WHEREAS, on June 28, 1995, the United States House of Representatives ratified a constitutional amendment which would confer upon Congress and the states the power to prohibit the physical desecration of the flag of the United States (HJ Res. 79.);
WHEREAS, this proposed amendment has now been approved by the Senate Judiciary Committee (SJ Res. 31) and is awaiting a vote by the full Senate;
WHEREAS, the U.S. Supreme Court has consistently found flag desecration a form of political speech guaranteed by the First Amendment of the U.S. Constitution;
WHEREAS, punishing desecration of the flag dilutes the very freedom that makes th[e] emblem so revered, and worth revering (U.S. v. Eichman, 496 U.S. 310, 319 (1990); see also Texas v. Johnson, 491 U.S. 397, 414 (1989); Spence v. Washington, 418 U.S. 405, 411 (1974));
WHEREAS, legislated proscriptions of unpopular speech tend to readily compromise and undermine the edifice of free expression in a democratic society;
WHEREAS, this amendment would further compromise [o]ne of the prerogatives of American citizenship . . . , the right to criticize public [people] and measures, . . . [including] not only informed and responsible criticism but the freedom to speak foolishly and without moderation. (Cohen v. California, 403 U.S. 15, 26 (1971), citing Baumgartner v. United States, 322 U.S. 665, 673-74, (1944));
WHEREAS, while national unity, the purported basis for this amendment, is an admirable aim, it is better promoted through intelligent debate, education and/or persuasion, not by jailing those who express unpopular forms of protest;
WHEREAS, patriotism in society cannot be legislated through enforced silence;
WHEREAS, any restriction on a person's right to use the American flag in an act of protest tarnishes the U.S. Constitution and the vision of its drafters.
NOW, THEREFORE, BE IT RESOLVED that the Philadelphia Bar Association opposes abridgement of the U.S. Constitution through passage of this proposed amendment.
AND BE IT FURTHER RESOLVED that the Philadelphia Bar Association authorizes the Chancellor and Board of Governors to take all necessary steps, including contacting appropriate congresspersons regarding this Association's opposition, to contest this amendment in any form.
PPHILADELPHIA BAR ASSOCIATION
BOARD OF GOVERNORS
ADOPTED: October 26, 1995