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Burn the Flag or Burn the Constitution?

Sandra Fulton,
ACLU Washington Legislative Office
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July 1, 2011

” …Those who would burn the flag destroy the symbol of freedom, but amending the Constitution would destroy part of freedom itself. “

—Vietnam veteran Richard Savage

Sadly, Congress is once again considering an amendment to the U. S. Constitution banning desecration of the American flag and, in doing so, testing our political leaders’ willingness to defend what is arguably one of America’s most sacred principles — protecting political speech.

Two bills currently pending before the House and the Senate — H. J. Res. 13 and S. J. Res. 19 — would allow Congress to enact laws banning desecration of the flag. We have heard this all before , and the Supreme Court has firmly struck down any statute that would criminalize “desecrating” the flag. As Mr. Savage famously explained in the quote above, limiting the freedoms protected in our Bill of Rights does not make us more patriotic but instead threatens our core belief system.

Our nation’s founders declared their independence on July 4, 1776, to break free of the tyranny of a nation that denied them the civil liberties that they believed all people were granted as a birthright. They reaffirmed that faith in independence from governmental tyranny with the ratification of the Bill of Rights in 1791. Freedom cannot survive when those in power make exceptions to the First Amendment for speech they dislike. If this amendment moves forward, Congress will have the right to determine what we say about our government and how we are allowed to say it. That is precisely what the First Amendment was designed to prevent.

Aside from the egregious attack on our fundamental right to express approval or disapproval of our government in the manner we choose, how exactly does Congress plan to enforce such a vague law? What exactly does “desecration” mean? Is it just flag burning — or does it also include smearing the flag with dirt? How about dropping it on the ground? And why should law enforcement get to decide who to arrest for such desecration? What if I wear my flag like a cape as many Olympians or soccer hooligans are known to do? What if I fly it upside-down in protest? Will these acts count as desecration? And what counts as a flag? Does my boss’s ridiculous flag-inspired tie he pulls out every July 4th and Memorial Day require protection? Will Americans be threatened with jail time for having questionably patriotic fashion choices?

It may sound it, but I do not mean to be flip. This flag desecration amendment comes up far too often , and has dire implications for our fundamental understanding of the right to speak freely. This is serious stuff. The First Amendment was written to protect the voices, views, beliefs, and expressions of the minority against the sometimes suppressive will of the majority. It has remained unaltered for over 200 years, and amending it now to ban certain types of political expression would be a direct attack on what America and the flag stand for.

So remember the flag — and the freedoms it represents — while you’re celebrating the holiday. And happy Fourth of July!

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