Senate proposal to protect flag looks like China’s law, says ACLU attorney

Thursday, March 26, 1998

An official with the American Civil Liberties Union says senators supporting a constitutional amendment to protect the U.S. flag appear willing to follow China's lead in suppressing free speech.

Solange Bitol, legislative counsel for the civil-liberties group, says news of a Wednesday hearing on Senate Resolution 40 reminded her of two Hong Kong residents who await a criminal trial in China for altering Chinese and Hong Kong flags.

“It is ironic that America, a world leader in democratic rights, is considering following in the steps of Communist China, which made defacing the Chinese and Hong Kong flags a crime punishable by up to three years in prison or a fine of more than $6,000,” Bitol said in a written statement.

But Sen. John Ashcroft, R-Mo., who chairs the Constitution, Federalism and Property Rights subcommittee which held the hearing, said in his opening remarks: “I doubt that an amendment banning desecration of the flag would offset any true speech.”

Subcommittee members, all from the Senate Committee on the Judiciary, heard from 12 experts. A few First Amendment advocates were interspersed among the American Legion and Citizens Flag Alliance members who packed a room of the Dirksen Office Building to hear the testimony.

Sens. Orrin Hatch, R-Utah, and Max Cleland, D-Ga., introduced the flag-desecration resolution together last month. About 50 other senators joined in as co-sponsors.

The amendment requires two-thirds approval in both the House and the Senate, as well as ratification from 38 state legislatures. Forty-nine states have already passed resolutions expressing their support for a flag-protection amendment.

In 1995, the House voted 312-120 for a flag amendment, which then failed in the Senate by three votes. Earlier this term, in 1997, the House passed a version of the amendment 310-114, and although a flag-protection act failed to clear the Senate last year, if the Senate approves this measure, the amendment will go to the states for ratification.

Opponents to flag-protection bills say such legislation violates the very principles the flag symbolizes. The ACLU, one of the groups opposed to the amendment, calls the proposed resolution a “dangerous threat to free speech.”

But Hatch said the flag “deserves our every effort to protect it.”

“There is a line that has to be drawn—and this is one of the ways we can draw that line,” Hatch told the subcommittee members. “It's a perfect way of sending the message that we're tired of being tolerant of everything bad and intolerant of everything good.”

Hatch said he hopes the bill would be ready for a vote by late summer or early fall.

But subcommittee member Sen. Russ Feingold, D-Wis., said lawmakers should use great caution whenever they consider amending the Constitution.

“To limit the Bill of Rights in the name of patriotism is an inherently flawed undertaking,” Feingold told the subcommittee. “We are not a nation of symbols. We are a nation of principles. In America, we tolerate dissent and protect the dissenters.”

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