By Robert H. Giles

In the early weeks of the new Congress, the House and Senate will try again to amend the Bill of Rights to the Constitution in order to regulate an act that is rarely committed.

The act is burning the U.S. flag. It is a peculiar mode of free speech that deeply offends most Americans.

Incidents of flag burning are so seldom it is difficult to find examples. Robert Justin Goldstein, a scholar on the flag and teacher of political science at Oakland University in Michigan, says he found fewer than 45 reported flag burnings between 1777, when the flag was adopted, and 1989. The greatest number occurred in a five-year period, 1966-1971, and were part of the protests against the Vietnam War.

When a flag burning does gain notice, it typically is reported in a two- or three-paragraph story in daily newspapers. Often the circumstances in which flag desecration occurs make it wholly unrealistic to envision how amending the Constitution could be an effective remedy. For example, one news story in 1990 reported that a flag was ignited accidentally by fireworks at a baseball game in Philadelphia.

To be sure, putting a match to the Stars and Stripes is clearly something one should not do. Yet, it is not the kind of behavior that threatens to undermine our democracy.

Majorities in both houses have found it politically expedient to vote in favor of an amendment that would give the Congress and the states the “power to prohibit the physical desecration of the flag of the United States.”

The House approved the amendment in 1995, but the Senate vote was three short of the two-thirds required to send a constitutional amendment to the states. Thus, the leadership is preparing to ask both houses to vote again, with the Senate scheduled to lead off later this month or in early February.

Congress is responding to a 1989 case in which the U.S. Supreme Court ruled that Texas could not fine a man named Gregory Lee Johnson, a radical protester, for dousing the American flag with kerosene and putting a match to it on the steps of the Dallas City Hall during the 1984 Republican National Convention.

The court said burning the flag is a form of free expression protected by the First Amendment. The opinion invalidated laws in 48 states and two centuries of court jurisprudence that prohibited flag burning.

A grass-roots effort led by the American Legion and other well-meaning groups has mobilized under the banner of the Citizens Flag Alliance, which has spent millions in its campaign to win congressional approval of the amendment. The alliance advocates limiting one of our great freedoms, political speech, in the belief that a constitutional prohibition would eliminate occasional desecration of Old Glory.

News industry organizations — such as the American Society of Newspaper Editors and the Society of Professional Journalists, along with the American Bar Association and People for the American Way — oppose the amendment as an unreasonable and unnecessary limitation on that great American contrarian tradition of speaking one’s mind no matter how unpopular or detestable the point of view.

The founders realized there would be times when tensions would arise over fundamental liberties. That’s one of the reasons they made it difficult to change the Constitution, requiring more than a simple majority to begin the amendment process. Perhaps they envisioned that the nature of politics in a democratic society would encourage a tendency to legislate and litigate, and if that didn’t satisfy us, then we would try to amend the nation’s fundamental document.

More than 11,000 changes in the Constitution have been proposed since 1791. Only 23 made it through both houses of Congress. Six of those failed to win approval of three-fourths of the state legislatures. Among the 26 amendments to the Constitution, including the original Bill of Rights, only one sought to restrict personal liberty. That was Prohibition, and it was repealed. If the flag amendment is approved, it will be, like Prohibition, a restriction on personal liberty.

Moreover, it will establish a precedent for tinkering with the Bill of Rights.

The American flag is a remarkable symbol of our democracy. Its value is so great because, as a nation, we have maintained the integrity of our Constitution over two centuries, preserving in this unique document the guarantee under the First Amendment that citizens have the freedom to say outrageous things about their country.

It even protects the hateful act of putting a match to the flag. If Congress approves the amendment and sends it on to the states for ratification, it will have said that an icon of freedom is more important than a principle of freedom.

I believe that a vast majority of Americans respect and revere the flag, but would oppose the infringement on the right of free expression inherent in the flag burning amendment. If you are among them, let your representatives and senators know how you feel.

Robert H. Giles was 1996-97 president of the American Society of Newspaper Editors.