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As Flag Day Approaches, Legal Experts Say Desecration Amendment Remains Unlikely
Poll of legal experts by LexisNexis indicates freedom of speech will prevail
DAYTON, OH, June 07, 2005 - As America honors one of its most important and cherished symbols on June 14, the 56th annual Flag Day, legal experts say the likelihood of a constitutional amendment banning desecration of the stars and stripes is small or non-existent.
Each of the more than 50 lawyers and legal experts who responded to the informal survey said citizens of the United States were unlikely to adopt such an amendment to the Constitution.
"Conservative Justice Scalia joined in the opinion of the majority in holding flag burning to be protected free speech," said California trial attorney and a LexisNexis author Joseph Devine in his response to the survey. "Although most people would support a law prohibiting desecration of the flag, they would not favor any restriction on free expression."
LexisNexis, a leading provider of legal, news and business information, polled prominent attorney authors, advisors and legal experts (www.lexisnexis.com/presscenter/expertguide) with a single question -- "Do you foresee a constitutional amendment that would outlaw burning, damaging or in any other way desecrating the flag of the United States?"
Nearly 60 percent of those asked, including attorneys, authors and subject matter experts, responded to the query. The unanimous results indicated freedom of speech provided under the First Amendment was first and foremost.
"If a constitutional amendment outlawing desecration of the flag of the United States of America ever passes, the First Amendment regarding free exercise of religion and expression must also be altered or amended," wrote Merritt McKeon, an adjunct professor at Trinity Law School in Santa Ana, Calif. and a LexisNexis author. "I believe this is highly unlikely as Americans, and indeed people throughout the world, recognize that our First Amendment makes us a unique nation where our ability to criticize our leaders, our country, and even our religions is written in our Constitution -- and in the blood of those who have defended our beloved nation."
That view is shared by another LexisNexis analyst.
"As peculiar as it may sound to the average American, having the right to desecrate the flag is exactly what the brave men and women of our country have fought for both at home and abroad for more than 200 years," wrote Pete Kelso, an editor and analyst for LexisNexis Mealey’s publications. "The freedom and right to burn the flag is far more important than the actual act of burning or damaging a flag."
A Santa Clara, Calif., chief deputy district attorney agrees.
"There is a practical realization that certain behavior and conduct, while unacceptable or distasteful, should not be subject to constitutional amendment," said Kurt Kumli, a criminal litigation and family/child law expert for LexisNexis. "The rights and restrictions specifically addressed in the Constitution do not, and should not, encompass every form of illegal or offensive behavior."
Recent efforts to establish a Constitutional amendment to outlaw flag burning began in earnest following the Supreme Court's 1990 US v Eichman decision. In a narrow 5-4 ruling, the majority held that laws prohibiting desecration of the flag were unconstitutional violations of the first amendment guarantees of free speech and expression, according to LexisNexis, which provides attorneys with an extensive database of more than 5 billion searchable documents, as well as Shepards®.
In 1995, Congress narrowly failed to pass a proposed Constitutional Amendment which read: "The Congress shall have power to prohibit the physical desecration of the flag of the United States." In 1997, a similar attempt was killed in the Senate without a vote. In 2000, Congress again fell short on passing a proposed amendment by 3 votes.
"Even if Congress were able to pass legislation authorizing a 28th amendment, 38 out of 50 states would be required to ratify the amendment within seven years," Devine said. "I think this is not likely."
A New Jersey attorney and analyst board member for LexisNexis said there is a reason an amendment to the Constitution is so hard to pass.
"The framers of the Constitution want to make the amendment process difficult, but not impossible," said John Kawczynski. "A difficult amendment process serves as an important check on what the founders considered to be the ‘passions of the people.’"
At least one LexisNexis expert says lawmakers might have another option to protect the flag from desecration.
"I do not foresee a constitutional amendment," said John Dubreuil, A Florida-based LexisNexis expert who is also a LexisNexis author. "However, I would not be surprised to see Congress take up this issue as a federal law.
And, while the decision is unanimous among the analysts, a LexisNexis expert who is also an adjunct professor at Texas A&M offers a different perspective.
I do not foresee an amendment at any time," said Thomas Fitzhugh III. "But, then again, who could have foreseen the 18th amendment that allowed prohibition?"
Learn more about the process to amend the Constitution by visiting www.lexisnexis.com/constitution.
About LexisNexis
LexisNexis® (www.lexisnexis.com) is a leader in comprehensive and authoritative legal, news and business information and tailored applications. A member of Reed Elsevier Group plc [NYSE: ENL; NYSE: RUK] (www.reedelsevier.com), the company does business in 100 countries with 13,000 employees worldwide. In addition to its flagship Web-based Lexis® and Nexis® research services, the company includes some of the world’s most respected legal publishers such as Martindale-Hubbell, Matthew Bender, Butterworths, JurisClasseur, Abeledo-Perrot and Orac.
Editors note:
The LexisNexis Expert News Source program, LENS, brings together authors, lawyers, researchers, and legal journalists to assist members of the media in understanding and communicating the implications of changing laws and regulations and precedent-setting court decisions. Each expert is a well-respected authority with deep expertise in a specific area of law. They deliver inherently unbiased, fact-based analysis and are accomplished at presenting complex issues -- and their implications -- in ways that can be understood by the general public. LexisNexis analysts can be contacted by calling Randy Dunham at (937) 865-8836 or by emailing him at mrandy.dunham@lexisnexis.com.
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