1st Amendment Scoreboard

Current Score for the First Amendment
Maintaining Freedoms: 1  Restricting Freedoms: 1

In Washington, the first amendment is in full play this summer. So far, the score is tied. Too bad the winning record of the Washington Nationals isn’t rubbing off on the Constitution.

As the U.S. Supreme Court concluded its session, the expected flood of opinions surfaced. Monday’s decision about the Ten Commandments is mostly good for the preservation of freedom of speech, but leaves room for interpretation. The question becomes: when do the Ten Commandments promote religious teachings and when are they a historical reference? According to the court, if the Ten Commandments are surrounded by other monuments and are displayed in a museum-like context, then it’s okay. As John Nichols, of The Nation, interprets [1] the ruling: “It is unconstitutional for politicians to use the Ten Commandments, or any other statement of religious principle, as battering ram against Mr. Jefferson's wall [between church and state].”

The decision is by no means absolute. Taken together, experts are interpreting [2] the two decisions to mean that the display of the Ten Commandments should be resolved on a case-by-case basis. Displaying the Ten Commandments is within the realm of free speech so long as it does not promote religion. That feels like a shaky premise, but seems to appease both sides.

In another branch of the government, the House just approved a constitutional amendment [3] – which some have called a Red (White, and Blue) Herring [4] – that would allow Congress to pass legislation making flag-burning illegal. The one-line amendment, which will have to be ratified by 2/3 of the states in 7 years, if it passes in the Senate, simply reads: “The Congress shall have power to prohibit the physical desecration of the flag of the United States."

Many might scoff at this and remind me that this amendment has passed in the House six times before. But this is different, there’s actually a chance it might pass in the Senate. Terri Ann Schroeder, lobbyist for the ACLU [5] believes there is trouble: "There are too many scenarios where we lose. We're very concerned." Schroeder counts 65 solid votes in favor of the amendment of the 67 needed for passage if everyone votes. "We still have a number of folks that have never voted, and we still have a potential problem if 100 members do not vote," she said. (House Passes Constitutional Amendment to Ban Flag Burning [6], Washington Post)

What does this mean for first amendment rights? Well, the American flag is a symbol of the freedoms upheld in this country. (Some may wish to argue that point). But the idea of creating legislation to prohibit destruction of a symbol of freedom seems to contradict itself. If this country claims to support all forms of freedom – then the freedom to destroy said symbol should be allowed as well. Rep. Jerrold Nadler (D-NY) seems to agree [7] with my logic: “If the flag needs protection at all, it is from members of Congress who value the symbol more than the freedoms the flag represents."

The Senate plans to vote on this Constitutional amendment after the July 4th holiday (what if a stray firecracker accidentally burns an American flag?) and from there we will see if this really does have the potential of becoming the 28th amendment.

To stay on top of first amendment activity, check out the First Amendment Center [8].