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House again passes flag-burning amendment

By The Associated Press,
First Amendment Center Online staff

WASHINGTON — The House voted today to approve a constitutional amendment that would give Congress the power to ban desecration of the American flag, a measure that for the first time stands a chance of passing the Senate as well.

By a 286-130 vote — eight more than needed — House members approved the amendment after a debate over whether such a ban would uphold or violate the Constitution's free-speech protections.

Supporters said the measure reflected patriotism that deepened after the Sept. 11, 2001 terrorist attacks, and they accused detractors of being out of touch with public sentiment.

"Ask the men and women who stood on top of the (World) Trade Center," said Rep. Randy (Duke) Cunningham, R-Calif. "Ask them and they will tell you: pass this amendment."

But Rep. Jerrold Nadler, D-N.Y., said, "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."

The issue has come up in Congress regularly since the Supreme Court ruled in Texas v. Johnson (1989) and United States v. Eichman (1990) that burning the American flag is a constitutionally protected form of free speech.

The amendment is designed to overturn those rulings, which nullified a 1968 federal statute and flag-protection laws in 48 states.

The proposed one-line amendment to the Constitution reads, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." For the language to be added to the Constitution, it must be approved not only by two-thirds of each chamber but also by 38 states within seven years. Every state legislature has pledged to ratify such an amendment.

If the amendment is approved and ratified, it would be the first time the Bill of Rights was revised to restrict rather than expand freedom of expression.

A recent poll by the First Amendment Center found that 63% of Americans surveyed opposed changing the Constitution for the sake of flag protection.

Each time the proposed amendment has come to the House floor — today marked the seventh time — it has reached the required two-thirds majority. But the measure has always died in the Senate, falling short of the 67 votes needed. The last time the Senate took up the amendment was in 2000, when it failed 63-37.

But last year's elections gave Republicans a four-seat pickup in the Senate, and now proponents and critics alike say the amendment stands within a vote or two of reaching the two-thirds requirement in that chamber.

By most counts, 65 current senators have voted for or said they intend to support the amendment, two shy of the crucial tally. More than a quarter of current senators were not members of that chamber during the last vote.

The Senate is expected to consider the measure after the July 4th holiday.

Voting yes to approve the amendment today were 77 Hosue Democrats and 209 Republicans. Voting no were 117 Democrats, 12 Republicans and one independent.

Supporters of the amendment, like Georgia Congressman Phil Gingrey, say that "to burn a flag is to disrespect America."

Opponents say the amendment isn't needed, noting that flag-burning incidents are few and far between.

Congressman Gary Ackerman says the amendment would infringe on free speech. He says the reason the American flag is different is that "it stands for” the right to burn the flag in political protest.

Flag amendment may lack votes to pass Senate
Associated Press finds 35 senators on record as opposing constitutional amendment to let Congress outlaw flag desecration — one more than number needed to defeat it. 06.23.05

S.D. senator to introduce flag amendment
John Thune, who defeated amendment opponent Tom Daschle last year, says both Democrats, Republicans have agreed to co-sponsor legislation. 03.08.05


63% oppose flag-burning amendment, new survey shows

First Amendment Center State of the First Amendment 2005 survey: Support for amending Constitution drops to 35%; measure awaiting House vote would give Congress power to punish flag desecration. 06.10.05

Burning the Bill of Rights to save the flag
By Paul K. McMasters It's a uniquely American right to speak through our flag, and uniquely un-American to try to ban or punish symbolic political speech — as the Senate looks poised to do. 09.10.04

Where senators stand on flag amendment

Recent flag legislative action

Flag-burning horizon

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