10. How can you reconcile the flag protection amendment with the First Amendment's guarantee of free speech?

The flag protection amendment does not limit free speech in any way. The proposed amendment would not prevent anyone from saying anything. By the same token, First Amendment freedoms are not absolute. Until two recent, very narrow 5-4 decisions by the Supreme Court, punishing flag desecration has been viewed as compatible with both the letter and spirit of the First Amendment. This compatibility was consistent with the views of the Framers of the Constitution, who strongly supported government action to prohibit flag desecration.

Such leading proponents of individual rights as former Supreme Court Justice Earl Warren, Justice Abe Fortas and Justice Hugo Black each have opined that the nation could, consistent with the First Amendment, prosecute physical desecration of the flag. As Justice Black, perhaps the leading exponent of First Amendment freedoms to ever sit on the Supreme Court, stated: "It passes my belief that anything in the Federal Constitution bars...making the deliberate burning of the American flag an offense." "I believe that the States and the Federal Government do have power to protect the flag from acts of desecration and disgrace." Id at 605. Moreover, Justice Fortas opined: "The flag is a special kind of personality. Its use is traditionally and universally subject to special rules and regulations....the States and the Federal Government have the power to protect the flag from acts of desecration." Id at 615-617.

This tradition and precedent are rooted in the principle that flag desecration is expressive conduct as distinguished from actual speech. Expressive conduct, be it burning a draft card or a flag, is afforded a lower level of constitutional protection than actual speech. A statute passed under the proposed amendment will not make it unlawful to say anything, no matter how repugnant the statement might be. What will be proscribed, consistent with First Amendment case law, is certain conduct.

Note: Thomas Jefferson, while serving as George Washington's Secretary of State, instructed American consuls to punish "usurpation of our flag." Moreover, James Madison pronounced a flag defacement in Philadelphia as actionable in court. As Judge Robert Bork described this historic announcement: "The tearing down in Philadelphia in 1802 of the flag of the Spanish Minister 'with the most aggravating insults', was considered actionable in the Pennsylvania courts as a violation of the law of nations."

9. Fair enough, but there still are constitutional guarantees for "expressive conduct," are there not?

The Supreme Court has accepted the premise that certain "expressive" acts are entitled to First Amendment protection, based upon the principle that Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable. On the other hand, not all activity with an expressive component is now afforded First Amendment protection. Someone who desires, for instance, to protest wildlife conservation laws coult not, in the name of free speech, kill bald eagles. The Court has said that certain modes of expression may be prohibited if (1) the prohibition is supported by a legitimate government interest unrelated to suppression of the ideas the speaker desires to express;
(2) the prohibition does not interfere with the speaker's freedom to express those ideas by other means, and
(3) the interest in allowing the speaker complete freedom among all possible modes of expressions is less important than the societal interest supporting the prohibition (United States versus O'Brien, 391 U.S. 367,37(1968)).

Applying these principles, the Supreme Court upheld a statute prohibiting the destruction of draft cards against a First Amendment challenge. Id. The Court stated that the prohibition served a legitimate purpose - facilitating draft induction in time of national crisis - that was unrelated to the suppression of the speaker's ideas, since the law prohibited the conduct regardless of the message sought to be conveyed by destruction of the draft card. The prohibition also did not preclude other forms of expression or protect, and the Court held that the smooth functioning of the Selective Service System outweighed the need to extend First Amendment protections to the act itself. Id.

Finally, four Supreme Court Justices (Chief Justice Rehnquist and Justices O'Conner, Stevens and White), dissenting in United States vs Eichman, stated that Congress could prohibit flag desecration consistent with First Amendment protections. The dissenters reasoned as follows:

The Federal Government has a legitimate interest in protecting the intrinsic value of the American flag,which, "in times of national crisis, inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance.... and serves as a reminder of the paramount importance of pursuing the ideals that characterize our society." 496 U.S. at 319. According to the dissent, the government's interest in preserving the value of the flag "is unrelated to the suppression of the ideas that flag burners are trying to express" and is "essentially the same regardless of which of many different ideas may have motivated a particular act". Id at 320.

