Senate Panel Passes Measure to Include Censorship in Constitution, ACLU Urges Full Senate to Oppose as First Amendment Hangs in Balance

May 4, 2006 12:00 am

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WASHINGTON – Noting that free expression and the right to dissent are among the core principles which the American flag represents, the American Civil Liberties Union today expressed its disappointment that a key Senate panel failed to protect the Constitution when it passed the Flag Desecration Amendment. The House passed the Flag Desecration Amendment by a narrow eight-vote margin last year.

“If we take away the right to dissent – no matter how unpopular – what freedom will be sacrificed next?” said Caroline Fredrickson, Director of the ACLU Washington Legislative Office. “The First Amendment must be protected most when it comes to unpopular speech. Failure to do so fails the very notion of freedom of expression. We urge the full Senate to reject election year politics and stand for the Constitution.”

The Senate Judiciary Subcommittee on the Constitution, Civil Rights, and Property Rights today approved S.J.R. 12, the Flag Desecration Amendment, which would allow Congress to criminalize any “physical desecration” of the American flag. If adopted, it would be the first time the Constitution has been used to restrict freedoms since Prohibition. The ACLU noted that proposals to ban flag desecration or burning have been consistently rejected by the Supreme Court and Congress since first introduced in the late 1980s, and polls have shown the public has grown increasingly averse to including censorship in the Constitution.

The ACLU pointed to a survey released in early June of 2005 by the First Amendment Center in which 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 last year. The same survey found that support for the amendment dropped from 45 percent last year to 35 percent this year.

Opposition to the amendment remains ideologically broad. 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 all 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.

“If this measure passes, it would put the symbol above the values it represents,” said Terri Ann Schroeder, an ACLU Senior Lobbyist. “The strength of our democracy is that we tolerate all peaceful forms of expression, no matter how uncomfortable they make us feel, or how much we disagree. We hope that the Senate will ultimately reject this attack on the Constitution.”

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

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