[House Report 105-121]
[From the U.S. Government Publishing Office]
105th Congress Report
HOUSE OF REPRESENTATIVES
1st Session 105-121
_______________________________________________________________________
TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE UNITED STATES
_______________________________________________________________________
June 5, 1997.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Canady, from the Committee on the Judiciary, submitted the
following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.J. Res. 54]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
joint resolution (H.J. Res. 54) proposing an amendment to the
Constitution of the United States authorizing the Congress to
prohibit the physical desecration of the flag of the United
States, having considered the same, reports favorably thereon
without amendment and recommends that the joint resolution do
pass.
TABLE OF CONTENTS
Page
The Amendment.............................................. 1
Purpose and Summary........................................ 2
Background and Need for the Legislation.................... 2
Hearings................................................... 5
Committee Consideration.................................... 5
Vote of the Committee...................................... 6
Committee Oversight Findings............................... 6
Committee on Government Reform and Oversight Findings...... 7
New Budget Authority and Tax Expenditures.................. 7
Congressional Budget Office Cost Estimate.................. 7
Constitutional Authority Statement......................... 8
Section-by-Section Analysis and Discussion................. 8
Dissenting Views........................................... 10
Dissenting Views of Hon. Rick Boucher...................... 19
Purpose and Summary
H.J. Res. 54 proposes to amend the Constitution to allow
Congress to prohibit the physical desecration of the flag of
the United States.
The proposed amendment reads simply: ``The Congress shall
have power to prohibit the physical desecration of the flag of
the United States.'' The amendment itself does not prohibit
flag desecration. It merely empowers Congress to enact
legislation to prohibit the physical desecration of the flag
and establishes boundaries within which it may legislate. Prior
to the Supreme Court decision in Texas v. Johnson, 109 S.Ct.
2533 (1989), forty-eight states and the Federal Government had
laws on the books prohibiting desecration of the flag. The
purpose of the proposed constitutional amendment is to restore
the power to protect the flag to the Congress. \1\
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\1\ H.J. Res. 79, which the House voted on in the first session of
the 104th Congress read: ``Congress and the States shall have power to
prohibit the physical desecration of the flag of the United States.''
H.J. Res. 54 permits only the Congress to take such action.
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Background and Need for the Legislation
In June of 1989, the United States Supreme Court in Texas
v. Johnson, 109 S.Ct. 2533, held that the burning of an
American flag as part of a political demonstration was
expressive conduct protected by the First Amendment to the U.S.
Constitution. After publicly burning a stolen American Flag in
a protest outside of the 1984 Republican National Convention in
Dallas, Texas, Gregory Johnson was convicted of desecrating a
flag in violation of Texas law. The Texas law prohibited the
intentional desecration of a national flag in a manner in which
``the actor knows will seriously offend one or more persons
likely to observe or discover his action.'' \2\ His conviction
was upheld by the Court of Appeals for the Fifth District of
Texas at Dallas, but reversed by the Texas Court of Criminal
Appeals. The 5-4 U.S. Supreme Court opinion affirmed the
decision of the Court of Criminal Appeals: Johnson's conviction
was inconsistent with the First Amendment because his actions
constituted ``symbolic free expression.''
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\2\ Tex. Penal Code Ann. Section 42.09(a)(3), Desecration of a
Venerated Object, provides as follows: ``(a) A person commits an
offense if he intentionally or knowingly desecrates:
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``(1) a public monument;
``(2) a place of worship or burial; or
``(3) a state or national flag.
``(b) For purposes of this section, `desecrate' means deface, damage,
or otherwise physically mistreat in a way that the actor knows will
seriously offend one or more persons likely to observe or discover his
action.
``(c) An offense under this section is a Class A misdemeanor.''
Justice Rehnquist filed a dissenting opinion in which
Justices O'Connor and White joined.\3\ Justice Rehnquist noted
the unique history of the American Flag:
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\3\ Justice Stevens filed a separate dissenting opinion.
The American Flag, then, throughout more than 200
years of our history, has come to be the visible symbol
embodying our Nation. It does not represent the views
of any particular political party, and it does not
represent any particular political philosophy. The flag
is not simply another ``idea'' or ``point of view''
competing for recognition in the marketplace of ideas.
Millions and millions of Americans regard it with an
almost mystical reverence regardless of what sort of
social, political, or philosophical beliefs they may
have. I cannot agree that the First Amendment
invalidates the Act of Congress, and the laws of 48 of
the 50 States, which make criminal the public burning
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of the flag. Texas v. Johnson, 109 S.Ct. at 2552.
Justice Rehnquist also pointed out that Chief Justice Earl
Warren, and Justices Black and Fortas all expressed the view
that the States and the Federal Government had the power to
protect the American Flag from desecration and disgrace.
In response to the Johnson decision, in September of 1989,
Congress passed the ``Flag Protection Act of 1989'' under
Suspension of the Rules by a vote of a 380 to 38. The Act
amended the Federal Flag Statute (18 U.S.C. 700) attempting to
make it ``content-neutral'' so that it would pass
constitutional muster. As stated in the House Judiciary
Committee report, ``the amended statute focuses exclusively on
the conduct of the actor, irrespective of any expressive
message he or she might be intending to convey.'' \4\
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\4\ ``Flag Protection Act of 1989'', H. Rep. No. 101-231, 101st
Cong., 1st Sess. 2 (1989). The Act became law without the President's
signature on October 28, 1989 (Pub. L. 101-131).
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On June 11, 1990, in United States v. Eichman, 496 U.S.
311, the Supreme Court in another 5-4 decision struck down the
newly-enacted ``Flag Protection Act of 1989,'' ruling that it
infringed on expressive conduct protected by the First
Amendment. Although the Government conceded that flag burning
constituted expressive conduct, it claimed that flag burning,
like obscenity or ``fighting words'' was not fully protected by
the First Amendment. The Government also argued the ``Flag
Protection Act'' was constitutional because, unlike the Texas
statute struck down in Texas v. Johnson, the Act was ``content-
neutral'' and simply sought to protect the physical integrity
of the flag rather than to suppress disagreeable communication.
