Title 4, Chapter 1 of the US Code is devoted to the flag of the United States; Section 8 of that chapter begins by stating that “no disrespect shall be shown to the flag of the United States of America.” Eleven sub-paragraphs follow explaining how that disrespect is to be avoided. To justify the safeguarding of what is, ultimately, a piece of cloth, the Code explains that “the flag represents a living country and is itself considered a living thing.”

The underlying concept of the Flag Code is that the flag shouldn’t be used as anything but a flag. You can’t turn it into a bedspread, nor can you make it into an article of clothing, although an exception is made for a flag patch on a uniform. Note however that, when the flag appears on combat uniforms, the design is reversed, so that the union (the blue part with the stars) is in the upper right corner, yielding what is known as the reverse field flag. Although the apparent point of the reverse field flag to represent the flag as it would appear if it were being marched into battle, it may also be a means of sidestepping the problem of making a replica of the flag that would be governed by the Flag Code.

The Code continues: “the flag … should not be … printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard.” Despite this, paper napkins with the flag are to be encountered everywhere, along with plates, cups, and a seemingly countless number of articles destined for the garbage can. Such articles unquestionably contravene the Flag Code. They are punishable as well. Elsewhere in the US Code (Title 18, Part I, Chapter 33, §700), the law states:

Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, or tramples upon any flag of the United States shall be fined under this title or imprisoned for not more than one year, or both.

The statute then defines “flag of the United States” as “any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed.” Interestingly, this might suggest that patriotic napkins that don’t replicate the flag exactly might not be included in the above provision. Indeed, a survey of patriotic napkins on Amazon shows that most of the designs available only show stars and stripes motifs that don’t depict an entire flag.

Prior to amendment in 1989, however, the statute gave a longer and more inclusive definition of “flag of the United States” that referred to any flag, standard, colors, ensign, or any picture or representation of either, or of any part or parts of either, made of any substance or represented on any substance, of any size evidently purporting to be either of said flag, standard, color, or ensign of the United States of America, or a picture or a representation of either, upon which shall be shown the colors, the stars and the stripes, in any number of either thereof, or of any part or parts of either, by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America.

That unquestionably would cover every patriotic napkin design to be seen on Amazon today. Indeed, the amendment was likely written to exclude at least the more abstract of July Fourth picnic supplies. There nonetheless remain napkin manufacturers who apparently should be jailed.

For legal precedent, one has to look past the disposable napkin to a far more extreme form of disrespect of the flag, the burning of one. The watershed case is Texas v. Johnson, which made its way to the Supreme Court in 1989. During a demonstration against the government at the 1984 Republican National Convention in Dallas, Johnson took a flag that had been torn from a flagpole and set it aflame while demonstrators chanted "America, the red, white, and blue, we spit on you.”

Johnson was charged under Texas law, sentenced to one year in prison, and fined $2,000. He appealed, lost, and appealed again to the Texas Court of Criminal Appeals, which overturned the conviction on the grounds that Johnson’s flag-burning was protected by the First Amendment as a form of speech.

The State of Texas appealed to the Supreme Court, which, in a controversial 5-4 decision, upheld the overturning of the conviction. Justice William J. Brennan Jr. wrote the majority opinion. It held that actions may be "sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments.” Therefore, the Court found that Johnson's burning of the flag "constituted expressive conduct, permitting him to invoke the First Amendment.”

With that, the high court struck down laws in 48 states that banned the desecration of the flag.

Thus burning the flag is protected by the First Amendment. On the other hand, blowing your nose on an American flag napkin because a box of tissues isn’t handy contains no “elements of communication”: it simply makes the flag into something utilitarian, which is precisely what the Flag Code seeks to prohibit. Thus it remains highly possible that the flag napkin is liable to punishment under the Title 18 law cited above.

The law is obviously unenforceable. The manufacturers of flag napkins, anything else disposable, or even T-shirts that make the flag into an article of apparel clearly aren’t scofflaws: they’re responding to the demand for patriotic items which the purchasers believe to be a way of demonstrating their love of country. These well-meaning patriots obviously don’t realize that their picnic plates actually contravene the Flag Code, despite the fact that it is counterintuitive in the extreme that, while burning a flag is permitted, patriotic picnic plates are illegal.