Why is Congress debating a constitutional amendment to prevent flag-burning?

Congress has previously passed legislation prohibiting flag-burning, which the Supreme Court invalidated as unconstitutional on free-speech grounds. Because the Constitution is the supreme law of the land, the Court’s interpretation of the First Amendment will always trump conflicting state or federal legislation. Only a constitutional amendment can authorize Congress — and the states — to pass laws to prohibit flag-burning and override the Supreme Court.

  Why are there state laws prohibiting flag-burning when the U.S. Supreme Court has declared such laws unconstitutional?

It is important to note that the Supreme Court has not struck down every state flag-desecration statute as unconstitutional. The Texas law featured in Texas v. Johnson violated the First Amendment because it sought to suppress expressive activity. Other state statutes may prohibit flag-burning as part of general safety and welfare laws — such as those criminalizing trespass, arson and rioting — that place at most an incidental and permissible burden on free speech.

  Why do supporters favor a constitutional amendment prohibiting flag-burning?

Many supporters feel that the flag is a unique symbol deserving of dignity and respect. To burn this object of veneration is akin to an “inarticulate grunt or roar” that is devoid of any meaningful speech, intended only to enrage others, and undeserving of free-speech protection. The supporters say that when so many other avenues exist for free expression, any burden on the First Amendment is too small to outweigh the desecration of the flag and the memories of the millions who have died for the liberty it represents.

  Why do opponents reject a constitutional amendment prohibiting flag-burning?

Opponents argue that the government may not prohibit free speech simply because the ideas expressed are objectionable. Cultural and social change would be strangled if protest were limited to issues with which the majority agreed. This principle is not dependent on the medium of expression. Burning the flag is a means of protected speech as surely as picketing, printing leaflets or shouting on a street corner.