WASHINGTON — A new “First Report” published by the First Amendment Center examines the likely impact of ratifying an amendment to the U.S. Constitution granting Congress the power to punish desecration of the American flag, an issue the report terms “one of the most polarized disputes in United States history.”
The principal author of the report, First Amendment lawyer and scholar Robert Corn-Revere, writes that those favoring an amendment see it as “essential to restore constitutional balance,” while “opponents say such a change would amount to unprecedented desecration of the Bill of Rights.”
Two U.S. Supreme Court decisions, in 1989 and 1990, struck down flag-desecration laws as violations of the First Amendment, the report notes — setting off a strong national movement to amend the Constitution to allow such laws.
The report, “Implementing a Flag-Desecration Amendment to the Constitution,” is available as a PDF. (For a free printed copy, send a message to email@example.com. Put “flag report” in the subject line and give us your name and postal address. For multiple orders, there will be a charge to cover postage and printing costs only.)
Corn-Revere writes that “permitting Congress to ban flag desecration would end the immediate dispute about whether to change the Constitution, but it would not end the ongoing debate about the limits of government authority in this area.”
“In many ways, passage of a constitutional amendment would present a new beginning for the controversy,” Corn-Revere said, “because after an amendment is ratified and implementing legislation adopted, burning a flag as a form of protest still will be protected by the First Amendment, but burning the flag will not be,” he said.
Among the significant issues that may arise for Congress and the courts if the amendment is ratified, according to the report:
- Development of legally and constitutionally sound definitions of what is “the flag of the United States” and what constitutes “physical desecration”
- Interpretation of any new law in light of existing strong constitutional protections for free speech.
- An increase in the number of acts and types of flag desecration, prompted as a response to the amendment.
The report also includes sections on the history of attempts to punish flag desecration; a timeline on the efforts to provide legal protection for the flag; and a review of Supreme Court action in flag-desecration cases, including abstracts on seven major Court decisions since 1907.
Prior “First Reports” by the First Amendment Center have examined First Amendment issues involving Internet filters in public libraries, faith-based initiatives, information privacy and free-speech rights of public employees.
The Senate is expected to consider, after the July 4 holiday, a proposed Constitutional amendment to permit Congress to enact laws to prohibit physical desecration of the flag. The House voted June 23 to approve the proposal. If approved by at least two-thirds, or 67 members, in the Senate, the amendment then goes to the states for ratification. At least three-fourths, or 38, of the 50 states are needed to ratify an amendment.
Robert Corn-Revere is a partner in the Washington, D.C., office of Davis Wright Tremaine LLP, specializing in First Amendment, Internet and communications law. He writes extensively on First Amendment and communications-related issues and has testified before congressional committees and the FCC. He is co-author of Modern Communications Law, published by West Group; and is editor and co-author of Rationales & Rationalizations published in 1997. In 2003, he successfully petitioned Gov. George E. Pataki to grant the first posthumous pardon in New York history, to the late comedian Lenny Bruce. He argued United States v. Playboy Entertainment Group, Inc., 529 U.S. 803 (2000), in which the U.S. Supreme Court struck down Section 505 of the Telecommunications Act of 1996 as a violation of the First Amendment.
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