[Senate Report 108-334]
[From the U.S. Government Publishing Office]
Calendar No. 646
108th Congress Report
SENATE
2d Session 108-334
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CONSTITUTIONAL AMENDMENT TO PROHIBIT PHYSICAL DESECRATION OF U.S. FLAG
_______
August 25, 2004.--Ordered to be printed
Filed, under authority of the order of the Senate of July 22, 2004
_______
Mr. Hatch, from the Committee on the Judiciary, submitted the following
R E P O R T
together with
MINORITY AND SUPPLEMENTAL VIEWS
[To accompany S.J. Res. 4]
The Committee on the Judiciary, to which was referred the
joint resolution (S.J. Res. 4) 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
I. Summary..........................................................2
II. Legislative History..............................................3
III. Discussion.......................................................7
A. The Flag in Our Culture............................. 7
1. The Flag and the September 11, 2001 Attacks..... 7
2. A Powerful Reminder of Sacrifice................ 8
3. The Flag as a Symbol in a Culture of Symbols.... 8
IV. The Flag in American Law........................................10
A. The Constitution's Framers.......................... 10
1. James Madison................................... 11
2. Thomas Jefferson................................ 12
B. Statutory Protection for the Flag................... 12
1. Promotion of respect for the flag............... 13
2. Protection for the flag: striking the balance... 13
3. Judicial application of flag protection
statutes: respecting the balance............... 15
C. Judicial Amendment of the Constitution: Restriking
the Balance........................................ 16
D. The Need for a Constitutional Amendment............. 19
V. The Proposed Constitutional Amendment...........................21
A. What it says and means.............................. 21
B. Several constitutional amendments were spurred by
Supreme Court decisions............................ 21
C. What the Proposed Amendment is not.................. 22
1. No Reduction in First Amendment rights.......... 22
2. No Disrespect in Amending the Constitution...... 24
3. No Slippery Slope............................... 24
D. Let the People Decide............................... 25
E. The Ratification Debate............................. 26
VI. Vote of the Committee...........................................27
VII. Text of S.J. Res. 4.............................................27
VIII.Cost Estimate...................................................27
IX. Regulatory Impact Statement.....................................28
X. Minority Views..................................................29
XI. Supplemental Views..............................................67
Appendix A......................................................69
Appendix B......................................................72
I. Summary
The Flag of the United States is both a legally described
symbol of our Federal Government and its sovereignty, and an
important wellspring of culture, loyalty, pride, unity and
resolve. The dual roles in government and culture explain why
the flag is a national resource and treasure worthy of
protection.
The flag protection amendment is simple and narrow. It
reads: ``Congress shall have the power to prohibit the physical
desecration of the flag of the United States.'' It does not
make anything illegal. If it is enacted, the amendment would
simply authorize--but not require--Congress to pass a law
protecting the American flag. Such laws existed for 200 years
prior to two Supreme Court decisions in 1989 and 1990, and
those laws had been enforced by five other Supreme Court
rulings and numerous state court cases. James Madison and
Thomas Jefferson supported legal protections for the flag, and
so did Supreme Court Justice Hugo Black, who was perhaps the
leading exponent of First Amendment freedoms ever to sit on the
Supreme Court.
All fifty states have passed resolutions calling on
Congress to pass a flag amendment. The U.S. House of
Representatives has passed the amendment in each of the last
four consecutive sessions of Congress, including this one.
President Bush supports it as well. Only the Senate--indeed
only a handful of Senators--stands between S.J. Res. 4 and the
state-by-state debate on ratification.
Some critics say that the flag amendment would offend the
right to free speech as guaranteed by the First Amendment. But
the proposed amendment would not affect anyone's ability to
express any opinion whatsoever about the flag, the country, the
government's actions oranything else. Americans will continue
to have the right to express their views in public, in private, in
newspapers, on the Internet, and through broadcast media. The fact is,
acts of disrespect to the flag such as burning it and urinating on it
add nothing whatsoever to any debate about our nation's polices,
priorities, or direction. Desecrating the flag is not a right that
Americans value. Throughout the Committee's consideration of S.J. Res.
4, no one has stated that flag desecration is acceptable behavior. In
fact, a number of Senators who voted against the measure made a point
of labeling flag desecration reprehensible conduct.\1\
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\1\ Transcript of Proceedings, Committee on the Judiciary,
``Letting the People Decide: The Constitutional Amendment Authorizing
Congress to Prohibit the Physical Desecration of the Flag of the United
States,'' March 10, 2004 (hereinafter, ``Hearing Transcript''), pp. 14,
21, 27.
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Moreover, the flag amendment is about much more than
speech. Its passage and ratification would be an important
demonstration that the American people still run the
government, and not the other way around. The most basic
question about the structure of our Federal Government is the
balance of power among the three branches: executive,
legislative, and judicial. For almost 200 years, the
legislative branch had the power to make laws concerning
physical desecration of the flag. That changed in 1989 and 1990
when the Supreme Court ruled that flag burning is ``speech.''
The effect of that decision was a reallocation of power from
Congress to the Supreme Court--which is now the only branch of
government that can decide whether a flag desecration law can
exist. An overwhelming number of Americans disagree with that
result. By giving the discretion back to Congress, the flag
amendment would restore the power of the people to determine
flag desecration policy through their elected representatives.
If the Senate passes the flag amendment this year, the
nationwide debate over state ratification will be one of the
greatest public discussions in American history. It will
encourage a deeper study of our nation's history and values. It
will inspire our young people to understand and appreciate the
heroic selflessness displayed during previous generations. And
it will cause many Americans to renew their faith in--and
commitment to--the ideals and values of America that are
greater than anyone's personal self interest.
II. Legislative History
On June 21, 1989, the United States Supreme Court issued
its decision in Texas v. Johnson, 491 U.S. 397 (1989). In that
case, Gregory Johnson had been convicted of violating a Texas
statute for knowingly desecrating an American flag. Johnson
burned a flag at a political demonstration outside the Dallas,
Texas City Hall 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 5-4 decision, the
United States 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 U.S. Constitution,
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. Code
Section 700(a). The Judiciary Committee held hearings on August
1, August 14, September 13, and September 14 of 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. Code Section 700(a).
On October 5, 1989, the Senate passed H.R. 2978, which was
enacted October 28, 1989. Under this statute, codified at U.S.
Code Title 18, Section 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 vote of 51 to 48. At the time, it was
generally believed that the recently passed statute would
survive constitutional scrutiny and an amendment was thus
unnecessary.
On June 11, 1990, the Supreme Court struck down the Flag
Protection Act in United States v. Eichman, 495 U.S. 928
(1990), holding that the 1989 Act, like the Texas statute in
Texas v. Johnson, violated the First Amendment. Eichman
involved individuals who knowingly set fire to several American
flags on the steps of the United States Capitol while
protesting American foreign policy, and other individuals who
knowingly burned a United States flag in Seattle while
protesting passage of the 1989 Flag Protection Act. According
to the Court, the First Amendment protected the physical acts
engaged in by those individuals.
Shortly after the Supreme Court's decision, 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 U.S.
Constitution 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.
On March 21, 1995, Senators Hatch and Howell Heflin (D-AL),
as principal cosponsors, along with a bipartisan group of 53
additional cosponsors, introduced Senate Joint Resolution 31,
another proposed amendment to the U.S. 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 Judiciary 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 to obtain the necessary two-thirds vote of the full
Senate, by a vote of 63 to 36.
Efforts to protect the flag did not end there. On February
4, 1998, Senator Hatch, along with Senator Max Cleland (D-GA),
introduced S.J. Res. 40. The two senators were joined by an
additional 53 original cosponsors in this effort, among those
the Majority Leader, Senator Trent Lott, who explained that by
introducing S.J. Res. 40 the Senate was beginning ``the process
of restoration * * * and renewal. * * * We examine the events
of recent years in the context of history in an effort to
restore and renew our faith in this place we call America. The
lynchpin of this process will be our restoration of what our
flag--our American flag, the flag of these United States, the
flag of what our founders referred to as `We, the people'--
means to us as a people, as citizens, as people united in the
common cause of Freedom.''
On February 13, 1997, a similar resolution, H.J. Res. 54,
was introduced in the House of Representatives by Congressmen
Gerald B. Solomon (R-NY) and William O. Lipinski (D-IL) and 283
other original cosponsors.
On March 25, 1998, the Subcommittee on the Constitution,
Federalism, and Property Rights held a hearing on S.J. Res. 40.
The subcommittee heard testimony from Alan G. Lance, Attorney
General, State of Idaho; Bruce Fein, Esquire; Roger Breske,
Member, Wisconsin State Senate; Professor Stephen B. Presser,
Northwestern University School of Law, Chicago, Illinois;
Professor Robert Justin Goldstein, Oakland University,
Rochester, Michigan; Adrian Cronauer, Esquire, Burch and
Cronauer, Washington, D.C.; Stan Tiner, Alabama Register,
Mobile, Alabama; Patrick Brady, Chairman, Citizen's Flag
Alliance, Sumner, Washington; Rose E. Lee, Former National
President, Gold Star Wives of America, Arlington, Virginia;
Mary Frost, President, Selective Learning Network, Kansas City,
Missouri; Keith A. Kreul, Fennimore, Wisconsin; Francis J.
Sweeney, Secretary/Treasurer, Steamfitters Local Union 449,
Pittsburgh, Pennsylvania.
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. The Committee heard testimony from
Gary G. Wetzel, Oak Creek, Wisconsin; Sean C. Stephenson,
LaGrange, Illinois; John Schneider, Westlake, California; Tommy
Lasorda, Los Angeles, California; Marvin Virgil Stenhammar,
Ashville, North Carolina; Professor Richard D. Parker, Harvard
University Law School; Clint Bolick, Esquire, Vice President
and Director of Litigation, Institute for Justice, Washington,
D.C.
The House Committee on the Judiciary addressed a similar
resolution, H.J. Res. 54, the prior year and favorably reported
H.J. Res. 54 out 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.
At the beginning of the 106th Congress, on March 17, 1999,
Senators Hatch and Cleland introduced S.J. Res. 14, a
constitutional amendment to permit Congress to enact
legislation prohibiting the physical desecration of the
American flag identical to S.J. Res. 40 from the previous
Congress. Senators Hatch and Cleland were joined by an
additional 55 original cosponsors in that 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 Cunningham (R-CA) and John P. Murtha (D-PA) and 260
additional original cosponsors. H.J. Res. 33 was approved by
the House of Representatives on June 24, 1999, by a vote of 305
to 124.
