A proposed amendment to the U.S. Constitution that would restrict Americans’ political speech rights is before Congress this session. On March 10, 2004, the Senate Judiciary Committee held a hearing on the amendment and the committee’s chairman, Sen. Orin Hatch (R- Utah), has pledged to hold a mark-up in the Committee before Flag Day (June 14). Increasing pressure from pro-amendment lobbyists eager to exploit Americans’ patriotism during wartime has resulted in bringing the measure within a handful of votes of what is required to send the amendment to the states for ratification. If the amendment passes, it would be the first time in the nation’s more than 200-year history that the Bill of Rights has been amended to restrict Americans’ fundamental liberties.
The Bill of Rights was drafted to preserve the rights of individuals against encroachment by government. Since its adoption in 1791, 17 additional amendments have been added to the Constitution. Apart from the ill-fated aberration of Prohibition, the purpose of these amendments has been either to further spell out the mechanics of our constitutional system (e.g. presidential succession) or to expand the rights of citizens (e.g. increased suffrage, democratic election of senators). The proposed flag amendment would take a dramatic step in the opposite direction by restricting Americans’ First Amendment right to dissent.
While most Americans find desecration of the flag offensive and distasteful, the unique strength of our nation lies in our ability to tolerate dissent and free speech even when—especially when—we disagree.
The Flag Amendment Would Obliterate Core First Amendment Protections
As the Supreme Court has repeatedly explained since 1931 when it first applied the First Amendment to a flag statute, the non-verbal, peaceful use of the flag to make a political statement, whether it be by flying, saluting, or burning, is fully protected under the First Amendment’s guarantee of free expression.
That is why, since 1931, the Supreme Court has consistently struck down flag statutes requiring students to salute the flag, prohibiting flying a “red flag,” and prohibiting burning the U.S. flag. In doing so, the Court has held that it is a “bedrock principle underlying the First Amendment…that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive and disagreeable.” The First Amendment is designed precisely to protect unpopular forms of peaceful expression and political dissent such as flag burning, even though these acts are highly offensive to almost all Americans.
As former Supreme Court Justice Robert H. Jackson explained, “Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.”
The Flag Amendment Is Unnecessary
Rare incidents of flag desecration are already punishable under current law without amending the Constitution. Most of these acts, including burning or soiling a flag, are typically punishable under public burning, theft or destruction of public property statutes. In addition, any offensive expression, including flag desecration, performed for the purpose of inciting violence or a breach of the peace and that is likely to produce an immediate danger is already punishable consistent with the First Amendment. The campaign for an amendment is an effort to gain a short-term political advantage at long-term cost to the Constitution and Americans’ freedoms.
Leading the lobby effort for the amendment is a well-funded single-issue organization, the Citizens Flag Alliance, Inc (CFA). In its attempt to prove that there is a need for their proposed amendment, the CFA compiles a list of incidents of flag desecration, which it uses in its lobbying campaign and has posted on its website. A close reading of that list dramatically illustrates that a flag amendment is unnecessary.
For years, CFA’s leaders have been fabricating the need for a flag amendment, using myths and distortions and arguing that flag burning incidents are currently not punishable.
To support its arguments, CFA cites 122 incidents of flag desecration dating from 1989 through August 22, 2003. Far from proving the CFA’s case for a constitutional amendment, however, these examples show quite the opposite: that a flag amendment is unnecessary since the vast majority of the flag desecration incidents cited by the CFA include at least one violation that is already punishable under existing law.
Of the 122 incidents, at least two-thirds (76) involved crimes that are already covered by local criminal statutes—including theft, vandalism, destruction of property, trespassing, disorderly conduct or public disturbance, according to the information on CFA’s own site. In many of the very cases that CFA cites, for example, an arrest was made on multiple charges. Some examples, taken directly from CFA’s own website, are:
- October 30, 2001, Langley, VA: Oleg S. Asserin, 18, a George Mason University student was charged with burning the US flag in a fire that damaged nearly two acres of woodland in northern Virginia. Asserin was arrested on a felony charge of setting a fire capable of spreading and a misdemeanor charge of burning the US flag. The fire burned about two acres of brush before it was extinguished. Firefighters found a charred American flag among the damage.
- September 2, 2002, Melbourne, KY: Four teen-age boys were charged with desecrating a dozen of the 24 American flags on display for Labor Day. The boys told detectives they just had an itch to destroy things.
- September 11, 2002, Ann Arbor, MI: Two teenagers were arrested after allegedly setting an American flag on fire at the University of Michigan. Police reported the boys ignited the flag near the school's Hill Auditorium and then ran away. A university spokeswoman said the teens were not students or affiliated with the university but were just walking around looking for trouble. Both boys were arrested when they returned to the scene.
- December 26, 2002, Boca Raton, FL: Police suspect vandals in a flag burning at a golf club. Somebody lowered the golf club’s large American flag that was flying outside the pro shop, set it on fire and then ran it back up the flagpole.
These are examples of offensive and distasteful destruction of public or other people’s property, not free speech. However, since current criminal penalties can be applied in each of these cases, no constitutional amendment is needed to protect the people of Langley, VA, Melbourne, KY, Ann Arbor, MI, Boca Raton, FL or any other of our towns and cities.
Of the 122 incidents PFAW examined on the “Flag Desecration Acts” section of the CFA’s website  only 34 could be considered acts of political expression—only about two per year between 1989 and 2003. While these incidents anger many Americans, these are precisely the kinds of incidents that illustrate that flag burning is sometimes a form of political dissent, which is and should continue to be protected by the First Amendment. The following are examples from CFA’s website:
- September 28, 2001, Atlanta, GA: Emory University sophomore Alexander Dreyer made a guest appearance on a WMRE radio show. Dreyer burned an American flag in the studio after receiving calls criticizing his comments. Dreyer said his comments criticizing the US government stemmed from the prospect of war following the terrorist attacks of September 11.