Justice Brennan, writing for the majority, rejected the
Government's argument, noting that:
Although the Flag Protection Act ``contains no
explicit content- based limitation on the scope of
prohibited conduct, it is nevertheless clear that the
Government's asserted interest is ``related' to the
suppression of free expression,' '' 491 U.S., at 410,
109 S.Ct., at 2543, and concerned with the content of
such expression. [T]he Government's desire to preserve
the flag as a symbol for certain national ideals is
implicated ``only when a person's treatment of the flag
communicates [a] message'' to others that is
inconsistent with those ideals. U.S. v. Eichman, 110
S.Ct. 2404 (1990).
Justice Stevens wrote a dissenting opinion in which Chief
Justice Rehnquist, Justice White and Justice O'Connor joined.
He expressed unanimous agreement with the proposition expressed
by the majority that ``the Government may not prohibit the
expression of an idea simply because society finds the idea
itself offensive or disagreeable.'' He went on, however, to
note that methods of expression may be prohibited under a
number of circumstances and set forth the following standard:
If (a) the prohibition is supported by a legitimate
societal interest that is unrelated to suppression of
the ideas the speaker desires to express; (b) the
prohibition does not entail any interference with the
speaker's freedom to express those ideas by other
means; and the interest in allowing the speaker
complete freedom of choice among alternative methods of
expression is less important than the societal interest
supporting the prohibition. Eichman, 496 U.S., at 319.
Justice Stevens felt that the statute satisfied each of these
concerns and thus should have withstood constitutional
scrutiny.
Once the Supreme Court ruled a second time that flag
burning was expressive speech protected by the First Amendment,
it became apparent that no statute could adequately protect the
U.S. Flag from desecration--a constitutional amendment was
necessary. On June 21, 1990, the House considered H.J. Res.
350, an identical amendment to H.J. Res. 79. The amendment was
rejected by a vote of 254 to 177.
Since that time, forty-nine states have passed resolutions
calling on Congress to pass an amendment to protect the flag of
the United States from physical desecration and send it back to
the States for ratification.
Opponents of the amendment have argued that H.J. Res. 54
limits free speech as guaranteed by the first amendment to the
U.S. Constitution. The first amendment states, ``Congress shall
make no law . . . abridging freedom of speech . . .'' H.J.
Res. 54 gives Congress the power to prohibit the physical
desecration of the flag of the United States. It does not
prevent anyone from making any statement or saying anything--
regardless of how objectionable it may be. Until the Supreme
Court's decisions in Texas v. Johnson in 1989 and U.S. v.
Eichman in 1990, punishing the physical desecration of the flag
was considered entirely in keeping with the protections of the
first amendment. Forty-eight states and the Federal Government
had laws banning flag desecration.
As pointed out by Justice Rehnquist in Texas v. Johnson,
Chief Justice Earl Warren, and Justices Black and Fortas all
expressed the view that the States and the Federal Government
had the power to protect the Flag from desecration and
disgrace. Former Chief Justice Earl Warren in Street v. New
York, 394 U.S. 576, 605 (1969) stated, ``I believe that States
and the Federal Government do have power to protect the flag
from acts of desecration and disgrace.'' In the same case,
Justice Hugo Black, a zealous proponent of freedom of speech
wrote, ``It passes my belief that anything in the Federal
Constitution bars . . . making the deliberate burning of the
American flag an offense.'' Id. at 610. Again in Street,
Justice Abe Fortas stated, ``The flag is a special kind of
personality. Its use is traditionally and universally subject
to special rules and regulations . . . . The States and the
Federal Government have the power to protect the flag from acts
of desecration.'' Id. at 615-617.
In addition, opponents argue that H.J. Res. 54 proposes an
unprecedented limitation on the content of speech. This
assertion is both historically and legally inaccurate. Until
1989, forty-eight states and the federal government had laws
criminalizing the physical desecration of the flag and there
was no perceived conflict with freedom of speech. In addition,
on numerous occasions, the Supreme Court has upheld government
regulation of pure speech. For example, speech that is likely
to incite an immediate, violent response, Chaplinsky v. New
Hampshire, 315 U.S. 568 (1942); obscenity, Miller v.
California, 413 U.S. 15 (1973); and libel, New York Times v.
Sullivan, 367 U.S. 254 (1970) are not protected under the first
amendment.
In conclusion, H.J. Res. 54 furthers the legitimate
interest of the federal government in protecting the American
flag and it does not interfere with a speaker's freedom to
express his or her ideas by other means. It is the only
remaining avenue by which the Congress can pass legislation to
protect the flag of the United States from physical
desecration.
Hearings
The Committee's Subcommittee on the Constitution held one
day of hearings on H.J. Res. 54 on April 30, 1997. Testimony
was received from 17 witnesses: Representative Gerald Solomon;
Representative David Skaggs; Representative William Lipinski;
Representative John Shimkus; Representative Gary Ackerman;
Representative Martin Frost; Maribeth Seely, Teacher,
Sandystone Walpack School, Layton, NJ; Lawrence Korb, Director,
Center for Public Policy Education; Francis Sweeney, Financial
Secretary, Steamfitters Local Union 449, Pittsburgh, PA; Carol
Van Kirk, Nebraska American Legion Auxiliary; Carole Shields,
President, People for the American Way; Alan Lance, Attorney
General, State of Idaho; Professor Richard Parker, Harvard
University; Professor Norman Dorsen, Stokes Professor of Law,
New York University School of Law; Honorable Robert Zukowski,
Wisconsin State Legislature; Roger Pilon, Director, Center for
Constitutional Studies, Cato Institute; Major General Patrick
Brady, Chairman, Citizens Flag Alliance.
Testimony was also received from N. Lee Cooper, President,
American Bar Association; Terry Anderson, Former U.S. Marine
and Staff Sergeant; James Warner, U.S. Marine decorated for his
service in the Vietnam conflict; Professor Jamin Raskin, First
Amendment Counsel to the ACLU.
Committee Consideration
On May 8, 1997 the Subcommittee on the Constitution met in
open session and ordered reported favorably the resolution H.J.
Res. 54, without amendment, by a voice vote, a quorum being
present. On May 14, 1997 the Committee met in open session and
ordered reported favorably the resolution H.J. Res. 54, without
amendment by a recorded vote of 20 to 9, a quorum being
present.
Vote of the Committee
Final Passage. Mr. Canady moved to report H.J. Res. 54,
without amendment, favorably to the whole House. The resolution
was reported favorably by a rollcall vote of 20-9.
ROLLCALL NO. 1
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Ayes Nays Present
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Mr. Sensenbrenner............................................... X .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... X .............. ..............
Mr. Coble....................................................... X .............. ..............
Mr. Smith (TX).................................................. X .............. ..............
Mr. Schiff...................................................... .............. .............. ..............
Mr. Gallegly.................................................... X .............. ..............
Mr. Canady...................................................... X .............. ..............
Mr. Inglis...................................................... X .............. ..............
Mr. Goodlatte................................................... X .............. ..............
Mr. Buyer....................................................... X .............. ..............
Mr. Bono........................................................ X .............. ..............
Mr. Bryant (TN)................................................. X .............. ..............
Mr. Chabot...................................................... X .............. ..............
Mr. Barr........................................................ X .............. ..............
Mr. Jenkins..................................................... X .............. ..............
Mr. Hutchinson.................................................. X .............. ..............
Mr. Pease....................................................... X .............. ..............
Mr. Cannon...................................................... X .............. ..............
Mr. Conyers..................................................... .............. X ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Schumer..................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. X ..............
Mr. Nadler...................................................... .............. X ..............
Mr. Scott....................................................... .............. X ..............
Mr. Watt........................................................ .............. X ..............
Ms. Lofgren..................................................... .............. X ..............
Ms. Jackson Lee................................................. .............. X ..............
Ms. Waters...................................................... .............. X ..............
Mr. Meehan...................................................... .............. X ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... X .............. ..............
Mr. Rothman..................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. X .............. ..............
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Total....................................................... 20 9 ..............
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Committee Oversight Findings
In compliance with clause 2(l)(3)(A) of rule XI of the
Rules of the House of Representatives, the Committee reports
that the findings and recommendations of the Committee, based
on oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
Committee on Government Reform and Oversight Findings
No findings or recommendations of the Committee on
Government Reform and Oversight were received as referred to in
clause 2(l)(3)(D) of rule XI of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 2(l)(3)(B) of House Rule XI is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 2(l)(3)(C) of rule XI of the
Rules of the House of Representatives, the Committee sets
forth, with respect to the resolution, H.J. Res. 54, the
following estimate and comparison prepared by the Director of
the Congressional Budget Office under section 403 of the
Congressional Budget Act of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 16, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Office has prepared
the enclosed cost estimate for H.J. Res. 54, a joint resolution
proposing an amendment to the Constitution of the United States
authorizing the Congress to prohibit the physical desecration
of the flag of the United States.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contacts are Mark
Grabowicz, who can be reached at 226-2860, and Leo Lex who can
be reached at 225-3220.
Sincerely,
June E. O'Neill, Director.
Enclosure.
H.J. Res. 54--A joint resolution proposing an amendment to the
Constitution of the United States authorizing the Congress
to prohibit the physical desecration of the flag of the
United States
H.J. Res. 54 would propose amending the U.S. Constitution
to give the Congress power to prohibit the physical desecration
of the U.S. flag.
CBO estimates that enacting this resolution would have no
significant impact on the federal budget. H.J. Res. 54 would
not affect direct spending or receipts; therefore, pay-as-you-
go procedures do not apply. This legislation contains no
intergovernmental or private-sector mandates as defined in the
Unfunded Mandates Reform Act of 1995 and would impose no costs
on the budgets of state, local, or tribal governments. To
become part of the Constitution, three-fourths of the states
would be required to ratify the proposed amendment within seven
years of its submission to the states by the Congress.
The CBO staff contacts for this estimate are Mark
Grabowicz, who can be reached at 226-2860, and Leo Lex, who can
be reached at 225-3220. This estimate was approved by Paul N.
Van de Water, Assistant Director for Budget Analysis.
Constitutional Authority Statement
Pursuant to Rule XI, clause 2(l)(4) of the Rules of the
House of Representatives, the Committee finds the authority for
this legislation in Article V of the Constitution, which
provides that the Congress has the authority to propose
amendments to the Constitution.
Section-by-Section Analysis
H.J. Res. 54 simply states ``[t]he Congress shall have
power to prohibit the physical desecration of the flag of the
United States.''
Congress clearly possessed this power prior to the
decisions of the United States Supreme Court in Texas v.
Johnson and U.S. v. Eichman. Those decisions held that the act
of physically desecrating the flag by burning was expressive
conduct protected by the First Amendment. The First Amendment
to the U.S. Constitution, which states, ``Congress shall make
no law . . . abridging freedom of speech . . .'' limits the
power of Congress. H.J. Res. 54 makes clear that Congress does
have the power to pass legislation to prohibit the physical
desecration of the flag of the United States.
This proposed constitutional amendment sets the parameters
for future action by the Congress on this issue. After the
amendment is ratified, the elected representatives of the
people will once again have the power and can decide whether to
enact legislation to prohibit the physical desecration of the
flag.
There are two key issues that will need to be resolved in
enacting legislation to protect the flag from physical
desecration.
First, Congress may want to flesh out the meaning of
``physical desecration.'' The amendment itself requires
physical contact with the flag. Congress could not punish mere
words or gestures directed at the flag, regardless of how
offensive they were. Webster's Ninth New Collegiate Dictionary
defines ``desecrate'' as follows: ``1: to violate the sanctity
of: PROFANE 2: to treat irreverently or contemptuously often in
a way that provokes outrage on the part of others.''
``Desecrate'' is defined in Black's Law Dictionary as ``to
violate sanctity of, to profane, or to put to unworthy use.''
Congress could clearly prohibit burning, shredding and similar
defilement of the flag. In addition, the term ``desecrate''
clearly implies that the physical act must demonstrate contempt
for the flag.
