[Senate Report 106-246]
[From the U.S. Government Publishing Office]
Calendar No. 98
106th Congress Report
SENATE
2d Session 106-246
======================================================================
S.J. RES. 14--PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE UNITED
STATES AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL DESECRATION OF THE
FLAG OF THE UNITED STATES
_______
March 20, 2000.--Ordered to be printed
_______
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY VIEWS
[To accompany S.J. Res. 14]
The Committee on the Judiciary, to which was referred the
joint resolution (S.J. Res. 14) to propose an amendment to the
Constitution so that ``Congress shall have power to prohibit
the physical desecration of the flag of the United States,''
having considered the same, reports favorably thereon, and
recommends that the joint resolution do pass.
CONTENTS
Page
I. Summary..........................................................2
II. Legislative History..............................................3
III. Discussion.......................................................6
A. A brief history of the American flag................ 6
1. Early Colonial and Revolutionary flags.......... 6
2. The Betsy Ross story............................ 7
3. Origins of the nickname ``Old Glory''........... 8
B. The importance of the flag to the American people... 8
C. A brief legal history of flag protection............ 15
1. Flag protection in the colonial era............. 15
2. Founding Fathers equated the American flag with
the sovereignty of the Nation.................. 16
a. James Madison................................. 17
b. Thomas Jefferson.............................. 18
3. Statutory protection of the flag................ 19
a. Promotion of respect for the flag............. 19
b. Protection of the flag: striking the balance.. 19
c. Judicial application of flag protection
Statutes: respecting the balance............. 21
D. Judicial amendment of the Constitution: restriking
the balance........................................ 22
E. Senate Joint Resolution 14 is the appropriate
constitutional remedy.............................. 26
1. Senate Joint Resolution 14 would restore the
traditional balance to the court's first
amendment jurisprudence........................ 26
2. Congress has a compelling interest in protecting
the flag....................................... 27
a. Preserving the values embodied by the flag.... 27
b. Enhancing national unity...................... 27
c. Protecting an incident of our national
sovereignty.................................. 28
3. The terms ``physical desecration'' and ``flag of
the United States'' are sufficiently precise
for inclusion in the Constitution.............. 28
4. Parade of horribles is an illusion.............. 30
5. The American flag should be protected in order
to remove the Government sanction of flag
desecration.................................... 33
IV. Vote of the Committee...........................................34
V. Text of S.J. Res. 14............................................34
VI. Cost estimate...................................................34
VII. Regulatory impact statement.....................................35
VIII.Minority views of Senators......................................36
IX. Changes in existing Law.........................................69
I. Summary
The purpose of Senate Joint Resolution 14 is to restore to
Congress the authority to enact a statute protecting the flag
of the United States from physical desecration. The resolution
reads as follows: ``The Congress shall have power to prohibit
the physical desecration of the flag of the United States.''
The American people revere the flag of the United States as
a unique symbol of our Nation, representing our commonly held
belief in liberty and justice. Regardless of our ethnic,
racial, or religious diversity, the flag represents our oneness
as a people. The American flag has inspired men and women to
accomplish courageous deeds that won our independence, made our
Nation great, and advanced our values throughoutthe world. From
the battlefields of the American Revolution where we won our freedom to
the battlefields of World War II where we won freedom for other peoples
to the classrooms across our country where our children pledge
allegiance to the flag, the American flag has inspired a love and
respect for our people and our values that have made our Nation the
greatest force for liberty the world has ever known.
For the overwhelming majority of our history, our
statesmen, our legislatures, and our courts have recognized the
special value of the American flag as a symbol of our
sovereignty as a nation and of our commitment to freedom. And
through their Federal and State officials, the American people
recognized that ``love both of common country and of State will
diminish in proportion as respect for the flag is weakened.''
Halter v. Nebraska. 205 U.S. 34, 42 (1907). Thus, as with
numerous other societal interests, the legislatures and the
courts balanced society's interest in protecting the flag with
the individual's first amendment right to freedom of speech.
The legislatures of the Federal Government, the District of
Columbia, and some 48 States adopted statutes preventing
physical desecration of the flag, and the courts upheld these
statutes. Thus, these statutes, and the judicial opinions that
interpreted them, struck the balance in favor of the
Government's interest in protecting the flag over the
individual actor's interest in choosing physical destruction of
the flag as the means to convey a particular message instead of
the readily available means of oral or written speech to convey
the same message.
In 1989, however, while retaining the traditional balance
for numerous other societal interests that affected the first
amendment, the Supreme Court broke with legal tradition and
restruck the balance in favor of a nearly absolute protection
for the interest of the actor in choosing physical destruction
of the flag as a means of expressing a particular idea. Texas
v. Johnson, 491 U.S. 397 (1989). After the Supreme Court
rejected Congress' statutory response to Johnson as
unenforceable, United States v. Eichman, 496 U.S. 310 (1990),
an overwhelming majority of the American people wanted a
constitutional amendment to protect their flag. The proposed
amendment would restore to the flag the traditional balanced
approach that existed for most of our history and continues to
exist for other societal interests that affect an individual's
interest in freedom of speech. Once restored, the balanced
approach would protect the physical integrity of the flag,
while retaining full protections for oral and written speech
through which an individual may convey his particular message.
The effort to enact S.J. Res. 14 is the bipartisan result
of a widespread, grassroots call for the adoption of a
constitutional amendment permitting Congress to protect the
flag from physical desecration. Senators Orrin G. Hatch (R-UT)
and Max Cleland (D-GA) are the principal Senate cosponsors.
Congressmen Randy Cunningham (R-CA) and John P. Murtha (D-PA)
are leading the effort in the House of Representatives on H.J.
Res. 33, the House counterpart to S.J. Res.14.
For the reasons set forth in this report, the Judiciary
Committee reported S.J. Res. 14 to the full Senate with a
favorable recommendation, and urges that it be adopted.
II. Legislative History
On June 21, 1989, the U.S. Supreme Court issued its
decision in Texas v. Johnson, 491 U.S. 397 (1989). In that
case, Gregory Lee Johnson had been convicted of violating a
Texas statute for the knowing physical desecration of an
American flag. Johnson had burned a flag at a political
demonstration outside City Hall in Dallas, TX, during the 1984
Republican National Convention. The Texas Court of Criminal
Appeals reversed his conviction. Johnson v. State, 755 S.W.2d
92 (1988). In a 5-to-4 decision, the U.S. Supreme Court
affirmed the reversal, holding that Johnson's burning of the
flag was expressive conduct, a form of symbolic speech
protected by the first amendment.
On July 18, 1989, following the Supreme Court's decision in
Johnson, Senators Robert Dole, Alan Dixon, Strom Thurmond, and
Howell Heflin, as principal cosponsors, introduced Senate Joint
Resolution 180, a proposed amendment to the Constitution of the
United States, which would have given Congress and the States
power to prohibit the physical desecration of the American
flag. On July 18, 1989, Senators Joseph Biden, William Roth,
and William Cohen, as principal cosponsors, introduced S. 1338
(The Biden-Roth-Cohen Flag Protection Act of 1989), which
proposed to amend the Federal flag desecration statute, 18
U.S.C. 700(a). The Judiciary Committee held hearings on August
1, August 14, September 13, and September 14, 1989, on the
proposed legislation and constitutional amendment.
Approximately 20 hours of testimony were received from 26
witnesses, including a broad range of constitutional scholars,
historians, representatives of veterans' organizations, Members
of the Senate, and attorneys from the Department of Justice. On
September 21, 1989, the Judiciary Committee approved S. 1338
and ordered the bill favorably reported.
On September 12, 1989, the House of Representatives passed
H.R. 2978 (the Flag Protection Act of 1989) in order to protect
the physical integrity of the flag of the United States. H.R.
2978 was similar to S. 1338 and also sought to amend 18 U.S.C.
700(a).
On October 5, 1989, the Senate passed H.R. 2978, which was
enacted on October 28, 1989. Under this statute, codified at 18
U.S.C. 700(a), ``(W)hoever knowingly mutilates, defaces,
physically defiles, burns, maintains on the floor or ground or
tramples upon any flag of the United States shall be fined
under this Title or imprisoned for not more than one year, or
both.'' An exception was made for ``conduct consisting of the
disposal of a flag when it has become worn or soiled.''
In the wake of the Flag Protection Act's passage, on
October 19, 1989, S.J. Res. 180, the proposed constitutional
amendment, failed to obtain the necessary two-thirds vote of
the full Senate, by a vote of 51 to 48. It was generally
believed that the statute would survive constitutional scrutiny
and an amendment was thus unnecessary.
On June 11, 1990, the Supreme Court, however, in United
States v. Eichman, 495 U.S. 928 (1990), struck down the 1989
act under the new rule announced in Johnson. Eichman involved
individuals who knowingly set fire to several American flags on
the steps of the U.S. Capitol while protesting American foreign
policy, and other individuals who knowingly burned a U.S. flag
in Seattle while protesting passage of the 1989 Flag Protection
Act. According to the Court, the first amendment, after
Johnson, now encompassed the ``right'' of these individuals to
engage in physically destructive conduct toward the flag.
Shortly after the Supreme Court's decision in Eichman, the
Senate Judiciary Committee held a hearing to consider what
measures might be taken to protect the American flag. The
Committee heard from eight witnesses, including representatives
from the Justice Department.
As a result of those hearings, an amendment to the
Constitution of the United States was introduced that would
have given Congress and the States the power to prohibit the
physical desecration of the flag (Senate Joint Resolution 332).
On June 26, 1990, however, the proposed amendment failed to
receive the necessary two-thirds vote of the full Senate, by a
vote of 58 to 42.
Thus, on March 21, 1995, Senators Hatch and Heflin, as
principal cosponsors, along with a bipartisan group of 53
additional cosponsors, introduced Senate Joint Resolution 31,
another proposed amendment to the Constitution identical to
that introduced in both 1989 and 1990.
On June 6 1995, a hearing on S.J. Res. 31 was held by the
Subcommittee on the Constitution, Federalism, and Property
Rights of the Judiciary Committee.
On July 20, 1995, the Committee voted 12 to 6 to report
favorably S.J. Res. 31. The House of Representatives voted 312
to 120 in favor of an identical resolution, H.J. Res. 79, on
June 28, 1995. On December 12, 1995, however, S.J. Res. 31
failed toobtain the necessary two-thirds vote of the full
Senate, by a vote of 63 to 36.
On February 4, 1998, Senators Hatch and Cleland, as
principal cosponsors, along with a bipartisan group of 53
additional cosponsors, introduced Senate Joint Resolution 40,
another proposed amendment to the Constitution identical to
that voted on by the Senate in 1995.
On March 25, 1998, a hearing on S.J. Res. 40 was held by
the Subcommittee on the Constitution, Federalism, and Property
Rights of the Judiciary Committee. On June 17, 1998, the
resolution was polled out of the Subcommittee by a vote of 5 to
3, and referred to the full Judiciary Committee. The Committee
took up the legislation on June 24, 1998, and voted 11 to 7 to
report favorably S.J. Res 40. Following the full Committee
vote, the Committee held a hearing on July 8, 1998. However,
the Senate was not able to vote on S.J. Res. 40 before the
105th Congress adjourned.
The previous year, the House Committee on the Judiciary had
addressed a similar resolution, H.J. Res. 54, and favorably
reported it on May 14, 1997, by a vote of 20 to 9. On June 12,
1997, the House of Representatives voted 310 to 114 in favor of
H.J. Res. 54.
Efforts to protect the flag did not end there, however. In
response to the continuing groundswell of support by the
American people for constitutional protection of the physical
integrity of their flag, Senator Hatch, along with Senator
Cleland, introduced S.J. Res. 14 on March 17, 1999. S.J. Res.
14, the Senate's most recent effort to pass a constitutional
amendment to permit Congress to enact legislation prohibiting
the physical desecration of the American flag, is identical to
S.J. Res. 40 that was introduced in 1998. Senators Hatch and
Cleland were joined by an additional 55 original cosponsors in
this effort.
On February 24, 1999, a resolution proposing an amendment
identical to that proposed in S.J. Res. 14 was introduced in
the House of Representatives as H.J. Res. 33 by Congressmen
Randy Cunningam (R-CA) and John P. Murtha (D-PA) and 260
additional original cosponsors.
On April 20, 1999, the Senate Judiciary Committee held a
hearing on S.J. Res. 14. The Committee heard testimony from
retired Maj. Gen. Patrick Brady, chairman of the Citizens Flag
Alliance, Sumner, WA; Maribeth Seely, fifth grade teacher,
Branchville, NJ; Prof. Gary May, University of Southern
Indiana, Newburgh, IN; Rev. Nathan Wilson, West Virginia
Council of Churches, Charleston, WV; retired Lt. General Edward
Baca, former chief, National Guard Bureau, Albuquerque, NM; and
Professor Richard Parker, Williams Professor of Law, Harvard
Law School, Cambridge, MA.
On April 21, 1999, the resolution was polled out of the
Subcommittee by a vote of 5 to 3, and referred to the full
Judiciary Committee.
On April 28, 1999, the Judiciary Committee held a second
hearing on S.J. Res. 14. The Committee heard testimony from
Senator John Chafee of Rhode Island; Senator John McCain of
Arizona; Senator Bob Kerrey of Nebraska; Senator Max Cleland of
Georgia; Senator Chuck Hagel of Nebraska; former Senator John
Glenn of Ohio; and Randolf Moss, Acting Assistant Attorney
General of the Office of Legal Counsel, Department of Justice,
Washington, DC.
The Committee took up the legislation on April 29, 1999,
and voted 11 to 7 to report favorably S.J. Res 14 to the full
Senate.
III. Discussion
A. A Brief History of the American Flag
1. early colonial and revolutionary flags
Flags and banners have long been used as symbols to unify
nations and political or religious movements. ``Since time
immemorial man has felt the need of some sign or symbol as a
mark to distinguish himself, [and] his family or country * * *
.'' (E.M.C.Barraclough and W.G. Crampton, ``Flags of the
World'', p. 9, 1978). Flags have served that purpose since at least
1,000 years B.C. (Id.). The American flag is no exception.
Even before the Continental Congress adopted a flag for the
United States, banners of different designs were used in the
Colonies. For example, Pine Tree flags were popular in the New
England Colonies; the pine tree was regarded as symbolizing the
hardiness of New Englanders. One such flag is widely believed
to have been carried by American troops on June 17, 1775, at
the Battle of Bunker Hill. Known as the ``Bunker Hill Flag,''
its design had a blue field with a white canton bearing the red
cross of St. George and a green pine tree. American naval
vessels sailing off of New England sometimes used a flag with a
white field with a pine tree at its center and the words ``An
Appeal to Heaven'' emblazoned across the bottom.
The ``Moultrie Liberty Flag'' is believed to be the first
distinctive flag of the American Revolution displayed in the
South, in 1775. It had a blue field and a white crescent in an
upper corner. Later, the word ``Liberty'' was added.
Colonel Christopher Gadsen of South Carolina designed one
of the various Rattlesnake flags in 1775. It consisted of a
yellow field with a coiled rattlesnake in the center, under
which the words ``Don't Tread on Me'' were written. This banner
proved to be an important symbol of the inchoate American
Revolution.
On January 1, 1776, George Washington, then commander-in-
chief of the Continental Army, ordered the raising of a flag
with 13 alternating red and white stripes and the Union Jack in
the canton at Prospect Hill near Cambridge, MA. This flag was
known as the ``Grand Union Flag.'' The revision of part of the
British flag was consistent with the oncoming state of war
between Great Britain and America. Inclusion of the Union Jack,
however, did not prove popular, especially after the signing of
the Declaration of Independence. The Nation needed a new banner
to represent its independence.
2. THE BETSY ROSS STORY
Although the origin of the present flag's design is
shrouded in the mists of history, one popular story has it that
in the spring of 1776, Robert Morris, financier and patriot
organizer, Col. George Ross of Delaware, and Gen. George
Washington visited Mrs. Betsy Ross in her upholstery shop on
Arch Street in Philadelphia. Her husband had died in a
gunpowder explosion a few months earlier, after joining the
Pennsylvania militia. They showed her a design of a flag on a
piece of paper. After suggesting the stars have five rather
than six points, she shortly produced a flag said to be the
first ``national'' flag. This story was not made public until
1870, when her grandson read a paper to the Historical Society
of Pennsylvania. Affidavits from some of her daughters, nieces,
and grandchildren assert that she recounted the story to them
many times before her death in 1836.
On June 14, 1777, the Marine Committee of the Second
Continental Congress adopted a resolution that read:
``Resolved, that the flag of the United States be thirteen
stripes, alternate red and white; that the union be thirteen
stars, white in a blue field representing a new
constellation.''
Although the congressional resolution did not specify the
arrangement of the stars, a circular pattern became popular.
Indeed, one of the earliest known appearances of a flag
reflecting this new constellation, occurred 2 months later at
the Battle of Bennington. There, Lt. Col. Friedrich Baum
commanded a unit of Hessian dragoons attached to the ill-fated
army of British Gen. Johnny Burgoyne. The Hessians collided
with troops under Gen. John Stark along the Walloomsac River in
Vermont. On August 16, 1777, General Stark reportedly rallied
his troops: ``My men, yonder are the Hessians. They were bought
for seven pounds and ten pence a man. Are you worth more? Prove
it. Tonight, the American flag floats from yonder hill, or
Molly Stark sleeps a widow! ''
The Americans triumphed. This battle flag has 1 star in
both upper corners of the blue canton, with 11 stars arranged
in a semicircle over the numerals ``76.'' The red and white
stripes are in reverse order--seven white and six red stripes.
On September 3, 1777, John Marshall, the future Chief
Justice, fought under the American flag at the Battle of
Cooch's Bridge. Marshall and his fellow soldiers inflicted
substantial casualties on the British forces of Lord
Cornwallis.
The Nation's flag was first honored by a foreign nation in
February 1778, when the French Royal Navy exchanged 13-gun
salutes with Capt. John Paul Jones' Ranger. It is believed that
Captain Jones' Ranger displayed the Stars and Stripes for the
first time in the fledgling American Navy on July 2, 1777.
In 1791 Vermont was admitted to the Union, followed by
Kentucky the next year. To address these additions to the
Union, Congress adopted a new measure in 1794, effective May 1,
1795, expanding the flag to 15 stars and 15 stripes, one for
each State. The circular pattern of the stars was abandoned.
This new flag flew as the official banner of our country from
1794 to 1818. In 1814, while aboard a British ship moored
outside of Baltimore Harbor, Francis Scott Key wrote the Star
Spangled Banner as a tribute to the flag flying high above Fort
McHenry.
By 1818, five additional States--Tennessee, Ohio,
Louisiana, Indiana, and Mississippi--had entered the Union.
Realizing that the flag would become too unwieldy if a stripe
were added for each new State, it was suggested that the
stripes return to 13 in number to represent the original 13
colonies, and that a star be added to the blue field for each
new State admitted to the Union. Consequently, on April 14,
1818, President Monroe signed into law a bill providing ``that
the flag of the United States be 13 horizontal stripes,
alternate red and white; that the union have 20 stars, white in
a field of blue,'' and providing that upon admission of each
new State into the Union one star be added to the flag on the
Fourth of July following the State's date of admission. This
marked the beginning of the most detailed legislative provision
for the design of the national symbol.
3. ORIGINS OF THE NICKNAME ``OLD GLORY''
The nickname ``Old Glory'' is said to have been given to
the flag by Capt. William Driver. Captain Driver first sailed
as a cabin boy at age 14, from his home town of Salem, MA.
After several more voyages, he became master of the 110-ton
brig, Charles Doggett, at age 21.
Driver's mother and other women of Salem made an American
flag out of cotton, 12 feet by 24 feet in size, as a birthday
and farewell gift. They presented it to him during the
outfitting of his ship. As the breeze unfurled the flag, and he
was asked by its makers what he thought of the flag, he said,
``God bless you, I'll call it Old Glory.'' Driver took this
flag with him whenever he went to sea. He retired from sea duty
in 1837 and settled in Nashville, TN, where he displayed the
flag.
By the time of the Civil War, everyone in and around
Nashville recognized Captain Driver's ``Old Glory.'' Possession
of any Union flag deep in Confederate territory meant real
danger. The Confederates were determined to find and destroy
Driver's flag, but repeated searches revealed no trace of
Driver's cherished banner.
It was not until February 25, 1862, when Union forces
captured Nashville and raised a small American flag over the
capitol, that ``Old Glory'' reappeared. Accompanied by Union
soldiers, Captain Driver returned to his home and began
unstitching his bedcover. Inside rested the original ``Old
Glory,'' where Driver had safely hidden it during the desperate
days of war. Gathering up the flag, Captain Driver, with
soldiers of the Sixth Ohio Regiment, returned to the capitol of
Nashville, and replaced the small flag which fluttered there
with his ``Old Glory.''
B. The Importance of the Flag to the American People
Although the Committee feels no need to expand upon the
well-known reverence in which the American people hold their
flag, it is important to listen to the voices of the American
people throughout the generations of our history expressing
their reverence for the flag. The following are but a few
examples of the deep feelings invoked by the American flag in
its people.
Richard Reeves, in a July 4, 1995, column in The Baltimore
Sun entitled, ``A Fourth of July on the Oregon Trail,'' quoted
from the diary of Enoch Conyers. Conyers was part of a wagon
train pausing in Wyoming on the Oregon Trail, heading west, in
1852. These are excerpts from his diary:
July 3--Several of the boys started out this morning
for a hunt in the mountains for the purpose of
obtaining some fresh meat, if possible, for our Fourth
of July dinner. Those who remain in camp are helping
the ladies in preparing the banquet. A number of wagon
beds are being taken to pieces and formed into long
tables.
A little further on is a group of young ladies seated
on the grass talking over the problem of manufacturing
``Old Glory'' to wave over our festivities. One lady
brought forth a sheet. This gave the ladies an idea.
Quick as thought, another brought a skirt for the red
stripes. Another lady ran to her tent and brought forth
a blue jacket, saying: ``Here, take this, it will do
for the field * * *.''
July 4--The day was ushered in with the booming of
small arms, which was the best that we could do under
the circumstances, so far away from civilization. Just
before the sun made its appearance above the eastern
horizon, we raised our 40-foot flagstaff with ``Old
Glory'' nailed fast to the top * * *. Our company
circled around the old flag and sang ``The Star
Spangled Banner.'' Then three rousing cheers and a
tiger were given to ``Old Glory'' * * *.
The diary excerpts reflect not only the use of the flag's
nickname before the Civil War, but also the popularity of ``The
Star Spangled Banner'' nearly four decades after its
composition by Francis Scott Key.