- June 22, 2000, Huntsville, TX: Protesters burned American flags, chanted and waved signs outside the prison in Huntsville to speak out against the execution of Gary Graham. The execution of Graham, who had been convicted of killing a man during an armed robbery outside a Houston supermarket in May of 1981, focused national attention on capital punishment and the presidential candidacy of Republican Gov. George W. Bush.
- October 7, 1996, Fort Smith, AR: a flag bearing a swastika and the word 'abortion' was displayed hanging upside down outside a house here. The home's owner said he had displayed the upside-down flag as a statement protesting the failure to overturn President Clinton's veto of a bill that would have outlawed partial-birth abortions.
In each of the incidents described above, the flag was burned or altered to express strongly held views about some of the most important issues in our nation’s history—the prospect of war, capital punishment, and abortion.
Few Americans Favor an Amendment Prohibiting Flag Burning
To be sure, most Americans clearly disagree with flag-burning. But the framers of the Bill of Rights, constitutional experts and Americans across the political spectrum agree that the purpose and power of the First Amendment is that it protects all forms of political expression, regardless of how popular or unpopular.
Indeed, opposition to the flag amendment spans the political spectrum, from the American Civil Liberties Union to conservative columnists such as Cal Thomas, who once wrote, “Watching the Fourth of July festivities in Washington (and around the country on television) showed the depth of love most Americans have for this country. That is why a constitutional amendment to ban the burning of the American flag is . . . unnecessary.”
Every two years, the CFA produces a poll that purports to show Americans oppose flag burning and favor a Flag Desecration Amendment. Yet when Americans are informed that this would be the first time in our nation’s history that the Bill of Rights would be amended, they strongly oppose the idea, according to polls commissioned by the Freedom Forum. In 2002, 59% of Americans opposed such an amendment. These findings have remained consistent over time, even when Congress has been most active on pushing the flag amendment.
Gary May, a highly decorated former Marine who lost both of his legs during combat in Vietnam, serves as the Chairman of Veterans Defending the Bill of Rights, a coalition of veterans who oppose the proposed flag amendment. “If [the flag] is to be truly representative of our cherished freedoms, the flag itself must be available as a vehicle to express these freedoms. This is among the freedoms for which I fought and gave part of my body,” said May in his testimony before the Senate Judiciary Committee in March, 2004.
This much is clear: Americans of all backgrounds do not want the government deciding how people should and should not protest government itself. The CFA found this out firsthand: in 1996, it spent millions of dollars trying to unseat six senators who opposed the amendment. All six Senators were re-elected. It is easy to understand why when reading the chilling statement of CFA Chairman Patrick Brady in support of a ban on flag burning before the Committee: “The will of the majority should define patriotism, not the will of an elite minority…It should be obvious that demanding - indeed, forcing - patriotism is the bedrock of our freedom.”
The Flag as Political Cover for Mistreatment of Veterans
In the past, the Bush Administration has shown a willingness to amend or disregard the Constitution when doing so serves its short-term political goals. We have seen this in the Administration’s push for an amendment to ban gay marriage and in their conduct in the war on terror. They have found that waving the stars and stripes is a convenient distraction from tough issues and that platitudes and posturing are easier than real achievements.
At a time when our country is at war in two theatres, Afghanistan and Iraq, the President has made much of his dedication to our troops. However, a look behind the rhetoric and it is easy to see that there’s nothing but an AWOL agenda on issues that are important to our troops and questions that truly matter to the American people.
For example, Bush’s proposed budget for FY 2005 sought to slash veterans health care programs by $13.5 billion over the next five years while simultaneously raising fees and co-payments - a proposal that the Veterans of Foreign Wars called “a disgrace and a sham.” Senate Republicans even had the nerve to defeat an amendment to the federal budget that would have increased funding for veterans programs by slightly reducing future tax breaks for millionaires.
Bush’s budget also proposed a reduction of 800 full-time jobs in the Veterans Benefits Administration, which handles disability, pension and other claims by veterans. This is in spite of the massive backlogs that continue to plague VA claims processing. Today, there are 465,040 veterans awaiting a decision on their claims for compensation and pension benefits, and an additional 148,015 appeals awaiting action. These cuts will force tens of thousands of veterans to wait months and even years for benefits they have earned
Just as disturbing, last fall, the Bush administration announced its formal opposition to a proposal to give National Guard and Reserve members access to the Pentagon's health-insurance system, jeopardizing the proposal’s future. A General Accounting Office report estimates that one of every five Guard members has no health insurance.
The FY 2005 budget underfunded veterans programs by nearly $4 billion. According to an accidentally leaked internal White House budget office document entitled “Planning Guidance for the FY 2006 Budget,” the Bush 2006 budget holds nearly another $1 billion in cuts to veterans programs.
Proponents of the flag desecration amendment say they want to restore “respect for the flag.” But using the flag amendment as a distraction, and the flag as a divisive political wedge isn’t showing respect. The Constitution, the First Amendment, and the American people deserve better than to be manipulated in a cynical ploy for political advantage.
In a letter sent to Senator Patrick Leahy in May 1999, General Colin Powell, now Secretary of State, wrote “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 be flying proudly long after they have slunk away.”
We think Secretary Powell had it right. Destroying or damaging an American flag is highly offensive, and quite often is punishable by existing criminal statutes. But the rare instances of flag burning as a political protest are exactly what the First Amendment is intended to protect. As the late Justice Brennan wrote for the Supreme Court in Texas v. Johnson, “[t]he way to preserve the flag’s special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong…We can imagine no more appropriate response to burning a flag than waving one’s own.”
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