I agree with constitutional scholars that this law is unconstitutional. But South Dakota’s Attorney General Jason Ravnsborg has neither the jurisdiction nor the intellect to discern the constitutionality of state law; the Attorney General’s job is to enforce our laws, including our flag-defacement ban.
The salient question at a rinky-dink shop in Rapid City is, does defacement include putting a face on a flag?
As photographed by my friend Joe Lowe on Thursday, the newly opened “Trump Shop” at the corner of Baken Park was flying two defaced American flags: one with Trump’s visage, one with his name, both with his slogan stamped over the proper colors. Joe Lowe tells KOTA-TV these crass commercial banners deface and disrespect the flag for which his father fought and died:
“It’s a flag issue for me. It’s just disrespectful and it’s against the United States Code,” said Lowe, pointing to an American flag with Trump’s image superimposed on top of. “My dad died for the country and my uncle died on the battlefield. They fought for the county, for the United States of America, not the United States of Trump. You shouldn’t put people’s picture on the American flag it’s just disrespectful.”
Lowe says putting an image on top of the flag is a misdemeanor offense [Nick Reagan, “Trump Shop Opens in Rapid City for Sturgis Motorcycle Rally,” KOTA-TV, updated 2019.07.26].
According to Jim Holland’s Rapid City Journal report, the shop owner, Super American Circus producer Tuffy/Cornell Nicholas from Sarasota, Florida, treats the flag with the same respect he has for elephants:
Nicholas has been in the Trump business since late 2015 when the Florida Republican Party asked him to provide an elephant for one of then-candidate Trump’s first rallies in Sarasota.
Nicholas is a circus promoter in Sarasota, owning and operating the Super American Circus, with plenty of connections for circus animals. The elephant, an Asian elephant named Essex, was provided by another party, also a Trump supporter, according to news reports of the November event.
Nicholas said Trump first wanted to ride the elephant at the rally, but his Secret Service detail put the kibosh on that.
Instead the elephant was walked around the rally site with “TRUMP Make America Great Again” chalked on its sides.
“They wouldn’t let him ride it,” Nicholas recalled. “He sure wanted to” [Jim Holland, “The Trump Shop Comes to Rapid City,” Rapid City Journal, updated 2019.07.27].
Nicholas says he’s an independent business, supportive of but not affiliated with or answerable to the Trump campaign:
…the Trump Shop is not officially connected with the Trump campaign, Nicholas said.
“We’re our own business, but we do donate to the campaign weekly,” he said.
…Nicholas said he is not required to clear the items he sells with the Trump campaign. His company, Trump Shop.com, is a registered trademark.
“He’s president,” he said. “(It’s) public domain” [Holland, 2019.07.27].
Actually, South Dakota law may not support Nicholas’s purely commercial use of Trump’s image, on flags or otherwise. Chapter 21-64 of state law, passed in 2015 (see House Bill 1225), establishes a “right of publicity” which prohibits the use of “any aspect of a personality’s right of publicity for a commercial purpose during the personality’s lifetime or for seventy years after the death of the personality without the express written consent of the personality, or if the personality is deceased without the express written consent of the personality’s next of kin or other person or entity that owns the right of publicity.” The definition of “personality” in SDCL 21-64-1 appears to limit this right to natural persons who are “citizen[s] of this state or who died domiciled in this state.” However, the Secretary of State’s webpage on this right of publicity not only makes no mention of this South Dakota “citizenship” requirement but recognizes the right to publicity registered by successors of Johnny Carson, Cecil B. DeMille, and Louis Armstrong, none of whom ever domiciled in this state.
If South Dakota’s right to publicity applies to “personalities” from out of state, then Donald Trump could take Tuffy Nicholas to state court and seek the following penalties on the Trump Shop profiteer:
- Temporary or permanent injunctive relief;
- Damages in the amount of one thousand dollars or the actual damages, including profits derived from the unauthorized use, whichever amount is greater;
- In determining a defendant’s profits, the plaintiff is required to prove the gross revenue attributable to the unauthorized use, and the defendant is required to prove properly deductible expenses; and
- If the court finds that the violation of § 21-64-2 was knowing, willful, or intentional, treble, but not computed on the defendant’s profits, or punitive damages, as the plaintiff elects [SDCL 21-64-5, enacted 2015].
A vendor in Rapid City is making money by imprinting the name and face of a famous personality on United States flags. That vendor thus appears to be violating two South Dakota laws, about which I suspect neither South Dakota’s Attorney General nor the occupant of the White House will do anything.
And that’s fine with me: I’m for more free speech, not less.
But I do want to know: if a buyer asks us to Pledge Allegiance to one of Nicholas’s re-faced flags, are we allowed to sit silently? And if a Trump flag flies for a singing of the National Anthem, are we allowed to stay seated until someone flies an actual, undefiled flag of the United States of America?