Second, Congress will have to decide what representations
of the flag of the United States are to be protected. Of
course, the resolution in no way changes the fact that the
authority to determine ``what constitutes the flag of the
United States'' is defined by the United States Congress at 4
U.S.C. 1. In enacting a statute, Congress will need to decide
which representations of the flag are to be protected from
physical desecration. They may define the flag of the United
States as only a cloth, or other material readily capable of
being waved or flown, with the characteristics of the official
flag of the United States as described in 4 U.S.C. 1 or a
``flag'' could be anything that a reasonable person would
perceive to be a flag of the United States even if it were not
precisely identical to the flag as defined by statute. This
would allow states and the Congress to prevent a situation
whereby a representation of a United States flag with forty-
nine stars or twelve red and white stripes was burned in order
to circumvent the statutory prohibition.
DISSENTING VIEWS
We strongly oppose H.J. Res. 54, which would--for the first
time in our Nation's history--modify the Bill of Rights to
limit freedom of expression. Although the motives of the
proposition's supporters are well-intended, we believe that
adopting H.J. Res. 54 is wrong as a matter of principle, wrong
as a matter of precedent, and wrong as a matter of practice.
H.J. Res. 54 responds to a perceived problem--flag
burning--that is all but nonexistent in American life today.
Studies indicate that in all of American history from the
adoption of the United States flag in 1777 through the Texas v.
Johnson \1\ decision in 1989 there were only 45 reported
incidents of flag burning.\2\ Moreover, most incidents of flag
burning can be successfully prosecuted today under laws
relating to breach of peace or inciting violence--all fully
within current constitutional constraints. \3\
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\1\ 491 U.S. 397 (1989)(in a 5-4 decision authored by Justice
Brennan, the Court found that Texas flag desecration law was
unconstitutional as applied in that it was a ``content-based''
restriction). Subsequent to Johnson, Congress enacted the Flag
Protection Act in an effort to craft a more content neutral law. In
United States v. Eichman, 496 U.S. 310 (1990), the Court overturned
several flag burning convictions brought under the new law, finding
that the federal law continued to be principally aimed at limiting
symbolic speech.
\2\ Robert J. Goldstein, Two Centuries of Flagburning in the United
States, 163 Flag Bull. 65 (1995).
\3\ See Hearing on H.J. Res. 79, Proposing an Amendment to the
Constitution of the United States Before the Subcomm. on Constitution
of the House Comm. on the Judiciary, 104th Cong., 1st Sess. (May 24,
1995) [hereinafter, 1995 House Judiciary Hearings] (statement of Bruce
Fein at 1) (``While I believe the Johnson and Eichman decisions were
misguided, I do not believe a constitutional amendment would be a
proper response. Flag desecrations when employed as ``fighting words''
or when intended and likely to incite a violation of law remain
criminally punishable under the Supreme Court precedents in Chaplinsky
v. New Hampshire (1942) and Brandenburg v. Ohio (1969)'').
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By embedding a principle prohibiting flag desecration into
the Constitution, we will have elevated the flag over other
cherished symbols, including not only national symbols such as
the Declaration of Independence and Statue of Liberty, but
religious symbols such as crosses and Bibles.
Ironically, H.J. Res. 54 will not even achieve the
sponsors' stated purpose--protecting the American flag and
honoring American's veterans. History has taught us that
restrictive legislation merely encourages more flag burning in
an effort to protest the law itself, \4\ and a vaguely worded
constitutional amendment such as H.J. Res. 54 will surely cause
such efforts to increase many times over. If we truly want to
honor our veterans, it would be far more constructive for
Congress to ensure that money is available under the budget to
provide them promised health care benefits and pension
payments. Thus, while we condemn those who would dishonor our
nation's flag, we believe that rather than protecting the flag,
H.J. Res. 54 will merely serve to dishonor the Constitution and
compromise the very ideals our nation was founded on. As Jim
Warner, a Vietnam veteran and prisoner of the North Vietnamese
from October 1967 to March 1973, has written:
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\4\ In his extensive survey of the history of American flag
desecration law, Robert Goldstein writes, that ``[a]lthough the purpose
of the [Flag Protection Act adopted by Congress in 1968] was to
supposedly end flag burnings, its immediate impact was to spur perhaps
the largest single wave of such incidents in American history.'' Robert
J. Goldstein, Saving ``Old Glory'': The History of the American Flag
Desecration Controversy 215 (1995).
The fact is, the principles for which we fought, for
which our comrades died, are advancing everywhere upon
the Earth, while the principles against which we fought
are everywhere discredited and rejected. The flag
burners have lost, and their defeat is the most fitting
and thorough rebuke of their principles which the human
could devise. Why do we need to do more? An act
intended merely as an insult is not worthy of our
fallen comrades. It is the sort of thing our enemies
did to us, but we are not them, and we must conform to
a different standard. . . . Now, when the justice of
our principles is everywhere vindicated, the cause of
human liberty demands that this amendment be rejected.
Rejecting this amendment would not mean that we agree
with those who burned our flag, or even that they have
been forgiven. It would, instead, tell the world that
freedom of expression means freedom, even for those
expressions we find repugnant. \5\
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\5\ See Hearing on H.J. Res. 54, Proposing an Amendment to the
Constitution of the United States Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 105th Cong., 2nd
Sess. (April 30, 1997) (forthcoming) [hereinafter 1997 House Judiciary
Hearings] (statement of Jim Warner). These thoughts are echoed by Terry
Anderson, a former U.S. Marine Staff Sergeant and Vietnam veteran, who
was held hostage in Lebanon, who writes that ``[H.J. Res. 54] is an
extremely unwise restriction of every American's Constitutional rights.
The Supreme Court has repeatedly held that the First Amendment protects
symbolic acts under its guarantee of free speech. Burning or otherwise
damaging a flag is offensive to many (including me), but it harms no
one and is so obviously an act of political speech that I'm amazed
anyone could disagree with the Court.'' (Id. statement of Terry
Anderson).
Survey results show that the majority of Americans who
initially indicate support for a flag protection amendment
oppose it once they understand its impact on the Bill of
Rights. In a 1995 Peter Hart poll, 64 percent of registered
voters surveyed said they were in favor of such an amendment;
but when asked if they would oppose or favor such an amendment
if they knew it would be the first in our Nation's history to
restrict freedom of speech and freedom of political protest,
support plummeted from 64 percent to 38 percent.
Importance of Freedom of Expression
Freedom of expression is one of the preeminent human rights
and is central to fostering all other forms of freedom.
Professor Emerson notes that since as early as the Renaissance,
free and open expression has been considered to be an essential
element of human fulfillment: ``The theory [of free expression]
grew out of an age that was awakened and invigorated by the
idea of a new society, in which man's mind was free, his fate
determined by his own powers of reason, and his prospects of
creating a rational and enlightened civilization virtually
unlimited.'' \6\
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\6\ Thomas I. Emerson, Toward a General Theory of the First
Amendment, 72 Yale L.J., 877, 886 (1963).
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Freedom of expression also provides an important safety
valve for society. Professor Greenwalt writes that ``those who
are resentful because their interests are not accorded fair
weight, and who may be doubly resentful because they have not
even had a chance to present those interests, may seek to
attain by radical changes in existing institutions what they
have failed to get from the institutions themselves. Thus
liberty of expression, though often productive of divisiveness,
may contribute to social stability.''\7\
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\7\ Greenwalt, Speech and Crime, A.B.F. Res.J 645, 672-3 (1980).
See also Rotunda, Treatise on Constitutional Law: Substance and
Procedure Sec. 20.6 at 18 (2d ed. 1992).
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Freedom of expression also serves as an important tool in
checking the abuse of powers by public officials. Professor
Blasi has noted that this ``checking function'' should be
accorded a level of protection higher than that given any other
type of communication because ``the particular evil of official
misconduct is of a special order.'' \8\
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\8\ See Redish, The Value of Free Speech, 130 U. Penn. L.Rev., 591,
611 (1982).
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Perhaps the most important function served by a system of
free expression is that it allows for free and open exchange of
thoughts--referred to by Justice Holmes as the ``marketplace of
ideas.'' \9\ In a 1644 speech before the English Parliament
criticizing censorship laws, Milton articulated the notion that
free expression helps to prevent human error through ignorance:
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\9\ Justice Holmes articulated his ``marketplace of ideas'' theory
of free speech in his dissent in Abrams v. United States, 250 U.S. 616,
630 (1919): ``[T]he ultimate good desired is better reached by free
trade in ideas . . . the best test of truth is the power of the
thought to get it accepted in the competition in the market.''
[T]hough all the winds of doctrine were let loose to
play upon the earth, so truth be in the field, we do
injuriously, by licensing and prohibiting, to misdoubt
her strength. Let her and falsehood grapple, whoever
knew truth put to the worse in a free and open
encounter? \10\
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\10\ J. Milton, Areopagitica, A Speech for the Liberty of
Unlicensed Printing to the Parliament of England (1644).
In his 1859 essay On Liberty, John Stuart Mill further
expanded upon this vision when he recognized the public good
and enlightenment which results from the free exchange of
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ideas:
First, if any opinion is compelled to silence, that
opinion for aught we can certainly know, be true . .
. Secondly, though this silenced opinion be in error,
it may, and very commonly does, contain a portion of
the truth . . . Thirdly, even if the received opinion
be not only true but the whole truth; unless it is
suffered to be and actually is, vigorously and
earnestly contested, it will by most of those who
receive it, be held in the manner of a prejudice. \11\
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\11\ J.S. Mill, On Liberty Ch. II. (1859).
The American system of government is itself premised on
freedom of expression. Professor Emerson notes: ``Once one
accepts the premise of the Declaration of Independence--that
governments derive `their just powers from the consent of the
governed'--it follows that the governed must, in order to
exercise their right of consent, have full freedom of
expression both in forming individual judgments and in forming
the common judgments.'' \12\
---------------------------------------------------------------------------
\12\ Thomas I. Emerson, Toward a General Theory of the First
Amendment, supra note 6 at 883.
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The founding fathers recognized the difficulties in
maintaining a system of free expression against the ``tyranny
of the majority.'' In the Federalist Papers James Madison
expressed concern as to the unfettered power of the majority:
``By a faction I understand a number of citizens, whether
amounting to a majority or a minority of the whole who are . .
. adverse to the rights of other citizens, or to the permanent
and aggregate interests of the community.'' \13\ It is for
these reasons that the Constitution not only explicitly
protected freedom of expression, \14\ but created a judiciary
possessing the power of review over all legislative and
executive action. These twin safeguards--a written constitution
and an independent judiciary--have served to foster in this
country the freest society in human history.
---------------------------------------------------------------------------
\13\ The Federalist No. 10 (J. Madison) at 57 (J. Cooke ed. 1961).
\14\ Indeed the framers chose to include freedom of speech in the
first amendment of the Bill of Rights, and wrote its protection in
absolute terms: ``Congress shall make no law . . . abridging freedom
of speech. . . .''. The strictness of the language is in contrast
with the fourth amendment, for example which prohibits only
``unreasonable searches and seizures.''
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H.J. Res. 54 is Wrong as a Matter of Principle
Unfortunately H.J. Res. 54 belies our system of unfettered
political expression. In so doing, it not only undermines our
commitment to freedom of expression and opens the door to
selective prosection based on political belief, but diminishes
our nation's international standing.
The true test of any nation's commitment to freedom of
expression lies in its ability to protect unpopular expression,
such as flag desecration. In 1929 Justice Holmes wrote that it
was the most imperative principle of our constitution that it
protects not just freedom for the thought and expression we
agree with, but ``freedom for the thought we hate.'' \15\ As
Justice Jackson so eloquently wrote in 1943:
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\15\ United States v. Schwimmer, 254 U.S. 644, 655 (1929) (Holmes,
J., dissenting).
Freedom to differ is not limited to things that do
not matter much. That would be a mere shadow of
freedom. The test of its substance is the right to
differ as to things that touch the heart of the
existing order. If there is any fixed star in our
constitutional constellation, it is that no official,
high or petty, can prescribe what shall be orthodox in
politics, nationalism, religion or other matters of
opinion. \16\
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\16\ West Virginia Board of Education v. Barnette, 319 U.S. 624,
642 (1943).
