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The Proposed Flag Protection Amendment

On two occasions, the United States Supreme Court has ruled that flag burning is considered to be “symbolic speech” that is entitled to First Amendment protection. The Court has recognized that individuals have the right to damage flags that are their own property as a form of political speech. In 1989, the Court ruled that a conviction under a state flag desecration law violated the provisions of the First Amendment. The following year, the Court struck down the federal Flag Protection Act of 1989, which had been passed in response to the Court's 1989 ruling.

Despite Congress's rejection of proposed amendments to the United States Constitution in the last few decades, some members of Congress are attempting to pass the Flag Protection Amendment. Critics say that if the amendment passes, it would be the first amendment to limit, rather than protect, the freedom of speech.

The Flag Protection Amendment

If passed, the Flag Protection Amendment would allow Congress to criminalize any “physical desecration” of the American flag. Civil rights advocates contend that the Flag Protection Amendment would have the effect of harming the freedom of speech, which is one of the freedoms that the flag symbolizes.

As of October 2004, the Flag Protection Amendment has been approved by the House of Representatives, but not by the Senate. Notably, the House has passed some form of a flag desecration amendment on an almost annual basis. The last attempted flag desecration amendment that failed in the Senate failed by four votes in 2000.

Amending the Constitution not an easy process

Article V of the Constitution permits the proposal of amendments by either two-thirds of Congress or a constitutional convention. A proposed amendment must then be ratified by either the legislatures of three-fourths of the states or by constitutional conventions in three-fourths of the states. Not surprisingly, proponents of any amendment to the Constitution, including the Flag Protection Amendment, face a tough challenge. In this situation, the challenge is made more difficult by the consistent decisions of the Court regarding flag desecration.

Yet, a fact that is said to weigh in favor of ratification of the Flag Protection Amendment is the fact that each state has passed a resolution supporting it. Supporters of the amendment say that if the Senate passes the amendment, there is little doubt that Congress would ratify the Flag Protection Amendment.

Copyright 2014 LexisNexis, a division of Reed Elsevier Inc.

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