Constitutional Amendment Proposed to Give Congress Power to Ban Flag Desecration: What It Means for Free Speech

This joint resolution proposes an amendment to the U.S. Constitution that would grant Congress the explicit power to pass laws prohibiting the physical desecration of the American flag. Essentially, this is a move to legally protect the flag from being damaged or destroyed, which Congress currently lacks the clear authority to do without running into First Amendment issues. For this to become the 28th Amendment, three-fourths of state legislatures would need to ratify it within seven years.

The First Amendment vs. The Flag

What’s the real-world impact here? This isn't just about a piece of cloth; it’s about what the law calls “symbolic speech.” Currently, the Supreme Court has ruled that acts like burning or otherwise physically damaging the flag are forms of political expression protected by the First Amendment. If this amendment passes, it would overturn decades of legal precedent and give the federal government the green light to criminalize those acts. This means someone who chooses to burn a flag as a form of protest—say, against a government policy or a war—could face federal charges, where today that action is legally protected.

Who Gets the Power, and Who Pays the Price?

Granting Congress this specific power resolves a long-standing political debate by giving those who feel the flag should be legally protected exactly what they want. However, it comes at the expense of established civil liberties. For everyday people, the immediate change is that a powerful form of political protest—one that doesn't involve violence or property damage to others—would be taken off the table. Critics of this proposal argue that the government regulating political expression is a slippery slope. While the amendment only mentions “physical desecration,” that term is somewhat vague and could be interpreted broadly by Congress in future legislation, potentially capturing actions intended as satire or critique.

The Seven-Year Clock

This isn’t a quick fix; it’s a massive undertaking. The amendment process requires buy-in from 38 states in the next seven years. If ratified, Congress would then need to pass a new federal law defining what "physical desecration" means and setting penalties. For the average person, this proposal is a reminder that even the most fundamental parts of our legal system—like the First Amendment—are subject to change. It asks citizens to weigh the value of protecting a national symbol against the value of protecting all forms of political speech, even the ones that make people uncomfortable.