Last updated on: 6/23/2008 12:07:00 PM PST
Would Amending the US Constitution to Prohibit the Desecration of the US Flag Limit Free Speech?
General Reference (not clearly pro or con)
The Congressional Research Service (CRS) Report for Congress updated May 19, 2005, titled "Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendment," written by John Luckey, JD, stated that:
"Many Members of Congress see continued tension between 'free speech' decisions of the Supreme Court, which protect flag desecration as expressive conduct under the First Amendment, and the symbolic significance of the United States flag. Consequently, every Congress that has convened since those "Many Members of Congress see continued tension between 'free speech' decisions of the Supreme Court, which protect flag desecration as expressive conduct under the First Amendment, and the symbolic significance of the United States flag. Consequently, every Congress that has convened since those decisions were issued has considered possible measures to permit the punishment of those who engage in flag desecration...
In 1968, in the midst of the Vietnam conflict, Congress enacted the first Federal Flag Protection Act of general applicability. The law was occasioned by the numerous public flag burnings in protest of the war... In response to [Texas v. Johnson, which held, in a 5-4 ruling, that the burning of the flag was protected by the First Amendment], Congress enacted the Flag Protection Act of 1989...
On June 11, 1990... in another 5 to 4 decision [United States v. Eichman], the Court held that the Flag Protection Act of 1989 could not be constitutionally applied to a burning of the flag in the context of a public protest."
May 19, 2005 - Congressional Research Service
Flag Protection: A Brief History and Summary of Recent Supreme Court Decisions and Proposed Constitutional Amendment (49 KB)
H.J. Res. 10, a joint resolution proposing an amendment to the US Constitution, which passed the House of Representatives on June 22, 2005, stated:
"The Congress shall have power to prohibit the physical desecration of the flag of the United States."
June 22, 2005 - H.J. Res. 10 "Flag Amendment" (26 KB)
The American Civil Liberties Union (ACLU), in its Mar. 4, 2004 paper titled "Reasons to Oppose the Flag Desecration Amendment," stated:
"This amendment is injurious to one of the very freedoms the flag symbolizes: free speech. It directly empowers the Congress to engage in thought control. There is a distinct difference between real and forced patriotism. Flag burning and desecration is offensive because it is political. Experience shows that the way to fight political expression with which one disagrees is not to outlaw it, but to express disapproval...
This amendment would be the beginning, not the end, of the question of how to regulate a certain form of expression. It empowers Congress to begin the task of defining what the 'flag' and 'desecration' mean. The use of the flag as symbol is ubiquitous, from commerce, to art, to memorials, such that Congress would be in the position of defining broad rules for specific applications."
Mar. 4, 2004 - American Civil Liberties Union (ACLU)
Colin Powell, MBA, Former US Secretary of State, wrote in his May 18, 1999 letter to US Senator Patrick Leahy:
"I love our flag, our Constitution and our country with a love that has no bounds... We are rightfully outraged when anyone attacks or desecrates our flag...
But I step back from amending the Constitution to relieve that outrage. The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous. I would not amend that great shield of democracy to hammer a few miscreants. The flag will still be flying proudly long after they have slunk away...
Finally, I shudder to think of the legal morass we will create trying to implement the body of law that will emerge from such an amendment."
May 18, 1999 - Colin L. Powell, MBA
John Glenn, former Senator (D-OH) and astronaut, stated in his Mar. 10, 2004 written Testimony for the Hearing of the Senate Committee on the Judiciary:
"The amendment under consideration today goes directly to the issue of freedom of speech. We are talking here about freedom of expression...
Anybody burning a flag in protest is clearly saying something. They are making a statement by their body language, and their action makes a statement that may speak far, far louder than any words they may be willing to utter on such an occasion. They convey a message, just the same way that people who picket, or march in protest, or use other forms of symbolic speech express themselves. Indeed, if we did not view flag burning as something we find offensive and repugnant, we surely would not be debating the right of individuals to take such action...
