In Halter v. Nebraska, 1906, the U.S. Supreme Court upheld a Nebraska law that prohibited the use of foreign flags in advertising or any public display not sanctioned by a national, state or municipal government. The case was brought forward by two businessmen who were fined for displaying a Swiss flag as part of their beer advertisement during an event celebrating Swiss Independence Day. They argued that this violated their First Amendment rights to freedom of speech and Fourteenth Amendment rights to equal protection under the law. However, the court ruled against them stating that states have police power to protect public safety and welfare which includes preventing potential disturbances caused by inappropriate uses of foreign flags; hence it did not violate either amendment.

In the dissenting opinion for Halter v. Nebraska, Justice Harlan disagreed with the majority's ruling that a state law prohibiting the desecration of U.S. flags was constitutional. He argued that such laws infringed upon citizens' First Amendment rights to freedom of speech and expression. Harlan contended that while he personally found flag desecration distasteful, it was not within the purview of government to regulate these forms of political protest or personal expression unless they posed a clear threat to public safety or order. He also expressed concern about potential abuses and inconsistencies in enforcing such laws, as what constitutes "desecration" could be subjective and vary widely from case to case.