[Peace-discuss] eroding the first amendment

[ppatton at uiuc.edu]

Flag Proposal Threatens First Amendment
by Hank Kalet
 
"If the flag needs protection at all, it needs protection from
members of Congress who value the symbol more than the
freedoms that the flag represents." — U.S. Rep. Jerrold
Nadler, D-N.Y., speaking on the floor of the House on
Wednesday (quoted by the Associated Press).

The Bill of Rights is the lodestar that has guided us through
nearly 214 years of our history.

It is the script on which our freedoms are built, the
blueprint of our democracy.

That's what makes the passage on Wednesday of a resolution
calling for a constitutional amendment that essentially would
rewrite the First Amendment so troubling.

The amendment — a bare, one-line that reads "The Congress
shall have power to prohibit the physical desecration of the
flag of the United States" — has been floating around in one
form or another for more than 15 years, since the U.S. Supreme
Court held in Texas v. Johnson that flag-burning is symbolic
speech protected under the First Amendment.

For the Constitution to be amended, the resolution has to be
approved by more than two-thirds of each house of Congress and
more than two-thirds of the states, either by legislation or
via public referendum. The House approved the resolution on
Wednesday by a 286-130 vote.

Now, the ball is in the hands of the Senate, which has failed
to back a flag-burning amendment on seven occasions in the
past. But, as the AP notes, the amendment failed by four votes
in 2003, the last time it came up — the exact number of seats
picked up by the Republican Party in November. Republican
senators have been supportive of an amendment in the past. The
Senate, according to the AP, expects to consider the measure
after the July Fourth holiday recess.

That gives members of the Senate about two weeks to consider
whether they want to be judged by history as the first
American legislators to carve out exceptions to the First
Amendment.

In its Johnson decision, the Supreme Court confirmed what
First Amendment purists have always believed: namely, that the
burning of a flag is symbolic speech. Symbolic speech, no
matter how offensive it is to the general public, is protected.

The basic idea underlying the First Amendment is that
unpopular and dissenting views would be guaranteed a hearing
in the marketplace of ideas. The Founding Fathers had feared
that a majority could use its control of the federal
government to impose its beliefs on the minority, to punish
its speech and limit its ability to fight back.

That fear led James Madison and his colleagues to draft a
series of amendments designed to protect citizens from the
potential excesses of their government — hence, the Bill of
Rights.

Since its final passage in 1791, the Bill of Rights — which
encompasses the first 10 amendments — has not been altered,
even when the protections it codifies have fallen out of fashion.

The proposed flag-burning amendment would change all that.

I should be clear here that I do not advocate the burning of
American flags. I also do not endorse the Nazi Party or the
Communist Party U.S.A. But I believe their members have the
right to express their ideas and I will defend their right to
do so just as strongly as I will use my own speech to oppose
their ideas.

"We can imagine no more appropriate response to burning a flag
than by waving one's own," the court wrote in its majority
opinion in the Johnson case. It went on to further say that
the best "way to preserve the flag's special role is not to
punish those who feel differently about these matters. It is
to persuade them that they are wrong."

John S. Keating, a Massachusetts attorney, reminded readers of
just that in an essay posted on the Washington, D.C.-based
Freedom Forum's Web site:

"In 1976, a crowd at Wrigley Field in Chicago actually burst
into a spontaneous rendition of 'God Bless America' when two
protesters ran onto the field and tried to burn a flag," he
wrote. "How utterly, beautifully American a response!"

What's important to remember is that the flag stands as a
symbol of the freedoms we sometimes take for granted, which
include the right to use the flag in a symbolic manner. It is,
as Paul K. McMasters, a former journalist and the First
Amendment ombudsman at the Washington-based Freedom Forum,
wrote in the fall, "a communicative presence unparalleled in
its eloquence."

"It expresses pride, passion and patriotism," he wrote,
"whether held high in battle, presiding solemnly over state
occasions, or helping raise a citizen's voice in praise or
protest."

Because of this, he says, the burning of the flag is an act of
political speech protected by the First Amendment.

"It is a uniquely American right to speak through our flag,"
he wrote. "It is not the government's right to prohibit or
punish such speech, regardless of its intent or message. Nor
is it the majority's right to silence that speaker.

"It would be uniquely un-American to erase this revered
principle from our democratic heritage."

Hank Kalet is managing editor of the South Brunswick Post and
The Cranbury Press. 
__________________________________________________________________
Dr. Paul Patton
Research Scientist
Beckman Institute  Rm 3027  405 N. Mathews St.
University of Illinois at Urbana-Champaign  Urbana, Illinois 61801
work phone: (217)-265-0795   fax: (217)-244-5180
home phone: (217)-344-5812
homepage: http://netfiles.uiuc.edu/ppatton/www/index.html

"The most beautiful thing we can experience is the mysterious.  It is the
source of all true art and science."
-Albert Einstein
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