And there can be no doubt that ``symbolic speech'' relating
to the flag falls squarely within the ambit of traditionally
protected speech. Our nation was borne in the dramatic symbolic
speech of the Boston Tea Party, and our courts have long
recognized that expressive speech associated with the flag is
protected speech under the first amendment.
Beginning in 1931 with Stromberg v. California \17\ (state
statute prohibiting the display of a ``red flag'' overturned)
and continuing through the mid-1970's with Smith v. Goguen \18\
and Spence v. Washington \19\ (overturning convictions
involving wearing a flag patch and attaching a peace sign to a
flag), the Supreme Court has consistently recognized that flag-
related expression is entitled to constitutional protection.
Indeed, by the time Gregory Johnson was prosecuted for burning
a U.S. flag outside of the Republican Convention in Dallas, the
State of Texas readily acknowledged that Johnson's conduct
constituted ``symbolic speech'' subject to protection under the
first amendment. \20\ Those who seek to justify H.J. Res. 54 on
the grounds that flag desecration does not constitute
``speech'' are therefore denying decades of well understood
court decisions. \21\
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\17\ 283 U.S. 359 (1931). Absent this decision, a State could
theoretically have prevented its citizens from displaying the U.S.
flag.
\18\ 415 U.S. 94 (1972).
\19\ 418 U.S. 405 (1974).
\20\ Texas v. Johnson, supra note 1 at 397.
\21\ See also, Note, The Supreme Court--Leading Cases, 103 Harv.
L.Rev. 137, 152 (1989)(``the majority opinion [in Johnson] is a
relatively straightforward application of traditional first amendment
jurisprudence''); Sheldon H. Nahmod, The Sacred Flag and the First
Amendment, 66 Ind. L.J. 511, 547 (1991) (``Johnson is an easy case if
well-established first amendment principles are applied to it'').
---------------------------------------------------------------------------
While we deplore the burning of an American flag in hatred,
we recognize that it is our allowance of this conduct that
reinforces the strength of the Constitution. As one federal
court wrote in a 1974 flag burning case, ``the flag and that
which it symbolizes is dear to us, but not so cherished as
those high moral, legal, and ethical precepts which our
Constitution teaches.'' \22\ The genius of the Constitution
lies in its indifference to a particular individual's cause.
The fact that flag burners are able to take refuge in the first
amendment means that every citizen can be assured that the Bill
of Rights will be available to protect his or her rights and
liberties should the need arise.
---------------------------------------------------------------------------
\22\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F.Supp. 165,
184 (1974).
---------------------------------------------------------------------------
H.J. Res. 54 will also open the door to selective
prosecution based purely on political beliefs. When Peter
Zenger was charged with ``seditious libel'' in the very first
case involving freedom of speech on American soil, his lawyer,
James Alexander warned:
The abuses of freedom of speech are the excrescences
of Liberty. They ought to be suppressed; but whom dare
we commit the care of doing it? An evil Magistrate,
entrusted with power to punish Words, is armed with a
Weapon the most destructive and terrible. Under the
pretense of pruning the exuberant branches, he
frequently destroys the tree. \23\
---------------------------------------------------------------------------
\23\ Philadelphia Gazette, Nov. 17, 1737, quoted in Levy, Legacy of
Suppression 135 (1960).
The history of the prosecution of flag desecration in this
country bears out these very warnings. The overwhelming
majority of flag desecration cases have been brought against
political dissenters, while commercial and other forms of flag
desecration has been almost completely ignored. An article in
Art in America points out that during the Vietnam War period,
those arrested for flag desecration were ``invariably critics
of national policy, while 'patriots' who tamper with the flag
are overlooked.'' \24\ Whitney Smith, director of the Flag
Research Center has further observed that commercial misuse of
the flag was ``more extensive than its misuse by leftists or
students, but this is overlooked because the business interests
are part of the establishment.'' \25\
---------------------------------------------------------------------------
\24\ See Robert J. Goldstein, Saving Old Glory: The History of the
American Flag Desecration Controversy, supra note 4 at 154.
\25\ Id.
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Almost as significant as the damage H.J. Res. 54 would do
to our own Constitution, is the harm it will inflict on our
international standing in the area of human rights.
Demonstrators who cut the communist symbols from the center of
the East German and Romanian flags prior to the fall of the
Iron Curtain committed crimes against their country's laws, yet
freedom-loving Americans justifiably applauded these brave
actions. If we are to maintain our moral stature in matters of
human rights, it is therefore essential that we remain fully
open to unpopular dissent, regardless of the form it takes.
\26\
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\26\ See, e.g., 1997 House Judiciary Hearings, supra note 5
(statement of PEN American Center, Feb. 5, 1997) (``To allow for the
prosecution of [flag burners] would be to dilute what has hitherto been
prized by Americans everywhere as a cornerstone of our democracy. The
right to free speech enjoys more protection in our country than perhaps
any other country in the world.'')
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To illustrate, when the former Soviet Union adopted
legislation in 1989 making it a criminal offense to
``discredit'' a public official, Communist officials sought to
defend the legislation by relying on, among other things, the
United States flag desecration statute. \27\ By adopting H.J.
Res 54 we will be unwittingly encouraging other countries to
enact and enforce other more restrictive limitations on speech
while impairing our own standing to protest such actions.
---------------------------------------------------------------------------
\27\ Rotunda, Treatise on Constitutional Law: Substance and
Procedure, supra note 7, Sec. 20.49 at 352.
---------------------------------------------------------------------------
H.J. Res. 54 is Wrong as a Matter of Precedent
Adoption of H.J. Res. 54 will also create a number of
dangerous precedents in our legal system. The Resolution will
encourage further departures from the first amendment and
diminish respect for our Constitution.
If we approve H.J. Res. 54, it is unlikely to be the last
time Congress acts to restrict our first amendment liberties.
