Two House members announce plans to raise flag amendment

Wednesday, January 13, 1999

Barely a week into the new congressional session, two House members are pledging to introduce a constitutional amendment to make burning the American flag illegal.

Rep. John Murth...
Rep. John Murtha, D-Penn.

“As we near the new millennium, it is imperative that we finally enact protections for our flag and get over this hurdle,” said Rep. Randy “Duke” Cunningham, R-Calif., who plans to co-sponsor the bill with Rep. John Murtha, D-Penn. “This Congress is committed to doing everything we can to ensure our symbol of national pride is protected — that the embodiment of our democracy and unity is preserved.”

A previously proposed constitutional amendment, which would have allowed Congress to pass laws forbidding desecration of the flag, died last October when Senate leaders failed to get unanimous consent to bring the proposal to the floor. Amendment supporters said that even if the proposal had made it to the floor, they were short by three votes.

Cunningham, a veteran of the Navy, and Murtha, a veteran of the Marine Corps, say they plan to introduce their bill later this month. While the amendment will face stiff debate in the Senate, the House likely will pass the matter quickly as it did early last session with a 310-114 vote.

Amendment supporters say statutory options don't work because the U.S. Supreme Court ruled twice — first in Texas. v. Johnson in 1989 and again in U.S. v. Eichman in 1990 — that flag desecration is protected speech under the First Amendment.

Rep. Randy Cunn...
Rep. Randy Cunningham, R-Calif.

However, amendment supporters say the measure won't stifle any legitimate expression.

“I believe the damage … and cruel insult [that flag-burning] inflicts on veterans far outweighs any need for self-expression,” Murtha said in a joint statement with Cunningham. “Flag desecration should be added to those few types of expression that are not wholly protected by the First Amendment.”

Free-speech advocates promise a fight on First Amendment grounds. They say such an amendment severely restricts free-speech rights and elevates the flag above the Bill of Rights.

“Despite the fact that everyone knows the real battle will be waged in the Senate, we won't back off in the House,” Kevin Goldberg, legal counsel for the American Society of Newspaper Editors, said, “We intend to show that the tide is turning. This isn't on the inevitable track toward passage. The longer it sits out the more people realize it's an irrational amendment.”