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 S.J. Res. 14 to the full Senate
with a favorable recommendation. On March 29, 2000, cloture was
invoked by a vote of 100 to 0, and then the measure failed to
pass by a vote of 63 to 37.
During the 107th Congress, Senators Hatch and Cleland
introduced S.J. Res. 7 on March 13, 2001. The measure, which
was identical to the previous S.J. Res. 40, was referred to the
Committee on the Judiciary. S.J. Res. 7 was referred to the
Subcommittee on the Constitution on July 15, 2002. No action
was taken on S.J. Res. 7.
At the beginning of the 108th Congress, on January 16,
2003, Senators Hatch and Diane Feinstein (D-CA) introduced S.J.
Res. 4, a resolution identical to S.J. Res. 7 and the other
most recent resolutions. On March 10, 2004, the Committee held
a hearing on the measure. The Committee heard testimony from
the Honorable Daniel J. Bryant, Assistant Attorney General for
the Office of Legal Policy, Department of Justice; retired
Major General Patrick Brady, Chairman of the Citizens Flag
Alliance; Lawrence J. Korb, Senior Fellow at the Center for
American Progress, Adjunct Senior Fellow at the Council on
Foreign Relations, and Senior Adviser to the Center for Defense
Information; John Andretti, a native of Bethlehem, Pennsylvania
and a respected NASCAR Nextel Cup Series driver for Dale
Earnhardt, Inc.; Gary E. May, Associate Professor of Social
Work at the University of Southern Indiana in Evansville; and
Professor Richard D. Parker, the Paul W. Williams Professor of
Criminal Justice at Harvard Law School.
S.J. Res. 4 was referred to the Subcommittee on the
Constitution, Civil Rights and Property Rights, and the
subcommittee approved the measure by a vote of 5 to 4 on June
2, 2004. On July 20, 2004, the full Committee voted to send
S.J. Res. 4 to the floor with a favorable recommendation by a
vote of 11 to 7.
III. Discussion
A. The flag in our culture
The American flag has a profound meaning to American
culture that far exceeds its nominal significance as the item
described by law as the symbol of our Federal government. It
would be a Herculean task to list all of the published songs,
poems, essays, stories, paintings andother creative works that
reflect Americans' love of the flag, and it would be impossible to
catalog all of the privately created objects, from quilts to mailboxes
to letters and photographs, that display the private thoughts and
emotions evoked by Old Glory.
1. The flag and the September 11, 2001 attacks
The horrible terrorist attacks of September 11, 2001 proved
within hours that the American people--along with their friends
around the globe--see the American flag as a signal of strength
and purpose and freedom. By the close of business that day, the
nation's largest retailer had sold 88,000 American flags,
compared to 6,000 on that date in 2000.\2\ Within two days, it
sold out of its stock of 500,000 flags.\3\ People around the
world flew the American flag on September 11, 2001, and the
days immediately thereafter. The tattered flag found amid the
ruins of the World Trade Center became an icon of proud
survival, not unlike the flag Francis Scott Key famously
observed ``was still there'' in the morning after a night of
shelling by British forces during the War of 1812. And the
brilliant red, white and blue hanging over the blackened,
charred wing of the Pentagon inspired many people around the
globe by showing the United States would not surrender to the
forces that tried to inflict great harm on our country.
Americans, together with citizens of other countries who wished
to express their sympathy and support for our country, turned
to the flag as the unifying image of endurance and resolve. The
killing of innocents did not create these feelings for the
flag; it tapped them and brought them to the surface. The
realization that our country was under attack stoked an
emotional flame for the colors, design, history and meaning of
the United States flag, demonstrating again that it is a
national treasure worthy of protection.
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\2\ Associated Press, September 13, 2001, Chuck Bartels.
\3\ Associated Press, September 21, 2001, Anne D'innocenzio.
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One of the most moving tributes to the victims of the
September 11 attacks was a display of over 3,000 flags--one for
each victim--in Sandy, Utah in September 2002. Organized by
Paul Swenson, the silent tribute was not only a fitting
remembrance of the fallen, but also a wonderful demonstration
of the power of the American flag. Each flag represented a
human life. Together, they moved the emotions of many. When a
request was made for volunteers to help set up the flags, over
500 showed up, eager to work. There is simply no other item or
object or symbol that can serve as a tribute, rally a
community, and inspire the best in people as the American flag.
2. A powerful reminder of sacrifice
Untold millions of Americans have sacrificed in profound
ways to build the United States into the world's beacon of hope
and freedom of thought and opportunity. They have put their
lives on the line and their plans on hold as they served in the
armed forces; they have dedicated their creative energies to
solving America's difficulties; they have paid taxes to enable
America's defense and general welfare; they have foregone
personal glory or riches in the name of community. All such
sacrifices have strengthened our country and added to the cause
of liberty, for which it was founded. Many Americans reflect
upon their sacrifices, and those of others, when they see the
American flag.
No transaction in America is more solemn than the moment in
a military funeral when a folded flag is handed to a widow, or
a mother, or a father, whose family member has fallen in the
line of duty to our country. In return for the life of a loved
one, too many Americans have received a flag, folded at a
funeral, as a token of the selfless and total sacrifice that
person, and that family, and those loved ones, have made in
order to further America's well being. It is common for such
folded flags to be displayed in a prominent place such as on a
mantle above a fireplace or on a bookshelf. When Americans look
at such flags, they feel the loss of the person it represents,
and they feel the solace--often too little--that the person
they miss died in an honorable way. The emotions woven into the
fabric of such flags is far too profound to fade or unravel.
People who have such flags in their living rooms or family
rooms certainly are excused if they find it difficult to look
the other way at acts of flag desecration. An item that evokes
so strongly the memory of a beloved individual should be
treated with respect. Someone for whom the flag brings
immediate memories of a departed loved one should not have to
see a flag purposely humiliated by being torn, or burned, or
urinated upon. The country that can require a person to give
his or her life in furtherance of its interests overseas should
not render itself powerless to protect its flag and those who
are hurt by its abuse and humiliation here at home. Indeed, it
is painfully ironic to most Americans that, although the
government can fine a person for urinating on a public street,
the Supreme Court has determined that the government cannot
increase that fine by even a dollar if the act takes place on
the cherished symbol of our country rather than the bare
pavement.
3. The flag as a symbol in a culture of symbols
Perhaps one reason that some people see the flag as a mere
symbol, unworthy of protection, is that American society is
awash in symbols. Nearly every company, organization, group or
club has a logo, design or other icon. Many of those are
displayed on flags. Americans are accustomed to seeing
corporate flags flying side-by-side with Old Glory, whether in
front of buildings, in stores, or in car sales lots. Perhaps
some Americans therefore think that the notion of legal
protections for the American flag is as absurd as the idea of
federal law protecting commercial trademarked designs.
Our country's founders did not experience an overload of
logos. The only flags they saw flying on poles were their
country's, their state's, or a military banner. The flag on a
ship meant sovereignty, and its removal was an act of war. A
banner captured in war meant victory over the fighters who gave
it up.
Today, a chief executive officer of a company with a flag
would not tolerate seeing the logo desecrated. In fact,
companies spend untold tens of millions of dollars per year
protecting their trademarked logos and designs. If an employee
were to desecrate a company flag, the employee would almost
certainly face some sort of reprimand. No sensible director,
officer or employee would put a company flag in the hands of
someone who intended to desecrate it, and no such company
official would defend the purposeful destruction of its symbol
as an important means of communicating dissenting views about
company policies or priorities.
Of course, it is not possible to trademark the American
flag\4\, and it would not be productive to do so. But it is
useful to compare the kinds of protections that our senators,
if they were CEOs of companies, would give to corporate logos,
in contrast to the complete lack of protection that
approximately one-third of our senators are willing to provide
for the American flag. The civil law allows remedies against
people who damage corporate symbols and logos. A company whose
trademarked flag is misappropriated can recover ``(1)
defendant's profits, (2) any damages sustained by the
plaintiff, and (3) the costs of the action.'' \5\ And the
damages award can be up to three times the amount of actual
loss.\6\ This law is meant to be a powerful economic deterrent
to anyone who would despoil a corporate trademark.
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\4\ 15 USCS Sec. 1052(b) (2004).
\5\ 15 USCS Sec. 1117(b) (2004).
\6\ 15 USCS Sec. 1117(a) (2004).
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The overwhelming majority of American people understand and
honor the difference between Old Glory and privately owned
trademarks used in commerce. For example, as John Andretti
testified before the Committee,\7\ fans of NASCAR racing are
accustomed to seeing many brightly colored corporate logos and
several signal flags, each with a particular meaning. Even amid
the excited confusion of a crowded stadium, however, fans
display a reverence and solemnity toward the one banner that
stands for our country's common values: the American flag. Such
people have not allowed our modern commercial culture to make
Old Glory appear to be just another emblem, or just another
brand that a person may or may not prefer over a competing
product. The American flag is different. It stands above all
others as a cultural and governmental treasure. If the CEOs of
our republic--its citizens--decide that the American flag
should be protected by federal law, then the senators they
elected should let them do it. A vote for S.J. Res. 4 is a vote
for letting the American people decide, through their state
legislatures, whether or not such legal protections should be
restored.
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\7\ Hearing Transcript, pp. 59-64.
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IV. The Flag in American Law
A. The Constitution's Framers
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 other type of symbol, as 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, and its physical
requirements, 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 asserted ideology,
patriotism, 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
has explained: ``from the earliest periods in the history of
the human race, banners, standards and ensigns have been
adopted. It is not then remarkable that the American people * *
* early in their history, prescribed a flag as symbolical of
the existence and sovereignty of the Nation.'' Halter v.
Nebraska, 205 U.S. 34, 41 (1907).
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. In the 1600s, 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.
Endecott's case establishes a key historic point: from the
earliest days of the legal system in America, the law deemed an
individual to be engaging in a punishable act for defacing a
flag, even domestically and in peacetime. Defacing the flag
invaded a sovereign government interest, even when undertaken
for reasons of protest. At the time, the colonists saw the need
to punish the act in clear sovereignty terms: defacing the flag
would be taken as an act of rebellion, even when unaccompanied
by danger of violence or general revolt.
