After passing the House earlier this session, the Senate will next week consider a constitutional amendment that will ban desecration of the American flag. If the Senate and states ratify this amendment, it will be the first constitutional amendment to restrict the first amendment’s guarantee of freedom of expression.
America will not know the full consequences of this vague amendment until it is instated. The amendment reads, “The Congress shall have power to prohibit the physical desecration of the flag of the United States.” This phrasing could include anything from the actual act of burning or damaging an American flag to the censorship of images of the flag in art, advertising, commerce, and literature.
Although some surveys indicate that Americans support this amendment, polls show also that the majority of Americans reject it after learning that this amendment will be the first, besides the repealed 18th, to restrict rather than broaden individual rights. The Supreme Court also upholds the place of flag desecration under the first amendment. In Texas v. Johnson, 491 U.S. 397 (1989), and again in United States v. Eichman, 496 U.S. 310 (1990), the Court decided that although flag destruction is highly offensive for most Americans, it is undeniably an expression of personal political beliefs. The government can not prohibit expression simply because society finds the idea disagreeable.
By limiting freedom of expression, this amendment strikes a blow to American ideals by trying to silence debate and dissent directed at the government, actions fundamental to the power of a democracy. Ratifying this amendment will set a dangerous precedent for limiting the freedoms of the American people.
To read statements regarding the amendment by Senior Fellow Lawrence J. Korb: