NASHVILLE, Tenn. — The number of Americans who oppose a constitutional
amendment that would give Congress the power to punish flag-burning as protest
is up sharply from 2004, according to a survey released today by the First
35% said the Constitution “should be amended” — down from 45% in 2004.
“This issue involves one of the nation’s most fundamental First Amendment
guarantees, the right of free speech; and what many consider the most-venerated
symbol of our nation, honored each year on Flag Day, June 14,” said Gene
Policinski, executive director of the First Amendment Center.
“I have no doubt that most Americans want the flag to be protected and
respected, but clearly more Americans seem to be having second thoughts about
using a constitutional amendment to deal with the issue of flag desecration, and
about the impact such a dramatic move would have on free speech,” he said.
Public support for an anti-flag desecration amendment has shifted up and down
each year since a 49-49% split in 1997, but the 2005 survey’s 63-35% result is
the widest division of opinion yet recorded in the center’s annual polling.
Attempts have been made to punish flag desecration at local, state and
national levels since the Civil War. But since the 1970s, the U.S. Supreme Court
has held in several cases (see Texas v. Johnson (1989) and United States v. Eichman (1990)) that burning the flag as a form of political or social
protest is protected speech.
Five proposals to amend the Constitution to punish flag desecration have been
adopted by the House since 1995, but all have faltered in the Senate — most
recently, failing in 2003 by just two votes.
On May 25, the House Judiciary Committee approved H.J.R. 10, a constitutional
amendment to ban the physical desecration of the U.S. flag, setting the stage
for a full vote in the House, where it will need a two-thirds majority to be
approved. No date for a vote has yet been set.
If ratified, the current proposal would become the 28th Amendment. Following
House and Senate approval, the proposed amendment would be submitted to the
states, where three-fourths — 38 states — are needed for approval. All 50 state
legislatures have at one time or another adopted resolutions in support of an
The First Amendment Center commissioned New England Survey Research
Associates to conduct a general public survey of attitudes about the First
Amendment. The survey was conducted by telephone between May 13 and May 23,
2005. The sampling error for 1,003 national interviews is +/- 3.1% at the 95%
level of confidence. The sample error is larger for sub-groups.
(See the questions on flag desecration included in the “State of the First Amendment 2005” survey.)
The First Amendment Center works to preserve and protect First Amendment
freedoms through information and education. The center serves as a forum for the
study and exploration of free-expression issues, including freedom of speech, of
the press and of religion, the right to assemble and petition the government.
The First Amendment Center, with offices at Vanderbilt University in Nashville,
Tenn., and Arlington, Va., is an operating program of the Freedom Forum and is
associated with the Newseum.
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For information about the “State of the First Amendment 2005” survey
methodology or the questions related to flag desecration, contact Professor Ken
Dautrich (860/778-4195; e-mail: email@example.com) or Professor David
Yalof (860/508-2756; firstname.lastname@example.org), University of
615/727-1325 or email@example.com