, the court overturns the conviction of a man who taped a peace symbol onto his flag.

1989 — U.S. Supreme Court rules that burning the American flag is a constitutionally protected form of free speech. Congress follows that with passage of the Flag Protection Act, which provides punishment for anyone who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any U.S. flag. "

1990 — The high court invalidates the Flag Protection Act, finding it violates free speech.

1994 — The Nebraska Legislature adopts a nonbinding resolution urging adoption of a U.S. constitutional amendment against flag burning. It was the 38th state to do so.

1995-2006 — The House and Senate vote numerous times but fail to adopt a proposed constitutional amendment to prohibit flag desecration.

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