At a critical juncture in this Nation's history, Henry Ward
Beecher delivered an address entitled, ``The National Flag,''
in May 1861. In that address, when the youthful Nation was soon
to be nearly torn-asunder by civil war, he attempted to touch
upon the flag's meaning:
A thoughtful mind, when it sees a nation's flag, sees
not the flag, but the nation itself. And whatever may
be its symbols, its insignia, he reads chiefly in the
flag the government, the principles, the truths, the
history, that belong to the nation that sets it forth *
* *. When the united crosses of St. Andrew and St.
George, on a fiery ground, set forth the banner of old
England, we see not the cloth merely; there rises up
before the mind the idea of that great monarchy.
This nation has a banner, too, and * * * wherever it
[has] streamed abroad men saw day break bursting on
their eyes. For * * * the American flag has been a
symbol of Liberty, and men rejoiced in it * * *.
If one, then, asks me the meaning of our flag, I say
to him, it means just what Concord and Lexington meant,
what Bunker Hill meant; it means the whole glorious
Revolutionary War, which was, in short, the rising up
of a valiant young people against an old tyranny, to
establish the most momentous doctrine that the world
had ever known, or has since known--the right of men to
their own selves and to their liberties.
In solemn conclave our fathers had issued to the
world that glorious manifesto, the Declaration of
Independence. A little later, that the fundamental
principles of liberty might have the best organization,
they gave to this land our imperishable Constitution.
Our flag means, then, all that our fathers meant in the
Revolutionary War; all that the Declaration of
Independence meant; it means all that the Constitution
of our people, organizing for justice, for liberty, and
for happiness, meant. Our flag carries American ideas,
American history and American feelings. Beginning with
the colonies, and coming down to our time in its sacred
heraldry, in its glorious insignia, it has gathered and
stored chiefly this supreme idea: Divine right of
liberty in man. Every color means liberty; every thread
means liberty; every form of star and beam or stripe of
light means liberty; not lawlessness, not license; but
organized institutional liberty--liberty through law,
and laws for liberty !
Similarly, an early American missionary to a foreign land
represented the feelings of Americans traveling abroad when he
reported:
I never knew that I was in reality an American, until
I walked out one fine morning in Rotterdam along the
wharf where many ships lay in the waters of the Rhine.
Suddenly my eye caught a broad pendant floating in a
gentle breeze over the stern of a fine ship at mizzen
half mast; and when I saw the wide spread eagle perched
on her banner with the stripes and stars under which
our fathers were led to conquest and victory, my heart
leaped into my mouth, a flood of tears burst from my
eyes, and before reflection could mature a sentence, my
mouth involuntary gave birth to these words, ``I am an
American.'' To see the flag of one's country in a
strange land, and floating upon strange waters,
produces feelings which none can know except those who
experience them. I can now say that I am an American.
While at home in the warmth and fire of the American
spirit law in silent slumber in my bosom; but the winds
of foreign climes have fanned it into flame.
(``History of the Church,'' Vol. 4: ch. 22, pp. 387-88.)
The identification of the flag with the Nation and its
ideals is also reflected in a poem written by Henry Van Dyke
during World War I:
America's Welcome Home
Oh, gallantly they fared forth in khaki and in blue,
America's crusading host of warriors bold and true;
They battled for the right of men beside our brave Allies.
And now they're coming home to us with glory in their eyes.
Oh it's home again, America for me !
Our hearts are turning home again and there we long to be,
In our beautiful big country beyond the ocean bars,
Where the air is full of sunlight and the flag is full of stars.
They bore our country's great word across the rolling sea,
``America swears brotherhood with all the just and free.''
They wrote that word victorious on fields of mortal strife,
And many a valiant lad was proud to seal it with his life.
Oh, welcome home in Heaven's peace, dear spirits of the dead !
And welcome home ye living sons America hath bred !
The lords of war are beaten down, your glorious task is done;
You fought to make the whole world free, and the victory is won.
Now it's home again, and home again, our hearts are turning west,
Of all the lands beneath the sun America is best.
We're going home to our own folks, beyond the ocean bars,
Where the air is full of sunlight and the flag is full of stars.
Wartime, not unsurprisingly, has always been a time for our
Nation's people to rally around the flag. Perhaps no single
moment in American history reflects the Nation's pride in its
flag better than that of the victory at Iwo Jima. During World
War II, American Marines engaged in fierce combat against
Japanese forces on that small Pacific island. The Marines'
ascent up Mount Suribachi cost nearly 6,000 American lives. One
of the most famous scenes of the war, captured on film and
memorialized at the Iwo Jima Memorial in Arlington, VA,
occurred when the Marines raised the American flag in victory
atop Mount Suribachi. Planting the flag--the Nation's symbol
ofsovereignty and power--on that small, blood-stained island so far
from home, gave America the reassurance that the war was nearly ended.
The heat of battle, however, is not the only circumstance
in which Americans revere their flag. On July 24, 1969,
American astronauts Neil Armstrong and Edwin ``Buzz'' Aldrin
became the first human beings to walk on the Moon. To mark the
moment, those great heros posted an American flag in the soil
of that celestial body.
The Citizens Flag Alliance, a grassroots organization
consisting of over 100 groups ranging from the American Legion
and the Knights of Columbus, to the Congressional Medal of
Honor Society and the African-American Women's Clergy
Association, approached Senators Hatch and Cleland to urge them
to lead a bipartisan effort in the Senate to pass a flag
protection amendment. In furtherance of that effort the
Committee held several hearings.
The Committee hearings demonstrate that reverence for the
flag, even in these times of cynicism, has not waned. On April
20, 1999, before the Committee on the Judiciary, Gen. Edward
Baca testified concerning Jose Quintero, an American prisoner
of war in a Japanese prison camp during World War II, who
risked his life to make an American flag that kept up the
morale of the prisoners. General Baca stated:
Jose so loved his country, that he looked for a way
to express that love. He wanted to honor his friends
and to make a symbol for himself to prove that he had
not been ``broken'' in spirit. Most of all he wanted to
honor what he calls ``The real heroes of the war''--
those who made the ultimate sacrifice, those dying all
around him. He began a project which would have meant
instant death to him had he been caught.
He began to scrounge material in the form of a red
blanket, and white bed sheets stolen from the Japanese
Guards. The blue background came from Filipino
dungarees. He began to fashion these into an American
flag aided by a Canadian soldier, a double amputee who
worked in the tailor shop.
At that time, Jose did not even know how many states
were in the Union. He had to ask an officer to tell him
the significance of the thirteen stripes and the forty-
eight stars in the design. The staff was made from a
Japanese prod used to discipline the prisoners. The
tassels were added later and made from the parachute
cord from chutes used to drop supplies into the camp
after the war. This flag took him well over one year to
complete. He wrapped it in a piece of canvas and kept
it buried in the dirt under his bunk.
Close to the end of the war, Jose and his companions
heard American bombers approaching the unmarked POW
camp. Jose took his flag out in the open and waved it
at the incoming aircraft. The pilot in the lead plane
saw him, tipped his wing in acknowledgment, and flew
past the camp. Through this valiant act, Jose risked
his life to save the lives of his fellow prisoners.
* * * Mr. Quintero is what peace and freedom are all
about. Heroes like him and those here in the room today
are what have made this country great and what makes me
so proud to be an American.
I'm sorry that Jose could not be here today to tell
you, in his own words, what the flag means to him and
his fellow veterans. Were he here today, I am certain
his request to you would have been to return legal
protections to the flag. I appear humbly, on his
behalf, to ask that you pass the flag protection
constitutional amendment in the spirit of what lies
beneath the motivations of my dear friend, which lead
to such astounding acts of heroism and self-sacrifice
for our great nation.
(Written statement of Ret. Lt. Gen. Edward Baca, April 20,
1999.)
On April 28, 1999, Senator John McCain, whose faithful
service and heroism as a prisoner of war during the Vietnam War
have proven to be an inspiration to so many of his Senate
colleagues and to many Americans--young and old alike--
testified about one of his cell mates at the ``Hanoi Hilton''
in the Vietnam War. Mike Christian, who sewed an American flag
on the inside of his shirt. Mr. Christian would lead his fellow
prisoners of war in the pledge of allegiance to the flag. After
being severely beaten on account of the flag, Mr. Christian
made another flag, not for his own morale, but for the morale
of the other prisoners. This flag and the heroics it inspired
helped the American prisoners survive their prolonged captivity
under brutal conditions. Senator McCain added, ``All of us are
products of our experience in life * * *, and that is my
experience, and that is my view about the sanctity of the
American flag and the way that it should be treated.''
(Testimony of Senator John McCain, April 28, 1999.) Senator
McCain has been a committed advocate for this important
measure.
At the April 20, 1999, hearing, Ms. Maribeth Seely, a
fifth-grade teacher from Branchville, NJ, testified:
Now when I teach U.S. history to my ten- and eleven-year-
old students, we focus on the * * * values of patriotism and
good citizenship. We write to veterans to show that we remember
and have donated money to a homeless shelter for veterans. One
year, my class invited parents and grandparents who served in
the armed forces to participate in a Memorial Day observance.
One granddad, Mr. Michael Koch, had seized a Nazi flag from a
municipal building in Germany during World War II. The whole
school applauded Mr. Koch and the nine others who gathered
there that day. It was important to have the faces of these
real heroes emblazoned on the flag and forever placed in the
memory of the students.
I believe that young people need to have a more personal
connection to our flag and to our great country. Are they
learning to connect? I feel that the glue that has kept us all
together for over 200 years has eroded over time and continues
to weaken us. For example many nationalities have their own
parades. I feel comfortable with this example because as an
Irish American, St. Patrick's Day parades are a must. Thousands
turn out. But what about our Memorial Day parades? Many are
sparsely attended. Shouldn't all Americans display a greater
sense of national pride?
* * * * *
In America, there are many different opinions, different
customs, different lifestyles. We celebrate our differences as
part of a great melting pot. I worry that there will not be the
glue to keep us together, to unify us. The American flag can be
part of the glue, the strength, the reminder of who we are.
What legacy are we giving future generations if we will have
nothing in common with each other, nothing to bind us together?
Perhaps we should ask our children this question. Julie
Brehm, age 11, feels so lucky to live in the United States. She
writes:
I could have stayed in South America where I probably
would have died. I remember the time in my home country
when everything was horrible and full of worry. I was
adopted from Colombia. The American flag means freedom
to some, but to me it means life. The soldiers that
fought for America made sure that I had a great country
to come to. Now when I remember the scenes in South
America, I look at the American flag and say, ``Thank
you.''
* * * * *
Molly E. Green, age 10:
The American flag is the greatest symbol I've ever
known. People should look deeper into their hearts.
They should find true dignity and respect for those who
fought for them.
Katie Satter, age 10:
``I pledge allegiance to the flag.'' These are the
first six words you say pretty much every morning. Do
you ever think of what those words mean? They meant
everything to people who fought for our country. They
meant so much, some died over it.
Austin Dolan, age 11:
When we think of the American flag, we see battles,
wars and soldiers, but do we see other faces inside of
the flag? These people are the volunteers who strived
to make America better. Do we see the faces of the
people who wrote the Constitution? Do we see the faces
of the workers who have changed America from an empty
land to a blooming flower? Do we see the farmers who
tilled the soil, Congress who protected it, the
volunteers who loved it, and the veterans who kept it
free? Austin finally asked:
Why do schools teach respect for the flag if there is
no law to protect it?
That last question caused me to think. Austin is only 11
years old but he asks a very important question. Why do
teachers instruct students to take off their hats and stand
when the flag passes in front of them when our own government
has not seen fit to pass a flag amendment? If this flag
amendment is not passed, how am I going to answer the question,
``WHY?'' Why, Mrs. Seely, did our Congress not consider the
flag to be a national symbol worthy of protection? We have laws
against acts of hatred. What about hatred for our country and
our flag? Shouldn't it be wrong to desecrate our flag? Kids
think so and so does this average American.
Another student, Tim Hennessey, 11, said, ``We salute the
flag every morning to show respect. I would never desecrate the
flag. I am only eleven years old and I know not to. Why do we
allow the desecration of the flag?''
(Written statement of Maribeth Seely, Apr. 20, 1999.)
General Norman Schwarzkopf sent a letter to the Committee
in support of S.J. Res. 14, which Senator Hatch read the
following portion of at the April 28, 1999, hearing:
I am honored to have commanded our troops in the
Persian Gulf War and humbled by the bravery, sacrifice
and ``love of country'' so many great Americans
exhibited in that conflict. These men and women fought
and died for the freedoms contained in the Constitution
and the Bill of Rights and for the flag that represents
these freedoms, and their service and valor are worthy
of our eternal respect. * * *
I am proud to lend my voice to those of a vast
majority of Americans who support returning legal
protections for the flag. * * *
(Transcript of hearing, April 28, 1999.)
Further, Gen. Patrick Brady testified on April 20, 1999,
that throughout our history there have been more Medal of Honor
awards for courage on the field of battle with respect to
protecting the flag than any other specific type of action.
Moreover, General Brady testified concerning an American F-117A
pilot who was recently shot down during the conflict in Kosovo,
but later rescued by American troops. The pilot carried an
American flag with him and reported that the flag inspired him
to survive during his darkest hours behind enemy lines.
(Testimony of retired Gen. Patrick Brady, April 20, 1999.)
The American flag is the preeminent symbol of our history,
our values, our freedoms, and the price we have paid around the
world for these freedoms. Throughout our history, the flag has
inspired our soldiers and our people to the great deeds that
have won and preserved this Nation's independence. The
Government has a vital interest in preserving the symbol that
has inspired the actions that have preserved this country and
its values.
C. A Brief Legal History of Flag Protection
Throughout our history, our laws have reflected the values
represented by the flag and our government's interest in
preserving it. From the Colonial era to the founding of the
nation to the 20th century, Americans have demanded respect for
their flag through law.
1. flag protection in the colonial era
In America, the tradition that ``insults to the flag * * *
and indignities put upon it * * * [are] sometimes punished * *
*'' id., started with one of the earliest prosecutions in
American history: Endecott's Case.1 In the 1600's,
just as England had proceeded against those who failed to treat
properly the flag, so Massachusetts colonists prosecuted,
tried, and convicted a domestic defacer of the flag in 1634.
The trial court concluded that defacing the flag was an act of
rebellion.
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\1\ See 1 John Winthrop, ``The History of New England from 1630 to
1649'' 175 (James Savage ed., 1953).
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Endecott's Case establishes a key historic point: from the
earliest days of the legal system in America, the law deemed an
individual who defaced a flag, even domestically and in
peacetime, to have committed a punishable act. Defacing the
flag invaded a sovereign governmental interest, even when
undertaken for reasons of protest. At the time, the colonists
saw the need to punish the act that damaged the Government's
sovereignty: defacing the flag would be taken as an act of
rebellion, even when unaccompanied by danger of violence or
general revolt.2
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\2\ Endecott's Case reflects the traditional balance between the
interest of society in preserving the flag and the interest of the
actor in choosing a means of expression. Some have suggested that this
case represents an example of the British oppression that prompted the
American colonies to declare their independence. However, the
Declaration of Independence provides a thorough list of the grievances
that prompted the Americans to sever their ties with Great Britain,
including taxation without consent, deprivation of the right to trial
by jury, and erecting a bureaucracy that financially burdened the
people. ``The Declaration of Independence par., 15, 12 (U.S. 1776). The
Declaration of Independence does not list the deprivation of the right
to physically destroy a flag as prompting the American Revolution.
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2. founding fathers equated the american flag with the sovereignty of
the nation
When the Constitution's Framers adopted the flag as the
fledgling Nation's symbol in 1777, they understood the long
history of law surrounding the flag as an emblem of national
sovereignty. The Framers inherited from England a legal
tradition of protecting flags as practical instruments
affecting title to areas of land and water, rights of trade and
citizenship, causes of war citable in international law, and
similar matters of the utmost weight. Thus, the original intent
and understanding regarding the flag's protection consisted of
sovereignty concerns. The Framers understood that the flag they
adopted and sought to protect, apart from being merely a
patriotic or any other type of symbol, was an incident of
sovereignty. By recognizing the sovereignty interest in the
flag, which historically meant responding to violations of its
physical integrity, the Framers sought treatment for the United
States, at home and abroad, as a sovereign nation.
By pronouncements in the earliest years of the Republic,
the Framers made clear that the flag related to the existence
and sovereignty of the Nation and in no way interfered with the
rights established by the first amendment. The sovereignty
interest in the flag's adoption was tied to concrete legal and
historical factors which distinguished it sharply from any
particular ideology, loyalty, or viewpoint. The Framers,
through their words and actions, demonstrated the historic core
of consistency between flag protection and the first amendment.
As the Supreme Court subsequently explained:
From the earliest periods in the history of the human
race, banners, standards, and ensigns have been adopted
as symbols of the power and history of the peoples who
bore them. It is not, then, remarkable that the
American people, acting through the legislative branch
of the government, early in their history, prescribed a
flag as symbolical of the existence and sovereignty of
the nation. * * * For that flag every true American has
not simply an appreciation, but a deep affection. No
American, nor any foreign-born person who enjoys the
privileges of American citizenship, ever looks upon it
without taking pride in the fact that he lives under
this free government. Hence, it has often occurred that
insults to a flag have been the cause of war, and
indignities put upon it, in the presence of those who
revere it, have often been resented and sometimes
punished on the spot.
Halter v. Nebraska, 205 U.S. 34, 41 (1907).
The original intent of the nation's Founding Fathers
clearly indicates the importance of protecting the flag as an
incident of American sovereignty.
a. James Madison
James Madison, as an original draftsman of the first
amendment, was an authoritative source on sovereignty matters.
In this regard, Madison consistently emphasized the legal
significance of infractions on the physical integrity of the
flag. On three different occasions, Madison recognized and
sustained the legitimacy of the sovereignty interest embodied
in the flag.
His earliest pronouncements concerned an incident in
October 1800, when the Algerian ship Dey of Algiers forced a
U.S. man-of-war--the George Washington--to haul down its flag
and replace it with that of Algiers. As Secretary of State
under President Thomas Jefferson, Madison pronounced such a
situation as a matter of international law, a dire invasion of
sovereignty, which ``on a fit occasion'' might be ``revived.''
Brief for the Speaker and Leadership Group of the U.S. House of
Representatives, ``Amicus Curiae,'' at 33 United States v.
Eichman, 496 U.S. 310 (1990) (No. 89-1433) [hereinafter,
Brief], citing II ``American State Papers'' 348 (Lowrie and
Clarke ed. 1982).
Madison continued his defense of the integrity of the flag
when he pronounced an act of flag defacement in the streets of
an American city to be a violation of law. Specifically,
Madison pronounced an incident of flag defacement in
Philadelphia as actionable in court. As Judge Robert Bork
described this historic pronouncement: ``The tearing down in
Philadelphia in 1802 of the flag of the Spanish Minister ``with
the most aggravating insults,'' was considered actionable in
the Pennsylvania courts as a violation of the law of nations.''
Brief at 34, citing 4 J. Moore, ``Digest of International
Law,'' 627 (1906) (quoting letter from Secretary of State
Madison to Governor McKean (May 11, 1802)).
And, on June 22, 1807, when the British ship Leopard fired
upon and ordered the lowering of an American frigate's (the
Chesapeake) flag, Madison told the British Ambassador ``that
the attack on the Chesapeake was a detached, flagrant insult to
the flag and sovereignty of the United States.'' Brief at 34,
citing I. Brandt, ``James Madison: Secretary of State 1800-
1809,'' 413 (1953) (quoting British dispatch). A letter by
Madison to Monroe stated Madison's view that ``the indignity
offered to the sovereignty and flag of the nation demands * * *
an honorable reparation * * * [such as] an entire abolition of
impressments from vessels under the flag of the United States *
* *.'' Brief at 35, citing Letter from James Madison to James
Monroe (July 6, 1807). Madison's statement demonstrates his
belief that protecting the physical integrity of the flag
protects the nation's sovereignty.
Madison did not conclude, as some defenders of the right to
deface the flag contend, that the first amendment protected
Americans' rights to tear down a flag, or that defacing the
flag was a form of expression protected by the first amendment.
On the contrary, it would appear that Madison had an intimate
familiarity with the significance of protecting the physical
integrity of the flag, especially as such protection related to
the first amendment, which he helped draft and move through the
First Congress. He knew there had been no intent to withdraw
the traditional physical protection from the flag.
Madison's pronouncements consistently emphasized that
``insults'' to the physical integrity of the flag continued to
have the same legal significance in a variety of different
contexts-- abroad, at sea, and at home. To Madison, sovereignty
entailed a relationship not only between nations and foreign
entities, but between nations and domestic persons in wartime
and peacetime.
b. Thomas Jefferson
Like Madison, Thomas Jefferson sought to protect the
sovereignty interest in the flag. Jefferson recognized its
complete consistency with the Bill of Rights, and deemed abuse
of that interest a serious matter of state, not the suppression
of some form of protected expression. Thus, for Jefferson, the
flag as an incident of sovereignty involved a concrete legal
status with very practical advantages for the Nation and
citizens, who obtained those advantages through protecting a
flag from usurpation or indignities.
During the period of foreign war and blockades in the
1790's, the American flag was a neutral flag, and the law of
trade made foreign ships desire to fly it. 3 As
George Washington's Secretary of State, Jefferson instructed
American consuls to punish ``usurpation of our flag.'' Brief at
35, citing 9 ``Writing of Thomas Jefferson,'' 49 (mem. ed.
1903). Jefferson stated ``you will be pleased * * * to give no
countenance to the usurpation of our flag * * * but rather to
aid in detecting it * * *.'' Id.
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\3\ As it did in the time of Thomas Jefferson and James Madison,
the flag continues to serve important sovereignty interests on the high
seas. During the Persian Gulf War, for instance, foreign tankers in the
gulf flew the American flag, so that an act of aggression against the
tankers would be the equivalent of an attack against the United States
and its sovereign interest in protecting allied vessels in wartime.
---------------------------------------------------------------------------
To prevent the invasion of the sovereignty interest in the
flag, Jefferson did not consider the first amendment an
impediment to a ``systematic and severe'' course of punishment
for persons who violated the flag. Id. Jefferson recognized the
sovereignty interest in the flag, and considered protecting it
and punishing its abusers highly important, even after the
adoption of the Bill of Rights.
Madison and Jefferson intended for the government to be
able to protect the flag consistent with the Bill of Rights.
This was based upon their belief that obtaining sovereign
treatment was distinct from an interest in protecting speech.