The original intent of the nation's Founders clearly
indicates the importance of protecting the flag as an incident
of American sovereignty.
1. 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 in
protecting the flag.
His earliest pronouncements concerned an incident in
October 1800, when the Algerian ship Dey of Algiers forced a
United States 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, Mr.
Madison pronounced a 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 Mr. Madison's view that ``the indignity offered
to the sovereignty andflag 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 suggests his belief that protecting the
physical integrity of the flag ensured the protection of 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.
2. 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
1790s, the American flag was a neutral flag, and the law of
trade made foreign ships desire to fly it.\8\ 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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\8\ 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 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, considered protecting it and
punishing its abusers highly important, even after 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 against
the suppression of expression. 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
such an interest anathema.
Thus, from the time of the Endecott case to the present,
protection of the flag has 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 control of expression. The Founders considered the
protection of the flag as an incident of sovereignty, not a
suppression of expression.
B. Statutory protection for 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.
1. 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.
2. 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.\9\ 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.\10\
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\9\ 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).
\10\ 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.\11\ 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.\12\
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\11\ 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.''
\12\ By 1951, these statutes were found in the various state laws
as follows: Arizona, A.C.A. 43.2401 (1939); Louisiana, R.S. 14:116,
14:117 (1950); Maine, R.S. c. 128 (1944); Maryland, Code Supp. 2159
(1947); Michigan, Comp. Laws 750.244-750.247, 750.566 (1948);
Mississippi, Code 2159 (1942); New York, McKinney's Penal Law, 1425,
subdi. 16; Pennsylvania, 18 P.S. 4211; Rhode Island, Gen. Laws c. 612,
38, 39 (1938); South Dakota, SDC 65.0601 to 65.0606; Tennessee,
Williams' Code 102-107; Vermont, V.S. 8590-8605; Virginia, Code 18-354
to 18-360 (1950); Washington, Rem. Rev. Stat. 2675-1 to 2675-7;
Wisconsin, St. 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.
3. 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.\13\
On balance, the Court determined that the government's interest
prevailed.\14\ 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.\15\
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.
---------------------------------------------------------------------------
\13\ 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.
---------------------------------------------------------------------------
\14\ 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.
\15\ 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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C. 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.''\16\
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.\17\ 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.\18\
---------------------------------------------------------------------------
\16\ 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).
\17\ 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.''
---------------------------------------------------------------------------
\18\ 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).
---------------------------------------------------------------------------
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.\19\ United States ex rel. Radich v. Criminal
Court of the City of New York, 385 F. Supp. 165 (S.D.N.Y.
1974).
---------------------------------------------------------------------------
\19\ 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 a 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 fall 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 the traditional 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.\20\
---------------------------------------------------------------------------
\20\ 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 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
not affected by the ``fighting words'' doctrine where a statute
specificallytargets 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.
D. The need for a constitutional amendment
Amending the Constitution is a matter of extreme
significance that should be avoided unless necessary. A federal
statute would have been a preferable means of attaining
protection for the flag. However, the Supreme Court has
indicated definitively that a flag protection statute cannot be
fashioned that would pass constitutional muster.
In the 1989 case, Texas v. Johnson, and in the 1990 case,
United States v. Eichman, the Court concluded that burning or
desecrating the flag is an act of speech, and that any
legislative measure designed to protect the flag from
desecration would be viewed as incompatible with the First
Amendment. Although many scholars agree with the four Justices
dissenting in Johnson and Eichman (Chief Justice William
Rehnquist as well as Justices Stevens, White and O'Connor) who
found statutory flag protection compatible with First Amendment
freedoms, Supreme Court precedent and the current make-up of
the Court strongly indicate that any statute designed to
protect the flag is destined to fail. According to some, a so-
called ``fighting words'' statute would avoid the Johnson and
Eichman holdings by prohibiting flag desecration in the context
of certain activities that are not ``protected speech,'' such
as incitement of violence. However, the Supreme Court said in
Johnson and Eichman that the flag embodies certain determinate
ideas and messages that will be suppressed by any statutory
attempt to prohibit flag desecration.
Moreover, federal courts have construed the ``fighting
words'' doctrine so narrowly and have so often distinguished
and refused to apply it, even in the most incendiary
circumstances, as to render the doctrine nearly meaningless. In
the Eichman case, for instance, the Supreme Court expressly
excluded from the category of ``fighting words'' flag
desecration in the context of a face-to-face confrontation
during a political protest. 496 U.S. at 315. And the Supreme
Court in the Johnson case refused to apply the ``fighting
words'' doctrine, finding that public flag desecration at issue
was ``unlikely to result in a direct personal insult or an
invitation to exchange fisticuffs.'' 491 U.S. at 409. The
Johnson Court also emphasized that a federal ``fighting words''
statute is unnecessary because state statutes already on the
books adequately cover disorderly conduct and breach of the
peace in a manner sufficient to maintain public order. Id. at
410. Thus, if the government attempts to enforce a federal
``fighting words'' flag protection statute--assuming it were to
become law--and the statute were challenged in court, the
Supreme Court likely would find it invalid.
A ``fighting words'' bill or statute has several other
weaknesses. First, it would reach only a tiny percentage of
situations in which individuals desecrate the flag. In most
cases, flag desecration does not involve face-to-face
incitement or a challenge to specific persons. To illustrate
this point, in one case, a Wisconsin youth, in the dead of
night with no one around to detect him, defecated on the
American flag and left it in a public place.
In response, in a June 1998 decision, the Wisconsin Supreme
Court indicated that it was compelled by the Johnson and
Eichman decisions to rule that such conduct is protected free
speech and that the Wisconsin flag protection statute is
unconstitutional. Indeed, in the several cases involving
challenges to state flag protection statutes decided since the
1990 Eichman decision, state courts have ruled consistently
with the Wisconsin Supreme Court.
Another concern is that the proscriptions in a ``fighting
words'' bill would have the effect of promoting violence. This
is so because actual violence would be a necessary precursor to
successfully prosecuting a flag desecrator under the ``fighting
words'' proposal. In other words, persons seeking to protect
the flag would be compelled to violence or to breaching the
peace in order to trigger the prohibitions and penalties in the
bill. For all of these reasons, the Senate, during the 104th
Congress and again during the 106th Congress, overwhelmingly
defeated a ``fighting words'' bill.
Many, if not all, of the senators who support S.J. Res. 4
would prefer prohibiting flag desecration by statute if that
were possible. But there is no conceivable way to enact a
statute that would survive the analysis used in the Johnson and
Eichman decisions. S.J. Res. 4 is the only means of returning
to the Congress the authority to enact a flag protection
statute and thereby returning the First Amendment to what it
meant for nearly two centuries prior to the Johnson and Eichman
decisions.
V. The Proposed Constitutional Amendment
A. What it says and what it means
The proposed constitutional amendment contained in S.J.
Res. 4 is simple and straightforward. It reads: ``Congress
shall have the power to prohibit the physical desecration of
the flag of the United States.'' These 17 words would not make
anything illegal. Rather, if approved by the Senate and
ratified by three-fourths of the states (the House of
Representatives has already passed it), this amendment would
simply restore the ability of Congress to fashion an
appropriate statute, which would of course need to be passed by
both houses and signed by the president.
Our free speech is not at issue. The proposed amendment
would not affect anyone's ability to express any opinion
whatsoever about the flag, the country, the government's
policies or anything else. Americans will continue to have the
right to express their views in public, in private, in
newspapers, on the Internet, and through broadcast media. There
will be no effect on anyone's ability to express himself; Acts
of disrespect to the flag, such as burning it and urinating on
it, add nothing whatsoever to any debate about our nation's
polices, priorities or direction.
B. Several constitutional amendments were spurred by Supreme Court
decisions
The flag amendment is certainly not the first time that
Congress has attempted to overturn Supreme Court decisions. As
a matter of fact, nearly a third of the amendments (five out of
17) that have been adopted since the passage of the Bill of
Rights were in response to specific Supreme Court decisions.
The first time Congress overturned a Supreme Court decision
with a constitutional amendment was in response to the Court's
first major decision, Chisholm v. Georgia (1793). The Court
ruled in favor of a British subject in a suit against the state
of Georgia. Congress, responding to the ensuing public outcry,
introduced an amendment that deprived the federal courts of
jurisdiction in lawsuits brought against a state by a foreigner
or a citizen of another state. The resulting Eleventh amendment
was passed in 1798. Next came the Dred Scott decision in 1857.
Its holding that blacks were not citizens nor could ever be
considered citizens was explicitly overruled by the Fourteenth
Amendment after the end of the Civil War. Later, the Supreme
Court ruled that Congress did not have the power to levy income
taxes in Pollack v. Farmers' Loan and Trust (1885).
Immediately, an amendment giving Congress the power to levy
income taxes was introduced. Although that measure was defeated
at first, it was later passed by Congress in 1909, and ratified
four years later as the 16th Amendment. Next, Congress passed
the Nineteenth Amendment, giving women the right to vote. This
Amendment overturned the Supreme Court's decision in Minor v.
Happersett (1874). Finally, Congress passed the 24th Amendment,
outlawing poll taxes, after the Supreme Court had ruled in
Breedlove v. Suttles (1937) that the poll taxes were
Constitutional and not an abridgment of rights under the
Fourteenth, Fifteenth, and Nineteenth Amendments. It was
ratified in 1964.
This history makes clear that, far from being an unusual
legislative tactic, S.J. Res. 4 reflects a perfectly legitimate
mechanism under our system of government. Sending this
amendment to the states is perfectly consistent with
Congressional action in the past in responding to Supreme Court
decisions. As Richard D. Parker of Harvard Law School
explained:
[I]t is the responsibility of the Congress under the
separation of powers to prove a check to the Court, and
the Article V process is an effect, and indeed the most
effective way for the Congress to check this new
assertion of judicial power. It has been done before,
most recently with the 18-year-old-vote. It is
especially appropriate when an amendment has the
support of a substantial majority, sustained over time,
when that amendment defends an established meaning of
the Constitution, changed by the Justices, and when all
the amendment does is empower the Congress to pass
legislation.\21\
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\21\ Hearing Transcript, p. 91.