The prohibition does not entail any interference with the speaker's freedom to express his or her ideas by other means. According to the dissent, while other means of expression may be less effective in drawing attention to the speaker's message, this is not itself a sufficient reason for immunizing flag desecration. Id. at 322. "Presumably a gigantic fireworks display or a parade of nude models in a public park might draw even more attention to a controversial message, but such methods of expression are nevertheless subject to regulation." Id.

The societal interest in preserving the symbolic value of the flag outweighs the interest in an individual choosing to desecrate the flag as the most effective method of express his or her views. Although the value of the individual's choice is "unquestionably a matter of great importance," tolerance of flag burning will "tarnish that value." Id at 322.

8. Then why not pass a statute?

Reliance on another federal statute would be reliance on a proven mirage. In 1989, after the Supreme Court held a state flag protection statute unconstitutional in Texas versus Johnson, Congress tried this approach. However, the Court, essentially reiterating it's 5-4 holding in Johnson, struck down the federal statute in the 1990 United States versus Eichman case. There is no reason to believe tht the Court, as now constituted, would reverse itself. In 1995, Congress accepted this as reality, and it would be unrealistic to alter that assumption now.

7. Would a Flag Protection Amendment reduce our freedoms under the Bill of Rights? Wouldn't this be the first time in our 200 year history that an amendment has limited the rights guaranteed under the First Amendment?

No on both counts. As indicated in the answer to question 10 above, the flag protection amendment would not reduce our freedoms under the Bill of Rights. Rather than posing a fundamental threat to our freedoms under the Bill of Rights, the proposed amendment would nurture constitutional freedoms. The Bill of Rights is a listing of the great freedoms our citizens enjoy. It is not a license to engage in any type of behavior one can imagine. The proposed amendment affirms the most basic condition of our freedom; out bond to one another in our aspiration to national unity. The amendment would leave it to individuals, in numerous ways, to express their views. But the amendment affirms that there is some commitment to others, beyond mere obedience to the formal rule of law, that must be respected. It affirms that, without some aspiration to national unity, there might be no law, no constitution, no freedoms such as those guaranteed in the Bill of Rights.

In addition, the flag protection amendment would be interpreted in light of the existing amendments and other constitutional provisions. When the Fourteenth Amendment was proposed, it could have been argued that Congress' power to enforce the Equal Protection Clause might be used to undermine the First Amendment right of free association. However, courts have been able to harmonize the First and Fourteenth Amendments. Likewise, the Ninth and Tenth Amendments have been reassessed in light of other constitutional provisions. The same would be true with a flag protection amendment. Experience justifies confidence that the courts would interpret the terms "physical desecration" and "flag of the United States" in light of general values of free speech and established legal precedent.

6. Can you cite any other existing restrictions that limit the content of speech?

Yes. The government not only may regulate the content of speech, sometimes it should do so in order to protect the system of freedom of speech in general. The Supreme Court has affirmed this principle in several instances, refusing, for instance, to privilege speech that:

-is likely to incite an immediate, violent response,such as face-to-face fighting words likely to cause a breach of the peace, Chaplinsky versus New Hampshire, 315 U.S.568 (1942); or words likely to incide a riot, Feiner versus New York, 340 U.S. 315 (1951).

-threatens certain tangible, diffuse harm,such as obsenity, which pollutes the moral environment, Miller versus California, 413 U.S. 15 (1973); Roth versus United States, 354 U.S. 476 (1957).

-criticizes official conduct - i.e. libel - of a public official, when the criticism is known to be false and damages the official's reputation. In this instance, the Court held that such speech should be regulated since it is at odds with the premises of democratic government, New York Times versus Sullivan, 367 U.S. 254, 270 (1964).

The Court has said that utterances, such as those set out above "are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality." Chapinsky versus New Hampshire, 315 U.S. 568, 572 (1942)

5. What specifically is the legitimate government interest that is being protected by the Flag Amendment?

The government's legitimate interest in protecting the flag has three main components:

-Preserving the values embodied by the flag: Protecting the flag from physical desecration preserves the values of liberty, equality and personal responsibility that Americans have passionately defended and debated throughout our history and which the flag uniquely embodies. It is commonly accepted today that the traditional values upon which our nation was founded and which find tangible expression in our respect for our flag are essential to the smooth functioning of a free society. Flag protection highlights and enhances these values and thus helps to preserve freedom and democratic government.