Madison and Jefferson consistently demonstrated that they
sought commerce, citizenship, and neutrality rights through the
protection of the flag. They did not seek to suppress the
expression of alternative ``ideas,'' ``messages,'' ``views,''
or ``meanings''; Madison and Jefferson would therefore have
found that the Government's interest of protecting the
sovereignty of the Nation was consistent the interest of
protecting an individual's first amendment right to free
speech.
Thus, from the time of the Endecott Case to the present,
protection of the flaghas continued to serve the Framers'
original intent, as an instrument and embodiment of this Nation's
sovereignty. Those who both framed the first amendment and adopted the
flag had an original purpose for the flag quite unrelated to
controlling expression. Thus, the Founders easily balanced the interest
of the Government in protecting of the flag as an incident of
sovereignty with the first amendment interest of the individual to
freedom of speech.
3. statutory protection of the flag
Over the years, Congress and the States have recognized the
devotion our diverse people have for the flag. They have
enacted statutes that both promote respect for the flag and
protect the flag from desecration.
a. Promotion of respect for the flag
In 1940, Congress declared the Star Spangled Banner to be
our national anthem. And in 1949, Congress established June 14
as Flag Day--a day expressly set aside to remember and dwell
upon the significance of the flag. Congress has also
established ``The Pledge of Allegiance to the Flag'' and the
manner of its recitation. The pledge states: ``I pledge
allegiance to the flag, of the United States of America, and to
the Republic for which it stands. One nation, under God,
indivisible, with liberty and justice for all'' (4 U.S.C. 4).
The pledge demonstrates the universal understanding that the
flag represents the Nation and the ideals of its citizens. It
is thus a transcendent symbol of unity and nationhood.
In 1987, Congress chose to honor the flag by designating
John Philip Sousa's ``The Stars and Stripes Forever'' as the
national march (36 U.S.C. 304). Further, Congress has not only
established the design of the flag (4 U.S.C. 1 and 2), but also
the manner of its proper display in the Flag Code (36 U.S.C
173-179). The Flag Code is merely hortatory, however, and is
not legally enforceable.
b. Protection for the flag: striking the balance
After a rash of flag desecrations arising from the
presidential campaign of 1896, States began to prosecute the
commercial use of the American flag, which was deemed
disrespectful, as well as verbal and physical desecration of
the flag. 4 While some of these older statutes were
struck down by activist courts under the now-defunct Lochner
rationale, dealing with substantive due process and economic
legislation, the courts perceived no first amendment problem
with the statutes. 5
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\4\ In Rushtrat v. People, 57 N.E. 41, 46 (Ill. 1900), and People
ex rel. McPike v. Van De Carr, 86 N.Y.S. 644, 91 A.D. 20 (App. Div.
1904), the courts of Illinois and New York struck down statutes
prohibiting the certain commercial or advertising uses of the national
flag, but permitting other commercial uses. The courts held the
statutes were unenforceable based on the implied constitutional right
to choose and to carry on one's occupation without governmental
interference and based on economic classifications made by the
statutes. Rushtrat, 57 N.E. at 46; McPike, 86 N.Y.S. at 649-50.
This brand of conservative judicial activism, which was used to
strike down pro-labor and other economic legislation, came to its
fruition in Lochner v. New York, 198 U.S. 45 (1905). Since Lochner,
however, the Supreme Court and the overwhelming majority of the state
courts have since abandoned the activist judicial review of economic
legislation. See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379
(1937).
\5\ In McPike, 86 N.Y.S. at 648, the Supreme Court of New York,
specifically upheld the portion of the statute that prohibited
desecration or casting contempt upon the flag, in a noncommercial
context, as a means of preventing breaches of the peace.
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The Supreme Court of the United States, at least with
respect to the American flag, eschewed the Lochner rationale,
and upheld a state flag protection statute in Halter v.
Nebraska, 205 U.S. 34 (1907). The Nebraska statute viewed both
commercial use of the flag and physical mutilation of the flag
as equally repugnant forms of desecration. Chief Justice Harlan
wrote for the Court:
It is not, then, remarkable that the American people,
acting through the legislative branch of the
Government, early in their history, prescribed a flag
as symbolical of the existence and sovereignty of the
Nation.
* * * [L]ove both of the common country and of the
state will diminish in proportion as respect for the
flag is weakened. Therefore a state will be wanting in
care for the well-being of its people if it ignores the
fact that they regard the flag as a symbol of their
country's power and prestige, and will be impatient if
any disrespect is shown towards it.
Halter, 205 U.S. at 41, 42.
That the Court viewed commercial use of the flag as demeaning
the integrity of the Nation's preeminent symbol is made clear
by its statement, ``Such [commercial] use tends to degrade and
cheapen the flag in the estimation of the people, as well as to
defeat the object of maintaining it as an emblem of national
power and national honor.'' Id. at 42. Recognizing the
importance of the flag to the Nation, the Supreme Court upheld
Nebraska's statute that punished commercial and noncommercial
desecration of the flag.
Holdings such as Halter precipitated the National
Conference of Commissioners on Uniform State Laws to approve
the Uniform Flag Act in 1917 which was similar to the statute
approved in Halter. 6 Although the opinion dealt
directly only with the commercial desecration portion of the
statute, the Commissioners were of the opinion that Halter
affirmed in all respects the validity of a statute that
prohibited all disrespect for the flag, whether by commercial
use or by casting contempt on the flag by word or act.
Accordingly, the Commissioners drafted a similar model statute.
A number of States soon adopted all or part of the Uniform Flag
Act as their flag protection statute or as a supplement to
previously existing statutes. These States included Arizona,
Louisiana, Maine, Maryland, Michigan, Mississippi, New York,
Pennsylvania, Rhode Island, South Dakota, Tennessee, Vermont,
Virginia, Washington, and Wisconsin. 7
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\6\ Section 3 of the Uniform Flag Act provided: ``No person shall
publicly mutilate, deface, defile, defy, trample upon, or by word or
act cast contempt upon any such flag, standard, color, ensign or
shield.''
\7\ By 1951, these statutes were found in the various state laws as
follows: Arizona, A.C.A. Sec. 43.2401 (1939); Louisiana, R.S. 14:116,
14:117 (1950); Maine, R.S. c. 128 (1944); Maryland, Code Supp.
Sec. 2159 (1947); Michigan, Comp. Laws Sec. Sec. 750.244-750.247,
750.566 (1948); Mississippi, Code Sec. 2159 (1942); New York,
McKinney's Penal Law, Sec. 1425, subdi. 16; Pennsylvania, 18 P.S.
Sec. 4211; Rhode Island, Gen. Laws c. 612, Sec. Sec. 38, 39 (1938);
South Dakota, SDC 65.0601 to 65.0606; Tennessee, Williams' Code
Sec. Sec. 102-107; Vermont, V.S. Sec. Sec. 8590-8605; Virginia, Code
Sec. Sec. 18-354 to 18-360 (1950); Washington, Rem. Rev. Stat.
Sec. Sec. 2675-1 to 2675-7; Wisconsin, St. Sec. Sec. 348.479-348.484
(1947).
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In 1968, in response to the Vietnam War protests, Congress
added Federal protection to the long-established State flag
protection statutes by enacting 18 U.S.C. 700(a). To avoid
infringing upon freedom of speech, Congress limited the 1968
flag statute to acts of physical desecration. The language
contained in the 1917 law applicable to the District of
Columbia that made it a crime to ``defy'' or ``cast contempt *
* *by word or act'' upon the American flag was omitted
(emphasis supplied). The 1968 statute provided for a fine of not more
than $1,000 or imprisonment for not more than one year, for anyone who
``knowingly casts contempt upon any flag of the United States by
publicly mutilating, defacing, defiling, burning or trampling upon it *
* * .''
Indeed, prior to 1989, Congress, along with 48 States and
the District of Columbia, had regulated physical misuse of the
American flag. These statutes recognized the vital Government
interest at stake in preserving the preeminent symbol of our
Nation's history and people and reflected a balancing of this
interest against the interest of the actor in conveying a
message through the particular means of physically destroying
the flag instead of through the traditional means of oral or
written speech. On balance, these legislatures determined that
the Government's interest prevailed.
c. Judicial application of flag protection statutes: respecting the
balance
Even after the Supreme Court held that the first
amendment's free speech clause applied to the States, Gitlow v.
New York, 268 U.S. 652 (1925), flag desecrations were punished.
For example, in 1941, in State v. Schlueter, 23 A.2d 249 (N.J.
1941), the Supreme Court of New Jersey affirmed a conviction
for physical desecration of the American flag. Likewise, in
1942, in Johnson v. State, 163 S.W.2d 153 (Ark. 1942), the
Supreme Court of Arkansas affirmed a conviction for publicly
exhibiting contempt for the flag. Of special significance, is
the Arkansas court's refusal to accept the dissent's argument
that free speech protections prevented prosecution of the
defendant's desecration of the flag. Id. at 155-59 (Smith,
C.J., dissenting). In People v. Picking, 42 N.E.2d 741 (N.Y.),
cert. denied, 317 U.S. 632 (1942), the Supreme Court of New
York affirmed a conviction for flag desecration and the Supreme
Court of the United States denied certiorari review, allowing
the conviction to stand. The results of these cases reflected
the generally accepted legal tradition that punishment of flag
desecration represented a balance of society's interest in
protecting the flag and the actor's interest in choosing
physical desecration as a means to convey a message instead of
the traditional means of oral and written speech. The
legislatures had struck the balance in favor of protecting
society's interest, and the courts respected this balance.
In 1968, in United States v. O'Brien, 391 U.S. 367 (1968),
the Supreme Court upheld a conviction for burning a draft card,
even though the conduct was intended to convey a political
message. The Court stated: ``We cannot accept the view that an
apparently limitless variety of conduct can be labeled
``speech'' whenever the person engaging in the conduct intends
thereby to express an idea.'' Id. at 376. The Court balanced
society's interest in maintaining an effective draft system
against the draft card burner's interest in conveying a message
through the particular means of physically destroying a draft
card instead of through the traditional means of oral or
written speech.8 On balance, the Court determined
that the government's interest prevailed.9 In 1969,
in Street v. New York, 394 U.S. 576 (1969), the Court
overturned a conviction of a defendant who burned a flag while
speaking against the flag. The Court overturned the conviction
on the narrow ground that the first amendment protected the
defendant's verbal expression, but did not address the conduct
of burning the flag. Id. at 579.10 However, in 1971,
in Radich v. New York, 401 U.S. 531 (1971), the Supreme Court
affirmed, by an equally divided vote, a conviction based solely
on an act of physical desecration of the flag under a New York
statute that punished both words and acts of desecration. In so
doing, the Supreme Court upheld the traditional balance between
society's interest in protecting the flag and the actor's
interest in choosing to convey a message by destructive means
instead of by readily available oral or written means.
---------------------------------------------------------------------------
\8\ The four-part test announced in O'Brien was:
---------------------------------------------------------------------------
[A] government regulation is sufficiently justified [1] if
it is within the constitutional power of the Government;
[2] if it furthers an important or substantial governmental
interest; [3] if the governmental interest is unrelated to
the suppression of free expression; and [4] if the
incidental restriction on alleged First Amendment freedoms
is no greater than is essential to the furtherance of that
interest.''
391 U.S. at 377.
\9\ In Stromberg v. California, 283 U.S. 359 (1931), and West
Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the
Supreme Court had recognized, respectively, that a flag has
communicative value and that school children could not be compelled to
salute the flag in violation of their religious beliefs. These cases
did not hold, however, that the Government's interest in preserving the
preeminent symbol of our history and our people could not be balanced
against an actor's interest in conveying a message through the
particular means of physically destroying the flag instead of the
traditional means of oral or written speech.
\10\ Chief Justice Warren, and Justices Black, White, and Fortas
all dissented. Chief Justice Warren took the majority to task for
avoiding the question of whether the conviction could be premised on
the physical desecration of the flag and stated: ``I believe that the
States and the Federal Government do have the power to protect the flag
from acts of desecration and disgrace.'' Street v. New York, 394 U.S.
576, 605 (1969) (Warren, C.J., dissenting). Justice Fortas agreed with
Chief Justice Warren. Id. at 615 (Fortas, J., dissenting). Justice
Black, a well-known absolutist on Bill of Rights freedoms, observed in
Street that: ``It passes my belief that anything in the Federal
Constitution bars * * * making the deliberate burning of the American
flag an offense.'' Id. at 610 (Black, J., dissenting). Justice White
also opined that the majority erred in avoiding the physical-
desecration issue and stated that he would sustain a conviction for
flag burning. Id. at 615 (White, J., dissenting).
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D. Judicial Amendment of the Constitution: Restriking the Balance
In 1974, in two decisions, the Supreme Court began to
weaken the O'Brien decision with respect to the physical
desecration of the American flag and to shift the balance away
from the Government's interest in preserving the flag and
toward the actor's interest in choosing destruction of the flag
as a means to convey a message. In Smith v. Goguen, 415 U.S.
566, 581-82 (1974), the Court overturned a flag-desecration
conviction, stating that the Massachusetts flag-desecration
statute, which punished words and acts of desecration, was void
for vagueness, but adding ``[c]ertainly nothing prevents a
legislature from defining with substantial specificity what
constitutes forbidden treatment of United States
flags.''11 The Court pointed to the Federal flag
protection statute, which punished only acts of desecration,
not words, as an example of a constitutional flag protection
statute. Id. at 582 n.30. In Spence v. Washington, 418 U.S. 405
(1974), the Court broke with O'Brien by considering the
communicative intent of the actor in desecrating his privately
owned flag on private property, and issued a narrow, limited
holding that the flag misuse statute, as applied to the
particular defendant under the particular facts of the case,
violated the first amendment.12 The Court, however,
was unwilling to state that there was no Government interest
that outweighed the actor's interest in conveying a message
through the particular means of physically destroying the flag
instead of through the traditional means of oral or written
speech.13
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\11\ Justice White concurred in the judgment, but added ``I would
not question those statutes which proscribe mutilation, defacement, or
burning of the flag or which otherwise protect its physical integrity,
without regard to whether such conduct might provoke violence.'' Smith
v. Goguen, 415 U.S. 566, 587 (White, J., concurring the judgment). Then
Associate Justice Rehnquist, joined by Chief Justice Burger, dissented,
stating that he believed that the statute at issue passed
constitutional muster under the O'Brien test and noting that the
statute punished flag abuse regardless of whether a communicative
intent existed and was thus unrelated to the suppression of free
speech. Id. at 599 (Rehnquist, J., dissenting). Justice Blackmun also
dissented, stating that the first amendment would not bar the
defendant's conviction. Id. at 591 (Blackmun, J., dissenting).
\12\ Chief Justice Burger dissented, stating:
If the constitutional role of this Court were to strike
down unwise laws or restrict unwise application of some
laws, I could agree with the result reached by the Court.
That is not our function, however, and it should be left to
each State and ultimately to the common sense of its people
to decide how the flag, as a symbol of national unity,
---------------------------------------------------------------------------
should be protected.
Spence v Washington, 418 U.S. 405, 416 (1974) (Burger, C.J.,
dissenting). Then Associate Justice Rehnquist, joined by Chief Justice
Burger and Justice White, also dissented, stating:
The statute under which appellant was convicted is no
stranger to this Court, a virtually identical statute
having been before the Court in Halter v. Nebraska, 205
U.S. 34 * * * (1907). In that case the Court held that the
State of Nebraska could enforce its statute to prevent use
of a flag representation on beer bottles, stating flatly
that ``a State will be wanting in care for the well-being
of its people if it ignores the fact that they regard the
flag as a symbol of their country's power and prestige * *
*.'' The Court then continued: ``Such use tends to degrade
and cheapen the flag in the estimation of the people, as
well as to defeat the object of maintaining it as an emblem
of national power and national honor.''
\13\ A few lower courts, however, had begun to anticipate the trend
in the Supreme Court's weakening of the traditional balance and had
begun to strike down their State's flag desecration statutes. See,
e.g., People v. Vaughn, 514 P.2d 1318 (Colo. 1973).
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Nonetheless, there was a dramatic change in Supreme Court
jurisprudence. This change was clearly illustrated by the
Radich case in which, during a 3-year time span, the Federal
courts first affirmed and then overturned the exact same
conviction based on the intervening changes in Supreme Court
jurisprudence. In 1971, the Supreme Court affirmed, by an
equally divided Court, Radich's flag-desecration conviction
under a statute that punished both words and acts of
desecration. Radich, 401 U.S. 531. However, by 1974, after the
Supreme Court handed down Smith v. Goguen, 415 U.S. 566, and
Spence v. Washington, 418 U.S. 405, the district court
overturned Radich's conviction in a habeas proceeding, citing
Goguen and Spence.14 United States ex rel. Radich v.
Criminal Court of the City of New York, 385 F. Supp. 165
(S.D.N.Y. 1974).
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\14\ After issuing its opinions in Smith v. Gougen and Spence v.
Washington, the Supreme Court affirmed, without an opinion, a lower
court's judgment that used the vagueness and overbreadth doctrines to
strike down a portion of New York statute that would have broadly
prohibited use of representations of the flag as campaign buttons or
posters. Cahn v. Long Island Vietnam Moratorium Comm., 418 U.S. 906
(1974), aff'g 437 F.2d 344 (2d Cir. 1970). Prior to Gougen and Spence,
the New York Court of Appeals had refused to apply the Second Circuit's
holding in Cahn to strike down the desecration portion of the New York
statute, holding instead, that photographs of a nude draped with a flag
did not within the proscription of the flag desecration provision.
People v. Keough, 290 N.E.2d 819 (N.Y. 1972).
---------------------------------------------------------------------------
As late as 1982, however, the Supreme Court denied
certiorari review of a case involving a conviction for the
physical desecration of a flag under the Federal statute that
punished only acts, not words, of desecration. Kime v. United
States, 459 U.S. 949 (1982). The certiorari denial, which
allowed the flag desecration conviction to stand, came in spite
of a strenuous dissent by Justice Brennan to provide absolute
protection to the destructive conduct. Id. (Brennan, J.,
dissenting). The majority of the Supreme Court still refused to
abandon completely the traditional balance of society's
interest in protecting the flag and the individual's interest
in conveying an idea through physically destructive means.
By 1989, however, the Court was prepared to completely
abandon Halter, O'Brien, and Radich and to restrike the
constitutional balance against the Government's interest and in
favor of the flag desecrator's interest. In Texas v. Johnson,
491 U.S. 397 (1989), by a 5-to-4 vote, the Supreme Court
overturned a conviction for the physical desecration of an
American flag on the broad grounds that the government's
interest in preserving the Nation's preeminent symbol did not
outweigh the interest of the flag desecrator in choosing to
convey a message through the particular means of physically
destroying the flag instead of through thetraditional means of
oral or written speech. The Court effectively created for Gregory Lee
Johnson an absolute first amendment right to burn and spit on the
American flag.15
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\15\ Johnson participated in a political demonstration at the 1984
Republican National Convention, protesting policies of the Reagan
Administration and certain Dallas-based corporations. Johnson was given
an American flag from a fellow protestor, who had taken it from a
flagpole. At Dallas City Hall, Johnson unfurled the American flag,
poured kerosene on it, and burned it. While the flag burned, protestors
chanted: ``America, the red, white, and blue, we spit on you.'' Johnson
was convicted of desecration of a venerated object in violation of sec.
42.09 (a)(3) of the Texas Penal Code which, among other things, made
illegal the intentional or knowing desecration of a national flag.
Johnson, 491 U.S. at 499-400.
---------------------------------------------------------------------------
Justice Stevens's eloquent dissent which called for
retaining the traditional constitutional balance that had been
controlling for decades, stated:
The Court is * * * quite wrong in blandly asserting
that respondent ``was prosecuted for his expression of
dissatisfaction with the policies of this country,
expression situated at the core of our First Amendment
values.'' Respondent was prosecuted because of the
method he chose to express his dissatisfaction with
those policies. Had he chosen to spray-paint--or
perhaps convey with a motion picture projector--his
message of dissatisfaction on the facade of the Lincoln
Memorial, there would be no question about the power of
the Government to prohibit his means of expression. The
prohibition would be supported by the legitimate
interest in preserving the quality of an important
national asset. Though the asset at stake in this case
is intangible, given its unique value, the same
interest supports a prohibition on the desecration of
the American flag.
Johnson, 491 U.S. at 436-39 (Stevens, J., dissenting).
As Chief Justice Rehnquist, for himself and Justices White
and O'Connor, stated in dissent: ``For more than 200 years, the
American flag has occupied a unique position as the symbol of
our Nation, a uniqueness that justifies a governmental
prohibition against flag burning in the way respondent Johnson
did here.'' Johnson, 491 U.S. at 422 (Rehnquist, C.J.,
dissenting). Chief Justice Rehnquist continued later in his
dissent:
The uniquely deep awe and respect for our flag felt by
virtually all of us are bundled off under the rubric of
``designated symbols,'' that the First Amendment
prohibits the government from ``establishing.'' But the
government has not ``established'' this feeling; 200
years of history have done that. The government is
simply recognizing as a fact the profound regard for
the American flag created by that history when it
enacts statutes prohibiting the disrespectful public
burning of the flag.
Id. at 434.
In response to this final step in a dramatic change in
first amendment jurisprudence, there was a thoughtful debate
over whether a so-called facially content neutral flag
protection statute would survive the Supreme Court's scrutiny.
Legal scholars and many commentators were divided over this
question. A number of Members of Congress did not believe any
such statute could survive the majority's analysis in Johnson,
even aside from whether a facially content neutral flag
protection statute is desirable as a matter of sound public
policy. The Johnson majority declared that the government's
asserted interest in preserving the flag as a national symbol
was insufficient to overcome the actor's newly minted, so-
called right to burn or otherwise physically mistreat the flag
as part of expressive conduct. Johnson, 491 U.S. at 413-19.
Nevertheless, it cannot be denied that the principal, if not
the only purpose, in enacting a facially content neutral
statute is to protect the symbolic value of the flag. Indeed,
one underlying purpose of any statutory effort to respond to
Johnson would be to prohibit ``expressive'' conduct that
physically desecrates the flag. Further, a facially neutral
statute which did not permit an exception for disposal of a
worn or soiled American flag by burning--which is the preferred
way of doing so--would lead to highly undesirable results. Yet
such an exception necessarily undermines the purported
neutrality of such a statute--indeed, the Court said so in
Johnson.
Nonetheless, Congress did enact a facially neutral statute
in 1989 (the Flag Protection Act of 1989) with an exception for
the disposal of worn or soiled flags, as a response to the
Johnson decision. Based on the new rule announced in Johnson,
however, the Supreme Court promptly struck it down the statute,
by a 5-to-4 vote, in United States v. Eichman, 496 U.S. 400,
405-06 (1990).
