The American flag amendment as viewed by lawyers
It’s anybody’s guess at this point which way the Senate will fall on the pending vote to protect the American flag, but one thing is for sure - between now and then, every "expert" on the issue of the desecration of the American flag will weigh in with their penetrating analysis.
One organization that is making noise is the highly respected LexisNexis Group. The LexisNexis Group is a division of Reed Elsevier, a U.K.-Netherlands based company, that provides all types of information to various professional, commercial and governmental entities. You may be familiar with the LexisNexis searches that are often done by T.V. news pundits.
LexisNexis recently issued a press release in which they predict that a Constitutional amendment prohibiting the desecration of the American flag is unlikely to pass. Everyone is entitled to an opinion (protected by the First Amendment), but the opinion expressed by LexisNexis should be taken with a degree of skepticism. You see, they polled fifty lawyers and legal experts associated with the organization with the following simple question, "Do you foresee a constitutional amendment that would outlaw burning, damaging or in any other way desecrating the flag of the United States?"
I think it would be fair to say that the current view of a majority of the legal profession favors a loose interpretation of the Constitution, hence the persistent substitution of the concept of "free expression" for the more narrow term "free speech" that is actually contained in the Constitution. So it stands to reason that if you poll only lawyers and legal types about American flag desecration issues, the answer you get will be predictible.
And, of course, the results of the survey was entirely predictable. Here’s one comment from a LexisNexis author and adjunct professor at Trinity Law School in Santa Ana, California, Merritt McKeon:
"If a constitutional amendment outlawing desecration of the flag of the United States of America ever passes, the First Amendment regarding free exercise of religion and expression must also be altered or amended."
There’s that nasty word, "expression," - a word that never appears in the First Amendment.
Here’s another response, coming from a LexisNexis author and California trial attorney, Joseph Devine:
"Although most people would support a law prohibiting desecration of the flag, they would not favor any restriction on free expression."
And there it is again! "Free expression." The debate over the desecration of the American flag should really center around the differences in meaning between "expression" and "speech."