AS THE SENATE prepares to pass the first constitutional amendment altering the Bill of Rights, lobbyists for the clothing and manufacturing industries are putting their political muscle behind efforts to scuttle the measure. The proposed amendment would exempt flag burning from the First Amendment free speech protections.
Last week the House of Representatives approved the bill that would overturn a 1989 Supreme Court ruling that laws prohibiting desecrating the American flag are unconstitutional infringements on free speech.
Two-thirds of the Senate must approve the measure for it to pass. The body voted down a similar law in 1995. With 67 senators already declaring support for the monumental amendment, a preliminary head count suggests that the bill will narrowly pass.
As the final vote nears, free speech advocates are concentrating their efforts on a handful of possible swing voters. Only one senator need withdraw support from the amendment for it to be defeated.
Contrary to early indications, the opposition may be able to derail the passage. In a remarkable last-minute bid, the American Apparel Manufacturers Association has joined the ACLU and other free speech lobbies opposing the amendment.
The AAMA, whose members produce 85 percent of the clothing sold in the United States, objects to the wording of the proposed amendment, which it claims would effectively outlaw clothing that incorporates the flag. The trade association contends that the amendment would force retailers to remove thousands of products, from flag-themed ties to Tommy Hilfiger shirts, from department-store shelves.
The complete text of the proposed amendment reads, "The Congress shall have power to prohibit the physical desecration of the flag of the United States." It is the emphasis on "physical desecration" that alarms retail groups like the AAMA. Whereas immaterial representations of the flag, such as print ads, are not proscribed by the amendment, objects imprinted with a flag design could technically be subject to government regulation.
"One man's patriotic bow tie is another man's desecration of the flag," AAMA government relations liaison Stephen Lamar says. "When you look past the catchy rhetoric, it's like telling the ice cream industry not to make the Neapolitan flavor."
But Rep. Randy “Duke” Cunningham (R-Calif), says the AAMA's fears are unfounded.
"A flag is not a flag if it's on a towel," Cunningham says. "This bill will not hamstring America's commercial interests."
AAMA spokesperson Lamar disagrees: "And if a flag is used as a towel, that's desecration? We're in pretty murky legal waters here."
Many legal analysts echo the AAMA's concerns about ambiguities in the anti-flag desecration amendment. Margaret Casillas, a lawyer and Harvard Business School professor, stresses that the risk of rights infringement is magnified because the legislation in question is not a single law but rather a permanent alteration of the U.S. Constitution.
That alteration could be a harbinger of greater limits upon the freedom of speech. In legal terms, a product can be the equivalent of an idea and thus enjoys First Amendment protection.
Asserts Casillas, "Most people experience the marketplace of ideas very literally. Now the flag is one such idea. And if the flag is meaningful, it invites a multiplicity of interpretations and, in this case, uses -- even as a handkerchief."
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