Further, in R.A.V. v. City of St. Paul, 505 U.S. 377, 385
(1992), the Supreme Court made clear that its newly created,
absolute protection for destructive conduct toward the flag is
notaffected by the ``fighting words'' doctrine where a statute
specifically targets the destructive conduct toward the flag.
Accordingly, with respect to the particular medium of the American
flag, the Supreme Court will no longer balance society's interest in
protecting the flag against the actor's interest in choosing to convey
a message through the means of physically destroying the flag instead
of through the traditional means of oral or written speech.
E. S.J. Res. 14 is the Appropriate Constitutional Remedy
1. s.j. res. 14 would restore the traditional balance to the court's
first amendment jurisprudence
Given the Supreme Court's new interpretation of the
Constitution, which rejects the traditional balancing of
society's interests with the actor's interest concerning the
flag, only a constitutional amendment can restore protection to
the flag. S.J. Res. 14 would restore the traditional balance
between society's interests and the actor's interest concerning
the flag that statesmen, legislatures, and courts have
recognized throughout our Nation's history.
It must be remembered that the first amendment only
prohibits abridging the ``freedom of speech.'' The contours of
this freedom have long been defined in the context of competing
societal interests. Restoring the traditional constitutional
balance between society's interest in protecting the flag and
the actor's interest in destroying it is entirely consistent
with a number of other societal interests that affect the first
amendment and for which the Supreme Court has retained the
balancing approach. Relying on an opinion written by Justice
Oliver Wendell Holmes, the Court balances society's interest in
public safety with a speaker's interest in falsely shouting
``Fire'' in a crowded theater and upholds restrictions on such
speech. See Schenck v. United States, 249 U.S. 47 (1919). The
Court balances society's interest in public morals with a
speaker's interest in transacting in obscenity and upholds
restrictions on such speech. Miller v. California, 413 U.S. 15
(1973). The Court balances society's interest in national
security with a speaker's interest in disclosure of state
secrets and upholds restrictions on such speech. Snepp v.
United States, 444 U.S. 507 (1980). The Court balances
society's interest in shielding people from attacks on their
character with a speaker's interest in making defamatory or
libelous statements and upholds restrictions on such speech.
Gertz v. Robert Welch, Inc., 418 U.S. 323 (1974). The Court
balances society's interest in maintaining a nonpartisan public
workforce with a speaker's interest in engaging in partisan
political activity while working for the Federal Government and
upholds restrictions on such speech. United States Civil
Service Comm'n v. National Ass'n of Letter Carriers, 413 U.S.
548 (1973). And the Court balances society's interest in
protecting children with a speaker's interest in commercially
promoting promiscuous activity by minors and upholds
restrictions on such speech. New York v. Ferber, 458 U.S. 747
(1982). Thus, while the Court has recently excepted the
American flag from the traditional balancing approach, it
regularly uses the balancing approach to uphold numerous other
societal interests that affect the first amendment. The
proposed amendment would restore the balance between society's
interest in preserving the physical integrity of the flag with
an actor's interest in choosing to convey a message through a
particularly destructive means and would uphold traditional
restrictions on the means of such speech.
Thus, S.J. Res. 14 would not reduce our historic freedoms
under the Bill of Rights, but would simply displace a few
recent judicial modifications of the original first amendment
by restoring the traditional legal balance with respect to the
American flag. As Professor Parker stated, ``[i]t is a
restorative amendment--not a transformative amendment * * *
[I]t restores the traditional and intended meaning of the First
Amendment * * *'' (Transcript of Hearing on S.J. Res. 14, Apr.
20, 1999, at 33). And Prof. Stephen Presser, of the
Northwestern University School of Law, submitted written
testimony to the Committee in which he also recognized: ``The
Flag Protection Amendment does nothing to infringe the First
Amendment. It does not forbid the suppression of ideas, nor
does it foreclose dissent. * * * It is an attempt by the
people, consistent with a century of their history, to reclaim
the right to declare what kind of a society they want to live
in.'' (Written statement of Prof. Stephen B. Presser, submitted
Apr. 28, 1999, at 18.)
The Bill of Rights is a listing of the great freedoms our
citizens enjoy. It was never intended to be a license to engage
in any type of behavior one can imagine. The proposed amendment
affirms the most basic condition of our freedom: our bond to
one another in our creation of national unity. The proposed
amendment would retain current full first amendment protections
for any message that the actor wishes to convey with respect to
the flag, or any other subject, if the actor chooses to convey
that message through the traditional and nondestructive means
of oral or written speech. And the proposed amendment affirms
that without some aspiration to national unity, there might be
no law, no Constitution, no freedoms such as those guaranteed
in the Bill or Rights.
2. congress has a compelling interest in protecting the flag
The Government's legitimate interest in protecting the flag
has three main components: (a) preserving the values embodied
by the flag; (b) enhancing national unity; and (c) protecting
an incident of our national sovereignty.
a. Preserving the values embodied by the Flag
Protecting the flag from physical desecration preserves the
values of liberty, equality, and personal responsibility that
Americans have passionately defended and debated throughout our
history and which the flag uniquely embodies. It is commonly
accepted today that the traditional values upon which our
Nation was founded, and which find tangible expression in our
respect for the flag, are essential to the smooth functioning
of a free society. Flag protection highlights and enhances
these values and thus helps to preserve freedom and democratic
government. Without these values, our children will not be able
to distinguish good from bad or right from wrong. By replacing
what the Supreme Court has stripped away, the proposed
amendment will be a step toward restablishing the values that
made this country great.
b. Enhancing national unity
The Government has a fundamental interest in protecting the
most basiccondition of freedom: our bond to one another in our
aspiration for national unity. With traditional unifying elements of
American language, culture and heritage fraying, the flag remains a
single unifying embodiment of our unceasing struggle for liberty and
equality and our basic commitment to others. The flag affirms that
without some desire for national unity, a free people and
constitutional government cannot long endure.
c. Protecting an incident of our national sovereignty
Finally, the flag is an important incident of our national
sovereignty. The United States--like many other nations--
displays the flag to signify national ownership and protection.
By pronouncements in the earliest years of the Republic, the
Founding Fathers made clear that the flag, and its physical
requirements, related to the existence and sovereignty of the
Nation and that insults to the flag were matters of great
national concern that warranted strict punitive action. James
Madison, for instance, stated that desecration of the flag is
``a dire invasion of sovereignty.'' Letter from Secretary of
State James Madison to Pennsylvania Governor McKean (May 11,
1802). Thomas Jefferson, moreover, considered violation of the
flag worthy of a ``systematic and severe course of
punishment.'' Writings of Thomas Jefferson 49 (mem. ed. 1903).
3. the terms ``physical desecration'' and ``flag'' are sufficiently
precise for inclusion in the constitution
S.J. Res. 14 is a narrowly tailored proposal that would
control a discrete area of the law. It would supersede Johnson,
Eichman, and, to the extent necessary, R.A.V., to restore the
traditional, balanced protection to the American
flag.16 Among all the various forms of expression,
only one can be regulated under the amendment: desecration.
That regulation, moreover, could extend no further than a ban
on one, and only one, extreme instance of this: physical
desecration.17 It is not self-executing, and thus
would require an implementing statute that would define the
terms ``desecration'' and ``flag.'' Experience justifies
confidence in our judicial system to distinguish between the
numerous legitimate forms of communication and the act of
physically desecrating a flag. Prior to the Texas v. Johnson
decision, the Federal Government, 48 States, and the District
of Columbia had laws prohibiting flag desecration, and the
history of prosecutions in this area does not suggest abuse by
prosecutors or any other sector of the judicial system. See,
e.g., State v. Royal, 305 A.2d 676, 680 (N.H. 1973); State v.
Mitchell, 288 N.E.2d 216, 226 (Ohio 1972); State v. Waterman,
190 N.W.2d 809, 811-12 (Iowa 1971). Indeed, since the adoption
of the Uniform Flag Law in 1917, courts have had little problem
defining ``flag'' and the specific acts of ``desecration.''
There is no new ambiguity that would arise from returning to
the well-established definitions of these traditional terms.
---------------------------------------------------------------------------
\16\ Significantly, the flag protection amendment would not disturb
Congress' power to determine the design of the flag of the United
States. Congress has that authority under Title 4, U.S. Code, Secs. 1
and 2. Assuming that the amendment is ratified, Congress is still free
to change the design of the flag, but no State now or in the future
will be able to determine the design of the American flag.
\17\ Moreover, S.J. Res.14 is even more narrowly tailored than the
proposal considered during the 104th Congress. In contrast to that
amendment proposal, S.J. Res. 14 would authorize only Congress, not the
States, to pass a statute to protect the flag from acts of physical
desecration.
---------------------------------------------------------------------------
In any event, the judicial system would interpret
``physical desecration'' and ``flag of the United States,'' as
used in the amendment, in light of general values of free
speech. These are the types of terms that raise issues of fact
and degree and context and intent that are comparable to
questions that courts resolve, year in and year out, under
practically every other constitutional provision. Experience
justifies confidence in our judicial system with respect to
answering these questions.
Moreover, the Committee is mindful that it is the
Constitution we are proposing to amend, not a code of statutes.
Drafting the language of a flag protection amendment too
narrowly runs a serious risk of thwarting the American people's
ability to legislate protection of their flag from the range of
acts or conduct which might physically misuse, or physically
cast contempt on, the flag. Thus, a constitutional amendment so
specificas to authorize, for example, the prohibition of
burning or trampling the flag leaves the American people powerless to
prohibit the defacing or mutilating of the flag. No supporter of
protecting the American flag from physical desecration wishes to amend
the Constitution twice to achieve that purpose. Thus, the proposed
amendment, like other existing amendments is necessarily drafted in
broader terms than the implementing legislation would be.
The Senate in the 106th Congress should not subject S.J.
Res. 14, which authorizes legislation protecting the American
flag, to a higher standard than the Framers subjected the terms
of the Constitution and the Bill of Rights in the Philadelphia
Convention and in the First Congress. The terms of the flag
protection amendment are at least as precise, if not more so,
than such terms as ``unreasonable searches and seizures,''
``probable cause,'' ``speedy * * * trial,'' ``excessive bail,''
``excessive fines,'' ``cruel and unusual punishment,'' ``just
compensation,'' and ``due process of law''--all terms from the
Bill of Rights. Similarly, the 39th Congress was not deterred
from the inclusion of the term ``equal protection of the laws''
in the 14th amendment by concerns of alleged vagueness. None of
these terms are self-executing. All have been eventually
explicated by the Judiciary. In addition, we should not lose
sight of the fact that all the flag protection amendment does
is authorize Congress to enact implementing legislation.
Congress would implement the flag protection amendment with
specific statutory language which would be subject to
constitutional requirements.
Congress had no difficulty in utilizing its constitutional
power to legislate sensibly on this subject in 1968 and in
1989. Indeed, at the hearing on April 20, 1999, Chairman Hatch
proposed adopting implementing legislation similar to the Flag
Protection Act of 1989. Ninety-one Senators agreed on the
specific definition of flag and of the acts constituting
desecration contained in the 1989 Act.18 Thus, the
Federal flag protection statute that is currently on the books
already has an overwhelming consensus on the definitions of
``flag'' and ``desecration.'' Congress will be able to define
what treatment it believes constitutes desecration. Accidental
acts are not reachable.
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\18\ The Flag Protection Act of 1989, now codified at 18 U.S.C.
700, provides in pertinent part:
(a)(1) Whoever knowingly mutilates, defaces, physically
defiles, burns, maintains on the floor or ground, or
tramples upon any flag of the United States shall be fined
under this title or imprisoned for not more than one year,
or both.
(2) This subsection does not prohibit any conduct
consisting of the disposal of a flag when it has become
worn or soiled.
(b) As used in this section, the term ``flag of the
United States'' means any flag of the United States, or any
part thereof, made of any substance, of any size, in a form
that is commonly displayed.
Moreover, the terms ``desecrate'' and ``flag'' will not
jeopardize carefully crafted implementing legislation under the
void-for-vagueness doctrine. In Smith v. Goguen, 415 U.S. 566
(1974), the Court found a portion of a Massachusetts law void
because it was unconstitutionally vague. The Massachusetts
statute made illegal publicly mutilating, trampling upon,
defacing, or treating contemptuously the flag of the United
States. The phrase ``treats contemptuously''--by word or act--
was the offending, unconstitutionally vague phrase.
Yet, in the very same opinion, the Court noted: ``Certainly
nothing prevents a legislature from defining with substantial
specificity what constitutes forbidden treatment of United
States flags. The federal flag desecration statute * * *
reflects a congressional purpose to do just that * * * [That
statute reaches] only acts that physically damage the flag.''
415 U.S. at 582 (emphasis added). The Court then quoted the
Federal statute, as a flag protection statute surviving a due
process, void-for-vagueness claim: ``Whoever knowingly casts
contempt upon any flag of the United States by publicly
mutilating, defacing, defiling, burning, or trampling upon
it.''
In other words, legislation under the flag amendment is
subject to the void-for-vagueness doctrine. But that doctrine
allows Congress to prohibit contemptuous or disrespectful
treatment of the flag so long as there is substantial
specificity in spelling out what that treatment is--be it by
burning, mutilating, defacing, trampling, and so on. Given the
approved 1968 flag protection statute and the even more narrow
1989 statute, Congress should have little difficulty in
avoiding a vagueness defect when drafting implementing
legislation.
parade of horribles is an illusion
As to the parade of horribles that opponents invoke in
opposition to the amendment, there is a straightforward answer.
Reliance on the parade of horribles to oppose the amendment
would reflect the Senate's fundamental mistrust of the people
and of Congress itself, to enact reasonable flag protection
statutes.
First, the argument that passage of S.J. Res. 14 would
create a ``slipperly slope'' on which a flood of amendments
would follow has little weight. Article V of the Constitution
includes supermajority requirements both for Congress to send
an amendment to the States and for the States to ratify an
amendment. These supermajority requirements have successfully
stopped a flood of amendments from leaving Congress for over
200 years.
Second, the argument that the proposed amendment would be
the first amendment to change the Bill of Rights is inaccurate.
The Bill of Rights has been changed, or amended, in some form
on several occasions. For example, the 13th amendment amended
the 5th amendment as interpreted in Dred Scott v. Sandford, 60
U.S. (19 How.) 393 (1856), to provide that the former slaves
were not property subject to the due process clause, but free
men and women.19 The 14th amendment was interpreted
in Bolling v. Sharpe, 347 U.S. 497 (1954), to have effectively
amended the due process clause of the 5th amendment to apply
equal protection principles to the Federal Government.
Moreover, in Engel v. Vitale, 370 U.S. 421 (1962), the Supreme
Court restricted the first amendment rights of American school
children by holding that the establishment clause precluded
prayer in public schools.
---------------------------------------------------------------------------
\19\ In the Dred Scott Case, 60 U.S. at 452, Scott argued, among
other things, that he should be free because he had traveled to the
Illinois Territory in which the Missouri Compromise had prohibited
slavery. Chief Justice Taney premised his opinion, holding that Scott
was still a slave, on three grounds: First, that the Supreme Court of
Missouri had held, in a prior parallel State action, that Scott was
still a slave. Id. at 427. Second, that the lower Federal courts had no
jurisdiction over the Federal action brought by Scott because he was a
slave and not a citizen. Id. at 427. Third, that the Federal statute
providing the Missouri Compromise was unconstitutional under the fifth
amendment's due process clause because the statute deprived slave
holders of their ``property'' (i.e., slaves) when they took property
into the free Illinois Territory. Id. at 450. This widely- recognized
substantive due process ruling, see, e.g., John E. Nowak & Ronald D.
Rotunda, Constitutional Law 356 (4th ed. 1991) (``The [Dred Scott]
decision, at a minimum, shows a pre-war willingness * * * to adopt
substantive due process * * * .''); ``The Oxford Companion to the
Supreme Court of the United States,'' 759 (Kermit L. Hall ed., 1992)
(``Scott v. Sandford, * * * provided a basis for far-reaching
interpretations of substantive due process * * *.''), unlike a limited
procedural due process ruling, dealt with both the underlying State
property right and the Federal substantive protections of that right.
Scott, 60 U.S. at 451-52 (``[T]he right of property in a slave is
distinctly and expressly affirmed in the Constitution.''). Chief
Justice Taney based his expansive substantive due process holding on
the provisions of the Constitution requiring the return of fugitive
slaves, article IV, Sec. 2, and allowing the importation of slaves,
article I, Sec. 9. Id. By removing the effect of these provisions, the
13th amendment undercut the foundations of the substantive due process
ruling of the Dred Scott Case, thus changing, or amending, the existing
interpretation of the due process clause of the 5th amendment--the Bill
of Rights.
---------------------------------------------------------------------------
Each of these constitutional changes substantially modified
the rights and correlative duties of affected parties from
those originally envisioned by the Framers of the Bill of
Rights. Given the long legal tradition of accepting regulation
of physically destructive conduct toward the flag, however, the
proposed amendment would effect a much smaller change. It would
not change the first amendment as originally ratified, but
would simply displace a few recent judicial misinterpretations
by restoring the historic balance between society's interests
in protecting the flag and the actor's interest in choosing a
destructive means of communicating a message. The proposed
amendment would, of course, retain the full existing
protections for oral and written speech against or in a favor
of the flag, or any other topic.
Third, the proposed amendment would not automatically
supersede all other existing amendments and other
constitutional provisions. When the 14th amendment was
proposed, it could have been argued that Congress' power to
enforce the equal protection clause might be used to undermine
the 1st amendment right of free association. However, courts
have been able to harmonize the 1st and 14th amendments.
Likewise, the 9th and 10th amendments have been reassessed in
light of other constitutional provisions. The same would be
true with a flag protection amendment. Experience justifies
confidence that the courts would interpret the terms ``physical
desecration'' and ``flag of the United States'' in light of
general values of free speech.
As further indication of the lack of merit to criticism
that the flag amendment might supersede other parts of the Bill
of Rights, consider the 16th amendment. It too is one sentence:
``The Congress shall have power to lay and collect taxes on
income, from whatever source derived, without any regard to any
census or enumeration.'' This language, ratified in 1913, is
remarkably similar to the flag protection amendment in that it
says, without more, that a legislative body, ``shall have
power'' to do something. Do the critics of S.J. Res. 14 doubt
the applicability of the fourth (no unreasonable search and
seizure) and eighth amendments (no excessive bails or fines nor
cruel and unusual punishments) to legislation enacted under the
income tax amendment? The Committee assumes not.
Fourth, the proposed amendment is not intended to--and
would not--discriminate against specific messages or points of
view, and is thus ``content neutral'' to that extent. Those who
desecrate the flag may be doing so to communicate any number of
messages. They may be protesting a government policy or
inactivity, or simply destroying the flag to get media
attention. Laws enacted under the proposed amendment would
apply to all such activity, whatever the message.
In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the
Supreme Court struck down a city ordinance that punished
certain bias-motivated conduct, noting that the ordinance: (1)
regulated ideas conveyed by the conduct; and (2) discriminated
against certain points of view. The Court stated that by
regulating disparaging conduct toward race, but not toward
political affiliation, the ordinance effected a content-based
regulation on speech as to certain subjects, but not as to
others. Id. at 391. The Court further stated that by regulating
antireligious conduct, but not proreligious conduct, the
ordinancediscriminated against particular points of view as to
the same subject. Id.
To the extent R.A.V. is interpreted narrowly to proscribe
discrimination against particular points of view, the proposed
amendment would not supersede the opinion. For example, under
the proposed amendment, it would be unconstitutional to punish
only those flag desecrations that were intended to convey
antireligious messages, but not those flag desecrations that
were intended to convey proreligious messages. However, to the
extent R.A.V. is interpreted broadly to discriminate against
conduct when it conveys any possible message on one subject--
the flag--, but not on others, the proposed amendment would
supersede the opinion with respect to the narrow subject of the
flag. For example, under the proposed amendment, it would once
again be permissible to punish any flag destruction, specified
in the implementing legislation, that exhibited a message
implicating, positively or negatively, the same broad subject
encompassing national sovereignty, national unity, and the
history of the American people.
Finally, the narrowly tailored flag protection amendment
does not authorize legislation which prohibits displaying or
carrying the flag at meetings or marches of any group--be they
Nazis, Marxists, or anyone else. The amendment does not
authorize legislation prohibiting derogatory comments about the
flag or cursing the flag, nor does it authorize a prohibition
on shaking one's fist at the flag or making obscene gestures at
the flag, whether or not such gestures are accompanied by
words. The amendment does not authorize legislation penalizing
carrying or displaying the flag upside down as a signal of
distress or flying it at half mast on days other than on
officially designated occasions.
5. THE AMERICAN FLAG SHOULD BE PROTECTED TO REMOVE THE GOVERNMENT'S
SANCTION OF FLAG DESECRATION
Opponents of this resolution assert that because there are
not widespread and continuous flag desecrations, there is no
need for a constitutional amendment to prohibit flag
desecration. Although the Committee received evidence of
between 40 and several hundred acts of flag desecration have
taken place over the past decade, the Committee does not
believe there is some threshold of flag desecrations during a
specified time period necessary before triggering congressional
action.20 Certainly, critics of the amendment cite
no such threshold. If it is right to empower the American
people to protect the American flag, it is right regardless of
the number of such desecrations. For it is not the act of
desecration which does the most harm to the love of America
that the flag inspires, but the Government's sanction of such
desecration. Whether a flag that covered a hero's casket is
ripped and stuffed in a toilet, stolen from a veteran's grave,
or burnt by a disrespectful individual, it is the Government's
protection of such conduct toward the flag that the Government
is responsible for protecting that harms our country the
most.21 The proposed amendment would allow Congress
to remove the imprimatur of legitimacy from the destruction of
the very love of country that Congress itself is responsible
for preserving.
---------------------------------------------------------------------------
\20\ The Citizens Flag Alliance submitted to the Committee a list
of 74 reports of flag desecrations since 1994. The news articles from
which the reports were taken, show that several reports dealt with
multiple flag desecrations. For example, in just the last 2 years
before the Committee's April 20, 1999, hearing: The Hartford Courant,
on June 12, 1998, reported the desecration of 150 flags on veterans'
graves at a cemetery in Connecticut; The Harrisburg Patriot, on August
20, 1998, reported the desecration of 100 flags on veterans' graves at
cemeteries near Minersville, Pennsylvania; the Courier-Post, on May 18,
1997, reported the desecration of ``dozens of American flags'' that had
draped the caskets of veterans at a cemetery near Beverly, NJ; the
Associated Press, on July 3, 1998, reported that 14 flags had been
desecrated (some by stuffing them into toilets) in Somers, CT; and the
Associated Press, on November 29, 1997, reported the desecration of
``many'' flags in Appleton, WI.