As President Reagan's Solicitor General Charles Fried testified
in 1990:
Principles are not things you can safely violate
``just this once.'' Can we not just this once do an
injustice, just this once betray the spirit of liberty,
just this once break faith with the traditions of free
expression that have been the glory of this nation? Not
safely; not without endangering our immortal soul as a
nation. The man who says you can make an exception to a
principle, does not know what a principle is; just as
the man who says that only this once let's make 2+2=5
does not know what it is to count. \28\
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\28\ Measures to Protect the American Flag, Hearing before the
Senate Comm. on the Judiciary, 101st Cong., 2d Sess. (June 21,
1990)(statement of Charles Fried at 113)[hereinafter 1990 Senate
Judiciary Hearings].
Adoption of H.J. Res. 54 will also diminish and trivialize
our Constitution. \29\ If we begin to second guess the courts'
authority concerning matters of free speech, we will not only
be carving an awkward exception into a document designed to
last for the ages, but will be undermining the very structure
created under the Constitution to protect our rights. This is
why Madison warned against using the amendment process to
correct every perceived constitutional defect, particularly
concerning issues which inflame public passion. \30\
Conservative legal scholar Bruce Fein emphasized this concern
when he testified before the Subcommittee at 1995 House
Judiciary hearings:
---------------------------------------------------------------------------
\29\ Inserting the term ``desecration'' into the Constitution would
in and of itself seem highly inappropriate. Webster's New World
Dictionary defines ``desecrate'' as ``to violate the sacredness of,''
and in turn defines ``sacred'' as ``consecrated to a god or God; holy;
or having to do with religion.'' The introduction of these terms could
create a significant tension within our constitutional structure, in
particular with the religion clause of the first amendment.
\30\ Legal philosopher Lon Fuller also highlighted this very
problem over four decades ago: ``We should resist the temptation to
clutter up [the constitution] with amendments relating to substantive
matters. [In that way we avoid] . . . the obvious unwisdom of trying
to solve tomorrow's problems today. But [we also escape the] more
insidious danger [of] the weakening effect [such amendments] have on
the moral force of the Constitution itself.''
---------------------------------------------------------------------------
L. Fuller, American Legal Philosophy at Mid-Century, 6 J.L. Ed. 457,
465 (1954), as cited in Hearings on Proposed Flag Desecration Amendment
before the Subcomm. on Constitution of the Senate Comm. on the
Judiciary, 104th Cong., 1st Sess. (June 6, 1995)[hereinafter, 1995
Senate Judiciary Hearings] (statement of Gene R. Nichol).
While I believe the Johnson and Eichman decisions
were misguided, I do not believe a Constitutional
amendment would be a proper response. . . . To
enshrine authority to punish flag desecrations in the
Constitution would not only tend to trivialize the
Nation's Charter, but encourage such juvenile temper
tantrums in the hopes of receiving free speech
martyrdom by an easily beguiled media . . . It will
lose that reverence and accessibility to the ordinary
citizen if it becomes cluttered with amendments
overturning every wrong-headed Supreme Court decision.
\31\
---------------------------------------------------------------------------
\31\ 1995 House Judiciary Hearings supra note 3 (statement of Bruce
Fein at 1-2).
And, as Professor Norman Dorsen points out in his
testimony, not including the Bill of Rights, which was ratified
in 1791 as part of the original pact leading to the
Constitution, only 17 amendments have been added to it and very
few of these reversed constitutional decisions of the Supreme
Court. To depart from this tradition now . . . would be an
extraordinary act that could lead to unpredictable mischief in
coming years. \32\
---------------------------------------------------------------------------
\32\ See 1997 House Judiciary Hearings, supra note 5(statement of
Professor Norman Dorsen, New York University School of Law).
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H.J. Res. 54 is Wrong as a Matter of Practice
As a practical matter, H.J. Res. 54 is so poorly drafted
and conceived that there can be no doubt it will open up a
``Pandora's Box'' of litigation. Not only are its terms
incredibly open ended and vague, but the Resolution gives us no
guidance as to its intended Constitutional scope or parameter.
While the amendment's supporters claim they are merely drawing
a line between legal and illegal behavior, in actuality, they
are drawing no line at all, but merely granting the federal
government open-ended authority to prosecute dissenters who use
the flag in a manner deemed inappropriate.
There is little understanding or consensus concerning the
meaning of such crucial terms as ``desecration'' and ``flag of
the United States.'' Depending on the statute ultimately
adopted under the Amendment's authority, ``desecration'' could
apply to canceling flag postage stamps or use of the flag by
Olympic athletes. The term ``flag of the United States'' could
include underwear from the ``Tommy Hilfiger'' collection as
well as a Puerto Rican flag including a likeness of the U.S.
flag. \33\
---------------------------------------------------------------------------
\33\ 1995 House Judiciary Hearings supra note 3 (statement of
Representative Serrano). See also, Rotunda, Treatise on American
Constitutional Law: Substance and Procedure, supra note 7, Sec. 20.49
at Sec. 90 (If we adopt laws outlawing flag desecration ``there will be
future problems defining what is a flag. Will it be a crime for someone
to burn a flag? Or burning fireworks in the shape of an American flag?
May a movie director (filming Francis Scott Key watching Fort McHenry)
order that the American flag of 1812 be shot at and otherwise defaced?
Will it be a crime for the post office to cancel (i.e, deface) a stamp
that has on it a copy of the American flag? If a flag design is on a
birthday cake, will it be a federal crime to light the birthday candles
on the cake? Will cutting the cake deface it? Is it defacing the flag
to display it upside down?'').
---------------------------------------------------------------------------
The Resolution's sponsors also appear to have little
understanding as to its Constitutional scope or breadth. H.J.
Res. 54 gives us no guidance whatsoever as to what if any
provisions of the first amendment, the Bill of Rights, or the
Constitution in general that it is designed to overrule. \34\
During debate of the 1995 proposed amendment, amendment sponsor
Charles Canady (R-FL) asserted that the flag desecration
amendment would simply restore the status quo before the
Supreme Court ruled in 1989. \35\ He later insisted, however
that the amendment would also allow the states to criminalize
wearing clothing with the flag on it. \36\ The latter
interpretation goes well beyond overturning Johnson and
indicates that the flag desecration amendment could permit
prosecution under statutes that were otherwise
unconstitutionally void for vagueness. For example, the Supreme
Court in 1974 declared unconstitutionally vague a statute that
criminalized treating the flag contemptuously and did not
uphold the conviction of an individual wearing a flag patch on
his pants. \37\ Chairman Canady's interpretation of the flag
desecration amendment would allow such a prosecution despite
the statute's vagueness.