-Enhancing National Unity: The government has a fundamental interest in protecting the most basic condition of freedom; our bond to one another in our aspiration for national unity. With traditional unifying elements of American language, culture and heritage fraying, the flag remains a single unifying embodiment of our unceasing struggle for liberty and equality and our basic commitment to others. The flag affirms that without some aspiration to national unity, a free people and constitutional government cannot long endure.

Protecting an Incident of our National Sovereignty: Finally, the flag is an important incident of our national sovereignty. The United States - like many other nations - displays the flag to signify national ownership and protection. By pronouncements in the earliest years of the Republic, the Framers of the Constitution made clear that the flag, and its physical requirements, related to the existence and sovereignty of the nation and that insults to the flag were matters of great national concern that warranted strict punitive action. In a letter to James Monroe concerning an attack upon an American frigate by a British war ship, James Madison asserted his view that "the dignity offered to the sovereignty and flag of the nations honorable reparation... [such as] an entire abolition of impressments from vessels under the flag of the United States..." Thomas Jefferson, moreover, considered violation of the flag worthy of "systematic and severe" course of punishment.

4. How can we be sure that the Flag Amendment will not eventually override First Amendment Freedoms?

As suggested in the responses to questions ten and seven above, the 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. Those who desecrate the flag may be doing so to communicate any number of messages. They may be protesting a government policy or inactivity or simply trashing the flag to get media attention. Laws enacted under the proposed amendment would apply to all such activity, whatever the specific message.

This is a specific amendment proposal, drawn to define a narrow area of the law. It would supersede two Supreme Court cases decided by 5-4 majorities. It is not self-executing, and thus would require an implementing statute. Among all the various forms of expression, only one can be regulated under the amendment, desecration. 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.

3. Wouldn't any conceivable definitions of "flag" or "desecration" be inherently vague or subject to prosecutorial abuse?

The proposed amendment is not self-executing, so a statute would need to be enacted under the amendment that, presumably would define terms, set penalties and further define actions that would be proscribed. Moreover, judges, law enforcement officials and juries would interpret and refine the law in this area, similar to the development of any new area of the law. Prior to the Texas versus Johnson decision, 48 states had laws prohibiting flag desecration, and the history of prosecutions in this area does not suggest abuse by prosecutors or any other sector of the judicial system. In the case of a statute adopted under the proposed amendment, the judicial system would interpret "physical desecration" and "flag of the United States" in light of general values of free speech and established legal precedent. For instance, it is possible, if not likely, that Congress and the courts would interpret "desecration" consistent with Black's Law Dictionary - the long-established desk reference of practicing attorneys - which defines the term as "defacing, damaging, polluting or otherwise physically mistreating." These are the types of terms that raise issues of fact and degree, context and intent, comparable to questions that courts resolve, year in and year out, under practically every other constitutional provision. Experience justifies confidence in our judicial system with respect to answering these questions.

2. Wouldn't passage of this amendment "open the floodgates" to other amendments?

Amending the Constitution is difficult, as it should be. Two-thirds of both chamnbers of Congress and a majority vote of three-quarters of the fifty state legislatures is not easy to obtain. But Article V provides a process or amending the Constitution, and it should be utilized in those rare cases where public concensus can be established for such a change.

In this case, 49 state legislatures - due in large part to the efforts of 121 national citizens organizations - have petitioned Congress to approve the amendment. Polls show an overwhelming majority of Americans in favor of the amendment. And the House of Representatives, on June 12, 1997 far exceeded the supermajority required for passage of a constitutional amendment when it adopted the flag protection amendment by a vote of 310-114. No other proposed amendment in the past few years can boast similar support. But the existence of the other proposed amendments should not prejudice the case for the flag amendment. It should be considered on its own merits. And if Congress passes the flag protection amendment, it will have no impact, one way or the other, on the chances of any other proposed amendment.

1. So what's the problem getting this Amendment passed, and when would it become part of the Constitution?

There is no problem. Once one gets beyond the slogans, the case for the amendment is overwhelming. After passing the amendment, the 105th Congress will send it to the states for ratification.

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