\21\ Moreover, that a certain course of conduct might also be
prosecutable as desecration and as another crime (e.g., theft,
vandalism), does not indicate that society's interest in protecting the
flag need not be protected in its own right. The argument that unlike
the societal interest in preserving private property, the distinct
societal interest in preserving the symbol of our Nation's integrity
cannot be protected because the people ratified the first amendment to
proscribe such protection is false. Under the traditional balancing
approach, society's interest in protecting the physical integrity of
the flag is consistent with allowing full freedom of oral and written
speech while protecting the preeminent symbol of the sovereignty of our
Nation, or our oneness as a people, and of the price we have paid for
freedom.
---------------------------------------------------------------------------
By removing the court-imposed governmental protection of
destructions of the symbol that the Government is responsible
for preserving, the proposed amendmentwould restore the
traditional balance of society's interest in protecting the flag and
the actor's interest in choosing a means to convey his message. This
traditional balance, which continues to be respected for numerous other
societal interests that affect the first amendment, would allow
Congress to protect the physical integrity of the American flag while
fully upholding the existing constitutional protections for oral and
written speech in dissent from or in support of the flag, or any other
topic. Our statesmen, our legislatures, and, until recently, our courts
have long respected society's interest in protecting the flag, and 49
State legislatures and most of the American people want a
constitutional amendment to protect the physical integrity of the flag.
It is the Committee's considered judgment that S.J. Res. 14 is the
appropriate means to maintain the protection for oral and written
speech, while restoring balanced protection for our sovereignty, our
heritage, and our values that are uniquely represented by the American
flag.
IV. Vote of the Committee
On April 29, 1999, with a quorum present, by rollcall vote,
the Committee on the Judiciary voted on a motion to report
favorably S.J. Res. 14. The motion was adopted by a vote of 11
yeas and 7 nays, as follows:
Yeas Nays
Hatch Leahy
Thurmond Kennedy
Grassley Biden
Specter Kohl
Kyl Feingold
DeWine Torricelli
Ashcroft Schumer
Abraham
Sessions
Smith
Feinstein
V. Text of S.J. Res. 14
JOINT RESOLUTION proposing an amendment to the Constitution of the
United States authorizing Congress to prohibit the physical desecration
of the flag of the United States
Resolved by the Senate and House of Representatives of the
United States of America in Congress assembled (two-thirds of
each House concurring therein), That the following article is
proposed as an amendment to the Constitution of the United
States, which shall be valid to all intents and purposes as
part of the Constitution when ratified by the legislatures of
three-fourths of the several States within 7 years after the
date of its submission for ratification:
``Article --
``The Congress shall have power to prohibit the physical
desecration of the flag of the United States.''.
VI. Cost Estimate
The Congressional Budget Office has supplied the Committee
with the following report estimating the proposed amendment's
potential costs:
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 S.J. Res. 14 would
not affect direct spending or receipts, pay-as-you-go
procedures would not apply.
(Congressional Budget Office, ``Cost Estimate, S.J. Res. 14,''
letter dated Apr. 30, 1999).
VII. Regulatory Impact Statement
Pursuant to paragraph 11(b), rule XXVI of the Standing
Rules of the Senate, the Committee, after due consideration,
concludes that Senate Joint Resolution 14 will not have direct
regulatory impact.
VIII. MINORITY VIEWS
contents
A. Introduction: To Honor our Veterans and Our Nation's
History, We Must Protect the Constitution
B. There Is No ``Great and Extraordinary Occasion''
Justifying the Proposed Amendment
1. The Constitution should be amended only under very
compelling circumstances
2. There is no epidemic of flag burnings crippling
the country
3. Outlawing flag desecration could increase rather
than decrease such conduct
4. Existing legal and social sanctions are adequate
to deter and punish flag desecration
5. Existing constitutional limitations on free
expression are applicable to acts of flag desecration
C. The Proposed Amendment Would Diminish the Rights We
Currently Enjoy Under the First Amendment
1. The proposed amendment would restrict free
expression
2. The first amendment protects above all the right
to speak the unpopular and objectionable
3. The American people can and do answer unpopular
speech with tolerance, creativity and strength
4. The proposed amendment would set a dangerous
precedent for future amendments to the bill of rights
D. The Johnson Decision Was Consistent With Generations of
Constitutional Doctrine
1. The Supreme Court has never accepted limitations
on the first amendment for peaceful protests involving
flag burning
2. The Supreme Court protected unpopular speech
connected to the flag long before Johnson
E. The Proposed Amendment Is Vague and Its Effect on Civil
Liberties Uncertain
1. There is no consensus or clarity on the definition
of ``flag''
2. There is no consensus or clarity on the definition
of ``desecration''
3. Use of the word ``desecration'' in S.J. Res. 14
undermines the first amendment religion clauses
4. There is no consensus or clarity on the issue of
content-neutrality
5. The difficulties that attend a statutory approach
to flag burning would remain even after a
constitutional amendment
F. Conclusion
a. introduction: to honor our veterans and our nation's history, we
must protect the constitution
Flag burning is a despicable and reprehensible act. The
issue before us, however, is not whether we agree with that
truism--we do. Instead, the issue is whether we should amend
the Constitution of the United States, with all the risks that
entails, and narrow the precious freedoms ensured by the First
Amendment for the first time in our history, so that the
Federal government can prosecute the tiny handful of Americans
who show contempt for the flag. We submit that such a
monumental step is unwarranted and unwise.
The majority report relies heavily on the views of
distinguished American veterans and war heroes who have
expressed to this Committee their love of the flag and support
for the amendment. Those who fought and sacrificed for our
country deserve our respect. They know the costs as well as the
joys of freedom and democracy. But while the majority would
like to portray the views of veterans as monolithic, many
outstanding veterans oppose the amendment. They do so for a
number of reasons.
Above all, they believe they fought for the freedoms and
principles that make this country great, not just the symbols
of those freedoms. To weaken the nation's freedoms in order to
protect a particular symbol would trivialize and minimize their
service.
Former Senator John Glenn, who served this nation with
special distinction in war and in peace, as well as in the far
reaches of space, told the Committee:
[I]t would be a hollow victory indeed if we preserved
the symbol of our freedoms by chipping away at those
fundamental freedoms themselves. Let the flag fully
represent all the freedoms spelled out in the Bill of
Rights, not a partial, watered-down version that has
altered its protections.
The flag is the nation's most powerful and emotional
symbol. It is our most sacred symbol. And it is our
most revered symbol. But it is a symbol. It symbolizes
the freedoms that we have in this country, but it is
not the freedoms themselves. * * *
Those who have made the ultimate sacrifice, who died
following that banner, did not give up their lives for
a red, white and blue piece of cloth. They died because
they went into harm's way, representing this country
and because of their allegiance to the values, the
rights and principles represented by that flag and to
the Republic for which it stands.
(Written statement of former Senator John Glenn, April 28,
1999.)
General Colin L. Powell (USA-Ret.), Chairman of the Joint
Chiefs of Staff during the Persian Gulf War, wrote to Senator
Leahy on May 18, 1999, in opposition to the proposed flag
protection amendment:
We are rightfully outraged when anyone attacks or
desecrates our flag. Few Americans do such things and
when they do they are subject to the rightful
condemnation of their fellow citizens. They may be
destroying a piece of cloth, but they do no damage to
our system of freedom which tolerates such desecration.
* * * I would not amend that great shield of democracy
to hammer a few miscreants. The flag will still be
flying proudly long after they have slunk away.
Professor Gary May, who lost both his legs while serving
his country in Vietnam, eloquently made the same point in his
testimony before the Committee:
I am offended when I see the flag burned or treated
disrespectfully. As offensive and painful as this is, I
still believe that those dissenting voices need to be
heard. This country is unique and special because the
minority, the unpopular, the dissenters and the
downtrodden, also have a voice and are allowed to be
heard in whatever way they choose to express themselves
that does not harm others. The freedom of expression,
even when it hurts, is the truest test of our
dedication to the belief that we have that right. * * *
Freedom is what makes the United States of America
strong and great, and freedom, including the right to
dissent, is what has kept our democracy going for more
than 200 years. And it is freedom that will continue to
keep it strong for my children and the children of all
the people like my father, late father in law,
grandfather, brother, me, and others like us who served
honorably and proudly for freedom.
The pride and honor we feel is not in the flag per se.
It's in the principles that it stands for and the
people who have defended them. My pride and admiration
is in our country, its people and its fundamental
principles. I am grateful for the many heroes of our
country--and especially those in my family. All the
sacrifices of those who went before me would be for
naught, if an amendment were added to the Constitution
that cut back on our First Amendment rights for the
first time in the history of our great nation.
I love this country, its people and what it stands
for. The last thing I want to give the future
generations are fewer rights than I was privileged to
have. My family and I served and fought for others to
have such freedoms and I am opposed to any actions
which would restrict my children and their children
from having the same freedoms I enjoy.
(Written statement of Professor Gary May, April 20, 1999.)
1
\1\ Professor May, who has worked as a social worker in Veterans
Administration hospitals and outpatient clinics, also reminded the
Committee of America's broken promises to those who have served this
country in uniform: ``If we are truly serious about honoring the
sacrifices of our military veterans, our efforts and attention would be
better spent in understanding the full impact of military service and
extending services to the survivors and their families.'' (Written
Statement of Professor Gary May, April 20, 1999). Answering a follow-up
written question from Senator Leahy, Professor May elaborated:
Veterans and their families need services and
opportunities, not symbolism. Recruitment for military
service is predicated in part on a quid pro quo--if
honorable service is rendered, then meaningful post service
benefits will follow. Our record of making good on this
contract is not good. The favorable expressed sentiment for
veterans by supporters of the flag desecration amendment
would be better placed in support of extending and
stabilizing services responsive to the day-to-day needs of
---------------------------------------------------------------------------
ordinary veterans and their families.
Similarly, Major General Patrick Brady responded to Senator Leahy
that ``the most pressing issues facing our veterans'' were ``broken
promises, especially health care.''
We agree with Professor May and General Brady that it is time to
honor our veterans with substance not symbolism. If the amount of time,
effort, and money devoted to this amendment in the Senate and by
outside organizations had been directed toward improving services for
veterans, they would be much better off.
Keith Kreul, an Army veteran and former National Commander
of the American Legion, expressed a similar opinion in a
statement he submitted to the Committee for its hearing last
year. He disputes the majority's view that the proposed
---------------------------------------------------------------------------
amendment honors the flag:
American veterans who have protected our banner in
battle have not done so to protect a ``golden calf.''
Instead, they carried the banner forward with reverence
for what it represents--our beliefs and freedom for
all. Therein lies the beauty of the flag.
(Written statement of Keith Kreul, April 20, 1999).
Another veteran who expressed a similar view was Marvin
Virgil Stenhammar, veteran of Beirut, Panama, and the Persian
Gulf, who is permanently disabled as a result of his 15 years
of service. Mr. Stenhammar testified before this Committee as
follows:
I feel that our flag, Old Glory, stands for freedom,
justice and liberty. It also symbolizes the blood
spilled by American service men and women who have
given so much to protect it. Many of my colleagues and
friends have died, were injured in training or wounded
in action for it. They were really not wounded for it,
the flag, but rather for it, liberty, and what the flag
really stands for.
(Proposing an Amendment to the Constitution Authorizing
Congress to Prohibit the Physical Desecration of the Flag:
Hearing on S.J. Res. 40 Before the Senate Comm. on the
Judiciary, 105th Cong., 2d Sess. (July 8, 1998) (hereinafter
``Hearing of July 8, 1998''), at 28.)
The majority report states (in Part III.E.2.a) that
adoption of the amendment will be ``a step toward
reestablishing the values that made this country great.'' Many
veterans object to this attempt to, in effect, legislate
patriotism. Those who testified before the Committee spoke in
eloquent terms about the importance of respect and love for
country coming from within a citizen or a soldier, not being
imposed from without by the government.
Senator Bob Kerrey, the only recipient of the Congressional
Medal of Honor currently serving in the United States Congress,
stated this view succinctly when he testified: ``Real
patriotism cannot be coerced. It must be a voluntary,
unselfish, brave act to sacrifice for others.'' (Written
statement of Senator Bob Kerrey, April 28, 1999.)
These sentiments were echoed by Keith Kreul: ``A patriot
cannot be created by legislation. Patriotism must be nurtured
in the family and educational process. It must come from the
heartfelt emotion of true beliefs, credos and tenets.''
(Written statement of Keith Kreul, April 20, 1999.)
Similarly, the late John Chafee, a distinguished member of
this body and a highly decorated veteran of World War II and
Korea, pointed out that just as forced patriotism is far less
significant than voluntary patriotism, a symbol of that
patriotism that is protected by law will be not more, but less
worthy of respect and love: ``We cannot mandate respect and
pride in the flag. In fact, in my view taking steps to require
citizens to respect the flag, sullies its significance and
symbolism.'' (Written statement of Senator John Chafee, April
28, 1999.)
John Glenn reminded us that our men and women in the armed
services put themselves in danger because of their devotion to
the principles of this country. He added: ``Without a doubt,
the most important of those values, rights and principles is
individual liberty: The liberty to worship, to think, to
express ourselves freely, openly and completely, no matter how
out of step those views may be with the opinions of the
majority.'' (Written statement of former Senator John Glenn,
April 28, 1999.)
This is a radical suggestion--that our country's soldiers
fight to protect the rights of the minority to do or say things
that displease or even offend us. But America was founded on
just such radical ideas. Senator Kerrey reminded us that in
this country we believe that ``it is the right to speak the
unpopular and objectionable that needs the most protecting by
our government.'' Speaking specifically of the act of flag
burning, he added: ``Patriotism calls upon us to be brave
enough to endure and withstand such an act--to tolerate the
intolerable.'' (Written statement of Senator Bob Kerrey, April
28, 1999.)
James Warner, a decorated Marine flyer who was a prisoner
of the North Vietnamese from 1967 to 1973, made this point in
graphic terms:
I remember one interrogation where I was shown a
photograph of some Americans protesting the war by
burning a flag . ``There,'' the officer said. ``People
in your country protest against your cause. That proves
that you are wrong.''
``No.'' I said, ``that proves that I am right. In my
country we are not afraid of freedom, even if it means
that people disagree with us.'' The officer was on his
feet in an instant, his face purple with rage. He
smashed his fist onto the table and screamed at me to
shut up. While he was ranting I was astonished to see
pain, compounded by fear, in his eyes. I have never
forgotten that look, nor have I forgotten the
satisfaction I felt at using his tool, the picture of
the burning flag, against him. * * *
We don't need to amend the Constitution in order to
punish those who burn our flag. They burn the flag
because they hate America and they are afraid of
freedom. What better way to hurt them than with the
subversive idea of freedom? * * * Don't be afraid of
freedom, it is the best weapon we have.''
(James Warner, ``When They Burned The Flag Back Home,'' The
Washington Post, p.A25, July 11, 1989.)
In these dissenting views, we on the Judiciary Committee
who oppose the constitutional amendment concerning flag
desecration discuss the basis for our view that the amendment
is unnecessary and ill-advised. We understand that the
political pressure for this amendment is strong, but our hope
is that the Senate will in the end heed the words of our former
colleague, John Glenn, when he urged us to reject the
amendment:
There is only one way to weaken the fabric of our
country, and it is not through a few misguided souls
burning our flag. It is by retreating from the
principles that the flag stands for. And that will do
more damage to the fabric of our nation than 1,000
torched flags could ever do. * * * [H]istory and future
generations will judge us harshly, as they should, if we
permit those who would defile our flag to hoodwink us into
also defiling our Constitution.
(Written statement of former Senator John Glenn, April 28,
1999).
B. THERE IS NO ``GREAT AND EXTRAORDINARY OCCASION'' JUSTIFYING THE
PROPOSED AMENDMENT
1. The Constitution should be amended only under very compelling
circumstances
James Madison, a great Framer of the Constitution, told
posterity that constitutional amendments should be limited to
``certain great and extraordinary occasions.'' It is
distressing to find his advice so unheeded that there are
already over 50 proposed amendments pending before the 106th
Congress, including an amendment to ease the requirements for
future amendments. But it is reassuring to recall that since
Madison spoke, although more than 11,000 amendments have been
offered, only 27 have been adopted, and only 17 since the Bill
of Rights was ratified over 200 years ago.
The proposed resolution is offered in direct response to
Supreme Court decisions in Texas v. Johnson, 491 U.S. 397
(1989), and United States v. Eichman, 496 U.S. 310 (1990). In
our system of carefully balanced powers, it is most unusual to
overturn decisions of the nation's highest court. On at most
four occasions in the history of this country has a
constitutional amendment been adopted in response to a decision
of the Supreme Court.2 Significantly, two of these
amendments, the Fourteenth and Twenty-Sixth, expanded the
rights of Americans, while two involved the mechanics of
government. The proposed amendment would be the first amendment
to the Constitution that would infringe on the rights enjoyed
by Americans under the Bill of Rights.3
---------------------------------------------------------------------------
\2\ Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793), prompted the
adoption of the Eleventh Amendment bar to suits in Federal courts
against States by citizens of other States or by citizens or subjects
of foreign jurisdictions. In 1868, the Fourteenth Amendment arguably
was adopted in response to the Dred Scott decision, Scott v. Sanford,
60 U.S. (19 How.) 393 (1856), although the introduction of the Black
Codes following the Civil War likely was the true catalyst. In 1913,
the Sixteenth Amendment was adopted to permit Congress to levy a tax on
incomes after the Court's decision in Pollock v. Farmers' Loan & Trust
Co., 157 U.S. 429 (1895). Finally, the Twenty-Sixth Amendment was a
response to the decision in Oregon v. Mitchell, 400 U.S. 112 (1970),
that Congress lacked the power under Article I to lower the voting age
to 18 in State as well as Federal elections.
\3\ The majority report stretches to find historical mooring for
its proposal that ``[t]he Bill of Rights has been changed, or amended,
* * * on several occasions'' (Part III.E.4) by claiming that the
Thirteenth Amendment, which outlawed slavery, amended the Fifth
Amendment's Due Process Clause as interpreted in the Dred Scott case.
Putting aside the gross incongruity of equating the interests of
slaveholders with the rights of political protesters, the majority's
point is not strictly correct. The Thirteenth Amendment altered the
State law property interests protected by the Due Process Clause, but
did not restrict or otherwise affect the due process right itself. In
any sense relevant at all here, the Thirteenth Amendment expanded
freedom rather than restricted it. The incorporation of equal
protection principles into the Fifth Amendment was similarly expansive
of individual rights, not restrictive. Finally, the school prayer
decision cited by the majority demonstrates only that the Bill of
Rights may be interpreted, not that it has been ``changed, or
amended.''
---------------------------------------------------------------------------
Worse, the infringement would fall on the First Amendment,
the cornerstone and foundation of all of our rights, of which
we must be especially protective. As Senator Leahy stated:
All of our freedoms, all of our liberties rest on the
First Amendment. It is the granite of democracy. It is
our bedrock. Without the right to speak out, all our
other rights are only so much paper. Without the right
to assemble and petition, you literally cannot fight
city hall, let alone the State legislature or the
Congress or the IRS or anybody else. You are stuck.
Without the freedom to worship or not, unmolested,
there is a gaping void at the very core of our life. *
* *
If some disaster were to sweep away all the monuments
of this country, the Republic would survive just as
strong as ever. But if some disaster * * * some failure
of our souls were to sweep away the ideals of
Washington and Jefferson and Lincoln, then not all the
stone, not all the marble, not all the flags in the
world would restore our greatness. Instead, they would
be mocking reminders of what we had lost.
(Transcript of Comm. Markup, June 24, 1998, at 34-35).
We should observe special caution in approaching limits on
the First Amendment. This unprecedented use of the Constitution
of the United States to limit rather than expand the liberties
of ordinary Americans defies the long established principle
that the Constitution is a limitation on government and not on
individuals.
In Federalist No. 43, James Madison wrote that the
Constitution establishes a balanced system for amendment,
guarding ``equally against that extreme facility, which would
render the Constitution too mutable, and that extreme
difficulty, which might perpetuate its discovered faults.'' The
concern of the Framers that amendments would come too
frequently is profoundly conservative, in the best sense of
that word, as expressed in Federalist No. 49:
[A]s every appeal to the people would carry an
implication of some defect in government, frequent
appeals would, in great measure, deprive the government
of that veneration which time bestows on everything and
without which perhaps the wisest and freest governments
would not possess the requisite stability.
Federalist No. 49 also warns against using the amendment
process when ``[t]he passions [and] not the reason, of the
public, would sit in judgment.''
The horror with which the Framers might regard the more
than 11,000 amendments offered in our history, or the more than
100 offered in the 105th Congress alone, no doubt is offset by
the wisdom of the nation's elected representatives in adopting
only 17 amendments since the Bill of Rights. An amendment to
the Constitution under the present circumstances would be
precisely the sort of act against which the Framers warned.
Common sense is enough to tell us that this is not a ``great
and extraordinary'' occasion that justifies invoking the
awesome power of amending our fundamental charter.
Constitutional amendments are for resolving the profound and
structural issues of government. The proposed amendment would
be the first amendment ever passed to vindicate purely symbolic
interests.
Rather than face the solemn responsibility of justifying an
amendment to the Constitution, proponents of S.J. Res. 14 have
suggested that Members of the Senate abdicate their
responsibility to exercise their judgment and simply forward
the amendment to the State legislatures for them to make the
final decision. This argument is totally contrary to the
conservative conception of amendment that our Constitution
establishes. The Constitution intentionally makes it difficult
to pass amendments because they are to be permanent and
fundamental. Supermajorities are required in both Houses and
among the ratifying States. No amendment should pass unless
every one of these levels of government overwhelmingly supports
it. Our system is undermined if each institution of government
does not independently exercise its responsibilities with the
utmost care. The purpose of the painstaking and difficult
process of amending the Constitution is to be conservative,
securing a series of responsible, considered judgments along
the way. If the institutions of government with responsibility
for amending the Constitution start deferring to each other
instead of acting independently--allowing themselves to be led
by ``[t]he passions [and] not the reason, of the public''--
amendments will start coming quickly, easily, and impulsively.
While the majority report denies that passage of this amendment
will create a ``slippery slope'' for future thoughtless
amendments, that is precisely what they invite by such an
abdication of responsibility. In any event, the proponents'
suggestion is an abdication of responsibility of our clear,
established responsibility on this occasion--and that is
enough.
2. There is no epidemic of flag burnings crippling the country
Flag burning is rare. That simple fact keeps re-emerging
from the hearings of various proposals over the years to
prohibit the practice. There is no crisis to which we should
respond with an amendment to our fundamental law.
