[House Report 106-191]
[From the U.S. Government Publishing Office]
106th Congress Report
1st Session HOUSE OF REPRESENTATIVES 106-191
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CONSTITUTIONAL AMENDMENT AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL
DESECRATION OF THE FLAG OF THE UNITED STATES
_______
June 18, 1999.--Referred to the House Calendar and ordered to be
printed
_______
Mr. Hyde, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
DISSENTING VIEWS
[To accompany H.J. Res. 33]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
joint resolution (H.J. Res. 33) 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
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 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
Purpose and Summary
H.J. Res. 33 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 the 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.
Background and Need for the Legislation
In June, 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.''\1\
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\1\ 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:
``(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.''
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.''
Justice Rehnquist filed a dissenting opinion in which
Justices O'Connor and White joined.\2\
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\2\ Justice Stevens filed a separate dissenting opinion.
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Justice Rehnquist noted the unique history of the American
Flag:
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 of the flag.
Texas v. Johnson, 109 S.Ct. at 2552.
Justice Rehnquist also pointed out that former Chief
Justice Earl Warren, and former 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.''\3\
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\3\ ``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. 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. Additionally, the
House of Representatives has twice passed constitutional
amendments aimed at protecting the U.S. flag from desecration.
In 1995, the House adopted, by a vote of 312-120, a
constitutional amendment granting both Congress and the states
the power to pass laws prohibiting the physical desecration of
the flag. However, the Senate vote in 1995 failed, by three
votes, to reach the two-thirds vote threshold that is required
by the Constitution. In 1997, the House passed, by a vote of
310-114, a constitutional amendment, H.J. Res. 54, granting
Congress the power to prohibit the physical desecration of the
flag. The amendment was not considered on the Senate floor
during the 105th Congress. H.J. Res. 33 is identical to H.J.
Res. 54.
Opponents of the amendment have argued that H.J. Res. 33
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.
33 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. 33 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. 33 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 a
hearing on H.J. Res. 33 on March 23, 1999. Testimony was
received from 13 witnesses: Representative Randy ``Duke''
Cunningham; Representative Steve Buyer; Representative John
Lewis; Representative John Sweeney; Representative Wayne
Gilchrest; Mr. Stephan Ross, concentration camp survivor and
senior staff psychologist for the City of Boston Community
Schools and Centers; Stephen Presser, Raoul Berger Professor of
Legal History, Northwestern University School of Law; Major
General Patrick Brady (USA-Ret), Chairman of the Citizen Flag
Alliance's Board of Directors; Bishop Carlton Pearson,
presiding Bishop over the Azusa Interdenominational Fellowship,
Shawntel Smith, former Miss America from Oklahoma; Captain
Joseph E. Rogers, (U.S.N.R.-Ret.), corporate counsel, Alcatel
USA; David Skaggs, former United States Representative and
current Executive Director of the Democracy and Citizenship
Program at the Aspen Institute; Douglas C. Clifton, executive
editor of the Miami Herald.
Committee Consideration
On April 14, 1999, the Subcommittee on the Constitution met
in open session and ordered favorably reported the resolution,
H.J. Res. 33, by a vote of 7 to 4, a quorum being present. On
May 26, 1999, the Committee met in open session and ordered
favorably reported the resolution, H.J.Res. 33, without
amendment, by voice vote, a reporting quorum being present..
Vote of the Committee
Mr. Watt offered an amendment to strike ``the'' on page 3,
line 9 of the resolution and insert, ``Not inconsistent with
the first article of amendment to this Constitution, the''.
Thus, the proposed amendment would read, ``The Congress shall
have the power to prohibit, not inconsistent with the first
article of amendment to this Constitution, the physical
desecration of the flag of the United States.'' The Watt
amendment was defeated by a roll call vote of 7-17.
ROLLCALL NO. 1
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Ayes Nays Present
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Mr. Sensenbrenner............................................... .............. .............. ..............
Mr. McCollum.................................................... .............. .............. ..............
Mr. Gekas....................................................... .............. X ..............
Mr. Coble....................................................... .............. .............. ..............
Mr. Smith (TX).................................................. .............. X ..............
Mr. Gallegly.................................................... .............. X ..............
Mr. Canady...................................................... .............. X ..............
Mr. Goodlatte................................................... .............. X ..............
Mr. Bryant...................................................... .............. X ..............
Mr. Chabot...................................................... .............. X ..............
Mr. Barr........................................................ .............. X ..............
Mr. Jenkins..................................................... .............. X ..............
Mr. Hutchinson.................................................. .............. X ..............
Mr. Pease....................................................... .............. .............. ..............
Mr. Cannon...................................................... .............. X ..............
Mr. Rogan....................................................... .............. X ..............
Mr. Graham...................................................... .............. .............. ..............
Ms. Bono........................................................ .............. X ..............
Mr. Bachus...................................................... .............. X ..............
Mr. Scarborough................................................. .............. X ..............
Mr. Conyers..................................................... .............. .............. ..............
Mr. Frank....................................................... .............. .............. ..............