This amendment should be defeated. The dangers from it far outweigh any threat to the flag. I simply do not believe that flag desecration is a major problem for this country that requires an amendment to the Constitution of the United States of America."
Mar. 10, 2004 - John Glenn
People For The American Way, in its paper (accessed May 8, 2006) titled "What's at Stake?" posted on its website, wrote that:
"[T]his constitutional amendment assaults Americans' rights and liberties by codifying censorship in the U.S. Constitution...
The Bill of Rights was drafted to preserve, not attack, the rights of individuals against encroachment by government. With the proposed flag amendment, right-wing leaders are going back to the drawing board of 1791, erasing over 200 years of precedents in constitutional law...
By setting the precedent of a permanent exemption from constitutionally guaranteed freedoms, the door would be open for right-wing leaders to introduce more legislation infringing on these freedoms."
May 8, 2006 - People For the American Way
Bill Frist, MD, (R-TN), US Senate Majority Leader, stated in his Mar. 7, 2006 floor statement announcing "Timing For Flag Protection Amendment":
"I believe that the Constitution should allow states and the federal government to protect our flag... In my view, desecrating the flag is not speech, but an act of physical assault... Whether inside or outside our borders, burning the American flag is intended to intimidate, not to engage in constructive speech...
The flag is not only the physical symbol of our nation, our pride and our history, but also of our values: freedom, justice, independence, equality and, ultimately, we the people. Protecting the flag won't stop Americans from exercising their First Amendment right to free speech."
Mar. 7, 2006 - Bill Frist, MD
Dianne Feinstein (D-CA), stated in her June 14, 2005 "Statement on Flag Burning Amendment":
"[The amendment] would not ban flag burning. It would not ban flag desecration. This amendment would do one thing only: give Congress the opportunity to construct, deliberately and carefully, precise statutory language that clearly defines the contours of prohibitive conduct...
Protecting the flag will not prevent people from expressing their points of view. I believe a Constitutional Amendment returning to our flag the protected status it has had through most of this nation's history, and that it deserves, is consistent with free speech.
Securing protection for this powerful symbol of America would be an important, but very limited, change to Constitution. It is a change that would leave both the flag and free speech safe."
June 14, 2005 - Dianne Feinstein
Richard Parker, JD, Professor of Law at Harvard Law School, in his Mar. 10, 2004 statement before the Committee on the Judiciary, titled "Letting The People Decide: The Constitutional Amendment Authorizing Congress To Prohibit Physical Desecration Of The Flag Of The United States":
"The truth is that the proposed amendment would not alter 'the First Amendment' in the slightest. The First Amendment does not itself forbid protection of the flag. Indeed, for almost two centuries, it was understood to permit flag protection. A 5-4 majority of the Court altered this interpretation, only fifteen years ago. That very narrow decision is all that would be altered by the proposed amendment. The debate thus is about a measure that would restore to the First Amendment its long-standing meaning, preserving the Amendment from recent 'tampering.'
Far from 'censoring' unpopular and minority viewpoints, the amendment would tend to enhance opportunity for effective expression of those viewpoints. A robust system of free speech depends, after all, on maintaining a sense of community."
Mar. 10, 2004 - Richard Parker, JD
The Citizens Flag Alliance, in its "Frequently Asked Questions" section, posted on its website (accessed May 8, 2006), explained that:
"The flag protection amendment does not limit free speech in any way. The proposed amendment would not prevent anyone from saying anything... The government's legitimate interest in protecting the flag has three main components: preserving the values embodied by the flag... Enhancing National Unity... [and] Protecting an Incident of our National Sovereignty...
[T]he flag protection amendment is not designed to override First Amendment freedoms, nor would it be likely to do so in the long term. The proposed amendment is not intended to- and does not - discriminate against specific messages or points of view.
That regulation, moreover, could extend no further than a ban on one, and only one, extreme instance of it, physical desecration. Experience justifies confidence in our judicial system to distinguish between the numerous legitimate forms of communication and the act of physically desecrating the flag."
May 8, 2006 - Citizens Flag Alliance (CFA)