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C. What the proposed amendment is not
Some critics of S.J. Res. 4 argue that the measure would
amend the First Amendment to curtail important liberties, would
disrespect the Constitution, and would somehow facilitate the
adoption of measures that would abridge other constitutional
rights. While such assertions might make for good speeches,
they have no basis in fact.
1. No reduction in First Amendment rights
S.J. Res. 4 would allow the American people, through their
state legislatures, to decide whether to ratify an amendment
that grants Congress the power to prohibit physical desecration
of the flag only. If adopted, the effect would be to overturn
two Supreme Court decisions which have misconstrued the First
Amendment with respect to flag desecration. S.J. Res. 4 would
not amend or alter any other interpretation of the First
Amendment. This is true for at least two reasons.
First, physical acts of desecration are conduct, not
speech. The revolution in this area happened in 1989 when the
Supreme Court struck down a state flag protection statute when
48 states and the District of Columbia had similar statutes.
Flag protection statutes had been on the books for nearly a
century when the Court decided to protect this despicable
conduct under the First Amendment.
Congressional Research Service has published a report that
compiles federal and state laws on the desecration and misuse
of the flag of the United States. The District of Columbia and
the states of Alaska and Wyoming are the only ones without
statutes prohibiting flag desecration. In fact, before the
Johnson and Eichman decisions, many of these state statutes
were upheld by various state courts. One such example is Monroe
v. State Court of Fulton County (571 F. Supp. 1023; DCND
Georgia, 1983).
On writ for habeas corpus, the conviction of the defendant,
Diane Monroe, under a Georgia anti-desecration statute, was
upheld. The defendant was convicted for having burned the
American flag during a demonstration against U.S. ``involvement
in Iranian affairs'' which occurred outside the federal
courthouse in Atlanta. The U.S. District Court refused to grant
the writ of habeas corpus by applying the standard set out in
the U.S. Supreme Court's test in the Spence case. The court
determined that, under the circumstances under which the
statute was enforced, the interests which the State of Georgia
sought to further were not unrelated to the suppression of free
expression but that the defendant's burning of the flag at the
demonstration did not convey any information or ideas, nor did
it identify the subject of her concern. Thus, there was deemed
to have been an insufficient restriction of the defendant's
freedom of expression to warrant invalidating her conviction.
Second, the First Amendment's guarantee of freedom of
speech has never been deemed absolute. Libel is not protected
under the First Amendment. Obscenity is not protected under the
First Amendment. A person cannot blare out his or her political
views at two o'clock in the morning in a residential
neighborhood and claim First Amendment protection. Fighting
words which provoke violence or breaches of the peace are not
protected under the First Amendment. We can prohibit the
physical desecration of the flag without circumscribing robust
political debate.
In fact, the First Amendment has been amended a number of
times by Congress, but much more often by the Supreme Court.
Much like the Constitution itself, the First Amendment and the
Bill of Rights is constantly being reviewed and applied to
novel and modern situations. The meaning of the First Amendment
changes according to the wishes of the Supreme Court--nine
distinguished but un-elected jurists who have lifetime
appointments. Over time, the Court has found restrictions on
several types of speech to be consistent with the First
Amendment.
For example, the Court has refused to privilege speech that
is likely to incite an immediate, violent response, such as
face-to-face fighting words likely to cause a breach of the
peace. Chaplinsky v. New Hampshire, 3l5 U.S. 568 (l942). The
court has refused to privilege speech that threatens certain
tangible, diffuse harm, such as obscenity, which pollutes the
moral environment. Miller v. California, 4l3 U.S. l5 (l973).
The Court hasalso refused to privilege speech that criticizes
official conduct, i.e., libel of a public official when the criticism
is known to be false and damages the official's reputation. New York
Times v. Sullivan, 367 U.S. 254 (l964). In that case, the Court held
that such speech should be regulated since it is at odds with the
premises of democratic government.
In each of these instances, the cry could have gone up that
the Court was amending the First Amendment. However, time has
shown that the constitutional order and freedom of speech have
thrived in this country not in spite of, but because of, the
laws regulating libel, slander, and pornography.
Likewise, the First Amendment will harmonize very well with
the flag protection amendment. Legal protections for the flag
and the First Amendment co-existed for nearly 200 years of our
history. In fact, our dynamic, ``ever-changing'' First
Amendment, throughout our history, has been remarkably constant
where protecting our nation's flag is concerned. As this great
amendment accommodated flag protection for nearly two centuries
prior to 1989, so it can and should continue to accommodate
such safeguards in the future.
Some people who think physical acts of flag desecration are
``speech'' nevertheless support legal protections. Some think
that, even though such a restriction would indeed be a
limitation of rights, it is an insignificant one because an
extraordinarily small number of Americans exercises or even
values that right. In other words, it is a right that Americans
overwhelmingly do not care to have. As John Andretti told the
Committee:
I once heard a man say that the flag represents the
freedom to burn it. I would disagree, and I think most
Americans would, too. The flag is a symbol that
represents all that our Nation is [and] can be. It
symbolizes what the people say it symbolizes, and the
great majority certainly don't believe that includes
the freedom to desecrate it.
Hearing Transcript, pp. 60-61. Still others say that the small
sacrifice of rights is part of being a responsible citizen and
member of the community. As it says on the Korean War Veterans
Memorial in Washington, D.C., ``freedom is not free.'' The
American people have paid a very high price in lives and
treasure to establish and protect a government that safeguards
liberty. The small (indeed, negligible to most) sacrifice of
giving up the right to perform vile acts to the American flag
is, in comparison, a very small price to pay in return for the
comfort so many Americans would take in knowing that our
society finds desecration of the American flag at least as
unacceptable as parking at an expired parking meter.
2. No disrespect in amending the Constitution
The Constitution itself establishes the process for its own
amendment. The best use of Article V of the Constitution, which
authorizes Constitutional amendments upon approval of two
thirds of the Congress and ratification by three-fourths of the
States, is to employ that process only when a great majority of
citizens determines that its government--or one of its three
branches--is not governing according to its will. The framers
themselves realized that the Constitution was a living document
and that the people, after proper reflection and deliberation,
should have the power to amend the basic law of the land. The
amendment process, far from subverting the Constitution, was an
essential part of the Constitution from the beginning. Indeed,
there would not be a First Amendment without Article V and the
amendment process.
Some have asserted that Congress has considered too many
possible amendments to the Constitution, as if thoughtful
consideration were an affront to the document. Imagine if the
``too many'' argument had carried the day when the first 10
amendments were proposed--is 10 too many amendments in a two-
year period?
It is interesting to note that those who decry the proposed
amendment as a change to the Constitution do not say the same
about the real change to the document: the Supreme Court's
decisions in Johnson and Eichman, which overturned 200 years of
legal principles. In comparison to such judicial fiat, the
employment of the Constitution's Article V process is more
respectful to the Framers' intent.
3. No slippery slope
Some opponents of the flag amendment complain that it sets
us on a slippery slope to foreclosing our constitutional
freedoms. But there is no ``slippery slope'' here. The flag
protection amendment is limited to authorizing the Federal
Government to prohibit physical desecration of only the
American flag. It does not serve as precedent for any other
legislation or constitutional amendment on any other subject or
mode of conduct, precisely because the flag is unique.
Moreover, the difficulty in amending the Constitution serves as
a powerful check on any effort to reach other conduct, let
alone speech, which the Supreme Court has determined is
protected by the First Amendment. No speech, and no conduct
other than physical desecration of the American flag, can be
regulated under legislation authorized by the amendment.
Some critics of the amendment ask, is our flag so fragile
as to require legal protection? The better question is--is our
freedom of expression so fragile in this country as to be
unable to withstand the withdrawal of the flag from physical
desecration? Of course not.
The 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
staff on days other than on officially designated occasions.
There is no way to construe the flag amendment to do anything
other than allow the Congress to enact a statute authorizing
punishment for acts of physical desecration to the flag of the
United States.
D. Let the people decide
One purpose of Article V of the Constitution is to ensure
that the American people offer their own voice in any
amendments to that document. Although the Framers trusted
representatives of the people--Congress and the president--with
ordinarylegislation, they designed Article V in a way that
involves the American people much more directly with changes to the
Constitution. It is therefore appropriate for senators to see their
role not as final arbiters of the underlying merits of S.J. Res. 4, but
rather as gatekeepers who are deciding whether to give the American
people, through their state legislatures, the opportunity to consider
and debate the flag amendment. There can be no doubt that the American
people want that opportunity. All fifty states have passed resolutions
calling on Congress to pass a flag amendment. The House of
Representatives has passed the amendment in each of the last four
consecutive sessions of Congress, including this one.
Senate passage of S.J. Res. 4 would give ``We the People''
their proper role in our democracy, and would restore our
historical legal order. The most basic question about the
structure of our federal government is the balance of power
among the three branches: executive, legislative and judicial.
For almost 200 years, the legislative branch had and exercised
the power to make laws concerning flag desecration. That
changed in 1989 and 1990 when the Supreme Court ruled that acts
of physical flag desecration are ``speech.'' The effect of
those decisions was a reallocation of power from Congress to
the Supreme Court, which is now the only branch of government
that can decide whether a flag desecration law can exist. An
overwhelming number of Americans disagree with that result. By
giving the people the opportunity, through State ratification,
to restore Congress's authority in this area, the flag
amendment would empower the people to determine flag
desecration policy through their elected representatives. The
Senate should give the people that power.
E. The ratification debate
If the Senate passes the flag amendment this year, the
nationwide debate over state ratification will be one of the
greatest public discussions in American history. It will
encourage a deeper study of our nation's history and values. It
will inspire our young people to understand and appreciate the
heroic selflessness displayed during previous generations. And
it will cause many Americans to renew their faith in--and
commitment to--the ideals and values of America that are
greater than anyone's personal self interest.