According to Professor Robert Justin Goldstein, who has
written several books on the flag desecration controversy,
there have been only about 200 reported incidents of flag
burning in the entire history of the country. That is less than
one per year. (The Tradition and Importance of Protecting the
Flag: Hearing on S.J. Res. 40 Before the Subcomm. on the
Constitution, Federalism, and Property Rights of the Senate
Comm. on the Judiciary, 105th Cong., 2d Sess. (March 25, 1998)
(hereinafter ``Hearing of March 25, 1998''), at 36.)
The Congressional Research Service (``CRS'') uncovered only
43 flag incidents of whatever kind between January 1995 and
January 1999, many of which could already be addressed under
existing laws. Even the leading lobbying group in support of
S.J. Res. 14, the Citizens' Flag Alliance (``CFA''), could
document only 74 incidents of flag ``desecration'' between
March 1994 and January 1999, and again, most of those incidents
were punishable even without S.J. Res. 14.4
---------------------------------------------------------------------------
\4\ The majority report asserts (in Part III.E.5) that the
Committee ``received evidence of between 40 and several hundred acts of
flag desecration [that] have taken place over the past decade''
(emphasis added). What the Committee ``received'' was CRS's list of 43
incidents, CFA's list of 74 incidents, and an unsubstantiated claim
that there have actually been ``hundreds and hundreds'' of unreported
incidents. (Transcript of Hearing, April 20, 1999, at 98).
---------------------------------------------------------------------------
In light of these figures, the majority report is driven to
declare (in Part III.E.5) that a flag amendment is appropriate
``regardless of the number of [flag] desecrations.'' While we
agree that even one incident of flag burning merits
condemnation and scorn, it just as certainly does not create a
reason to amend our Constitution. It does not call on this
Congress to be the first Congress in the history of the United
States to restrict the liberties of Americans with a narrowing
amendment to the Bill of Rights.
The majority report also argues (in Part III.E.5) that ``it
is not the act of desecration which does the most harm to the
love of America that the flag inspires, but the government's
sanction of such desecration'' (emphasis added). But toleration
does not equate to approval; obviously, the government does not
support or endorse everything it does not punish. We who oppose
the flag amendment deplore any act of flag desecration and hold
the flag in high regard. But we believe that this cherished
emblem is best honored by preserving the freedoms for which it
stands.
Even if there were a problem of flag desecration in this
country, amending the Constitution would still be a totally
disproportionate response. To propose an amendment when in fact
there is no problem betrays a woeful and unworthy loss of
perspective. As John Glenn observed, S.J. Res. 14 is ``a
solution looking for a problem.'' (Written statement of former
Senator John Glenn, April 28, 1999).
Senator Glenn's observation finds unintended support from
some of the principal proponents of S.J. Res. 14. Asked what
the penalty should be for burning an American flag, CFA
Chairman Patrick Brady responded:
I would handle it like a traffic ticket. The
individual who received the ticket for burning the flag
* * * could pay the fine or he could * * * go to
school. * * * I would send them to a class, and I would
tell them this is what the flag means to the people of
America, this is what it means to veterans, and that
would be it.
(Transcript of Hearing, April 29, 1999, at 81-82).5
---------------------------------------------------------------------------
\5\ We know of only one country--the Socialist Republic of
Vietnam--that punishes flag desecration by ``reeducation''.
Lieutenant General Edward Baca agreed that flag burning
should be a misdemeanor offense. (Id. at 83). A third pro-
amendment witness, Professor Richard Parker, opined that ``a
jail term is probably not reasonable.'' (Id. at 89).
The notion that we should amend the Constitution of the
United States and carve out an exception to the fundamental
freedom of the First Amendment in order to issue a ticket and
send someone to a class on ``respect'' takes one's breath away.
As Bruce Fein observed about amending the Constitution, ``It is
a matter of prudence and judgment and degree.'' (Hearing of
March 25, 1998, at 21). To amend the Constitution in order to
issue tickets and lectures is to abandon utterly all prudence,
judgment and degree. In the words of Keith Kreul, past National
Commander of the American Legion, ``It is a radical approach to
a near nonexistent dilemma akin to atom bombing a sleeping city
because a felon may be in the vicinity.'' (Written statement of
Keith Kreul, April 20, 1999).6
---------------------------------------------------------------------------
\6\ The approach is all the more radical given its admitted
limitations. The majority report acknowledges (in Part III.E.4) that
the proposed amendment ``does not authorize legislation prohibiting
derogatory comments about the flag or cursing the flag, nor does it
authorize a prohibition on shaking one's fist at the flag or making
obscene gestures at the flag.'' Yet these acts may be as offensive, and
as deserving public censure, as some of the acts of ``physical
desecration'' that may be covered by the proposed amendment.
---------------------------------------------------------------------------
3. Outlawing flag desecration could increase rather than decrease such
conduct
The principal incitement to flag burning appears, from all
of the evidence, to be the very efforts to make it illegal.
That is because outlawing flag burning in a highly publicized
way, or attempting to do so, tends to assure flag burners of
the very attention they crave, lending national visibility to
their crackpot causes and offensive behavior.
According to Professor Goldstein there have been more than
twice as many flag burning incidents since this became a news
item in 1989 than in the entire history of the American
republic. Professor Goldstein has established that the number
of incidents peaked between June 1989 and June 1990, when the
first attempts were made to overturn the Johnson ruling by
constitutional amendment, and that the rate of incidents has
more than tripled since the revival of the issue in the mid-
1990s. (Hearing of March 25, 1989, at 36).7 These
facts are undisputed.
---------------------------------------------------------------------------
\7\ Even with the increase brought on by the agitation for bans on
flag burning, of course, the actual number of incidents remains
exceedingly low. See supra Part VIII.B.2.
---------------------------------------------------------------------------
Based on past experience, then, passage of a flag amendment
would likely lead to an increase in the number of flags-burning
incidents, as well as an increase in the variety of distasteful
acts involving the flag which no doubt would be committed to
test the vague and uncertain boundaries of any new law.
If we want to stop people from burning the flag, the most
effective way would be to stop daring them to do it. Passage of
the proposed amendment--and the ensuing ratification debates--
would do just the opposite.
4. Existing legal and social sanctions are adequate to deter and punish
flag desecration
There is a huge misunderstanding underlying the push for a
flag protection amendment. As Senator Feingold explained during
a Committee markup on S.J. Res. 14:
The American people have been * * * bamboozled into
believing that you can walk across the street, grab an
American flag off of somebody's building and burn it,
and that is protected. That is not the case.
(Transcript of Comm. Markup, April 29, 1999, at 26).
The States and the Federal government can and do prohibit
and punish most acts of physical destruction of a flag, and
with more than a citation or a compulsory class on respect. No
one has the right to steal a flag or to defile a flag belonging
to another. Burning a flag, even one's own flag, will not
shield a violent or disorderly protester from arrest. The First
Amendment protects speech, expressive conduct, peaceful
demonstration. It is not a sanctuary for thieves, vandals, or
hooligans.
Most of the 74 flag ``desecrations'' identified by CFA are
linked to other behavior that violates existing laws--including
laws relating to theft, vandalism, destruction of property,
breach of the peace, and arson--and are therefore punishable
regardless of any message that the flag desecrator might have
been trying to send. For example, included among CFA's list of
74 are the following incidents:
--April 1, 1997, Buffalo, New York: The starting goalie for
the Buffalo Bandits, having just won a playoff-clinching game,
climbed over a fence at the naval park and tore down the
American flag, breaking the flagpole. Charged with criminal
trespass and criminal mischief, the man eventually pled guilty
and paid a fine. (``Bandits goalie pleads guilty in naval park
case,'' Buffalo News, October 24, 1997.)
--Spring/summer 1997, Wallingford, Connecticut: Flags
hanging from downtown homes and porches were set on fire at
night, endangering residents and damaging property. Several
teenagers were arrested in connection with these incidents,
charged with reckless burning, conspiracy to commit reckless
burning, and criminal attempt to commit reckless burning.
(``Second teen accused in Wallingford flag burnings,'' The
Hartford Courant, September 4, 1997.)
--July 4, 1997, Springfield, Illinois: A man celebrated the
Fourth of July by cutting the rope on the Federal Building flag
pole and hauling down the flag. The man was arrested and jailed
on charges of theft and criminal damage to government property.
(``One man celebrates by stealing,'' The State Journal-Register
(Springfield, IL), July 9, 1997.)
--August 7, 1998, Minersville, Pennsylvania. Two cemeteries
were vandalized; the vandalism included the burning of American
flags on veterans' graves. A 19-year old was arrested, along
with four juveniles, and charged with institutional vandalism,
criminal mischief, attempted burglary, trespassing, criminal
conspiracy, and corruption of minors. (``Man jailed in
vandalism spree,'' The Harrisburg Patriot, August 20, 1998.)
--September 10, 1998, Boulder, Colorado. A city flag was
set on fire while atop a very tall flagpole. The Boulder police
had no doubt they could arrest the arsonist, since ``burning
someone's else's flag--in this case the city's--is definitely
against the law.'' (``Flag arsonist sought,'' Denver Post,
September 11, 1998.)
No constitutional amendment was needed to protect the
people of Buffalo, Wallingford, Springfield, Minersville, or
Boulder. Their State laws performed that function quite well.
Similarly, no constitutional amendment was necessary to
punish Gregory Lee Johnson, the defendant in the Supreme
Court's 1989 case. Johnson accepted stolen private property (a
flag) and destroyed it by setting it on fire in a busy public
place. The State of Texas could have prosecuted Johnson for
possession of stolen property, destruction of private property,
and other crimes which the State routinely punishes without
regard to speech; instead, the only criminal offense with which
Johnson was charged was ``desecration of a venerated object.''
The Supreme Court, while holding that Johnson's conviction for
that offense could not stand, emphasized that its opinion
``should [not] be taken to suggest that one is free to steal a
flag so long as one later uses it to communicate an idea.'' 491
U.S. at 412 n.8.
Much has been made of a Wisconsin youth, Matthew Janssen,
then 18, who stole a number of flags and defecated on one, and
whose conviction for flag desecration under an old, pre-Johnson
statute, was eventually overturned. See Wisconsin v. Janssen,
219 Wis.2d 362 (1998). That does not mean, however, that
Janssen went unpunished for his despicable act. In fact, he was
prosecuted successfully for the message-neutral crimes he
committed, and sentenced to nine months in jail and 350 hours
of community service. Perhaps more important, he was
ostracized, and had to go about his community with the shame of
his act before him at all times. No fine, no class on respect,
and no martyrdom at the hands of the central government could
equal the punishment Janssen received.
Senator Feingold raised the question with Wisconsin State
Senator Roger Breske:
Isn't this the ideal case to demonstrate that there
is no need to amend the First Amendment? This young man
was punished both by the State and by his community
through harsh social sanctions, as well as criminal
sanctions. This punishment was so severe that the young
man publicly apologized and admitted that his actions
were abominable * * *. If this is the case, what else
can be gained by amending the Bill of Rights?
Senator Breske responded, ``He probably should have got a
little more.'' (Hearing of March 25, 1998, at 46). ``A little
more'' is no reason to amend the Constitution of the United
States.
General Colin Powell summarized the point as follows:
If they are destroying a flag that belongs to someone
else, that's a prosecutable crime. If it is a flag they
own, I really don't want to amend the Constitution to
prosecute someone for foolishly desecrating their own
property. We should condemn them and pity them instead.
(Letter from General Colin Powell to Senator Patrick Leahy, May
18, 1999.)
5. Existing constitutional limitations on free expression are
applicable to acts of flag desecration
The decision of the Supreme Court in Johnson did not give
carte blanche to protesters to burn flags however, whenever and
wherever they please, even for expressive purposes. The First
Amendment leaves ample room for Congress and the States, just
as they may reasonably limit other forms of expression on a
content-neutral basis.
For example, expression that is directed to inciting or
producing ``imminent lawless action'' may be limited under
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), and limits also
can be placed on ``fighting words,'' those likely to provoke
the average person to whom they are addressed to retaliation.
Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). The fact
that these circumstances were not present in Johnson--it
appears that those most likely to be incited by the conduct
wisely had ignored the demonstration altogether, as did most
other people--does not limit the government's authority to
respond to imminent violence. As the Supreme Court noted in
Johnson:
The State need not worry that our holding will
disable it from preserving the peace. We do not suggest
that the First Amendment forbids a State to prevent
``imminent lawless action.''
491 U.S. at 410. States remain free to prevent acts of
violence. What a State cannot do is apply prior restraint on
certain views by assuming that, because the speech is so
offensive to some, it will provoke ordinary citizens to
violence.
Finally, established principles of First Amendment
jurisprudence provide room, albeit limited, for Congress to
enact legislation protecting the flag, so long as that
legislation is sufficiently specific to avoid the problem of
vagueness and satisfy the Fifth Amendment Due Process Clause,
and so long as it is sufficiently content-neutral to satisfy
the First Amendment. We do not suggest that this is an easy
task. The same problems may plague legislative drafters if this
amendment is adopted, however (see infra Part VIII.E), and the
American people would be far better served if the proponents of
S.J. Res. 14 addressed this difficult task squarely and
honestly at the outset by proposing a carefully crafted statute
rather than toying with the Constitution.
On April 30, 1999, Senator Mitch McConnell and others
introduced the Flag Protection Act of 1999, S. 931, to provide
for the maximum protection against the use of the flag to
promote violence, while respecting the liberties that it
symbolizes. The Act would ensure that incidents of deliberately
confrontational flag burning are punished with stiff fines and
even jail time. Experts at the Congressional Research Service
and several constitutional scholars have opined that S. 931
respects the First Amendment and would be upheld by the courts.
(See Record, at S4487-S4493.) We believe that Congress should
consider this statutory alternative, and that the Court should
address it, before we again take up a constitutional amendment
on this issue.8
---------------------------------------------------------------------------
\8\ Although the Committee held a hearing on the proposed
constitutional amendment on April 20, 1999, and heard from Senators and
the Department of Justice about it on April 28, 1999, no attention
whatever has been paid to Senator McConnell's legislative proposal, nor
to alternative legislative ideas grounded in intellectual property
principles.
---------------------------------------------------------------------------
C. THE PROPOSED AMENDMENT WOULD DIMINISH THE RIGHTS WE CURRENTLY ENJOY
UNDER THE FIRST AMENDMENT
1. The proposed amendment would restrict free expression
The proposed amendment unquestionably would restrict rights
currently enjoyed by Americans under the First Amendment.
Indeed, that is its purpose.
Proponents of the amendment argue that they seek to bar
flag burning only as ``conduct'' and not as ``speech,'' but
that would-be distinction is not workable. Expressive conduct
is speech. Because the flag serves as a symbol, use of the flag
symbolically is expressive. Indeed, the State of Texas conceded
this point when arguing the Johnson case before the Supreme
Court, see 491 U.S. at 405, as did the United States the
following year, see Eichman, 496 U.S. at 315.
Professor Goldstein explained the expressive aspect of flag
desecration in his 1995 book, Saving ``Old Glory'':
[A]ll forms of communication, including oral and
written speech, are ultimately ``symbolic'' (since
letters and words have no meaning, by themselves, but
only represent other things) and they all involve
conduct--opening one's mouth, printing and circulating
a book, and so on. Unless flag desecration results in
burning down a building or blocking a public street, it
is, in practice, just as ``purely'' symbolic and purely
expressive as are other forms of communication and
therefore deserves equal protection. If the argument
that only ``pure'' speech and writing are protected by
the principles of constitutional democracy was
accepted, then people who use sign language would have
no rights, and neither would actors, dancers,
musicians, painters, movie producers, or anyone else
who communicated in any other way.
(Robert J. Goldstein, Saving ``Old Glory'': The History of the
American Flag Desecration Controversy xii-xiii (1995).)
As Professor Goldstein notes, the conduct/expression
distinction is meaningful under the First Amendment only in the
sense that the behavior in question can cause harm to real
interests that the government can protect. For instance,
burning a flag causes harm to the owner's property interest in
that flag: people label that which causes this real, tangible
harm as the ``conduct'' element in the behavior. It is
precisely such harm-causing, ``conduct'' elements of flag
desecration that can already be prohibited, and that routinely
and effectively are in fact punished by the courts. The
argument that desecration is ``conduct'' does not support the
amendment at all--quite the contrary. To the extent that
desecration is ``conduct,'' it can already be regulated. The
whole point of the amendment is to regulate ``expression'' (or,
the ``expressive'' element in the behavior) when it does not
cause real, tangible harm, but is only offensive. Invoking
illusory distinctions like conduct-versus-expression does not
change that reality.
2. The first amendment protects above all the right to speak the
unpopular and objectionable
Ultimately, the debate over S.J. Res. 14 and the earlier
attempts to amend the Constitution to ban flag desecration
turns on the scope we think proper to give to speech which
deeply offends us. As one Senate sponsor candidly remarked,
``This isn't about whether or not we can limit freedom under
the First Amendment, free speech. It is about what free speech
we want to limit.'' (Transcript of Hearing, April 20, 1999, at
71).
For Congress to limit expression because of its offensive
content is to strike at the heart of the First Amendment. ``If
there is a bedrock principle underlying the First Amendment, it
is that thegovernment may not prohibit the expression of an
idea simply because society finds the idea itself offensive or
disagreeable.'' Johnson, 491 U.S. at 414. Indeed, it is the right to
speak the offensive and disagreeable that needs the most protecting.
Justice Holmes wrote that the most imperative principle of our
Constitution was that it protects not just freedom for the thought and
expression we agree with, but ``freedom for the thought that we hate.''
United States v. Schwimmer, 279 U.S. 644, 654 (1929). ``[W]e should be
eternally vigilant,'' he taught us, ``against attempts to check the
expression of opinions that we loathe * * * ``Abrams v. United States,
250 U.S. 616, 630 (1919). Justice Robert Jackson echoed this thought in
West Virginia Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), a
flag salute case:
[F]reedom 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.
One opponent of the amendment, conservative scholar Bruce
Fein, cited President Thomas Jefferson's first inaugural
address, when the nation was bitterly divided. That giant among
the Founders lectured on the prudence of tolerating even the
most extreme forms of political dissent:
If there be any among us who would dissolve the Union
or * * * change its republican form, let them stand
undisturbed as monuments of the safety with which error
of opinion may be tolerated where reason is left to
combat it.
Mr. Fein also cited, as an example of the Enlightenment spirit
that undergirds the First Amendment, Voltaire's famous
statement, ``I disapprove of what you say, but I will defend to
death your right to say it.'' (See Hearing of March 25, 1998,
at 21).
John Glenn stated the argument in more colloquial terms:
To say that we should restrict speech or expression
that would outrage a majority of listeners or move them
to violence is to say that we will tolerate only those
kinds of expression that the majority agrees with, or
at least does not disagree with too much. That would do
nothing less than gut the First Amendment.
(Written statement of former Senator John Glenn, April 28,
1999.)
To restrict speech and political expression to only those
areas that Congress approves is to limit, as China now does,
the freedom of worship to only those churches of which that
government approves. That is not freedom at all. As free speech
philosopher Alexander Meiklejohn cautioned, ``To be afraid of
ideas, any ideas, is to be unfit for self-government.''
(Alexander Meiklejohn, Freedom of Speech and Its Relation to
Self-Government 27 (1948).)
The nation's faith in free speech is grounded ultimately in
a confidence that the truth will prevail over falsehood, a
faith that has sustained our thought since Milton wrote his
Areopagitica in 1644.
[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 the truth put to the worse in a free and open
encounter.
(John Milton, Areopagitica, A Speech for the Liberty of
Unlicensed Printing to the Parliament of England (1644).)
3. The American people can and do answer unpopular speech with
tolerance, creativity and strength
The lesson of Milton is practiced every day in America.
Flag burning is not the only form of expression that is utterly
abhorrent to the large majority of Americans. The instinctive
answer of the American people, however, is not trying to ban
speech that we find offensive. That is the response of
weakness. Justice Louis Brandeis observed, ``Those who won our
independence * * * eschewed silence coerced by law--the
argument of force in its worst form.'' Whitney v. California,
274 U.S. 357, 375-376 (1927) (Brandeis, J., concurring).
The American people respond with strength. The majority
report (in Part III.E.2) contends that requiring respect for
the flag will ``enhanc[e] national unity'' and ``help[] to
preserve freedom and democratic government.'' The rare
occasions of flag desecration have not, and cannot, subvert our
sense of unity. Our institutions are not threatened by the
exercise of First Amendment freedoms.
More fundamentally, respect cannot be coerced. It can only
be given voluntarily. Some may find it more comfortable to
silence dissenting voices, but coerced silence can only create
resentment, disrespect and disunity. As Justice Jackson wrote
in Barnette, 319 U.S. at 640-642.:
Struggles to coerce uniformity of sentiment in
support of some end thought essential to their time and
country have been waged by many good as well as by evil
men.* * * Those who begin coercive elimination of
dissent soon find themselves exterminating dissenters.
Compulsory unification of opinion achieves only the
unanimity of the graveyard. * * *
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 or
force citizens to confess by word or act their faith
therein.
What unifies our country is the voluntary sharing of ideals
and commitments. We can do our share toward that end not by
enforcing conformity but by responding with responsible actions
thatwill justify respect and allegiance, freely given. Justice
Brennan wrote in Johnson, ``We can imagine no more appropriate response
to burning a flag than waving one's own.'' 491 U.S. at 420. That is
exactly how the American people respond.
Justice Brennan described the aftermath of Gregory Lee
Johnson's contemptible act in 1984, when he burned a flag at a
political demonstration in Dallas, Texas, in front of City
Hall. ``After the demonstrators dispersed, a witness to the
flag burning collected the flag's remains and buried them in
his backyard.'' Id. at 399. 9
---------------------------------------------------------------------------
\9\ We are pleased to identify and give full credit to Korean War
veteran Daniel Walker for this quietly gallant act. See Robert J.
Goldstein, Burning the Flag: The Great 1989-1990 American Flag
Desecration Controversy 33 (1996).
---------------------------------------------------------------------------
Senator Feingold has pointed to the example of Appleton,
Wisconsin, where Matthew Janssen committed his particularly
repugnant act of flag desecration, and where each year, 20,000
to 30,000 Americans join in the largest Flag Day parade in the
nation. Senator Durbin has cited the example of the people of
Springfield, Illinois, who faced the prospect of a Ku Klux Klan
rally:
For each minute that the Ku Klux Klan rally goes on,
each of us pledges a certain amount of money to be
given to B'nai B'rith and to the NAACP and other
organizations. So the longer they go, the more money is
being [raised] in defense of the values of America. I
think that is what America is all about. (Transcript of
Comm. Markup, June 24, 1998, at 23).
