New session, same flag debate

Thursday, February 25, 1999

Tucked away in a small room in the Capitol, a handful of House members yesterday introduced the latest effort to amend the Constitution to allow laws prohibiting desecration of the U.S. flag.

The announcement came quietly with little of the fanfare seen in previous announcements, campaigns and hearings. There was no Tommy Lasorda, Pat Boone or John Schneider, no multimillion-dollar advertising campaign and few members of the news media.

Amendment supporters weren't distressed by the low-key introduction.

Daniel Wheeler, president of the pro-amendment Citizen Flag Alliance, said no new arguments would emerge in the flag debate. He says amendment supporters seek quick passage in the House so they can face the real battle in the Senate.

“Since they've been hearing this issue going on 10 years now, there's not a whole lot of new evidence to present except that more and more Americans are looking toward Congress not only for legislative leadership but also moral leadership,” Wheeler said. “And we will continue to stress that it is wrong to desecrate the flag of your native land.”

Reps. Randy “Duke” Cunningham, R-Calif., John Murtha, D-Pa., and John Sweeney, R-N.Y., introduced H.J. Res. 33 yesterday. They named the resolution the Jerry Solomon Flag Protection Act after the retired New York congressman who led efforts to pass the amendment in previous sessions.

Already, 261 members — 29 short of the two-thirds needed for passage in the House — have joined the flag-amendment proposal as co-sponsors.

As the measure's three leading sponsors, Cunningham, Murtha and Sweeney promise that the amendment's third time before Congress will be the charm. Attempts in two previous sessions of Congress failed.

In 1995, the House voted 312-120 on a flag-protection amendment, which then failed in the Senate by three votes. Last session, the House approved an amendment with a 310-114 vote, but the measure died last fall when Senate leaders failed to get unanimous consent to bring the proposal to the floor.

Flag-protection advocates say Congress needs to amend the Constitution to block courts from striking down federal and state statutes outlawing desecration of the flag. They often cite the 1989 case Texas v. Johnson, in which the U.S. Supreme Court found a Texas law banning flag-burning to be unconstitutional. The court threw out a federal flag-protection law in U.S. v. Eichman the following year.

If the 106th Congress approves the current resolution, the amendment will go to the states for ratification. Approval by 38 state legislatures needed to ratify the amendment is almost certain since 49 states have already passed resolutions in support of the measure.

The proposed amendment reads: “The Congress shall have power to prohibit the physical desecration of the flag of the United States.”

But free-speech advocates claim that the amendment would violate the very principles the flag symbolizes. They say passage of the measure would mark the first time in the nation's history that Congress approved a constitutional amendment limiting the basic rights outlined in the First Amendment.

“It is abhorrent to us to even think of our flag in flames, but we cannot honor our most cherished symbol of freedom by diminishing the freedom it stands for,” said Carole Shields, president of People for the American Way. “The flag amendment would do more harm to our freedom than protesters could ever do with their matches.”

Amendment supporters disagree.

“Actually this is not a First Amendment issue at all,” said Stephen Presser, a Northwestern University law professor who, during previous debates before Congress, testified in favor of the flag amendment. “What we're dealing with is an intentionally outrageous act and not the kind of speech the framers had in mind.”

Presser says courts and lawmakers often have to strike a balance between some acts and others.

“Somewhere the First Amendment stops and the province of law that preserves peace and social order picks up,” Presser said. “I've always thought intentionally destroying a flag to cause outrage among onlookers falls on the preserving peace side of the spectrum.”

Constitutional lawyer Robert Peck says that such arguments raise core First Amendment issues. He says certain forms of speech and conduct can't be regulated simply because a majority detests it.

“That's the First Amendment bedrock principle: That the government doesn't get to pick and choose between approved and disapproved ideas,” Peck said.

But Harvard University law professor Richard Parker says a civilized and free society must choose between what is respectable and what is despicable or else it risks becoming neither civilized nor free.

The flag, in particular, presents a unique symbol for all Americans, Parker says; thus, it makes sense that it should be protected.

“After all, communication is enhanced by respect for the ideal of a national community because that ideal inspires us not just to respect one another but to listen to one another,” Parker said. “Without listening and free speech, we're only shouting louder and louder.”

Parker and others also contend the amendment falls in line with some 200 years of flag-protection thought. Only with the decision in Texas v. Johnson, they say, did the country ever veer away from the thought that the flag shouldn't be desecrated.

Free-speech advocates say amendment supporters' poor knowledge of history dominates much of the debate.

“This supposed 200-year tradition of constitutional and court protection of the American flag from so-called desecration is simply fraudulent,” said Robert J. Goldstein, a political science professor at Michigan's Oakland University and author of three books on the flag including Saving Old Glory.

“If protecting the flag was so important to the Founding Fathers, how come the flag — much less flag desecration — is never even mentioned in the Constitution?” Goldstein asked. “How come there was no federal law against so-called flag desecration until 1968?”

Amendment supporters dispute Goldstein's argument, saying that nearly all states had adopted flag-protection laws long before 1968. Pennsylvania adopted the first in 1897.

Supporters also claim they can trace support for flag protection back to the Founding Fathers. Specifically, they note that both James Madison and Thomas Jefferson — the primary architects of the First Amendment — said the government must have the right to protect the flag.

But Goldstein says those flag-protection comments referred only to the flag as flown in its official capacity, such as in maritime use or over a government building. He said Madison and Jefferson weren't referring to individuals who might burn their own flags in protest.

Goldstein said the flag wasn't even considered the most important national symbol until well into the 20th century. He said that, during much of the nation's history, figures such as Uncle Sam, Lady Columbia and the Statue of Liberty were considered more representative of America than the flag.

History aside, supporters note poll after poll that demonstrate clear support of the amendment, some showing as much as 80% of Americans in favor of laws to protect the flag.

But an independent survey conducted for The Freedom Forum in 1997 showed that only 49% of Americans polled would amend the Constitution to protect the flag. When those respondents were told that such a measure would be the first time First Amendment freedoms had been amended, 88% still said “Yes,” leaving only 43% of the original respondents in favor.

Activist Edward Hasbrouk said most Americans, when they truly understand the issues involved in a flag-protection amendment, would oppose it. He contends that most don't rally against the amendment because “they are tired of the ACLU and others crying about how the wolf is at the door.”

“And now the wolf IS at the door,” adds Hasbrouk, who assisted flag-burner Greg “Joey” Johnson in Texas v. Johnson and formed the now-defunct Emergency Committee to Stop the Flag Amendment and Laws.

But Hasbrouk says he's distressed at the lack of open opposition to the amendment, the feeling that the less said about flag desecration the better.

“The only way to build a base of opposition to this momentum is to make Americans see this amendment as a threat to them,” Hasbrouk said. “And that this is an attack on their rights and their rights to criticize the government.”