Americans' understanding of their government, or lack
thereof, has become a popular object of ridicule. It is
difficult not to share that sentiment when reading the results
of surveys aimed at testing such knowledge. For example, a
recent survey\22\ of fourth graders asked, ``Which part of the
government is responsible for passing laws?'' Nearly three-
quarters of the respondents got the wrong answer from the
following list: ``(A) The President; (B) The Supreme Court; (C)
the Congress; (D) The State Department.'' On another survey,
only 2 percent of eighth graders wrote an appropriate response
to the question, ``Explain why the framers of the Constitution
established a system of checks and balances among the three
branches of government.''\23\ That study also showed that fewer
than one-third of fourth graders could identify the ``document
that contains the basic rules used to run the United States
government'' from this list: ``(A) the Declaration of
Independence; (B) Magna Carta; (C) the Mayflower Compact; (D)
the Constitution.'' Such results demonstrate a serious lack of
understanding about the fundamental workings of the United
States government. A full public discussion about the flag
amendment would necessarily raise awareness and encourage
understanding of the different branches of government, the
importance of checks and balances, and the meaning of the
Constitution.
---------------------------------------------------------------------------
\22\ National Center for Education Statistics, Institute of
Education Sciences, U.S. Dept. of Education, 2001.
\23\ National Center for Education Statistics, Institute of
Education Sciences, U.S. Dept. of Education, 1994.
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American children are also surprisingly unaware of the
enormous sacrifices that brave Americans have made for them on
the battlefield. Washington Post writer Jay Matthews pointed
this out in an article printed just before the World War II
Memorial was dedicated on May 29, 2004.\24\ Based on interviews
with 76 Washington-area high school students, Matthews found
that only one-third of them could name even one World War II
general, and only about half could name a World War II battle.
In contrast, two-thirds of the students correctly stated what
happened to Japanese Americans during the war, reflecting the
fact that the internment camps are ``a standard part of every
area history curriculum.'' It is clear that America's young
people would benefit from a greater focus on the nature of our
freedom, its origin and meaning, and the tremendous price
Americans have paid to obtain it. A nationwide debate over the
flag amendment would provoke just that sort of discussion in
the nation's classrooms, kitchens, workplaces, dormitories and
legislatures. Everyone in the country would benefit from that
debate.
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\24\ Washington Post, May 28, 2004, B1.
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VI. Vote of the Committee
On July 20, 2004, with a quorum present, by rollcall vote,
the Committee on the Judiciary voted on a motion to report
favorably S.J. Res. 4. The motion was adopted by a vote of 11
yeas and 7 nays, as follows:
Yeas: Senator Hatch, Senator Grassley, Senator Specter,
Senator Kyl, Senator DeWine, Senator Sessions, Senator Graham,
Senator Craig, Senator Chambliss, Senator Cornyn, Senator
Feinstein.
Nays: Senator Leahy, Senator Kennedy, Senator Kohl, Senator
Feingold, Senator Schumer, Senator Durbin, and Senator Edwards.
VII. Text of S.J. Res. 4
JOINT RESOLUTION
Proposing an amendment to the Constitution of the United
States to grant Congress and the States the power 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 seven years from the
date of its submission by the Congress:
``Article--
``The Congress shall have power to prohibit the physical
desecration of the flag of the United States.''
VIII. 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. S.J. Res. 4 would not affect direct
spending or revenues.
S.J. Res. 4 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates
Reform Act and would impose no costs on state, local,
or tribal governments. In order for the amendment to
become part of the Constitution, three-fourths of the
state legislatures would have to ratify the resolution
within seven years of its submission to the states by
Congress. However, no state would be required to take
action on the resolution, either to reject it or
approve it.
Congressional Budget Office, Cost Estimate, S.J. Res. 4, letter
dated July 23, 2004.
IX. 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 4 will not have direct
regulatory impact.
X. 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. 4
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 following 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
individuals who show contempt for the flag.
In voting on this proposed amendment, the Senate's role
should reflect a sense of priorities appropriate to the gravity
of our time. This amendment has already been defeated in the
Senate four times in the last 15 years. No significant problem
existed at the outset, and no new one has appeared since then.
The real issues of our current situation--such extraordinary
problems as war and terrorism, trade imbalance and domestic
jobs and deficits--are far more pressing. It reflects a strange
set of priorities to think our national interest is best served
by rolling back the Bill of Rights.
The Senate last considered, and rejected, the proposed
amendment in the year 2000, another presidential election year.
Since that time, we have not seen an explosion of incidents of
flag burning, a decrease in patriotic displays, or a marked
reduction among young people in willingness to serve in the
armed forces. To the contrary, the majority report itself
describes how, in the wake of the terrorist attacks of
September 11, 2001, the American people and their friends
around the world flew the American flag as a unifying image of
strength and purpose and freedom. The spontaneous rally around
the American flag that followed the attacks makes it even more
clear now than it was in 2000 that the monumental step of
amending the Constitution to increase legal protections for the
flag is unnecessary and ill-advised.
Proponents of this amendment rely 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 appreciate the costs as well
as the joys of freedom and democracy. But while proponents
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.
General Colin L. Powell (USA, Ret.), Chairman of the Joint
Chiefs of Staff during the 1991 Persian Gulf War and currently
the Secretary of State, wrote to Senator Leahy on May 18, 1999,
in opposition to the proposed flag protection amendment.\1\ He
wrote:
\1\ General Powell was not serving in the military or in the
Executive Branch when he wrote the letter, the full text of which is
reproduced as Appendix A to these views.
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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.
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, stated in a written submission to the
Committee for its hearing on March 10, 2004:
[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 alters
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. That is why this debate is
not between those who love the flag on the one hand and
those who do not on the other. No matter how often some
try to indicate otherwise, everyone on both sides of
this debate loves and respects the flag. The question
is how best to honor it and without taking the chance
of defiling what it represents.
Those who have made the ultimate sacrifice and 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.
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 March 2004
hearing. 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.
Another veteran who expressed a similar view was Professor
Gary May, who lost both his legs in combat while serving his
country in Vietnam. Professor May testified at the March 2004
hearing:
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 for which it stands 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.
Included in Professor May's prepared testimony was another
statement to the same effect by World War II veteran Frances W.
Lovett of Waverly, Ohio, who served with the Tenth Mountain
Division and received the Bronze Star. Mr. Lovett wrote:
The voice of dissent is a voice we need to hear--not
stifle. Those who favor the proposed amendment say they
do so in honor of the flag, but in proposing to unravel
the First Amendment, they desecrate what the flag
represents and what so many of my comrades died to
defend.\2\
---------------------------------------------------------------------------
\2\ Professor May, who chairs a group called Veterans Defending the
Bill of Rights, included similar statements by other veterans opposed
to S.J. Res. 4 in a letter to the Committee dated March 10, 2004. The
letter is reproduced as Appendix B to these views.
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.
General Powell observed in his May 1999 letter to Senator
Leahy that ``The First Amendment exists to insure that freedom
of speech and expression applies not just to that with which we
agree or disagree, but also that which we find outrageous.''
John Glenn echoed this observation in his March 2004 submission
when he wrote that the First Amendment protects ``[t]he liberty
to worship, tothink, to express ourselves freely, openly and
completely, no matter how out of step those views may be with the
opinions of the majority.'' Former Senator Bob Kerrey, a recipient of
the Congressional Medal of Honor, also reminded the Committee, in
written testimony submitted at this year's hearing, that ``it is the
right to speak the unpopular and objectionable that needs the most
protecting by our government.'' Referring specifically to acts of flag
burning, he added: ``Patriotism calls upon us to be brave enough to
endure and withstand such acts.''
James Warner, a decorated Marine flyer who was a prisoner
of the North Vietnamese from 1967 to 1973, made the same point
in graphic terms in a Washington Post article dated July 11,
1989:
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.
Proponents of this amendment have argued that it will
promote patriotism. Major General Patrick Brady (USA, Ret.),
who heads a coalition of organizations that support the
amendment called the Citizens Flag Alliance, has gone so far as
to say, in his testimony this year before the Committee: ``It
should be obvious that demanding--indeed, forcing--patriotism
is the bedrock of our freedom.'' But many veterans object to
this attempt to, in effect, legislate patriotism, speaking 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.
Former Senator Bob Kerrey stated this view succinctly in
his March 2004 submission: ``[R]eal patriotism cannot be
coerced. It must be a voluntary, unselfish, brave act to
sacrifice for others.'' Keith Kreul also made the point in his
March 2004 statement: ``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.''
Similarly, the late John Chafee, a distinguished member of
this body and a highly decorated veteran of World War II and
Korea, pointed out at our hearing on April 28, 1999, 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 symbolism and significance.''
Veterans disagree about the proposed amendment, but they
agree that Congress must do more for those who have served this
country in uniform. Professor May, who has worked as a social
worker in Veterans Administration hospitals and outpatient
clinics, reminded the Committee in March 2004 of America's
broken promises: ``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.'' Answering a follow-up written question from
Senator Leahy, Professor May elaborated:
There are numerous substantive needs of veterans and
families that are going unmet or are being inadequately
met. Funding for Department of Veterans Affairs medical
care needs to be increased. * * * Compensation and
benefits for service women/men need to be increased. *
* * There are countless tangible things we can--and
should--do if we wish to convey a sincere, credible
message of caring about veterans and their sacrifices.
Amending the Constitution is not among them.
Lieutenant General Robert G. Gard, Jr. (USA, Ret.) struck a
similar note in a letter to the Chairman and Ranking Member of
the Committee dated March 8, 2004. He wrote:
[I]n an era of global conflict and threat, is [flag
desecration] really the issue that should be taking up
the valuable time of Congress? * * * On the home front,
our military is receiving rhetorical laurels for its
splendid achievements in Iraq, but our veterans are
still fighting for richly deserved access to medical
care, mental health services, adequate housing,
disability assistance and other essential services. * *
* But instead of addressing these issues, Congress is
spending its time debating flag burning. For lawmakers
unwilling to actually face the tough issues, this may
provide an appealing smoke screen [that] allows
politicians to be in favor of an empty patriotic
gesture without doing anything substantive to assist
veterans.
A 23-year Navy and Vietnam War veteran and Pentagon
official in the Reagan Administration, Lawrence Korb, testified
at the March 2004 hearing. He echoed General Gard's concerns
and offered a number of steps Congress should take to address
the very pressing needs of veterans:
I would suggest that the Congress could help
[veterans] much more by resisting the draconian
measures advocated by the Bush administration that
adversely impact our current and future veterans. * * *
First, since coming into office the Bush
administration has increased the out of pocket costs
for veterans using VA's medical facilities by nearly
500%. * * *
Second, the administration has fought tooth and nail
to prevent disabled veterans who are also military
retirees from getting ``concurrent receipts'' of both
their retired and disability pays. * * *
Third, the Bush Administration actively sought to
reduce hostile fire pay and family separation pay while
our troops were fighting wars in two countries. * * *
Fourth, in what the Army Times has called an act of
betrayal, the Department of Defense is considering
closing commissaries and schools on military bases
throughout our country.
