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Waving the flag vs. saving free speech

Ombudsman

By Paul McMasters
First Amendment Ombudsman
First Amendment Center

10.12.98

In the last-minute flurry of business, Majority Leader Trent Lott called for unanimous consent to debate and vote on the flag-desecration amendment. It was an anxious moment, full of drama, for both proponents and opponents of the attempt to amend the Bill of Rights for the first time in two centuries.

Bringing the issue to the floor was a win-win situation for those pushing the constitutional amendment:

• Just getting the matter considered at that time would be a significant gesture toward the powerful constituency behind the amendment.
• With avowed opponent John Glenn out of town training for a space flight and those still undecided feeling the proximity of the November election, the amendment just might muster the 67 votes needed to send it straight to the state legislatures, where ratification was assured.
• At the least, the debate and vote would provide material for 30-second attack ads against those who dared oppose the amendment.

Fortunately for the free speech rights of all Americans, two senators — one a Congressional Medal of Honor winner and the other the First Amendment's most consistent and trusted friend in the Senate — rose to object to Lott's motion.

Sen. Robert Kerrey, D-Neb., was the first to object. It was a poignant moment. The amendment's proponents claim they represent veterans who fought and died for the flag. Yet Sen. Kerrey is a veteran who lost a leg in Vietnam and has received this nation's highest accolade for his courage and bravery in combat.

Following Sen. Kerrey in objecting to the motion was Sen. Patrick Leahy, D-Vt. "This is a serious issue, one deserving of our full attention, our most thoughtful consideration, and our most serious debate," he reminded his colleagues. "Instead we are asked to consider this at the most hectic time of the entire legislative calendar — at the end of a session when the attention of senators quite properly is focused on passing the necessary appropriations bills so that we will not once again shut down the federal government."

Leahy also noted the absence of Sen. Glenn, a distinguished veteran of World War II and of the Korean conflict as well as one of this nation's pioneers in space. "It shocks and really offends me that the proponents of this amendment would take advantage of his absence to debate this proposal as he embarks once again in harm's way in the service of the United States."

So Lott's motion failed. And for the second time in three years, a few far-sighted souls in the U.S. Senate fought to a standstill those who would change the constitution to suit their own notion of what is right and proper speech in a democracy.

Proponents of the flag amendment were outraged, of course.

"We will be back in January 1999," promised retired Maj. Gen. Patrick Brady, who chairs the Citizens Flag Alliance, a coalition of 134 groups campaigning for the flag-desecration amendment.

They will be back and their chances of success the next time around are even better. Once more, they will be able to work quietly and effectively behind the scenes as the press and public pay little heed to an issue of enormous consequence but little sex appeal. Once more, there will be elected officials seizing the opportunity to pretend patriotism while betraying the oath they took to uphold the Constitution. Once more, opponents of the amendment will suffer from lack of resources, lack of support and a surfeit of fatigue.

Also back will be a constant litany of misrepresentations and misinterpretations of history, court decisions, democratic principles, and the facts.

The amendment's backers say they don't want to send anyone to prison, but fail to explain why a constitutional amendment is needed if all they want to do is issue tickets to those who disrespect the flag or to send someone to re-education classes in patriotism.

They say the Supreme Court was wrong in its interpretation of the Constitution, so they campaign to change the words of the Constitution rather than the makeup of the court.

They say that the Supreme Court decision in 1989 invalidated 200 years of legal precedent, but they can't explain why both history and First Amendment jurisprudence say otherwise.

They say that the Senate action denied citizens a voice, but the amendment they espouse would deny a voice to all citizens who fail to exercise the "official and approved" version of free speech.

What a fragile foundation on which to build a case for changing the Constitution: a change that cannot be held to account either by courts or circumstances or citizens. This change, in fact, would rewrite a 200-year-old compact between a government and its people that elected officials do not have the power to dictate how and when and in what manner they may be criticized by those who put them in office.

But the flag-amendment proponents will keep saying all these things. They have learned that if they say something often enough and loud enough it eventually becomes, if not the truth, the standard by which all other statements are measured.

They will keep saying all these things because they've got the money to do it, because they have an issue with political and popular emotional appeal, and because they simply cannot abide the First Amendment's guarantee that you and I have a right to free speech even if we are not in the majority, especially when it concerns political dissent.

Political bullying and constitutional balderdash have won over the House of Representatives and 49 state legislatures. But so far, there are enough members of the U.S. Senate like Senators Kerrey and Leahy to stop the juggernaut.

So the flag savers will be back next year with more money, more momentum, and more misleading rhetoric about their goals and our rights.

What a civics lesson for our children that is: If you have the political muscle, you can flout the Supreme Court and mold the Constitution into your own vision of what democracy should be.

What a civics lesson for us all if the First Amendment and unfettered political discourse are casualties of that process.