New Hampshire senators float constitutional amendment to ban flag burning

  • American Civil Liberties Union of New Hampshire Political Director Jeanne Hruska speaks in opposition to a proposed constitutional amendment to ban flag-burning in New Hampshire, Jan 16, 2020.

Concord Monitor
Published: 1/16/2020 9:55:26 PM

CONCORD — New Hampshire senators are weighing whether the burning of the American flag should be made illegal and whether that ban should be enshrined in the state Constitution.

On Thursday, a panel of senators on the Senate Election Law Committee heard testimony on a constitutional amendment that would explicitly prohibit the activity. It was a proposal that proved divisive, drawing clashing appeals based on patriotism and freedom of speech.

The amendment would add a new clause to Part I of the state’s founding document: “No person shall burn an American flag except as a respectful means of disposing of a worn or damaged flag.”

The committee rose as one to say the Pledge of Allegiance. Then, passions in the hearing room flared.

Supporters said the amendment would protect a sacred piece of American life.

“The unity that that flag brings to us is very symbolic and is very meaningful to every single American,” said Sen. Harold French, R-Franklin, the lead sponsor for the bill.

But a representative from the American Civil Liberties Union of New Hampshire said the proposed ban flew in the face of the values the flag represents, and warned that it wouldn’t hold up in court.

In 1989, the U.S. Supreme Court held in Texas v. Johnson that a Texas anti-flag burning law was illegal. The law had been used to sentence a protester to a year in jail after he burned an American flag in front of the Dallas City Hall.

But in a close, 5-4 decision, the high court determined that the protester’s actions fell under protected speech under the First Amendment.

“If it were to pass in the ballot box in November, it would exist on the books for exactly as long as it would take someone to file a lawsuit,” said Jeanne Hruska, the New Hampshire ACLU’s political director.

Advocates of the New Hampshire ban said they were aware of that landmark case. But they said their proposal was submitted as a state constitutional amendment and not a regular bill in order to skirt the Supreme Court decision and gird it against any conflicts with the U.S. Constitution.

For French, the decision to sponsor the bill represents a personal transformation.

French originally agreed with the Supreme Court decision. “People did have the right to express themselves,” he said.

But as the years passed, his thinking shifted. “I realized that’s not just a flag,” he said. “That’s a symbol of unity. Something we too often lack in this country.”

And he said that the voters of the state should get the chance to decide.

“There are other instances where we prohibit things that could be considered freedom of speech,” he added.

Sen. Regina Birdsell, a co-sponsor of the bill, said her belief in prohibiting the activity was rooted in her respect for the military.

“We’ve had numerous people come serve under our flag in this state,” she said. “We’ve had numerous people come home under the flag. And it’s for these veterans or these military that died under the flag. It’s a desecration to them that they’re allowed to burn the flag.”

But Hruska argued the proposal flouted the essence of the First Amendment and the flag: that America stands to protect all speech.

“The First Amendment exists specifically to prevent those in power from prohibiting speech with which they disagree,” she said. “I think burning the flag could be hurtful. it could be outrageous. It could be all of those things. But if you feel that way, advocate against it. Use the First Amendment. Our country has said forever that the way you counter bad speech is not with silence, it’s with more speech.”

Hruska said that passing a state constitutional amendment, if upheld by the courts, could be the first crack in the protection of unsavory speech, leading to potential bans on the desecration of state flags and religious texts like the Bible.

Flag burning has been a focal point of the national First Amendment debate since the Vietnam War, when flags were burned in the U.S. in protest of the military conflict.

On that point, one member of the public invoked personal experience.

“I lived through that volatile and confusing time of the Vietnam War, when most of the flag burnings occur,” said Nancy Brennan, of Weare. Her husband, she noted, served in the war.

At that time, the act of flag burning represented a feeling of misrepresentation and marginalization, she said.

“I did not participate in any flag burnings during the time of the Vietnam War,” she said. “But you know, I understand why some people did.”

She added: “We aren’t all ever going to agree, certainly,” she said. “But my pride in this country has to do with what I know it can be, and my right to speak up to those things, by coming here, by standing on the corner with a protest sign, and yes, by burning the flag if I see fit, are all protected under the First Amendment.”

The New Hampshire’s constitution has been periodically amended in recent decades – most recently in 2018, when voters opted to establish a right to privacy in New Hampshire’s governing document.

But the threshold to do it is high, requiring a three-fifths vote in the Senate and the House before it can be put to voters through a referendum on Election Day.

The proposed flag-burning amendment is largely partisan – six Republican Senators have signed on and one representative, including Sens. Regina Birdsell, Jeb Bradley, Harold French, Bob Giuda, Chuck Morse, and John Reagan, and Rep. Al Baldasaro.

But one Democrat, Sen. Jon Morgan, of Brentwood, has also signed on.

“I will go to extraordinary lengths to protect the freedom of speech of groups that I vehemently disagree with,” he said in an interview. “In this one particular case, in these incredibly divisive times especially, I feel as though one of the very few things that holds us all together right now is the fact that we’re all Americans. That flag is the symbol of that.”

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