---------------------------------------------------------------------------
\34\ Since H.J. Res. 54 is drafted to modify the entire
Constitution, rather than any portion of the first amendment, it is
unclear whether and to what extent it will supersede provisions in the
Bill of Rights relating to ``void for vagueness'' (first and fifth
amendment), overbreadth and least restrictive alternatives test (first
amendment), search and seizure (fourth amendment), due process and
self-incrimination (fifth amendment), cruel and unusual punishment
(eighth amendment) and provisions in the Constitution relating to the
supremacy clause (Article VI, Section 2) and the speech and debate
clause (Article I, Section 6). See e.g., 1990 Senate Judiciary
Hearings, supra note 29 (statement of Walter Dellinger); William Van
Alstyne, Stars and Stripes and Silliness Forever, Legal Times at 34
(October 2, 1989).
\35\ House Comm. on the Judiciary, Markup Session of H.R.J. Res.
79, 104th Cong., 1st Sess. 109 (1995).
\36\ Id. at 110.
\37\ Smith v. Goguen, 415 U.S. 566, 568-69 (1974).
---------------------------------------------------------------------------
It is insufficient to respond to these concerns by
asserting that the courts can easily work out the meaning of
the terms in the same way that they have given meaning to other
terms in the Bill of Rights such as ``due process.'' Unlike the
other provisions of the Bill of Rights, H.J. Res. 54 represents
an open-ended and unchartered invasion of our rights and
liberties, rather than a back-up mechanism to prevent the
government from usurping our rights.
Conclusion
Adoption of H.J. Res. 54 will undermine our commitment to
freedom of expression and do real damage to the constitutional
system set up by our forefathers. If we amend the Constitution
to outlaw flag desecration, we will be joining ranks with
countries such as China and Iran and the regimes of the former
Soviet Union and South Africa. \38\
---------------------------------------------------------------------------
\38\ Roman Rollnick, ``Flag Amendment would put U.S. with Iran,
China,'' UPI (July 1, 1989).
---------------------------------------------------------------------------
We believe we have come too far as a nation to risk
jeopardizing our commitment to freedom in such a fruitless
endeavor to legislate patriotism. As the Court wrote in West
Virginia Board of Education v. Barnette:
[The] ultimate futility of . . . attempts to compel
coherence is the lesson of every such effort from the
Roman drive to stamp out Christianity as a disturber of
its pagan unity, the Inquisition, as a means to
religious and dynastic unity, the Siberian exiles as a
means to Russian unity, down to the last failing
efforts of our present totalitarian enemies. Those who
begin coercive elimination of dissent soon find
themselves exterminating dissenters. Compulsory
unification of opinion achieves only the unamity of the
graveyard. \39\
---------------------------------------------------------------------------
\39\ 319 U.S. 624, 641 (1943).
If we adopt H.J. Res. 54, we will be denigrating the vision
of Madison and Jefferson, and glorifying the simple-mindedness
of Johnson and Eichman. If we tamper with our Constitution, we
will have turned the flag, an emblem of unity and freedom, into
a symbol of intolerance. We will not go on record as supporting
a proposal which will do what no foreign power has been able to
---------------------------------------------------------------------------
do--limit the freedom of expression of the American people.
John Conyers, Jr.
Barney Frank.
Howard L. Berman.
Rick Boucher.
Jerrold Nadler.
Robert C. Scott.
Melvin L. Watt.
Zoe Lofgren.
Sheila Jackson Lee.
Martin T. Meehan.
DISSENTING VIEWS OF HON. RICK BOUCHER
On May 8, 1997, I, along with Congressman Wayne Gilchrest,
(R-MD) introduced H.R. 1556, the ``Flag Protection Act of
1997,'' which imposes criminal penalties on those who desecrate
the United States flag. H.R. 1556 is a statutory alternative to
H.J. Res. 54, and would punish flag desecration, regardless of
whether it occurs on public or private property, without
weakening the freedoms provided under the First Amendment to
the U.S. Constitution.
It is unfortunate that the majority would not permit a vote
on H.R. 1556 as a substitute to H.J. Res. 54, which, if
adopted, will have a detrimental impact on the Constitution and
on the rights of individuals. Our strength as a nation and our
distinction as the freest people on earth derives in
significant part from the broad guarantee of freedom of speech
contained in the First Amendment. Proponents of a statutory
alternative to the proposed Amendment agree that H.R. 1556
achieves the same goal of protecting our flag without cutting
back on the freedom of expression guaranteed by the First
Amendment.
H.R. 1556 would criminalize the destruction or damage of a
U.S. flag when the person engaging in it does so with the
primary purpose and intent to incite or produce imminent
violence or a breach of the peace and in circumstances where
the person knows it is reasonably likely to produce imminent
violence or a breach of the peace. It would punish any person
who steals or knowingly converts to his or her use, or to the
use of another, a U.S. flag belonging to the United States and
who intentionally destroys or damages that flag. Finally, H.R.
1556 would punish any person who, within any lands reserved for
the use of the United States or under the exclusive use or
concurrent jurisdiction of the U.S., steals or knowingly
converts to his or her use, or to the use of another, a flag of
the United States belonging to another person, and
intentionally destroys that flag.
Several constitutional scholars, including Professors
Laurence Tribe and Erwin Chemerinsky, have observed that the
provisions of the bill are constitutional. Moreover, the
Congressional Research Service has reviewed the bill and issued
a memorandum which concludes that it is constitutional. H.R.
1556 offers protection for the flag in circumstances under
which statutory protection may still be afforded after the
Supreme Court decisions in United States v. Eichman \1\ and
Texas v. Johnson. \2\
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\1\ 496 U.S. 310 (1990).
\2\ 491 U.S. 397 (1989).
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This tough criminal statute would have the added advantage
of protecting the flag now, not three years from now--the
probable time it would take to ratify a constitutional
amendment. Moreover, it would have the twin virtues of
outlawing flag desecration while preserving all of our First
Amendment freedoms.
Rick Boucher.