In June 1998, an African American was brutally tortured and
murdered in Jasper, Texas, apparently on account of his race.
The Ku Klux Klan decided to hold a rally in Jasper because of
the murder. Even in all of their pain over the incident, the
good citizens of Jasper, led by their African American mayor,
let the Klan speak. They let them march, and they even let them
wave American flags. The good citizens of Jasper quietly
spurned the Klan, and the Klan slithered out of town.
Again, on July 18, 1998, in Couer D'Alene, Idaho, white
supremacists obtained a permit for a ``100-Man flag parade''
and marched carrying American flags and Nazi banners side by
side. As in Springfield the local residents turned ``Lemons
into Lemonade,'' and raised $1,001 for each minute of the white
supremacists' march, money for donations to human rights
organizations. A few citizens loudly spoke back to the
marchers, but most simply stayed away. Steve Meyer, owner of
The Bookseller, made it a point to keep his store open,
observing that ``Nazis were burning books in the 1930s, and I
don't want them closing stores in the '90s.''
The positive examples of the citizens of Wisconsin,
Illinois, Texas, and Idaho show the America for which soldiers
have fought and died. This is the strength and unity that no
statute, no amendment can compel or embellish.
A similar example of a powerful response to flag burning
that protects the speech of everyone was given, ironically, by
a witness testifying in support of the amendment. The incident
was the center of the testimony of Los Angeles Dodger General
Manager Tommy Lasorda, the proponents' star witness in the
105th Congress. In 1976, a father and son ran onto the field
during a baseball game at Dodger Stadium and attempted to set
fire to a flag. The attempt was unsuccessful (the flag was
never burned) and the protestors appear to have been punished
with stiff fines under the content-neutral laws against running
onto playing fields. Significantly, the crowd was in no way
demoralized by the attempt, nor was their love for the flag or
for our country diminished in the least. Far from it. As Mr.
Lasorda recounted:
The fans immediately got on their feet * * * and
without any prompting that I can remember the whole
crowd stood and began to fill the stadium with an
impromptu rendition of ``God Bless America.'' (Hearing
of July 8, 1998, at 27).
That was an answer on which Congress cannot improve.
It can be painful that the Klan and others try to associate
themselves with the principles of our nation by displaying the
flag. It can be painful to see the crudeness and poverty of
understanding of those who try to burn the flag. Vietnam
veteran Stan Tiner told the Committee of ``the political
factions and sects that fly the American flag over their own
various causes--the Communists, to the Birchers, to David
Koresh and his followers--all seeking to imply that their
particular brand of Americanism is the one righteous brand.''
He concluded:
[I]n a curious way, they are right. America is all of
these things, or at least a haven for freedom, where
all kinds of thinking can occur and where people can
speak freely their minds without fear.
(Hearing of March 25, 1998, at 48).
Therein lies part of the greatness of America. All voices,
however hateful and obnoxious, can be heard, but it is the
quiet nobility of the ordinary citizens of Appleton,
Springfield, Jasper, and Couer D'Alene, and the spontaneous
singing of ``God Bless America'' at a baseball game that wins
the debate. The First Amendment works.
4. The proposed amendment would set a dangerous precedent for future
amendments to the Bill of Rights
Supporters of S.J. Res. 14 argue that the flag is a special
case--that its adoption would not open the floodgates to other
amendments. We are not so sure. Already, scores of
constitutional amendments are proposed each year, many of which
would alter the Bill of Rights. Some of these proposed
amendments command significant support, including support from
sponsors of the current proposal. Establishing a precedent that
the First Amendment can be restricted by
constitutionalamendment would give supporters of other restrictive
amendments ammunition and momentum, and weaken public respect and
support for safeguarding the enduring principles in our Bill of Rights.
Charles Fried, Solicitor General under President Reagan,
cautioned us in 1990 that it is dangerous to make exceptions in
matters of principle:
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.
Measures to Protect the American Flag: Hearing Before the
Senate Comm. on the Judiciary, 101st Cong., 2d Sess. (June 21,
1990) (hereinafter ``Hearing of June 21, 1990''), at 113.)
Senator Chafee also took a dim view of the consequences of
S.J. Res. 14 when he asked the Committee, ``What will be
next?'':
Will we next see a constitutional amendment demanding
the standing to attention when the national anthem is
played? Will there be a list of worthy documents and
symbolic objects for which desecration is
constitutionally prohibited? Should there be a
Constitutional Amendment to protect the Bible? What
about other religious symbols such as the crucifix or
the Menorah; what about the Constitution, itself?
Surely, the Constitution embodies the same significance
as the flag!
(Written statement of Senator John Chafee, April 28, 1999.)
These are not hypothetical concerns; the Texas statute in
the Johnson case treated the flag as just one of a number of
``venerated objects.''
Even if we could draw the line after one restrictive
amendment, the damage would be done. John Glenn testified, that
``The Bill of Rights * * * is what has made [the United States]
a shining beacon of hope, liberty of inspiration to oppressed
peoples around the world for over 200 years. In short, it is
what makes America, America.'' (Written statement of former
Senator John Glenn, April 28, 1999). The proposed amendment
would dim that beacon, as Senator Leahy described:
We are being asked to say that it is okay for the
United States government to suppress at least some
political expression merely because we find it
offensive. And when governments like that of Cuba or
China decide that certain forms of political expression
are offensive and should be prohibited, when they
prosecute their pro-democracy dissidents or jail
journalists who criticize their leaders, what will we
say then? If it is okay for the United States to
criminalize an unpopular form of political expression
why should other countries not do the same with respect
to expression they find offensive?
The United States is the most powerful country in the
world in large measure because it is the most free. We
are a world leader in the struggle for human rights,
including the right to freedom of speech for all. This
administration and past administrations, Democrat and
Republican, have strongly criticized foreign
governments that limit free speech, censor the press
and suppress other fundamental human rights. If we
succumb to the temptation of silencing those who
express themselves in ways that we find repugnant, what
example do we set for others around the world?
(Written statement of Senator Patrick Leahy, April 20, 1999.)
The First Amendment boldly proclaims that ``Congress shall
make no law * * * abridging the freedom of speech.'' The
proposed amendment would turn the ``no'' into an ``almost
no''--a singular erosion of the principle for which the First
Amendment stands. Perhaps that is why the vast majority of
Americans do not support the proposed constitutional amendment
once they know of its unprecedented impact on the First
Amendment.10
---------------------------------------------------------------------------
\10\ While the sponsors of S.J. Res. 14 purport to be responding to
``the continuing groundswell of support by the American people for
constitutional protection of their flag'' (Part II), recent polling
data on this issue is mixed. One 1999 poll showed Americans to be about
evenly divided when asked whether the Constitution should or should not
be amended to prohibit burning or desecrating the American flag, with
51 percent answering ``should,'' and 48 percent answering ``should
not.'' According to the same poll, 90 percent of those answering
``should'' reconsidered their answer and said that the Constitution
should not be amended when informed that, if the amendment were
approved, it would be the first time any of the freedoms in the First
Amendment had been amended in over 200 years. See State of the First
Amendment 1999 Questionnaire, .
---------------------------------------------------------------------------
D. THE JOHNSON DECISION WAS CONSISTENT WITH GENERATIONS OF
CONSTITUTIONAL DOCTRINE
1. The Supreme Court has never accepted limitations on the first
amendment for peaceful protests involving flag desecration
In beating the drum for the first amendment to the First
Amendment, the majority report perpetuates another myth that
has been fueling the flag protection movement since 1989,
namely, that the Supreme Court's decision in Johnson ``broke
with legal tradition'' (Part I) and worked ``a dramatic change
in First Amendment jurisprudence'' (Part III.D). There quite
simply is no ``legal tradition'' of upholding bans on flag
desecration against First Amendment challenges--just
theopposite is true. The strained efforts of the majority to
manufacture such a tradition underscore just how wrong it is in its
characterization of American legal history.
a. Endecott's case
The majority report begins (in Part III.C.1) with
Endecott's Case, a 1634 action of the Massachusetts Bay Colony
in which ``a domestic defacer of the flag'' was prosecuted. In
that case, John Endecott cut the cross of St. George from an
English flag in apparent protest against the tyranny of Charles
I and Bishop Laud. At the time, the Bay Colony offered no First
Amendment rights. Freedom of speech was denied, as were freedom
of assembly and freedom from the establishment of religion.
Indeed, there were no written or even customary laws at this
date: punishment was imposed by then-governor Winthrop and his
allies in accordance with their view of morality and Scripture
(``Thou shalt not suffer a witch to live.'') 11 It
is remarkable that the actions of the British colonial
government repressing American patriots should be the model and
precedent for what the Senate should do now. Yet that,
amazingly, is the logic of the proposed amendment.
---------------------------------------------------------------------------
\11\ This same regime presently banished Roger Williams (1635) for
urging religious liberty, and Anne Hutchinson (1638) and Rev. Roger
Wheelright (1637) over doctrinal differences. Hawke, The Colonial
Experience, 143-146, 689 (1966).
---------------------------------------------------------------------------
Endecott's Case is, of course, properly seen as an example
of the tyranny against which the Founders rightly rebelled, and
Endecott's ``desecration'' as a very early step on the long
movement toward independence from England. The case also is an
early analog to a similar ``desecration'' of the English flag
by George Washington to create the first flag of the
Continental Army. On taking command of the army on July 3,
1775, Washington took an English flag and, after removing both
the cross of St. George and the cross of St. Andrew, sewed six
white stripes onto the remaining red field. By this
``desecration,'' George Washington created the 13 red and white
stripes that remain to this day. Hart, The Story of the
American Flag, 58 Am. L. Rev. 161, 167 (1924). We frankly are
astonished that the majority report would cast aspersions on,
in Patrick Henry's phrase, such gauntlets cast in the face of
tyranny.12
---------------------------------------------------------------------------
\12\ The debate over Endecott's case was joined in an earlier
report on the proposed amendment. S. Rpt. No. 298, 105th Cong., 2d
Sess. 7, 9 (1998) (majority); id. at 56-57 (minority). While the
majority revised its views in other respects, it failed to strike or
justify its bizarre reliance on Endecott's case.
---------------------------------------------------------------------------
b. James Madison and Thomas Jefferson
The next examples cited by the majority report (in Part
III.C.2.a) are also completely irrelevant to freedom of speech
and the First Amendment. The majority report cites as part of
its ``legal tradition'' a characterization by former Judge
Robert Bork regarding James Madison's opinion that the tearing
down of the flag of the Spanish minister in Philadelphia in
1802 was actionable. The characterization is misleading. The
incident refers, of course, to assaults on property (a Spanish
flag) within a foreign embassy, and to the view that such
assaults as entering uninvited into the ambassadorial
residence, destruction of a painting, or destruction of a flag
are equivalent to attacks on the foreign minister. 4 Moore,
Digest of International Law 627 (1906). The section cited deals
with ``Protection of Diplomatic Officers'' and has nothing to
do either with peaceful protest, the flag of the United States
or the decision in Johnson. Indeed, destruction of another's
property, whether a flag or otherwise, remains a crime
throughout the United States.
The majority report misses the point again when it cites
Madison for the unremarkable proposition that for a foreign
ship to menace a ship of the United States, fire upon a ship of
the United States, and force it to haul down the colors is a
``dire invasion of sovereignty.'' The harm comes from firing
upon a United States military vessel; the treatment of the
flag, to the extent that it could be isolated from the grievous
physical coercion of American sailors involved in lowering it,
simply added insult to a great injury. If the British had
simply shot at United States servicemen and left the flag
alone, surely Madison would not have shrugged his shoulders and
let the matter pass. Again, the example has nothing whatever to
do with peaceful protest or the First Amendment. The United
States can and does still strike back against those who attack
Americans at home and abroad; Johnson had no effect on that
principle.
Equally unrelated is the majority's citation (in Part
III.C.2.b) of a letter from Thomas Jefferson dealing with the
use of the U.S. flag by foreign ships to avoid English
sanctions against trade with France during the 1790s. Jefferson
was writing to our Consul in Canton, China, to urge him to
cooperate with other nations to detect such smugglers flying
under false colors. Lipscomb, ed., 9 Writings of Thomas
Jefferson 49-50 (1903). This has nothing to do with peaceful
protest, freedom of expression, or the First Amendment. The
United States can and does still cooperate with other nations
to limit the use of its flag; Johnson had no effect on that
principle.
The suggestion that our Founders viewed flag desecration as
a heinous offense clearly worthy of severe penalties falls flat
when we notice that the Constitution never mentions either the
flag or flag desecration, and that neither the Founders nor any
other Federal legislators saw fit to outlaw flag desecration
until 1968.
c. Statutory protection for the flag
In its search for supportive ``legal tradition,'' the
majority (in Part III.C.3.b) leaps from 18th century foreign
policy over a century to the adoption of the first flag
protection legislation. As Professor Goldstein describes in his
scholarly history of the flag protection movement, an extensive
campaign engineered in the late 19th century by various
veterans groups led to the adoption of flag desecration laws in
every State, beginning in 1897. While the flag protection
movement was successful in obtaining passage of the State flag
protection laws, however, in early cases where those laws were
challenged, they were overwhelmingly invalidated. See
Goldstein, Saving ``Old Glory,'' ch. 1.
Curiously, the majority report cites these early statutes
and the decisions invalidating them as evidence of a centuries-
old tradition supporting flag protection. In fact, this history
reveals that efforts to iconize and afford legal protection to
the flag are quite recent, and that such efforts have always
been controversial and often unsuccessful.
The majority report relies heavily on Halter v. Nebraska,
205 U.S. 34 (1907), in which the Supreme Court upheld a
Nebraska statute forbidding the use of representations of the
flag for purposes of advertisement. The citation is far off
target. The defendants in Halter, who were convicted of using
the flag as an advertisement on a bottle of beer, challenged
the Nebraska statute on three grounds: (1) as infringing their
personal liberty guaranteed by the Fourteenth Amendment; (2) as
depriving them of privileges impliedly guaranteed by the
Constitution to citizens of the United States; and (3) as
unduly discriminating and partial in its character. Id. at 39.
The defendants did not challenge the statute on free speech
grounds, nor did the Court give any consideration to First
Amendment issues. Indeed, Halter was decided nearly 20 years
before the Supreme Court concluded that the First Amendment
applied to the States by virtue of the Fourteenth Amendment
(see Gitlow v. New York, 268 U.S. 652 (1925)), and nearly 70
years before the Court extended First Amendment protection to
commercial speech, such as the beer advertisement at issue in
Halter (see Virginia State Bd. of Pharmacy v. Virginia Citizens
Consumer Counsel, Inc., 425 U.S. 748 (1976)).
Similarly inapposite is the majority's remark (in Part
III.C.3.b) that the Lochner-era courts that struck down early
State flag protection statutes ``perceived no First Amendment
problem with the statutes.'' Those courts did not consider the
First Amendment implications of the statutes--nor could they
have--since the First Amendment did not, at that time, apply
against the States.
The majority report rounds out its historical survey by
citing three State court cases, all decided shortly after the
attack on Pearl Harbor, in which flag-related convictions were
upheld. See Part III.C.3.b (citing State v. Schleuter, 23 A.2d
249 (N.J. 1941); People v. Picking, 42 N.E.2d 741 (N.Y. 1942);
Johnson v. State, 163 S.W.2d 153 (Ark. 1942)). In two of those
cases, Schleuter and Picking, the courts did not deal with the
constitutional validity of the criminal statutes, as no
constitutional contentions were advanced.13 Indeed,
the New Jersey Supreme Court distinguished Schleuter on this
very ground, when, 32 years later, it struck down New Jersey's
flag protection statute as unconstitutional. See State v.
Zimmelman, 301 A.2d 129, 284 (N.J. 1973).
---------------------------------------------------------------------------
\13\ Picking, like Halter, involved a commercial use of the flag--
it was painted on the sides of an automobile under four loudspeakers
and the words ``Travel America''--and the commercial speech doctrine
did not yet exist.
---------------------------------------------------------------------------
The third case, Johnson, did not involve the physical
desecration of a flag--indeed, the flag at issue was never even
touched. The defendant in Johnson went to the local Welfare
Commissary to procure commodities for himself, his wife, and
his eight children. The head of the Commissary, who testified
that he was `` `sworn not to give to anyone who wasn't a loyal
American citizen' '' (163 S.W.2d at 155) asked the defendant to
salute the flag. The defendant, who had religious objections to
saluting the flag (id. at 154), refused. According to two
witnesses, the defendant also exhibited contempt for the flag
by saying that it meant nothing to him and was only a ``rag''.
Based on this statement, which the defendant denied having
made, the Arkansas Supreme Court affirmed the conviction. Id.
at 154. The case provides no support for S.J. Res. 14, the
purported purpose of which is to protect the physical integrity
of the flag, while retaining full protections for oral and
written speech.14
---------------------------------------------------------------------------
\14\ Johnson was decided during the brief period between
Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940)--in which the
Supreme Court refused to enjoin enforcement of a compulsory flag salute
law--and West Virginia Bd. of Educ. v. Barnett, 319 U.S. 624 (1943),
which overruled Gobitis and enjoined such enforcement. These cases are
discussed infra, in Part VIII.D.2.
---------------------------------------------------------------------------
The majority also cites two Federal cases involving
convictions under the Federal flag protection statute. In the
first, involving an art dealer who sold ``constructions''
composed in part of U.S. flags, the conviction eventually was
set aside by a district court applying established principles
of Supreme Court First Amendment jurisprudence. See United
States v. Radich, 385 F. Supp. 165 (S.D.N.Y. 1974). The second
citation is to the Supreme Court's denial of certiorari in Kime
v. United States, 459 U.S. 949 (1982), which is of no
precedential value. See Teague v. Lane, 489 U.S. 288, 296
(1989) (``The `variety of considerations [that] underlie
denials of the writ,' counsels against according denials of
certiorari any precedential value.''; citation omitted).
Disregarded or discounted in the majority report are the
many decisions that go the other way. During the Vietnam era in
particular, numerous courts were called upon to determine the
relationship between statutes prohibiting acts of flag
desecration and the First Amendment's guarantee of freedom of
speech. In case after case, courts overturned flag desecration
convictions on a variety of First Amendment and other grounds,
rejecting the alleged State interest in protecting the symbolic
integrity of the flag. See Goldstein, Saving ``Old Glory,'' at
139-151.15 By 1974, flag desecration laws had been
struck down as unconstitutional in whole or part in eight
States. See Goldstein, Saving ``Old Glory,'' at 148.
---------------------------------------------------------------------------
\15\ Professor Goldstein discusses, for example, Long Island
Vietnam Moratorium Comm. v. Cahn, 437 F.2d 344 (2d Cir. 1970) (flag
emblem with peace symbol superimposed), aff'd, 418 U.S. 907 (1974);
People v. Keough, 31 N.Y.2d 281 (1972) (photograph of nude draped with
flag); People v. Vaughan, 183 Colo. 40 (Colo. 1973) (flag patch worn on
trousers).
---------------------------------------------------------------------------
2. The Supreme Court protected unpopular speech connected to the Flag
long before Johnson
Far more significant in the real legal tradition is the
fact that, in the 75 years that it has applied the First
Amendment to the States, the Supreme Court has never upheld a
conviction for anything amounting to flag desecration. Contrary
to the majority report's claim, the roots of the Johnson
decision lie deep in American jurisprudence. As former
Solicitor General Fried testified the year after Johnson was
decided:
The [Johnson] decision was not some aberration, some
momentary quirk of the Justices. Generations of
constitutional doctrine led naturally and directly to
the Supreme Court's decision in that case. * * * If you
want to unravel [our constitutional] jurisprudence so
as to keep it from covering flag-burning you would have
to unravel decades of doctrine, scores of cases.
(Hearing of June 21, 1990, at 111-112).
The Supreme Court squarely held as early as 1931 that laws
forbidding the display of certain flags (here, the red flag)
violated the First Amendment. Stromberg v. California, 283 U.S.
359 (1931). The Stromberg decision made clear, as have many
other decisions, that the First Amendment protects expressive
conduct (waving a flag) as well as written or spoken speech.
Although the Court briefly allowed the expulsion from
American classrooms of young children who, as Jehovah's
Witnesses, were forbidden by their faith from pledging
allegiance to the flag, Minersville Sch. Dist. v. Gobitis, 310
U.S. 586 (1940), the Court quickly reconsidered and removed the
stain that Gobitis had placed on the First Amendment with its
decision in West Virginia Bd. of Educ. v. Barnett, 319 U.S. 624
(1943).16 There, Justice Jackson wrote:
\16\ The aftermath of the decision in Gobitis offers a sober
warning to those who think government restrictions on unpopular speech
strengthen the social fabric and ``unify'' the country:
[The Gobitis] ruling, along with American entry into the
war in December 1941, helped to foster a new wave of
expulsions of child [Jehovah's] Witnesses [from public
schools] and a large and often extremely violent eruption
of harassment, beatings, and arrests of adult Witnesses.
The American Civil Liberties Union reported that, between
May and October 1940, almost 1,500 Witnesses were the
victims of mob violence in 355 communities in 44 states,
and that no religious organization had suffered such
---------------------------------------------------------------------------
persecution ``since the days of the Mormons.
(Goldstein, Saving ``Old Glory,'' at 94.)
The case is made difficult not because the principles
of its decision are obscure but because the flag
involved is our own. Nevertheless, we apply the
limitations of the Constitution with no fear that
freedom to be intellectually and spiritually diverse or
even contrary will disintegrate the social
organization.
Id. at 641. The Barnett decision, like Stromberg, assured
protection for expressive conduct (remaining seated during
class flag salute) as well as written or spoken speech.
Following the decision in Barnett, the Supreme Court
consistently overturned convictions under flag desecration
statutes in Street v. New York, 394 U.S. 576 (1969) (flag
burned to protest shooting of James Meredith), Spence v.
Washington, 408 U.S. 404 (1974) (peace symbol taped to flag),
and Smith v. Goguen, 415 U.S. 566 (1974) (flag patch on pants
seat).17 Certainly, each of these convictions was
overturned with appropriate distaste for the conduct at issue,
and the decisions were narrowly framed. Nonetheless, by the
time Johnson was decided, the direction of the law was plain.
---------------------------------------------------------------------------
\17\ The majority erroneously asserts (in Part III.D) that the
Court in Smith ``pointed to the Federal flag protection statute . . .
as an example of a constitutional flag protection statute.'' In fact,
the Court simply noted that the Federal statute ``reflects a
congressional purpose'' to define with specificity what constitutes
forbidden treatment of United States flags, in order to avoid
invalidation on grounds of vagueness. 415 U.S. at 581-582 & n.30.
