Flag Desecration Amendment: Making Dissent a Criminal Act

House Votes on Constitutional Amendment Carving an Unprecedented Hole in Bill of Rights

A resolution authorizing a “flag desecration” amendment is expected to reach the floor of the House of Representatives today. The amendment would for the first time write into the Constitution an exception to the First Amendment’s guarantee that Congress “make no law … abridging the freedom of speech…”

“This exceedingly disturbingly amendment that would make all Americans less free,” said People For the American Way President Ralph G. Neas. “Members of Congress should honor the flag by protecting the freedom it represents.”

One prominent American who opposes the amendment on flag desecration is Secretary of State Colin Powell. Powell wrote in 1999 that those who desecrate the flag “may be destroying a piece of cloth, but they do no damage to our system of freedom which tolerates such desecration…” Powell continues, “I would not amend that great shield of democracy to hammer a few miscreants. That flag will still be flying proudly long after they have slunk away.”

People For the American Way has featured Powell’s comments in print advertisements opposing the flag amendment.

During the 1998 drive to amend the Constitution, PFAW produced a television spot featuring Jim Warner, a former U.S. prisoner of war who lived for five years in a POW camp in Vietnam. Warner opposes the flag amendment because he believes that the freedom he fought for was greater than a piece of cloth. When an interrogator confronted him with images of Americans burning the flag in protest, Warner told him, “We’re not afraid of freedom, even when we disagree.”

“I don’t want to see my flag burned. I offered my life for it and I’d do it again,” Warner continued. “But I also fought for the rights and freedoms it represents. And I’m still fighting to protect them.”

Research shows that actual flag burnings occur very infrequently — fewer than five times a year — and are almost always punishable under other laws dealing with public safety, public health or destruction of public property. When a person’s own flag is burned as a purely political form of protest, the Supreme Court has made it clear that the activity is protected by the Constitution. The Court wrote, “…the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive and disagreeable.”

“Burning a flag is a form of free expression that many Americans abhor,” said Neas. “Nonetheless, even unpopular speech is protected by the First Amendment. The freedom to dissent and disagree is one of the things that makes America great.”

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