Fifth, the administration refuses to endorse
Congressional proposals to allow Guard and reserve
members to participate fully in the military's Tricare
Health System. * * *
Finally, in spite of the unprecedented strain being
placed on the active duty Army and its reserve
component, the administration continues to resist
permanently adding 40,000 people to the active Army.
Even Major General Brady, a leading supporter of this
amendment, frankly admitted, in response to a question from
Senator Leahy following the Committee's April 1999 hearing,
that ``the most pressing issues facing our veterans'' were not
flag burnings, but rather ``broken promises, especially health
care.''
It is time to honor our veterans with substance not
symbolism. If the amount of time, effort, and money devoted to
this amendment over the past 15 years had been directed toward
improving services for veterans, those deserving Americans
would be much better off.
We on the Judiciary Committee 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. We
understand that the political pressure for this amendment is
strong, but hope that the Senate will in the end heed the words
of our former colleague, John Glenn, when he urged us to reject
the amendment:
[T]here is only one way to weaken the fabric of our
Nation, a unique country that stands as a beacon before
other Nations around this world. The way to weaken our
Nation would be to erode the freedom that we all share.
* * * We must not let those who revile our way of life
trick us into diminishing our great gift, or even take
a chance of diminishing our freedoms.
B. There Is No ``Great and Extraordinary Occasion'' Justifying the
Proposed Amendmemt
1. The Constitution should be amended only under very compelling
circumstances
James Madison, widely regarded as the Father 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 now more than 70 proposed amendments pending
before the 108th Congress. 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
first ten amendments comprising the Bill of Rights were
ratified in 1791. If we disregard the Eighteenth and Twenty-
First Amendments, marking the beginning and end of Prohibition,
we are left with only 15 amendments in over 200 years.
The proposed resolution is offered in direct response to
the Supreme Court's 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
five occasions in the history of this country has a
constitutional amendment been adopted in response to a decision
of the Supreme Court.\3\ Significantly, these amendments either
expanded the rights of Americans or 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, defying the long-
established principle that the Constitution is a limitation on
government, not on individuals.
---------------------------------------------------------------------------
\3\ The majority report claims (in Part V.B) that the Eleventh,
Fourteenth, Sixteenth, Nineteenth, and Twenty-Fourth Amendments were
passed in response to specific Supreme Court decisions. But the notion
that Congress adopted the Nineteenth Amendment, giving women the right
to vote, in response to the nearly 50-year old Supreme Court decision
in Minor v. Happersett, 88 U.S. 162 (1874) (upholding state law
confining right of suffrage to men) is a stretch; this change is
properly credited to the work of the women's suffrage movement.
Moreover, while the Fourteenth Amendment arguably was adopted in
response to the Dred Scott decision, Scott v. Sandford, 60 U.S. (19
How.) 393 (1857), the introduction of the Black Codes following the
Civil War likely was the true catalyst.
---------------------------------------------------------------------------
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 at a
Committee markup on June 24, 1998:
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.
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
70 offered in the 108th Congress alone, no doubt is offset by
the wisdom of the nation's elected representatives in adopting
so few amendments since the Bill of Rights. An amendment to the
Constitution to outlaw flag burning would be precisely the sort
of act against which the Framers warned.
Common sense alone tells 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.
Former Assistant Attorney General Walter Dellinger wrote the
Committee on March 10, 2004:
The unprecedented amendment before you would create
legislative power of uncertain dimension to override
the First Amendment and other constitutional
guarantees. More fundamentally, it would run counter to
our traditional resistance, dating back to the time of
the Founders, to resorting to the amendment process.
For these reasons, the proposed amendment--and any
other proposal to amend the Constitution in order to
punish a few isolated acts of flag burning--should be
rejected by this Congress.
Rather than face the solemn responsibility of justifying an
amendment to the Constitution, the majority report repeatedly
suggests that Senators should abdicate their established role
in voting on proposed constitutional amendments and instead
view themselves simply as ``gatekeepers,'' whose job is to
determine whether there is enough popular support for an
amendment to pass it on to the state legislatures. This
argument is totally contrary to the conservative conception of
amendment that our Constitution establishes. However many state
legislatures may have expressed support for a flag amendment at
one time or another, the Constitution intentionally makes it
difficult to pass amendments because they are to be permanent
and fundamental. Supermajorities are required in both houses of
Congress as well as 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 that are responsible
for amending the Constitution start to defer to one another
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--undisputed in the
majority report--has been proven consistently in the course of
hearings and debates over the various proposals offered over
the years to prohibit the practice. There is no crisis to which
we should respond with an amendment to our fundamental law.
Professor Robert Justin Goldstein, who has written several
books on flag desecration,\4\ testified before the Constitution
subcommittee on March 25, 1998. He then reported that there had
been only about 200 documented incidents of flag burning in the
entire history of the country, representing less than one per
year.
---------------------------------------------------------------------------
\4\ See Flag Burning and Free Speech: The Case of Texas v. Johnson
(2000); Burning the Flag: The Great 1989-1990 American Flag Desecration
Controversy (1996); Saving ``Old Glory'': The History of the American
Flag Desecration Controversy (1995).
---------------------------------------------------------------------------
The incidence of flag burning has increased a bit over the
past decade, precipitated at least in part by efforts to
overturn the Johnson ruling by constitutional amendment. See
infra Part X.B.3. But even the leading lobbying group in
support of S.J. Res. 4, the Citizens Flag Alliance, can
document only a relatively small number of ``flag desecration
acts'' since 1994, generally amounting to less than ten a year,
nationwide. And as we discuss below (in Part X.B.4), most of
these incidents were punishable even without S.J. Res. 4.
In light of these figures, proponents of this amendment
have been driven to declare that it 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.
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 at our hearing on April 28,
1999, the proposed amendment is ``a solution looking for a
problem.''
Senator Glenn's observation finds unintended support from
some of the principal proponents of S.J. Res. 4. Asked at our
hearing on April 28, 1999, what the penalty should be for
burning an American flag, Citizens Flag Alliance 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.
At the same hearing, Lieutenant General Edward Baca (USA, Ret.)
agreed that flag burning should be a misdemeanor offense, and a
third pro-amendment witness, Professor Richard Parker, opined
that ``a jail term is probably not reasonable.''
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 stated at the time by 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.''
The approach is all the more radical given its admitted
limitations. The majority report acknowledges (in Part V.C.1)
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 such
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
One of the principal incitements 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. The
majority asserts (in Part V.E) that passage of the amendment
would result in ``one of the greatest public discussions in
American history'' and offer a sort of nationwide civics lesson
for America's youth. Quite apart from the improbability of this
vision--if the post-9/11 challenges to American freedom and the
war in Iraq are not enough to get young people thinking, even
the most lively debate among state legislators is unlikely to
do that--history tells us that the most likely result of
passing this amendment would be a marked increase in flag
desecrations.
According to Professor Goldstein, there were more than
twice as many flag burning incidents between 1989--when the
Supreme Court's ruling in Johnson made flag burning a front-
page issue--and March 1998--when he testified--than in the
entire history of the American republic to that point.
Professor Goldstein established that the number of incidents
peaked between June 1989 and June 1990, when the first attempts
were made to overturn Johnson by amending the Constitution. The
only comparable period was in 1968, after Congress--responding
to numerous public flag burnings protesting the war in
Vietnam--passed the first Federal flag protection act.
Based on past experience, then, focusing attention on flag
burning with a highly publicized election-year debate on the
proposed constitutional amendment will likely lead to another
spike in the number of flags-burning incidents. Actually
passing S.J. Res. 4 would likely spur an unprecedented wave of
incidents, as well as increase 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. On April 29, 1999, Senator Feingold
explained during a Committee markup on the amendment:
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.
The states and the Federal Government can prohibit and
punish most acts of physical destruction of a flag, and do so
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, and peaceful
demonstration. It is not a sanctuary for thieves, vandals, or
hooligans.
The Citizens Flag Alliance () has been
tracking ``flag desecration acts'' since 1994, presumably to
demonstrate that a constitutional amendment is needed. In fact,
however, CFA's list demonstrates just the opposite--that most
instances of flag desecration 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 be trying to send.
For example, CFA's only entry to date for the year 2004
involves serial flag burnings occurring during a three-week
period in Montpelier, Vermont:
June 19-July 7, 2004, Montpelier, VT: Police reported
at least five American flags were found burned in
public places and several residents reported their
flags missing. Two mutilated flags were wrapped around
an Ethan Allen statue at the Statehouse. A flag was
found placed on a church's Virgin Mary statue and set
on fire. A flag was also found in the rosebushes of
another church. A flag with the stars burned out and
the phrase ``Stop the Corruption'' was found draped on
a building. A nursing home reported its American flag
had been burned on its pole.
As Senator Leahy noted at the Committee markup on July 20,
2004, these were outrageous acts, intended to outrage, but
there is no reason to believe that acts like these cannot or
will not be prosecuted under Vermont and other states' laws
prohibiting unlawful mischief, theft, and destruction of
property. In this instance, officials have also indicated that
it may be possible to prosecute the perpetrators under
Vermont's hate crimes law. See ``Vandals strike a Montpelier
shrine,'' Channel 3 News, WCAX-TV Burlington, Vermont, June 30,
2004.
CFA's list includes other incidents in which flag
desecrators can or have been prosecuted.\5\ For example:
\5\ CFA's list also suggests that a large percentage of flag
desecration acts are perpetrated by misguided teenagers.
April 12, 2003, Ashland, OR: Ashland police arrested
two men who burned an American flag at a peace rally,
saying the fire posed a danger to other protesters and
people nearby. The men were charged with disorderly
conduct and reckless endangerment. (``Burning flag a
safety risk, police say,'' Associated Press, April 13,
2003.)
March 31, 2003, Maytown, PA: A former U.S. marine
called police after learning that his American flag was
burning. Two months later, the police arrested a
juvenile and charged her with criminal mischief.