---------------------------------------------------------------------------
The proposed amendment would overturn Johnson and its
successor case, United States v. Eichman, but its effect on
First Amendment jurisprudence would not end there. If
effectively implemented, S.J. Res. 14 also would overturn
Street v. New York, Smith v. Goguen and Spence v. Washington,
each of which involved a physical act that could fall within a
statutory definition of desecration. The amendment thus would
overturn decades of consistent interpretation of the First
Amendment, and certainly would cast a shadow over other flag-
related decisions, such as Barnett. It would also, according to
the majority report (in Part III.E.3), ``supersede * * * to the
extent necessary, R.A.V. [v. City of St. Paul, 505 U.S. 377
(1992)],'' in which the Supreme Court, in an opinion by Justice
Scalia, reaffirmed the principle, fundamental to the First
Amendment, that content-based regulations are presumptively
invalid. See infra Part VIII.E.4. Indeed, the amendment could
work great mischief in areas far removed from flags and R.A.V.;
there is the risk that it could be seized on as a basis for
treating mere offensiveness as an interest that may justify
government censorship.
In sum, by excepting certain unpopular speech from First
Amendment protection, S.J. Res. 14 would have severe
implications for free speech jurisprudence in general.
e. the proposed amendment is vague and its effect on civil liberties
uncertain
1. There Is No Consensus or Clarity on the Definition of ``Flag''
The proponents of S.J. Res. 14 have failed to offer a clear
statement of just what conduct they propose to prohibit, or to
advise the American people of the actions for which they may be
imprisoned. Instead, they have asked that we trust to the
wisdom of future Congresses 18 and the
courts.19 The American people deserve more from
their Congress, this Congress, before they alter the
Constitution of the United States.
---------------------------------------------------------------------------
\18\ Unlike earlier proposals for a constitutional amendment
prohibiting flag desecration, S.J. Res. 14 may be implemented by
Congress only, not by the States. The majority report mentions this
major language change in a footnote (in Part III.E.3), but does not
bother either to explain or to justify it.
\19\ Three times the majority report assures us (in Parts III.E.3
and III.E.4) that ``[e]xperience justifies confidence'' in our courts,
to distinguish between legitimate and illegitimate forms of flag-
related expression, and to interpret the terms of a constitutional
amendment. We are delighted with the majority's expression of
confidence in our courts, even if made only to avoid accountability and
deflect charges of vagueness.
---------------------------------------------------------------------------
Far from offering any consensus, the proponents of this
amendment have displayed a striking range of disagreement over
what they intend to stop. Senator Feinstein attempted a clear
and careful definition of a flag to include only the
``official'' flag itself:
I know people have made undergarments out of flags.
They have made neckties out of flags. But once that
pattern is in the form of a flag and able to hang as a
representation of our nation, I really think it takes
on a whole different connotation. * * * [T]he flag is
so precise that if one were to change the colors, the
orientation of the stripes or the location of the field
of stars, it would actually no longer be an American
flag.
(Transcript of Comm. Markup, June 24, 1998, at 16-17.)
The definition of Senator Feinstein would leave
unrestricted a wide range of activities that involved burning,
or worse, of ``substitute'' flags, items with 51 stars, with 12
or 14 stripes, or with a purple field, even under circumstances
clearly intended to communicate the most bitter disrespect for
this nation and for its flag.
Even this definition leaves essential questions unanswered,
and the issue of what would make a flag ``official'' still
would force Americans to act at their peril. Must the flag be
of cloth? Must it be of a certain size, or would it include
child's-size flags such as are used at many patriotic outings?
What flags are ``able to hang as a representation of our
nation''?
The majority report (in Part III.E.3) equivocates on this
issue, passing the buck to future Congresses and to the courts,
while noting one proponent's suggestion that Congress could
simply adopt the definition contained in the Flag Protection
Act of 1989. Meanwhile, the 1997 House Report on a proposed
flag amendment identical to S.J. Res. 14 offered a definition
directly contrary to Senator Feinstein's interpretation:
[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.
(H. Rep. 121, 105th Cong., 1st Sess. (1997), at 8-9.)
Expansive definitions of the flag have been used regularly
in statutes that have prohibited flag burning. The Wisconsin
statute, for example, defined ``flag'' as ``anything which is
or purports to be the Stars and Stripes, the United States
shield, the United States coat of arms, * * * or a copy,
picture, or representation of any of them.'' Wis. Stat.
Sec. 946.05(2). The Uniform Flag Law defined ``flag'' to
include ``any flag, standard, color, ensign or shield, or copy,
picture or representation thereof, made of any substance or
represented or produced thereon, and of any size, evidently
purporting to be such flag * * * of the United States * * * or
a copy, picture or representation thereof.'' The 1968 Federal
Flag Desecration Law provided:
The term ``flag of the United States'' * * * shall
include any flag, standard, colors, ensign, or any
picture representation of either or of any part or
parts of either, made of any substance or represented
on any substance, of any size evidently purporting to
be either of said flag, standard, colors, or ensign of
the United States of America, or a picture or a
representation of either, upon which shall be shown the
colors, the stars and the stripes, in any number of
either thereof, or of any part or parts of either, by
which the average person seeing the same without
deliberation may believe the same to represent the
flag, standard, colors, or ensign of the United States
of America.
The proposed amendment could empower Congress to prohibit
``desecration'' of any of these; and, indeed, a protester
certainly could offend the sensibilities of all of us by an act
of desecration of any of these. 20
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\20\ On the other hand, courts could interpret the amendment
narrowly, permitting Congress to prohibit physical desecration only of
``the flag of the United States,'' as defined by statute and Executive
Order, and not of items intended to be perceived as such. In that case,
the purpose and effectiveness of the amendment could be evaded by
persons who burned a flag that varied slightly from the official design
of the U.S. flag or who, upon being charged with flag burning, simply
claimed that this is what they had done. The ability to raise the
factual defense that it was not the U.S. flag that was burned but
simply a piece of cloth that was meant to look like the flag would mean
that successful prosecutions would depend, as now, on the applicability
of other laws, including laws against theft, vandalism and public
disturbance.
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Senator Feingold told the Committee about his own recent
experience at a Capitol Hill restaurant, where the menu is a
very large representation of the American flag. He was eating
his dinner, when a big commotion erupted on the other side of
the restaurant:
We turned to see a woman frantically trying to put
out a fire that had started when her oversized American
flag menu had gotten too close to the small candle on
the table. It caught on fire. * * * This thing looks
exactly like an American flag, in size, in color,
representation. I hope she wasn't arguing about Kosovo
because somebody might want somebody to look at it.
(Transcript of Comm. Markup, April 29, 1999, at 25).
Are we to amend the Constitution and punish people who burn
pictures of the flag? If a protestor, chanting the words that
Gregory Lee Johnson spoke, ``Red white and blue, we spit on
you,'' burned not a flag but an image of a flag, would anyone
fail to be offended?
The majority report expresses shock at the idea that
Congress might be less than wise in formulating any definition
of the flag. But the wide disagreement among the proponents of
S.J. Res. 14 shows the compelling need for a clear statement to
the American people as to what conduct they intend to
criminalize, if they in fact can create such a definition at
all.
2. There is no consensus or clarity on the definition of
``desecration''
Just as there is no clear definition of ``flag'', the
definition of ``desecration'' will invite a literally infinite
catalogue of possible disputes. The Uniform Flag Law, while
separately banning ``mutilation'' of the flag, defined
``desecration'' to include:
(a) Place or cause to be placed any word, figure,
mark, picture, design, drawing or advertisement of any
nature upon any flag * * *;
(b) Expose to public view any such flag * * * upon
which shall have been printed, painted or otherwise
produced, or to which shall have been attached * * *
any word, figure, mark, picture, design, drawing or
advertisement; or
(c) Expose to public view for sale, * * * or sell,
give or have in possession for sale * * * an article of
merchandise * * * upon which shall have been produced
or attached any such flag * * * in order to advertise,
call attention to, decorate, mark or distinguish such
article or substance.
We presume that the majority does not consider the Uniform
Flag Law to be ``silly'' or an unreasonable guide. Each of its
prohibited behaviors involves a physical act of desecration,
and Congress likely could adopt such a statute under the
proposed constitutional amendment. The scope of such a ban
would affect significantly not only speech, but also American
commerce and life. The cover of the Washington Post's Home
section of July 2, 1998, included a photograph of picnic
equipment with a flag motif--disposable ``flags,'' within the
meaning of most statutes, and certain, indeed designed, to be
soiled with food and thrown into the trash--in other words to
be desecrated. Are we to amend the Constitution to prohibit
such picnic trivia?
Noted television actor John Schneider, who testified in
1998 for the majority, observed that if someone did
``purposeful'' harm to a flag lapel pin, ``they have desecrated
the flag and that [should be] a punishable offense just as if
they had harmed any other United States Flag intentionally.''
(Hearing of July 8, 1998, at 147.)
Mr. Schneider captured the difficulty of defining the
essential terms of the proposed amendment when, having included
lapel pins in his definition of a flag, he recommended against
allowing representations of the flag on tissues or underwear,
but for allowing shirts or jackets representing the flag.
``These are just clothing and not really the ``Flag.'' I'm not
certain why this is true but it falls under the category of
being right because it is.'' (Id.)
Another proponent of the amendment, Professor Richard
Parker, considered this view to be ``wacky,'' and would not
prohibit even the display of a photograph of the flag
indelicately touching a nude male, which has been prosecuted in
this country. (Id. at 149.)
Vietnam veteran Stan Tiner observed that the worst crimes
against the flag are committed by ``well-intentioned or perhaps
simply thoughtless persons'' who, for example, place hundreds
of small flags around a city to honor America and the leave
them to the wind and weather. (Hearing of March 25, 1998, at
48).
The fact is that the proposed amendment is not in the least
limited to flag burning. It prohibits ``desecration,'' and the
core idea of desecration will persist in any implementing
statute: the diversion of a sacred object to a secular use.
People wrap flags around themselves or around manikins and the
like in political marches. It is a step from there to wearing a
flag like a shawl. People pin flags up in storefront displays.
People use flags in what they consider to be artistic
presentations, make paintings of flags and use flag images. A
venerable African American quilt maker uses bits of flags in
her work. Flags are used in movies and plays in all kinds of
dramatic ways. Any of these uses may have political or cultural
overtones that offend someone. All of them are nonconforming,
nonceremonial uses of flags.
Testifying before the Committee in opposition to S.J. Res.
14, Senator John Chafee gave two examples of the amendment's
hidden pitfalls:
In my State of Rhode Island, there is a highly-prized
work of art at the Rhode Island School of Design. It is
a hooked rug, carefully and conscientiously made by
patriotic American women some 100 plus years ago, and
its design is the American flag. These women made it as
a symbol of their national pride; yet it is a rug--
which by definition is to be walked on! Is that
``desecration?'' Should those patriotic craftswomen
have gone to jail?
The handbook of the Boy Scouts of America, of which
more than 34 million copies have been printed since
1910, instructs young boys to ``Clean the flag if it
becomes soiled. Mend it if it is torn. When worn beyond
repair, destroy it in a dignified way, preferably by
burning.'' With the passage of this proposal, would we
put thousands of patriotic young Scouts in jail?
(Written statement of Senator John Chafee, April 28, 1999.)
The most powerful example of the vagueness and mischief of
this amendment came last year from Senator Durbin, who noted
that many people would consider it desecration to sit on a
flag. Certainly, each of us can imagine circumstances in which
such conduct would be an outrage. Senator Durbin then pointed
out that in one of our greatest and most moving monuments to
freedom, the Lincoln Memorial, Abraham Lincoln sits--on the
American flag. (Transcript of Comm. Markup, June 24, 1998, at
24.)
3. Use of the word ``desecration'' in S.J. Res. 14 undermines the first
amendment religion clauses
Increasing numbers of religious leaders and people of faith
are expressing real concern with the proposed constitutional
amendment. Reverend Nathan Wilson, head of the West Virginia
Council of Churches, stated the problem quite plainly when he
testified before the Committee: ``Desecration of an object is
possible only if the object is recognized as sacred.'' (Written
statement of Rev. Nathan Wilson, April 20, 1999.) In our
constitutional system, the government should not be in the
business of defining for its people what is sacred.
This is not simply a matter of semantics. It goes right to
the heart of the significance of the government, under force of
this amendment, giving an exalted status to an object, even an
object as important and worthy of respect as the American flag.
As over 140 religious leaders wrote to the Committee, in a
letter dated April 29, 1999:
Although we represent diverse faiths, it is unique to
religious traditions to teach what is sacred and what
is not. No government should arrogate to itself the
right to declare ``holy'' and capable of
``desecration'' that which is not associated with the
divine. To do so is to mandate idolatry for people of
faith by government fiat. Our First Amendment has
guaranteed to people of faith or to those with no faith
that the government would not be arbiter of the sacred.
In light of this criticism, the flag amendment threatens
not only our freedom of political expression but also our
freedom of religious expression. In this country, our private
religious institutions, not the government, determine what is
sacred. That principle underlies both the Establishment and the
Free Exercise Clauses of the First Amendment. This amendment
gives a sacred status to the flag. As much as we love the flag,
that is not a power that our government was granted by the
framers of the Constitution, nor should it ever have that
power.
Professor Cass Sunstein underlined this point in his
testimony before the Committee in 1995:
[The word ``desecration''] intermingles the flag with
the divine--an intermingling that is in serious tension
with the existing constitutional structure, in
particular with the religion clauses. Under our system,
the state is not identified with a religion. Under our
system, there is no such thing as blasphemy law. At
least for purposes of federal law, the nation is not
``sacred.'' ``Desecration'' is therefore an
inappropriate word to apply to destruction of the flag.
(Proposing a Constitutional Amendment Authorizing the States
and Congress to Prohibit the Physical Desecration of the Flag:
Hearing Before the Subcomm. on the Constitution, Federalism,
and Property Rights of the Senate Comm. on the Judiciary, 104th
Cong., 1st Sess. (June 6, 1996), at 70.)
Another constitutional scholar, Professor Robert Cole,
echoed this concern in a letter to the Committee dated April
28, 1999:
It is no accident that the proposed amendment
prohibits ``desecration,'' the core meaning of which is
to convert a sacred object to a secular use. But flags
are secular objects; they are political emblems to be
loved if one chooses but not to be sanctified. It is a
dangerous confusion of the political with the sacred to
think in terms of sanctifying our national flags, or
even subconsciously to do so.
Professor Cole concluded, ``For the sake of religious faith at
least as much as for the neutrality of government, the sacred
must be reserved for things having to do with the divine.''
4. There is no consensus or clarity on the issue of content-neutrality
The Supreme Court has frequently condemned discrimination
among different users of the same medium for expression.
``[A]bove all else, the First Amendment means that government
has no power to restrict expression because of its message, its
ideas, its subject matter, or its content.'' Police Dept. of
Chicago v. Mosley, 408 U.S. 92, 95 (1972).
Proponents of S.J. Res. 14 have demonstrated an alarming
ambivalence whether it would permit Congress to restrict flag-
related expression on the basis of its content. This year's
majority report insists (in Part III.E.4) that the proposed
amendment ``is not intended to--and would not--discriminate
against specific messages or points of view.'' A few pages
earlier, however, the majority report states that S.J. Res. 14
would ``supersede * * * to the extent necessary'' the Supreme
Court's 1992 decision in R.A.V. v. City of St. Paul, which held
that even when the First Amendment permits regulation of an
entire category of speech or expressive conduct, it does not
necessarily permit the government to regulate a subcategory of
the otherwise proscribable speech on the basis of its message.
Moreover, the majority report in the 105th Congress on exactly
the same proposed amendment included a full section entitled
``A `Content Neutral' Constitutional Amendment is Wholly
Inappropriate,'' specifically attacking the notion, central to
the First Amendment and fundamental to a free people, that the
government should maintain neutrality as to the content or
message of political speech. (See S. Rpt. No. 298, 105th Cong.,
2d Sess. (1998), at 39-42.)
Senator Leahy asked the majority's principal academic
witness, Professor Richard Parker, whether Congress could pass
legislation under S.J. Res. 14 that outlawed only those flag
burnings intended as a protest against incumbent officeholders.
Professor Parker replied, ``There is a clear answer there. That
would be a violation of the First Amendment.'' (Hearing of
April 20, 1999, at 88). This result obtains, however, if and
only if the proposed amendment is understood to confer powers
that are limited by the R.A.V. principle. This, apparently, is
Professor Parker's understanding; he wrote to the Committee on
April 27, 1999, in response to a follow-up question by Senator
Feingold, that ``the R.A.V. rule would not be affected in the
slightest by ratification of the amendment.'' But if S.J. Res.
14 ``supersedes'' R.A.V., as the majority report says, then the
proponents' answer to Senator Leahy's question appears to be
quite the opposite.
Senator John Chafee discussed the dangers of content-based
restrictions in his statement to the Committee. He asked
whether the amendment's proponents intended ``that when some
bearded, untidy protestor burns an American flag outside a
convention hall, he should go to jail--but three blocks away, a
Boy Scout burns the flag in a dignified manner, he will go
free?'' If so, he said, then we are getting into ``a messy area
indeed.'' (Written statement of Senator John Chafee, April 18,
1999).
We share Senator Chafee's concern that in real life, the
amendment and its implementing statute would be enforced on the
basis of content. Police and prosecutors would inevitably
select for punishment those flag desecrators whom they, or
their constituents, found insufficiently reverent, patriotic,
or conformist. Other, more respectable desecrators would likely
be overlooked--if they were not already frightened into
silence.
That is, content-neutral legislation prohibiting flag
desecration would work an additional kind of mischief. Such
legislation--if it survived vagueness and overbreadth
challenges (assuming such challenges could be brought)
21--would inevitably inhibit, silence, or punish a
great range of expressive behavior, much of which most people
consider innocent or acceptable. In short, the amendment would
create havoc for free expression for the purpose of solving no
real problem.
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\21\ Acting Assistant Attorney General Randolf Moss, who testified
for the Administration against S.J. Res. 14, noted the ``profound
difficult[y]'' of identifying just how much constitutional doctrine the
amendment would supersede. (Written statement of Randolf Moss, April
28, 1999.) We do not know, for instance, whether the amendment is
intended, or would be interpreted, to authorize enactments that
otherwise would violate the due process ``void for vagueness''
doctrine, or the First Amendment ``overbreadth'' doctrine.
---------------------------------------------------------------------------
5. The difficulties that attend a statutory approach to flag burning
would remain even after a constitutional amendment
Proponents of S.J. Res. 14 argue, unconvincingly, that no
statutory alternative is available to address the issue of flag
burning. As noted above (in Part III.D.2), one statutory
alternative has already been proposed in this Congress. Beyond
that, however, the same problems that complicate the drafting
of such a statute, and specifically of affording Americans the
specificity demanded by the Due Process Clause of the Fifth
Amendment, also attend the proposed amendment.
As the Supreme Court wrote in Smith v. Goguen, 415 U.S.
566, 572-573 (1974), discussed in the majority report (in Part
III.D), the due process doctrine of vagueness incorporates
notions of fair notice or warning:
[I]t requires legislatures to set reasonably clear
guidelines for law enforcement officials and triers of
fact in order to prevent ``arbitrary and discriminatory
enforcement.'' Where a statute's literal scope, unaided
by a narrowing state court interpretation, is capable
of reaching expression sheltered by the First
Amendment, the doctrine demands a greater degree of
specificity than in other contexts.
Where vague statutory language permits selective law
enforcement, there is a denial of due process.
A statute enforcing this amendment either would be found
unconstitutional for vagueness or else, as demonstrated above,
silence or capture as criminals hundreds of well-meaning
American citizens and businesses whose patriotism is beyond
question. The majority report indirectly acknowledges as much
(in Part III.E.3) by blithely claiming that its language is
just as clear as ``such terms as `unreasonable searches and
seizures;' `probable cause;' `speedy * * * trial;' `excessive
bail;' `excessive fines;' `cruel and unusual punishment;' `due
process of law;' [and] `just compensation.' '' Of course, these
terms have required and continue to require literally thousands
and thousands of cases for their interpretation. But more
important, we tolerate and even embrace their generality
because in each and every case the terms protect our liberty
and limit the ability of government to search, seize, hold and
punish American citizens; the question always is whether they
extend additional protection to us. An open-ended criminal
statute is another matter entirely; there is no suggestion that
it would enlarge our freedoms. The question, rather, would be
whether we dare to speak in pursuance of our rights. Vagueness
is intolerable where it frightens people into silence and
empowers government to search, seize, hold and punish American
citizens.
The impulse to punish ideas which permeates the majority
report leads only to endless entanglement. Even with the large
increase in the number of flag burnings that could be expected
if this amendment were adopted, and even without the
inventiveness in mistreatment of the flag and near-flags that
could be predicted, there would be no end to the litigation
under any statute. The amendment, the ensuing litigation, and
the inevitable erratic pattern of results, would demean rather
than protect the flag.
Do we really want to open a constitutional can of worms,
and invite a parade of hairsplitting court cases over whether
burning a picture of the flag or putting the flag on the
uniforms of our Olympic team or stepping on a lapel pin amounts
to desecration? The biggest threat to the dignity of the flag
may be such efforts to construct an impermeable legal barrier
to protect it.
F. CONCLUSION
There is no need to amend the Constitution. The flag has a
secure place in our hearts. The occasional insult to the flag
does nothing to diminish our respect for it; rather, it only
reminds of our love for the flag, for our country, and our
freedom to speak, think and worship as we please. The laws
against everyday hooliganism allow ample scope for States to
jail those who need to be jailed regardless of their message or
cause, but the punishment meted out by the law is nothing
compared to the condemnation and ostracization by their fellow
citizens that flag burners face.
Even more precious than the flag, however, are the freedoms
that it represents. Our soldiers fought not for a flag but for
freedom, freedom for Americans and for others across the globe.
It would be the cruelest irony if, in a misguided effort to
honor the symbol of that freedom, we were to undermine the most
precious of our freedoms, the freedoms of the First Amendment.
This amendment is a wrong-headed response to a crisis that
does not exist. It would be an unprecedented limitation on the
freedom Americans enjoy under the First Amendment, and would do
nothing to bolster respect for the flag. Respect for the flag
flows from the freedoms we enjoy and from the sacrifices of
those who have protected and spread that freedom. Freedom is
what we should cherish. Freedom is what we should protect.
We respectfully urge that S.J. Res. 14 not be approved by
the Senate.
Patrick Leahy.
Ted Kennedy.
Herb Kohl.
Russ Feingold.
Robert G. Torricelli.
IX. Changes in Existing Law
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, the Committee finds no changes in
existing law caused by passage of Senate Joint Resolution 14.