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;
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 demands...an 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.
(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)).