(``Confusing the issue,'' Intelligencer Journal, June
6, 2003.)
September 16, 2002, Bellefontaine, OH: A
Bellefontaine man was observed removing courthouse
flags from their holders and throwing them to the
ground. He fled when police arrived, but was located
several blocks away from the courthouse and arrested on
charges that included criminal mischief. (Bellefontaine
Examiner, September 16, 2002.)
September 11, 2002, Ann Arbor, MI: Two boys, ages 15
and 16, were arrested for allegedly setting a flag on
fire at the University of Michigan. The boys ran away
but were arrested when they returned to the scene. They
were charged with setting a fire on campus. (``Teens
arrested after lighting American flag on fire,''
Associated Press, September 11, 2002)
October 30, 2001, Langley, VA: An 18-year old college
student allegedly set off a brush fire by burning an
American flag. The blaze spread over four acres of
woodland in northern Virginia. The student was arrested
on charges that included setting a fire capable of
spreading, a felony that carries a maximum sentence of
five years in prison. (``Flag-burning complicates Va.
arson case,'' Washington Post, November 2, 2001.)
September 10, 1998, Boulder, CO: A city flag was set
on fire while atop a very tall flagpole. The Boulder
police had no doubt they could arrest the arsonist,
because ``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.)
August 7, 1998, Minersville, PA: 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.)
July 4, 1997, Springfield, IL: 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.)
May 26-June 9, 1997, Wallingford, CT: 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.)
April 1, 1997, Buffalo, NY: 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.)
No constitutional amendment was needed to protect the people of
Ashland, Maytown, Bellefontaine, Ann Arbor, Langley, Boulder,
Minersville, Springfield, Wallingford, or Buffalo. 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.
In earlier debates over the amendment, much was 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 face 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 at the subcommittee hearing on March 25,
1998:
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.'' But ``a little more'' is no reason to amend the
United States Constitution.
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 room for Congress and the states to
regulate in this area, just as it permits reasonable
restrictions on 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.
Established principles of First Amendment jurisprudence
also 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 X.E), and the American
people would be far better served if the proponents of S.J.
Res. 4 addressed this difficult task squarely and honestly at
the outset by proposing a carefully crafted statute rather than
toying with the Constitution.
On March 30, 2004, Senator Byron Dorgan and others
introduced the Flag Protection Act of 2004, S. 2259, to provide
for the maximum protection against the use of the flag to
promote violence, while respecting the liberties that it
symbolizes. This bill 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.2259 respects the First Amendment and would be
upheld by the courts. See Congressional Record, March 30, 2004,
at S3368-S3369. 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.
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. The majority report's claim (in
Part V.C.1) that the proposed amendment would not reduce First
Amendment rights--that it would, in fact, ``harmonize very well
with'' the First Amendment--does not bear scrutiny.
The majority report's lead argument for why the proposed
amendment is consistent with the First Amendment is that
``physical acts of desecration are conduct, not speech'' (Part
V.C.1). In support of this argument, the majority cites one 21-
year old district court decision that was patently out of line
with the mainstream and--unmentioned by the majority--promptly
reversed. See Monroe v. State Court of Fulton County, 739 F.2d
568 (11th Cir. 1984), reversing 571 F. Supp. 1023 (N. Ga.
1983). As discussed further below (in Part X.D.2), the would-be
distinction between conduct and speech has been repeatedly
rejected--including in cases involving the flag--because it is
so obviously unrealistic and unworkable.
Bruce Fein, former Justice Department Deputy Attorney
General during the Reagan Administration, remarked in a June 7,
2004 letter opposing S.J. Res. 4: ``[T]o deny that flag burning
constitutes speech--such as burning the flag of Communist China
to protest the Tiananmen Square massacre--is to deny the
undeniable.'' Would the majority claim that peaceful picketing
is not speech within the First Amendment, or that a silent
vigil is not speech, or the familiar politician's thumbs-up?
The examples are truly endless. Expressive conduct is speech,
and 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 when arguing Eichman, see 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.
Goldstein, Saving ``Old Glory,'' at xii-xiii.
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.
The majority report next attempts to salvage the system of
censorship that the amendment would inevitably establish by
noting that ``the First Amendment's guarantee of freedom of
speech has never been deemed absolute'' (Part V.C.1). But the
majority report's examples--``fighting words,'' libel, and
obscenity--are not exceptions to the First Amendment that
somehow invite another exception. Indeed, the logic of ``we
already have some exceptions, so why not one more?'' highlights
one of the central dangers posed by this amendment. As
discussed further below (in Part X.C.4), if we have a flag
desecration amendment for the Stars and Stripes, why not one
for state flags, or the presidential seal, or the Constitution
itself? The majority concedes that unless it is treated as
utterly unique, the proposed flag desecration amendment leads
down a slippery slope of censorship. But the majority's misuse
of analogies to the very narrow categories of unprotected
speech that have been recognized, and even to corporate
symbols,\6\ undermine the very uniqueness on which its case
rests.
---------------------------------------------------------------------------
\6\ The majority report appears to argue (in Part III.A.3) that
those who support the protection of corporate symbols that are provided
by federal trademark law should also support the proposed amendment. In
doing so, the majority ignores the fact that trademark law is limited
by the First Amendment right of free speech. Courts have consistently
held that trademark and related laws do not prohibit parodies and other
forms of social commentary, regardless of whether they cause offense.
See, e.g., Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792,
806-807 (9th Cir. 2003) (parodic use of Barbie trademark non-infringing
fair use).
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The real lesson of ``non-absolutism'' is just the opposite
of what the majority argues. ``Fighting words,'' libel, and
obscenity are time-honed, carefully-crafted applications of the
First Amendment. Far from supporting a flag exception to the
First Amendment, they teach us that speech is to be free except
in the most extraordinary circumstances and subject to the most
extraordinary legal protections. Punishment of speech is
limited to only those specific occasions when it is proved to
be immediately harmful to concrete, important interests or
rights far beyondsymbolism and offensiveness.\7\ The
``disrespect'' or ``contempt'' for the flag that supposedly would
justify the proposed amendment does not remotely meet any of the
traditional safeguarding requirements.
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\7\ ``Fighting words'' are punishable only if the court determines
that on the facts of the particular case, there was what used to be
called a ``clear and present danger'' of violence. The whole concept is
actually and intentionally calculated to protect as much speech as
possible by requiring, for each instance of speech, a judicial finding
of immediate threat to the important government interest in avoiding
violence. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 235-236
(1963). The law of libel of a public official is intentionally designed
to maximize speech by imposing stringent limits on when it can be
punished. It requires not only that the speech in fact damage the
official's reputation and not only that the statements be false, but
also (which the majority report crucially omits) that the statements be
made with ``actual malice,'' that is, with the specific intent to harm
the victim's reputation through a knowingly or recklessly false
statement. That the speaker has actual malice must be found on the
particular facts of each case of speech. See New York Times v.
Sullivan, 376 U.S. 254, 279-288 (1964). Even obscenity, which appears
to be a category that is not ``speech'' within the First Amendment,
requires the application of similar case-by-case stringent safeguards
to insure that only actually obscene speech is punished and that speech
with social value is kept within the protection of the First Amendment.
See Miller v. California, 413 U.S. 15, 24 (1973).
---------------------------------------------------------------------------
Finally, the majority report tries to minimize the proposed
amendment's corrosive effect on the First Amendment by arguing
(in Part V.C.3) that there are other ways, besides flag
burning, for disaffected Americans to express their views. But
in a free enterprise society and under the First Amendment,
people must have the right to decide just how they are going to
promote their views. As the American Bar Association wrote in a
statement it submitted for this year's hearing, opposing S.J.
Res. 4: ``[T]he First Amendment jealously guards the right to
express our views about our government or laws in the manner of
our choice, so long as that choice is through peaceful words or
conduct.''
In sum, the proposed amendment would create a regime of
discrimination and suppression of speech of all kinds that
would be utterly at odds with the First Amendment and American
tradition.
2. The First Amendment protects above all the right to speak the
unpopular and objectionable
Ultimately, the debate over S.J. Res. 4 and the earlier
attempts to amend the Constitution to ban flag desecration
turns on the scope we think proper to give to speech that
deeply offends us. But 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 the government 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.''
At the subcommittee hearing on March 25, 1998, conservative
constitutional 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.''
John Glenn stated the argument in more colloquial terms in
a written submission to the Committee dated March 10, 2004:
To say that we should restrict the type of 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.
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. Americans have
always understood that, for the greater good, they can ignore
offensive views, tolerate them, or respond to them with more
speech. In a confident, mature citizenry, that, not outlawing
them, is the American way.
Proponents of this amendment contend that requiring respect
for the flag will enhance national unity, but 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
that will justify respect and allegiance, freely given.
Immediately following September 11, 2001, Americans all
around the country began to fly flags outside their homes and
businesses, to wear flag pins on their lapels, and to place
flag stickers on their automobiles. This surge in patriotism
made American flags such a hot commodity that several major
flag manufacturers could not keep flags stocked on store
shelves. Within days of the attacks, the nation's largest
retailer had sold 450,000 flags, compared with 26,000 during
the same period in 2000. ``Oh, say can you see any flags on the
shelves?'' The San Francisco Chronicle, September 19, 2001. By
late October 2001, the demand for flags was so great that
manufacturers were back-ordered up to six weeks, according to
the National Flag Foundation in Pittsburgh, Pennsylvania.
``Demand outstrips supply,'' Albuquerque Journal, October 28,
2001.
This expression of national pride was spontaneous, and
consisted of individual Americans taking conscious acts of
patriotism. No one in the government decreed that Americans
must purchase and fly flags. There was no official direction
stating that Americans should wear clothing and accessories
with flag designs, but these have been wildly popular as well.
Expressions of patriotism after September 11 went well
beyond the proud display of the flag. As Senator Feingold
stated at the Committee markup on July 20, 2004:
We didn't need a constitutional amendment to teach
Americans how to love their country. They showed us how
to do it by hurling themselves into burning buildings
to save their fellow citizens who were in danger, by
standing in line for hours to give blood, by driving
hundreds of miles to search through the rubble for
survivors and to help in cleanup efforts, by praying in
their houses of worship for the victims of the attacks
and their families.
