Senate Judiciary Committee Approves Flag Amendment, ACLU Urges Full Senate to Reject Limits on First Amendment Rights

June 15, 2006 12:00 am

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Freedom and the Flag

WASHINGTON – The American Civil Liberties Union today expressed its disappointment as the Senate Judiciary Committee approved an election-year proposal to include censorship in the Constitution. The full Senate is now expected to consider S.J. Res. 12, the “Flag Desecration Amendment,” the week of June 26.

“The right to voice a dissenting viewpoint – no matter how unpopular – is a bedrock principle of America,” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “The First Amendment is most important when it protects speech that is controversial and repugnant. This proposed amendment would be the first curtailment ever of the Bill of Rights. We urge the full Senate to stand up for the Constitution and its principles.”

The Senate Judiciary Committee today approved the proposed amendment that would allow Congress to criminalize any “physical desecration” of the American flag on a vote of 11 to 7. If adopted, it would be the first time the Constitution has been used to restrict First Amendment freedoms or the Bill of Rights.

The ACLU noted that proposals to ban flag desecration or burning have been consistently rejected by the Supreme Court and Congress since they were first introduced in the late 1980s, and polls have shown the public has grown increasingly averse to including censorship in the Constitution. The House adopted the amendment last year on an eight-vote margin – the closest vote ever taken by that body. The Senate has never approved it, but both proponents and opponents of the measure see the vote as extremely close this year, with 66 Senators – just one vote shy of the two-thirds needed to amend the Constitution – expected to support the amendment.

Public sentiment has also shifted on the issue. In a survey release in June 2005, the First Amendment Center found that 63 percent of those polled said that the Constitution “should not be amended to prohibit burning or desecrating the American flag.” This number was 10 percentage points higher than the same survey conducted in 2004. The same survey found that support for the amendment dropped from 45 percent in 2004 to 35 percent in 2005.

Opposition to the amendment comes from all parts of the political spectrum. Former Secretary of State and former Chairman of the Joint Chiefs of Staff Colin Powell said in a 1999 letter, “The First Amendment exists to insure that freedom of speech and expression applies not just to that with which we agree or disagree, but also that which we find outrageous.” In addition to Powell, former Senator John Glenn and former Reagan Defense Department official Lawrence J. Korb have spoken out against the proposal. Veterans Defending the Bill of Rights, Veterans for Peace and Veterans for Common Sense have also been vocal in their opposition.

“The symbol should not be valued more than the freedoms it represents,” said Terri Ann Schroeder, ACLU Senior Lobbyist. “We urge all Senators to show the strength of our commitment to the Constitution by rejecting this attempt to write censorship into our nation’s founding document.”

For more on the ACLU’s concerns with the Flag Desecration Amendment, go to:

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