Flag Desecration Amendment Within One Vote of Passing

June 26, 2006

This week, the Senate is poised to vote on a constitutional amendment that would allow the government to ban flag desecration. While attempts to rewrite the First Amendment to allow for such laws have been considered by Congress many times before, the difference this time around is that the amendment is as little as one vote away from passing. Paul K. McMasters, the ombudsman of the First Amendment Center and a member of the Board of Editors for FIRE’s Guides to Student Rights on Campus, points out:

If the one-vote margin falls on the side of passage, the Senate will set in motion a dramatic and lasting change in the way we view and treat political dissent. If the flag-desecration amendment is ratified, for the first time in this nation’s history we will have materially changed the Bill of Rights, which affirms and secures the fundamental rights of all Americans against the power and reach of government.
More specifically, speech protected by the First Amendment and affirmed by half a dozen Supreme Court decisions since 1907 stands to be criminalized.

Last year, I wrote at length about the potential problems arising from the passage of such an amendment, and I urged readers to look at the excellent report, prepared by eminent First Amendment attorney Robert Corn-Revere, analyzing the history and likely consequences of such an amendment. Corn-Revere concludes, quite correctly, that “Adopting a constitutional amendment would only be the beginning of a long series of disputes over flag desecration.”
While FIRE does not ordinarily become involved with legislative issues, an attempt to rewrite and limit the First Amendment has a direct (and potentially serious) impact on our work. I can all but guarantee that the ambiguities created by any law banning flag desecration would play out on our nation’s college campuses. As I wrote last year about the likely practical results of such an amendment (and any law arising from it):

[T]here will be an entire class of attention seekers who will be all too willing to provide every possible permutation of law-straddling hypotheticals imaginable. In the process, some will likely be punished and others exonerated, but all will have massively increased the audience for their message because of the notoriety that arises from challenging a controversial new law in some clever or sensational way. And, trust me, college students, with their flair for insubordination (a quality that we sometimes find to their credit), will be leading the way. In the meantime, the debate will only become more nuanced, with existing divisions growing deeper as some convictions fail and others possibly send people to jail.

If the point of the amendment is to prevent flag desecration, it will likely have the very opposite result. Meanwhile, it requires us to amend the Bill of Rights and limit the scope of the First Amendment, a step we should take only in the gravest of circumstances. As FIRE co-founder Alan Charles Kors wrote:

The crucial objection to a flag-burning amendment, an amendment of the First Amendment, is, in fact, conservative and Burkean: the Bill of Rights stands as a foundational protection of the rights of a free people, held to be beyond the reach of government. Amending the original Bill of Rights breaks the historical chain of which our liberty is the result and opens a Pandora’s Box of governmental and even popular interference, by whatever means, in the liberties held by the Founders and their descendants to be essential to the American experience of limited government. The belief that the Bill of Rights is up for grabs would imperil the sense of inalienable rights vital to what America is and stands for. A free people should have a deep understanding of this: Don’t amend the Bill of Rights!

FIRE has always relied on the beauty and clarity of the principles embodied in the First Amendment to win our cases and inspire people to protect the free speech rights of even those with whom they most fundamentally disagree. I hope that this compelling moral force will remain undiluted.