Freedom's fire

Capitol Hill gets ready to trim the Bill of Rights

Here they go again. Ever since 1989, when the US Supreme Court ruled that laws against flag-burning are unconstitutional infringements on free speech, a number of politicians -- mostly conservative Republicans, but a few liberal Democrats as well -- have been trying to change the Constitution to reflect their own narrow views of free speech.

Amending the Constitution is, as it should be, an immensely difficult task, requiring a two-thirds majority of both the House and the Senate, followed by the approval of at least 38 state legislatures. Because building such broad and deep support is so difficult, the Constitution has been amended only 17 times since the adoption of the Bill of Rights in 1791.

Sadly, free speech lacks majority support on Capitol Hill -- which is why the constitutional process is such a vital check on the passions of the runaway mob. A new amendment, co-sponsored by Senator Orrin Hatch (R-Utah) and Representative Randy "Duke" Cunningham (R-California), is now up for consideration. It states, simply, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." Both the Senate and House Judiciary Committees have recommended passage -- the House panel just last week, in a voice vote.

Prior to this, the last anti-flag-burning amendment came up for a vote in 1997; the House approved it by an overwhelming 314-115 margin. Fortunately, the Senate failed to bring it to the floor. Yet in 1995, the Senate approved a similar amendment by 63-36, just three votes short of the necessary two-thirds. The fate of the latest amendment is likely to be the same. Once again, free-speech activists are putting their hopes in the upper chamber. "We've got to win this in the Senate. We're not going to win it in the House. It's close, baby," says John Roberts, executive director of the American Civil Liberties Union of Massachusetts.

Implicit in Roberts's opinion is the view that the House will be the House, and there's nothing much that can be done about it. But it's important for free-speech activists to keep the heat on, even if they believe that the result is a foregone conclusion. Pressure especially needs to be applied to Massachusetts Democrats -- four of whom went the wrong way two years ago, and who now have a chance to redeem themselves.

In the 1997 vote, Massachusetts's 10-member, all-Democratic House delegation split evenly. Voting against the amendment, and thus supporting free speech, were Ed Markey, Barney Frank, John Tierney, John Olver, and Marty Meehan. They deserve to be praised, and should be urged to continue to stick to their principles. Voting for the amendment -- and against free speech -- were Bill Delahunt, Richard Neal, Joe Moakley, and Jim McGovern. They need to be told that free speech is more important than pandering. Joe Kennedy, who voted for the amendment in 1997, has been replaced by Michael Capuano, who will -- according to his office -- join the pro-free-speech side and vote "no." As a vulnerable freshman, Capuano in particular should be congratulated for his gutsy stand.

The American Civil Liberties Union has made it simple to let your representative know what you think about this latest assault on freedom of speech. Just go to its Web site, http://www.aclu.org/action/flag106.html, to learn more about the issue and register your opinion.

Recently, in testimony before the Senate Judiciary Committee, retired senator John Glenn got to the heart of the matter, noting that an anti-desecration amendment would, if passed, mark the first time we had ever acted to limit the freedoms guaranteed by the framers of the Constitution. As a decorated Marine pilot, pioneering astronaut, and Midwestern conservative Democrat, Glenn is as mainstream as they come. Would Hatch and Cunningham, the Duke of Hazard, accuse John Glenn of lacking patriotism?

Freedom of speech is only as vital as our willingness to protect its most loathsome outbursts. If the Ku Klux Klan can't march through the center of town, if anti-choice extremists can't yell at women who enter abortion clinics, and if demonstrators can't burn the American flag -- the symbol of freedom -- to protest some outrage real or imagined, then freedom of expression is no longer tangible and real: it is nothing but a pious, meaningless catch phrase. That's why it's important to leave the Bill of Rights as it is.

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