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,
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
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
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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