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"I apologize to the committee. If I had known, I would be here. I was on other media broadcasts trying to demean you and everybody else." — Traficant to the committee after showing up for the hearing an hour late. He later told the committee he was just joking.

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Statement of Laura Murphy Lee, Director, ACLU Washington Natl Office
May 2, 1995

WASHINGTON -- The First Amendment to the United States Constitution is often characterized as a first among equals. Its protections guaranteeing free speech, free press and free association -- and its twin guarantees of religious liberty -- are the cornerstones of our American society. Without the First Amendment, we would not enjoy the other liberties and freedoms guaranteed by the Bill of Rights.

Yet this bedrock of American tradition is under siege as perhaps never before. This 104th Congress is expected to consider two proposals that would, if adopted, rewrite the First Amendment and forever rend the fabric of our nation. One proposal, already introduced in both Houses of Congress, would outlaw desecration of the flag. The second, which is expected to be introduced soon, would shred the religious liberty and establishment clauses of the First Amendment. Both may well pass. Both must be defeated.

Legislation has also been introduced this year that would, if passed, do significant damage to the First Amendment. This includes a school voucher proposal that would allow federal funds to be used to pay the tuition of eligible students at private sectarian schools. The Senate is also considering an amendment to the Internal Revenue Code that would disallow deductions for advertising and promotional expenses for tobacco products.

A Democratic Senator from Nebraska is pushing legislation that would criminalize certain First Amendment-protected communications deemed "lascivious" or "indecent," even when made in private between consenting adults -- even between married adults. Although incorrectly cast most often as only about sex and pornography, this legislation covers virtually all areas of speech. It is also not just about cyberspace and the internet -- this proposal covers every "telecommunications device" and every organization, large or small, with e-mail.

Finally, the Clinton administration, with the endorsement of leading House and Senate Democrats and Republicans, has proposed legislation that would criminalize certain free association and free speech of unpopular groups labeled as "terrorists organizations." The same legislation would repeal part of a bill adopted just last year prohibiting the FBI from conducting investigations of activity protected by the First Amendment, like it has in the not-too-distant past.

While the ACLU will continue to vigorously challenge these proposals, we think it is important to keep most of our attention focused today on the two proposed constitutional amendments. For it is these proposals that would do irreparable violence to the First Amendment and undermine the very principles for which it stands.

First proposed was the flag desecration amendment. Its language would outlaw burning or otherwise harming the flag as part of political protest. This is not a conservative or liberal issue. It goes to the heart of what this country and the flag stand for. When the Supreme Court upheld the First Amendment right to turn the flag as a form of political protect, the majority included conservatives, like Justices Scalia and Kennedy, as well as liberals. They understood that the First Amendment is indivisible and that what the flag stands for is freedom -- including the freedom to burn it.

A poignant example: Twenty-five years ago, after James Meredith was shot during a civil rights march in the South, a black man named Sidney Street burned a flag on a street corner in Harlem in protest. If Meredith could be shot while marching for racial equality, he said, we did not need the flag; America's ideals had gone up in smoke. If he had only used words to say that, few would have heard him. But because he said it symbolically by burning the flag, his protest was covered by television cameras and his message reached millions. And we are better for it.

Many in Congress and among the American public would now cut off that message and make it a crime. They pretend to honor the flag. But in proposing to begin to unravel the First Amendment, they desecrate what the flag represents, and what hundreds of thousands of Americans have heroically died to defend.

Congress must reject this proposed constitutional amendment. This, of course, will not be easy. Opinion polls suggest that the American public is widely supportive of the amendment and both Representatives and Senators are likely to fear that they will be hurt politically if they fail to fall into line. But this is a time for leadership and courage. It is a time to remember, as Tom Paine might have reminded us, that true patriotism is refreshed by references to its first principles.

The other proposed amendment would, of course, reopen yet another emotionally charged issue: organized public school prayer. While it is difficult to speak with specificity here, because the expected amendment has yet to be introduced, our bottom line here, too, is that there is no need to amend the First Amendment. For more than two centuries, the First Amendment has worked quite well in assuring religious liberty in the face of tremendous religious diversity. It would be dangerous and unwise to meddle with this success.

No one who truly cares about religious liberty would ever want the government -- and that includes public school officials -- telling our young children when, where, with whom and how they should pray. Such a practice would wrongly teach children that prayer is something that you do when a government authority tells you to.

By ending the constitutional separation between church and state, the school prayer amendment would turn our schools into arenas of religious rivalries. The world has, of course, witnessed too much bloodshed between competing religions. In fact, in the 1800s, we saw similar bloodshed in Pennsylvania when religious riots broke out over the question of which version of the Bible should be read in school. Today, the United States of America is one of the -- if not the -- most religious country in the world. And we have virtually none of the divisiveness that consumes so many other continents. Again, why change what has worked so well?

Students and teachers already have the right to pray individually in school -- it is called the First Amendment. The ACLU is proud of its long history in defending this most basic of our rights and we pledge to do all we can to see that the First Amendment does not, as some fear, become the First to go.

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