Mr. Berman...................................................... .............. .............. ..............
Mr. Boucher..................................................... .............. .............. ..............
Mr. Nadler...................................................... X .............. ..............
Mr. Scott....................................................... X .............. ..............
Mr. Watt........................................................ X .............. ..............
Ms. Lofgren..................................................... X .............. ..............
Ms. Jackson Lee................................................. X .............. ..............
Ms. Waters...................................................... .............. .............. ..............
Mr. Meehan...................................................... .............. .............. ..............
Mr. Delahunt.................................................... .............. .............. ..............
Mr. Wexler...................................................... .............. .............. ..............
Mr. Rothman..................................................... .............. X ..............
Ms. Baldwin..................................................... X .............. ..............
Mr. Weiner...................................................... X .............. ..............
Mr. Hyde, Chairman.............................................. .............. X ..............
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Total....................................................... 7 17 ..............
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Committee Oversight Findings
In compliance with clause 3(c)(1) of Rule XIII 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 Findings
No findings or recommendations of the Committee on
Government Reform were received as referred to in clause
3(c)(4) of Rule XIII of the Rules of the House of
Representatives.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of House Rule XIII is inapplicable because
this legislation does not provide new budgetary authority or
increased tax expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of Rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the resolution, H.J. Res.33, the following estimate
and comparison prepared by the Director of the Congressional
Budget Office under section 402 of the Congressional Budget Act
of 1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, May 27, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.J. Res. 33, proposing
an amendment to the Constitution of the United States
authorizing 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 Susanne S.
Mehlman (for federal costs), who can be reached at 226-2860,
and Lisa Cash Driskill (for the state and local impact), who
can be reached at 225-3220.
Sincerely,
Dan L. Crippen, Director.
H.J. Res. 33--Proposing an amendment to the Constitution of the United
States authorizing Congress to prohibit the physical
desecration of the flag of the United States.
H.J. Res. 33 would propose amending the Constitution to
allow the Congress to enact legislation that would prohibit
physical desecration of the U.S. flag. The legislatures of
three-fourths of the states would be required to ratify the
proposed amendment within seven years for the amendment to
become effective. By itself, this resolution would have no
impact on the federal budget. If the proposed amendment to the
Constitution is approved by the states, then any future
legislation prohibiting flag desecration could impose
additional costs on U.S. law enforcement agencies and the court
system to the extent that cases involving desecration of the
flag are pursued and prosecuted. However, CBO does not expect
any resulting costs to be significant. Because enactment of
H.J. Res. 33 would not affect direct spending or receipts, pay-
as-you-go procedures would not apply.
H.J. Res. 33 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act
and would impose no costs on state, local, or tribal
governments. In order for the amendment to become part of the
Constitution, three-fourths of the state legislatures would
have to ratify the resolution within seven years of its
submission to the states by the Congress. However, no state is
required to take action on the resolution, either to reject it
or to approve it.
On April 30, 1999, CBO transmitted a cost estimate for S.
J. Res. 14, as reported by the Senate Committee on the
Judiciary on April 29, 1999. S. J. Res. 14 and H.J. Res. 33 are
identical, as are the two estimates.
The CBO staff contacts for this estimate are Susanne S.
Mehlman (for federal costs), who can be reached at 226-2860,
and Lisa Cash Driskill (for the state and local impact), who
can be reached at 225-3220. This estimate was approved by
Robert A. Sunshine, Deputy Assistant Director for Budget
Analysis.
Constitutional Authority Statement
Pursuant to clause 3(d)(1) of Rule XIII 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 and Discussion
H.J. Res. 33 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. 33 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
Because we honor the American flag for the tangible ideals
of freedom and democracy that gave rise to it as well as for
its richness as a symbol, we take issue with proponents of H.J.
Res. 33, a measure that will purchase its protections of the
American flag with the currency of the First Amendment.
As a general matter, we take the view that the amendment
process is a remedy of last resort afforded to Congress and
that its powerful and rarely used force must be used with great
care. Over more than 200 years, our Constitution has been
amended only 27 times. If ratified, H.J. Res. 33 would--for the
first time in our Nation's history--modify the Bill of Rights
to limit freedom of expression. In this instance, the majority
is reacting to a pair of Supreme Court decisions, Texas v.
Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496
U.S. 310 (1990), which held that state and federal government
efforts to protect the flag against physical destruction by
statute were content-based political speech restrictions and
imposed unconstitutional limitations on that speech.
Before we take the drastic action proposed here, there are
three major questions we should be asking ourselves. First, is
the problem of flag desecration \1\ so pervasive and so
incapable of regulation as to require a constitutional
amendment? We answer this question in the negative. Second,
even if a single instance of flag desecration poses some harm
to our national interests, does that possible consequence
justify censoring our citizens out of symbolic expressions of
disagreement with their government? We answer this question in
the negative, as we would warn against joining the ranks of
tyrannical nations. Finally, does the precise language of this
measure achieve its stated goals of fostering national unity
and keeping our political discourse civil? We again answer in
the negative and point out that past efforts to protect the
flag by force of criminal penalty have actually instigated flag
burning.\2\
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\1\ We use the term ``desecration'' here, even though we are not
quite sure what it means. Presumably, this term includes flag burning.
