Revisiting the U.S. Flag Merchandise Debate (Thanks to Nike and Kaep)

By Brendan Menapace

If you've been anywhere on the internet today, you've likely seen that Nike is pulling a new July 4 shoe design after Colin Kaepernick pointed out that some people might find the "Betsy Ross Flag" design offensive. Kaepernick's argument was that the Betsy Ross flag was used as a symbol for the American Nazi party and subsequent Nazi-influenced far-right groups into modern era. It also harkens back to a time when slavery was widely practiced in America.

If you’re going to tweet about the Betsy Ross Flag, make sure you include this part: “It has been appropriated by some extremist groups opposed to America’s increasing diversity.” https://t.co/k5N5bGhDut

— Shannon Watts (@shannonrwatts) July 2, 2019

"Nike has chosen not to release the Air Max 1 Quick Strike Fourth of July, as it featured the old version of the American flag," a Nike spokesperson told the Wall Street Journal.

Critics of Nike and Kaepernick (who have been numerous in recent years) railed against the decision, calling it "un-American." They believe Kaepernick has taken his social justice crusade too far, and that Nike is too worried about political correctness. Arizona Governor Doug Ducey even went on an early-morning Twitter tirade, concluding it with a declaration that he would pull financial incentives the state awarded Nike to bringing a location to Arizona.

Instead of celebrating American history the week of our nation’s independence, Nike has apparently decided that Betsy Ross is unworthy, and has bowed to the current onslaught of political correctness and historical revisionism. 5/

— Doug Ducey (@DougDucey) July 2, 2019

Nike has made its decision, and now we’re making ours. I’ve ordered the Arizona Commerce Authority to withdraw all financial incentive dollars under their discretion that the State was providing for the company to locate here. 7/

— Doug Ducey (@DougDucey) July 2, 2019

The right side of the political aisle has been critical of Kaepernick since he first started kneeling for the National Anthem while still an NFL quarterback in San Francisco, but Gov. Ducey's decision to potentially impact Arizona's economy to make a point is certainly bold.

However you feel about Nike's decision from a political standpoint, for our purposes, it appears to have reopened the debate over when (and how much) the American flag can be used in merchandising and on apparel. It came up frequently in the replies to Ducey's tweets, with many users correctly noting that, yes, it's technically against the law to use the American flag on apparel at all. Here's what we reported a few years back, via Cornell Law School:

Did you know that there is a code of etiquette when it comes to displaying the U.S. flag? Here are a few rules for donning the stars and stripes:

• The flag should never be used as wearing apparel, bedding or drapery.

• The flag should never be used as a receptacle for receiving, holding, carrying or delivering anything.

• The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to staff or halyard from which the flag is flown.

• No part of the flag should ever be used as a costume or athletic uniform However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen and members of patriotic organizations.

And here's what retired U.S. Marine and flag expert Damon Mitchell told a local news station around that time:

"Basically, any product that is temporary is not supposed to have a flag in any fashion," Mitchell told WFAA8. "Imprinted, like a picture of, or whatever, on there without disposing of it properly because it is a U.S. flag. So anything you put the American flag on is supposed to be treated like a U.S. flag."

Clearly, no one really abides by this code. And there's no actual penalty for breaking it. Retailers routinely offer U.S. flag merchandise for the 4th of July and other holidays, and businesses often incorporate the American flag, or at least the stars and stripes, into their holiday promotional marketing and branding. When using the American flag design for apparel and decoration overall, it's essentially up to each individual entity where to draw the line between fun and patriotic, and gauche and insensitive.

Nike drew a line this time, though not for any reasons related to the U.S. flag code. (It's not as if the company adheres to the code elsewhere.) The Governor of Arizona drew one, too. We'll see which side ends up regretting it more.