The flag amendment: A symbol of democracy in distress

Friday, February 6, 1998

The flag polls
How do Americans feel about amending the Constitution to prevent flag desecration? It depends on how you ask the question. Here are three survey questions about the issue and their responses. You be the judge.

American Bar Association poll, 1995

“Would you favor or oppose a new amendment to the U.S. Constitution to prohibit the burning or other desecration of the American flag?”

    64% would favor such an amendment. “Would you favor or oppose such a constitutional amendment if you knew that it would be the first in our nation's history to restrict freedom of speech and freedom of political protest?”

    • 38% favored it.

    • 52% opposed it.
    Wirthlin Worldwide Group/Citizens Flag Alliance poll, 1997

    “Do you believe the physical act of burning the U.S. flag is an appropriate expression of freedom of speech as guaranteed by the First Amendment?”

      81% said no. The Freedom Forum poll, 1997

      “I'm going to read you some ways people might exercise their First Amendment right of free speech. For each, tell me if you agree or disagree that someone should be free to do it. First, do you agree that people should be allowed to burn or deface the American flag as a political statement?”

    • 70% strongly disagreed.

    • 8% mildly disagreed.

    • 10% mildly agreed.

    • 10% strongly agreed.

    • 2% didn't know.

      “Some people feel that the U.S. Constitution should be amended to make it illegal to burn or desecrate the American Flag as a form of political dissent. Others say that the U.S. Constitution should not be amended to specifically prohibit flag burning. Do you think the U.S. Constitution should or should not be amended to prohibit burning or desecrating the flag?”

      • 49% said it should.
      • 49% said it shouldn't.
      • 2% didn't know.
      Follow-up question asked of those who said the Constitution should be amended:

      “If an amendment prohibiting flag burning were approved, it would be the first time any of the freedoms in the First Amendment have been amended in over 200 years. Knowing this, would you still support an amendment to prohibit flag burning?”

      • 88% said yes, they still supported it.

      • 9% said no, they no longer supported it.

      • 3% didn't know.

    • The nation was in racial turmoil that summer of 1966. The communities of Watts and Bakersfield were seething, and a young attorney named Johnnie L. Cochran Jr. had just filed suit against a Los Angeles police officer who had been exonerated in the fatal shooting of a young black man.

      Birmingham, Ala., was still tense after a federal judge had enjoined the Southern Christian Leadership Conference from recruiting students for street demonstrations and a white motorist had wounded five blacks when he fired into a crowd of picketers at a grocery store.

      So the ambush was not unexpected on that June 6 afternoon along Highway 51 just outside Hernando, Miss. James Meredith and a few companions were on the second day of a voter registration march from Memphis to Jackson, Miss. when they heard a shout from the bushes beside the road: “James! James! I only want James Meredith.” Meredith turned toward the voice and three shotgun blasts knocked him to the hot pavement, bleeding with wounds to his head, neck, leg and back.

      As Meredith was being rushed to the hospital in Memphis, 1,160 miles away, in his Brooklyn apartment, Sydney Street, a black veteran who had received the Bronze Star for heroism during World War II, was listening to the radio. When he heard the news about the shooting, Street got up and walked to the bureau where he kept a flag that he displayed on holidays.

      The 47-year-old bus driver took the neatly folded flag downstairs and out onto the street. At the northeast corner of St. James Place and Lafayette Avenue, he struck a match and set the flag ablaze, letting it fall to the pavement as the flames grew hot. A few minutes later, a police officer drove up and asked Street whether the burning flag was his. “Yes; that is my flag,” said Street. “I burned it. If they let that happen to Meredith we don't need an American flag.”

      The officer arrested Sydney Street, and his court case was soon to become part of a long line of Supreme Court decisions affirming the First Amendment right of American citizens to burn the U.S. flag as a form of expression.

      Most Americans disagree with the Supreme Court. So do most members of Congress. For several years now, members of Congress have been trying to secure passage of a constitutional amendment to circumvent the court and to allow the punishment of those who desecrate the American flag.

      Each term, the passage of such an amendment becomes more of a possibility. Last year, the House passed a proposed amendment by an overwhelming margin. Now the Senate is ready to take it up with the introduction of a proposed amendment earlier this week. During the 104th Congress, this effort fell only three votes short of the necessary two-thirds majority in the Senate after comfortably making it through the House. This year, that three-vote margin may not be there. If the proposed amendment is approved by the Senate, it goes to the state legislatures, where ratification is assured since 49 already have endorsed it.

      If that happens, for the first time in its two centuries of existence, the Bill of Rights will have been amended. That is a terrible price to pay for the privilege of punishing those who believe the First Amendment means what it says.

      The Constitution lays out what the government can do. The Bill of Rights lays out what the government can not do, when it comes to basic individual rights. Only the most threatening of national crises should provoke a proposal to alter that compact between a government and its citizens.

      There is no outbreak of flag desecration in this country. A constitutional amendment is a solution in search of a problem.

      Freedom of speech is one of our most cherished rights and one of the most important guarantors of a democracy's well-being. Those who say flag-burning is conduct rather than speech ignore several decades of Supreme Court rulings decisively underscoring the principle that burning a flag is symbolic speech, especially when it is political dissent, and deserves the First Amendment's fullest protection.

      Amending the constitution is to put these matters beyond the reach of the courts and into the hands of those already in power. In other words, the targets of political dissent would have the power to dictate the tone and content of that dissent.

      And the Sydney Streets in our society would be deprived of one of the most effective ways to raise their voices above the democratic din at crucial moments in our nation's history. Flying a flag upside down is a sign of dire distress, and Sydney Street's burning of that flag was a sign of his distress. The proposed amendment now before Congress, which turns the First Amendment upside down, is a sign of democracy in distress.

      Sydney Street had served his country. He had flown his flag. He had earned the right to speak out when conditions in his beloved country had reached a crisis point. And while he could not command a constitutional amendment, he could stand on a street corner in Brooklyn and call upon the uncommon eloquence of symbolism to tell the world of his anger and anguish.