It also could apply to disposing of a flag postage stamp, sitting on a
pair of jeans with a flag likeness on the seat or wearing a shirt with
a likeness of the flag that also contains unflattering words about the
flag.
\2\ 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).
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There is no disputing the fact that the instances of flag
burning have been rare in our nation's history, and therefore
the problem of flag desecration cannot be considered pervasive.
Studies indicate, for instance, that from 1777 until the 1989
Supreme Court decision in Texas v. Johnson, there were only 45
reported cases of flag burning.\3\
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\3\ Robert J. Goldstein, ``Two Centuries of Flagburning in the
United States, 163 Flag Bull. 65 (1995).
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In addition to the relative infrequency of flag burning,
proponents of the measure cast the current state of the law as
though Congress is impotent to protect the flag. However, even
witnesses who disagree with the Supreme Court rulings in
Johnson and Eichman have stated that the impact of those cases
was not so broad. In 1995, Bruce Fein stated as much in
subcommittee hearings. ``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 and Brandenburg v. Ohio.'' \4\
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\4\ Indeed, a less drastic but workable statutory effort that uses
the doctrine of both the Chaplinsky and Brandenburg decisions has been
introduced in the House this session. See H.R. 1081 (introduced March
11, 1999 before the 106th Congress, 1st Sess.).
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Many well-meaning proponents of this measure fashion the
harm caused by flag desecration as ``qualitative.'' Thus, while
they might concede that the instances are low in number, they
insist that even one instance of flag desecration would work a
substantial harm against our national interests. In
subcommittee hearings on H.J. Res. 33, House Judiciary
Committee Chairman Hyde even likened instances of flag
desecration to ``hate crimes,'' rather than free speech
deserving of protection.\5\ More generally, proponents of this
legislation ask, ``What sort of country permits its flag to be
destroyed in protest by its own citizens?''
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\5\ See Hearing on H.J. Res. 33, Proposing an Amendment to the
Constitution of the United States Before the Subcomm. on the
Constitution of the House Comm. on the Judiciary, 106th Cong., 1st
Sess. (March 23, 1999).
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Perhaps those proponents should also ask themselves the
opposite question. ``What sort of country limits the way in
which its citizens engage in political protest?'' An honest
answer will reveal that the amendment, if ratified, will push
our political speech rights closer to countries like China and
Iran and the former regimes of the Soviet Union and South
Africa.\6\ However well-intentioned, H.J. Res. 33 would open
the door to government suppression of political protest, an
activity that is central to our democratic process.
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\6\ Roman Rollnick, ``Flag Amendment would put U.S. with Iran,
China,'' UPI (July 1, 1989).
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We cannot legislate patriotism. The Supreme Court has
already considered the consequences of doing so and has set
forth a formidable argument against it. In West Virginia Board
of Education v. Barnette, the Court said,
[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 unanimity of
the graveyard.'' \7\
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\7\ Barnette, 319 U.S. 624, 641 (1943).
Finally, we submit that, if ratified, H.J. Res. 33 would
not decrease instances of flag desecration but would actually
increase such unsavory events. Political speech, whether
outlawed or not, is by its nature urgent and incapable of
repression. Those who would attempt to burn the flag today to
protest their federal government will not be slowed much by the
civil and criminal penalties imposed by the amendment.
Political speech is not thwarted by criminal and civil
consequence.
The wise founders of our nation knew that political discord
is in the nature of a political society. Rather than treat
differences of opinion as something to be feared, the Framers
of our government sought to use dissent in positive ways. \8\
When we limit the mode of dissent, we begin along a path of
political speech restrictions that will inevitably lead to
restrictions on the content of the dissent. We cannot endorse a
proposal that protects the symbol of free speech--our flag--by
diminishing free speech itself.
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\8\ Professor Greenwalt reminds us of the importance of free
expression when he writes:
[T]hose 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
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stability.
Greenwalt, Speech and Crime, A.B.F. Res. J. 645, 672-3 (1980).
In our view, the question of amending the constitution to
protect the flag boils down to an unnecessary choice between
national pride and national discourse. These two important ends
are not mutually exclusive. Indeed, our national discourse,
which has sometimes been tense and angry, can be considered
reflective of our national pride. In the end, we, like the
majority, hope that our citizens treat the United States flag
with the honor and respect we believe it deserves. We simply
believe that such honor and respect is even more meaningful
when our citizens have a right to express their discontent,
disappointment and even disdain for our government but choose
not to do so.
John Conyers, Jr.
Howard L. Berman.
Jerrold Nadler.
Melvin L. Watt.
Sheila Jackson Lee.
Martin T. Meehan.
Tammy Baldwin.
Barney Frank.
Rick Baucher.
Robert C. Scott.
Zoe Lofgren.
Maxine Waters.