All of this is an effort to overturn the landmark 1989 case Texas v. Johnson, which basically established that the specific act of flag burning is a constitutionally protected First Amendment exercise. The Court essentially said that although the act may be offensive, it will not injure the role that our flag serves, and that it is important that we are allowed this expression of disapproval. Justice William J. Brennan Jr. wrote (with concurrence from Marshall, Blackmun, Scalia and Kennedy):
If there is a bedrock principle underlying the First Amendment, it is that the Government man not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.... We are fortified in today's conclusion by our conviction that forbidding criminal punishment for conduct such as Johnson's will not endanger the special role played by or flag or the feelings it inspires.... We are tempted to say, in fact, that the flag's deservedly cherished place in our community will be strengthened, not weakened, by our holding today.... Because it is our flag that is involved, one's response to the flag-burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag-burner's message than by saluting the flag that burns, no surer means of preserving the dignity even of the flag that burned than by ... according its remains a respectful burial.
Many of today's flag-burning opponents claim that there is a new responsibility to honor the flag since Sept. 11, but the same language Brennan used in 1989 can be used again. The patriotic, zealous flag waver will still be as patriotic and zealous. Few people would observe a flag burning as anything more than an expression of dissent. Unless there is intent by the flag-burner to inspire panic or start a riot, the same thing applies. Unlike burning a cross in the yard or a black man, which is meant for no other reason that to intimidate and inspire fear and panic (as today's Court would point out in Virginia v. Black), burning a flag does not have the same statement.
Sadly, though, today's Supreme Court (although not involved in the Amendment process) would probably not rule in favor of the flag-burner. Scalia and Kennedy are proven flag-burning supporters. Thomas is a staunch supporter of protecting First Amendment rights. Ginsberg would also protect the right, as she has traditionally.
On the other side, Rehnquist, O'Connor and Stevens all dissented in Texas v. Johnson and would likely do the same today. The remaining two Justices, Breyer and Souter are wildcards. Their position isn't clear on this matter, but they typically flock together with Justice Stevens. Breyer seems especially predisposed to restrict First Amendment exercise. If this would prove to be true, today's Court would be 5-4 for a prohibition on flag-burning. The scary point I'm trying to make is that the Amendment would hold up in the Supreme Court.
All that said, the speculation is that there are already 34 confirmed Senate votes against the Amendment. That's the number that is necessary to defeat the measure.
I myself would never burn a flag, but I'm strongly in favor of our right to do so.
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