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Trump Flags Violate SD Laws on Flag Defacement and Right of Publicity?

SDCL 22-9-1 dishes out a Class 1 misdemeanor—up to one year in jail, $2,000 fine—to “Any person who knowingly mutilates, defaces, physically defiles… any flag of the United States….”

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?

Trump flags in Rapid City; photo by Joe Lowe, 2019.07.25.
Trump flags in Rapid City; photo by Joe Lowe, 2019.07.25.

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, 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:

  1. Temporary or permanent injunctive relief;
  2. Damages in the amount of one thousand dollars or the actual damages, including profits derived from the unauthorized use, whichever amount is greater;
  3. 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
  4. 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?


  1. Rich 2019-07-28 12:41

    “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?”
    No law states that anyone has to pledge allegiance to ANY flag at any time nor do we HAVE to stand during the National Anthem. That’s what living in a free country is about. I do find it hilarious that a Circus promoter is promoting trumps circus. Unfortunately while we watch the clown show McConnell and the republican party are changing our system of government for years to come.

  2. bearcreekbat 2019-07-28 13:29

    I guess this doesn’t rank as hard core crime like the one justifying the recent seizure of illegal merchandise from the alleged Staple and Spice crime family? Priorities, priorities. . ..

  3. Roger Cornelius 2019-07-28 13:45

    There is the slightest of possibilities that I would stand and recite the Pledge of Allegiance or even sing the National Anthem when the flag is flown if I knew for a fact that the flag was manufactured in the United States.
    The merchandise at the Trump Shop needs to be inspected to see if it is indeed Trump’s America First or just another product from a Chinese contract manufacturer.
    Yesterday some of Trump’s campaign materials were hung up in customs because of his tariffs, but with his vas power I’m sure he got them unhung up.

  4. grudznick 2019-07-28 18:12

    No go, Joe Lowe. Your pa died for the freedoms we have to express our opinions. One of mine is that Mr. Trump is sickening, and that anybody messing with the flag is downright rude and offensive, so I figure they’re probably an out-of-state name-caller or at least an interloper with big rudeness on display, but golly they say we can’t go over and thump them on the noggins over this sort of thing and have to put up with it.

  5. Debbo 2019-07-28 19:13

    I don’t see any US flags in that photo. I do see similar images, but no US flags. It’s just ugly, grotesque crap, very similar to what’s defacing the interior west wing of our White House. Ugh. 🤮🤮🤮

  6. Buckobear 2019-07-28 21:06

    Every day, when we raise the colors at my park, we render honors. We call “Present Arms,”and those not turning the crank salute. Onceraised, the “cranker” steps back, Holds his/her salute until “Order Arms” is called. It’s always a wonder that those milling around in the parking lot or waiting to enter our site rarely, if ever, render proper honors. Usually, these are the ones with the American Flag, 2nd Amendment or Love it or leave it Tee shirts on.
    Oh well ……..

  7. Donald Pay 2019-07-28 21:51

    Anyone know if this outfit has some Trump American Flag toilet paper? I can’t think of a better way to wipe away all that greatness we’re getting from the Trump crowd.

  8. Shawn 2019-07-29 02:37

    President Trump is possibly the best president ever! You must be a very ignorant socialist. That is not defacement, but completely patriotic!! God bless Trump and our great nation!

  9. Cory Allen Heidelberger Post author | 2019-07-29 05:53

    Ignore Shawn’s Trumpist insult and focus on the logic at the base of his reply: If I like it, it’s not defacement.

    OK, I think Barack Obama was a great President. Is it o.k., per SD Law and US Flag Code, for me to write his name and “Yes We Can” in marker all over a flag? Is it o.k. for me to staple a card board cutout of his head to a flag?

    Does the meaning of the law depend on the flag-modifier’s feelings?

  10. Porter Lansing 2019-07-29 07:59

    President Trump is the most socialist President USA has had. His attempts at controlling business are socialism extraordinaire. From controlling the ag market with tariffs to threatening overseas companies to bring their fully legal operations back to America or else. Choosing to give tariff exemptions to some and not others is socialistic picking of winners and losers. Redistribution of wealth goes both ways, you know. Taking from the middle class and giving to the super wealthy is textbook socialism. Take of your MAGA BLINDFOLDS and recognize real socialism when you see it, Trump supporters. You’re being conned by a criminal grade crook.

  11. Realist 2019-07-29 08:14

    Not a Trump supporter by any means, but I dont think the law you’ve cited is applicable here. In my reading of the statute, the flag would have to be in its original state to begin with. Followed by a physical act upon the flag (burning or tearing a prime example). I agree, the US Supreme Court has deemed this protected speech, which I recognize. However, creating a flag with an image imposed upon it, I dont think fits with the law you’ve cited. Additionally, the law imposes a “knowingly” requirement – i.e. specific intent to deface, mutilate, etc. I.e. their “feelings” – “intent” would be an element. Ultimately, I think this is likewsie protected speech under the 1st amendment.

  12. mike from iowa 2019-07-29 10:54

    Drumpf is certainly the most prolific liar and bona \fide racist, ever. Best? Never.

  13. Roger Cornelius 2019-07-29 11:45

    Excellent find, Chris, love it.

  14. Shawn 2019-07-29 16:18

    What is this guy’s position when it comes to all those people defacing and stomping and burning the American flag? If he can show where he was outspoken, made comments or posts in the past, then he has credibility. If not. We know exactly what he’s doing here.

  15. leslie 2019-07-30 21:44

    typical Rapid City rally consumerism crap.

  16. leslie 2019-07-30 21:50

    Another example–

    12″ high letters — if I were 12 I would stage walkouts until it is removed.

    Not much different than sitting at a stoplight on Rapid City’s main intersection 12 noon and witnessing high school kids shout racist slurs at Indian people in the cross walk.

    Typical Rapid City–1969–2019

    What’s the same? Republicans.

  17. JonD 2019-07-31 13:28

    I drove by here this morning, all the flags with Trump’s image are gone now. If that’s due in any way to this blog, Rapid City thanks you.

  18. Cory Allen Heidelberger Post author | 2019-08-02 12:25

    Hey, JonD, if I could take credit, I’d gladly do so. But it’s also possible the Trump Team saw the news and cracked down on private profiteering on Il Duce’s likeness.

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