September 11th inspired our citizens to perform some
of the most selfless acts of bravery and patriotism we
have seen in our entire history. No constitutional
amendment could ever match those acts as a
demonstration of patriotism, or create them in the
future.
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.\8\
---------------------------------------------------------------------------
\8\ We are pleased to identify and give full credit to Korean War
veteran Daniel Walker for this quietly gallant act. See Goldstein,
Burning the Flag, at 33.
---------------------------------------------------------------------------
At the Committee's business meeting on June 24, 1998,
Senator Feingold pointed to the example of Appleton, Wisconsin,
where 18-year old Matthew Janssen committed a 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. Similarly, Senator Durbin 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.
On July 18, 1998, in Coeur 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 same year, 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.
The positive examples of the citizens of Wisconsin,
Illinois, Idaho, and Texas 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
the proponents' star witness in the 105th Congress. The
incident was the center of the July 8, 1998 testimony of Los
Angeles Dodger General Manager Tommy Lasorda. 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.''
That was an answer on which Congress cannot improve.\9\
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\9\ The Citizens Flag Alliance website describes other gallant
responses by Americans to acts of flag desecration. In some instances,
flag desecrators have been stopped in the act and even placed under
citizen's arrest. CFA also documents several instances in which
citizens have been moved to donate their own personal flags to replace
those that were destroyed.
---------------------------------------------------------------------------
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 Constitution subcommittee on March
25, 1998, 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.
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, Coeur D'Alene, and Jaspar, the spontaneous singing
of ``God Bless America'' at a baseball game, and the
overwhelming display of patriotism after September 11, 2001,
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. 4 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 constitutional
amendment 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 June 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.
The late Senator Chafee also took a dim view of the
consequences of the proposed amendment when he asked the
Committee, in April 1999, ``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!
Even if we could draw the line after one restrictive
amendment, the damage would be done. John Glenn stated in his
March 2004 submission that ``The Bill of Rights * * * is what
has made [the United States] a shining beacon of hope, liberty
and inspiration to oppressed peoples around the world for over
200 years. In short, it is what makes America, America.'' The
proposed amendment would dim that beacon, as Lawrence Korb
described in his March 2004 statement:
During my years of military service and civilian
service during the Cold War, I believed I was working
to uphold democracy against the totalitarianism of
Soviet Communist expansionism. I did not believe then,
nor do I believe now, that I was defending just a piece
of geography, but a way of life. If this amendment
becomes part of the Constitution, this way of life will
be diminished. American will be less free and more like
the former Soviet Union, present-day China, Iraq under
Saddam Hussein, or Afghanistan under the Taliban.
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 a substantial majority of
Americans do not support the proposed constitutional amendment
once they know of its unprecedented impact on the First
Amendment.\10\
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\10\ While proponents of S.J. Res. 4 purport to be responding to a
groundswell of support by the American people for constitutional
protection of their flag, recent polling data does not bear this out. A
June 2004 survey by the First Amendment Center shows that a majority of
Americans--53 percent--oppose amending the Constitution to prohibit
burning or desecrating the American flag. Moreover, of the 45 percent
of Americans who said they supported such an amendment, 16 percent
reversed themselves 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 2004
survey, available at
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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
``generally accepted legal tradition'' (Part IV.B.3), worked a
``dramatic change'' in First Amendment jurisprudence (Part IV.C), and
``overturned 200 years of legal principles (Part V.C.2). There quite
simply is no legal tradition of upholding bans on flag desecration
against First Amendment challenges--just the opposite 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 IV.A) 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.
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\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).
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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\
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\12\ The debate over Endecott's case was joined in earlier reports
on the proposed amendment. See S. Rpt. 98, 106th Cong., 2d Sess., 15-16
& n.2 (2000) (majority); id. at 55-56 (minority), and S. Rpt. 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.
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b. James Madison and Thomas Jefferson
The next examples cited by the majority report (in Part
IV.A.1) 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
IV.A.2) 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 Congress did not pass a
federal flag desecration law until 1968.
C. Statutory protection for the flag
In its search for supportive ``legal tradition,'' the
majority (in Part IV.B.2) 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
right of free speech applied to the states by virtue of the
Fourteenth Amendment (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 (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.IV.B.2) that the Lochner-era courts that struck down early
state flag protection statutes around the turn of the 20th
century ``perceived no First Amendment problem with the
statutes.'' Like the Supreme Court in Halter, those courts did
not consider the First Amendment implications of the statutes--
nor could they have--because the First Amendment was not held
to apply against the states until the mid-1920s. Gitlow, 268
U.S. at 666.
The majority report rounds out its historical survey (in
Part IV.B.3) by citing three state court cases, all decided
shortly after the attack on Pearl Harbor, in which flag-related
convictions were upheld. In two of those cases--State v.
Schleuter, 23 A.2d 249 (N.J. 1941), and People v. Picking, 42
N.E.2d 741 (N.Y. 1942)--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).
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\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.
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The third case cited by the majority--Johnson v. State, 163
S.W.2d 153 (Ark. 1942)--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'' (id. 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. 4, the
purported purpose of which is to protect the physical integrity
of the flag, while retaining full protections for oral and
written speech.\14\
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\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 X.D.2.
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One additional state court conviction discussed later in
the majority report (in Part V.C.1) is particularly off base.
The majority report cites to the district court decision in
Monroe v. State Court of Fulton County, 571 F. Supp. 1023 (N.
Ga. 1983), in which a defendant who burned the American flag to
protest U.S. involvement in Iranian affairs was denied habeas
corpus. What the majority report neglects to mention is that
this decision was promptly reversed on the ground that the
defendant's conduct constituted speech and symbolic expression
within the purview of the First Amendment. See 739 F.2d 568
(11th Cir. 1984).
The majority report also cites (in Part IV.C) two Supreme
Court cases in which convictions for flag desecration were
upheld against First Amendment challenges. The first 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). The second, involving
an art dealer who sold ``constructions'' composed in part of
U.S. flags, was a one-sentence per curiam opinion, affirming
the judgment below by an equally divided Court. Radich v. New
York, 401 U.S. 531 (1971). There was no actual adjudication of
the constitutional claim, and the conviction eventually was set
aside by a federal district courtapplying established
principles of Supreme Court First Amendment jurisprudence. United
States v. Radich, 385 F. Supp. 165 (S.D.N.Y. 1974).\15\
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\15\ A final Supreme Court decision cited by the majority, United
States v. O'Brien, 391 U.S. 367 (1968), had nothing to do with flag
desecration, but rather involved a conviction for burning a draft card.
In upholding this conviction, the Court emphasized that the
government's important interest in assuring the continuing availability
of issued draft cards was unrelated to the suppression of free
expression. Id. at 377. By contrast, the governmental interest in
preserving the flag as a symbol of national unity is related to the
suppression of expression. See Texas v. Johnson, 491 U.S. at 406-410.
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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.\16\ By 1974, flag desecration laws had been struck
down as unconstitutional in whole or part in eight states. Id.
at 148.
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\16\ 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).
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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 nearly 80 years that it has applied the First
Amendment to the states, a majority of 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 Charles Fried testified on June 21,
1990, 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.
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. Barnette, 319 U.S. 624 (1943).\17\
There, Justice Jackson wrote:
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\17\ 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,
with the refusal to salute the flag clearly the major, and
now seemingly officially endorsed, ``crime.'' 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
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``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 Barnette 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 Barnette, 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).\18\ 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.
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\18\ The majority erroneously asserts (in Part IV.C) 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.
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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. 4 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.
In addition, the proposed amendment could work great
mischief in areas far removed from flags. It could put pressure
on the principle, fundamental to the First Amendment, that
content-based regulations are presumptively invalid. See infra
Part X.E.4. It could also 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. 4 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. 4 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.\19\ The American people deserve
more from their Congress, this Congress, before they alter the
Constitution of the United States.
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\19\ Unlike earlier proposals for a constitutional amendment
prohibiting flag desecration, S.J. Res. 4 may be implemented by
Congress only, not by the states.
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Testifying in support of an earlier but similar version of
the proposed amendment on August 1, 1989, then-Assistant
Attorney General William Barr acknowledged that its key term--
``flag''--is so elastic that it can be stretched to permit
``any number of'' definitions. He noted three: first, the flag
can be defined narrowly as a cloth or cloth-like banner with
the characteristics of the official Flag of the United States
as described by statute and Executive Order; second, it can be
defined more broadly to cover ``anything that a reasonable
person would perceive to be a Flag of the United States * * *
whether or not it is precisely identical to the Flag''; and
third, it can be defined expansively to include ``any Flag,
portion of a Flag, or any picture or representation of a Flag *
* * such as posters, murals, pictures, [and] buttons.''
Far from offering any consensus, the proponents of this
amendment have displayed a striking range of disagreement over
what they intend to stop. During Committee consideration of the
proposed amendment six years ago, on June 24, 1998, Senator
Feinstein appeared to endorse a relatively narrow, objective
definition of ``flag'':
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.
By contrast, the 1997 House Report on a proposed flag amendment
identical to S.J. Res. 4 offered a broader, subjective
definition covering ``anything that a reasonable person would
perceive to be a flag of the United States.'' H. Rpt. 121,
105th Cong., 1st Sess. 8-9 (1997). The majority report leaves
this critical issue unaddressed.
Expansive definitions have been used regularly in statutes
prohibiting flag burning. For example, the Uniform Flag Law of
1917 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.'' National Conference of Commissioners on Uniform.
State Laws, Proceedings of the Twenty-Seventh Annual Meeting,
323-24 (1917). Similarly, the 1968 Federal Flag Desecration Law
used this definition:
[A]ny 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.
On the other hand, courts could interpret the amendment
narrowly, permitting Congress to prohibit physical desecration
only of the official ``Flag of the United States'' and not of
items intended to be perceived as such or of mere depictions.
In that case, the purpose and effectiveness of the amendment
could be evaded without great effort, as for example 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.
Senator Feingold told the Committee in April 1999 about his
own 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.
Are we to amend the Constitution and punish people who burn
pictures of the flag? On the other hand, are we to leave
unrestricted a wide range of activities that involve 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? 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 proposed amendment is only 17 words long. It is not too
much to ask that the proponents explain what they mean by those
words before, not after, the amendment is put to a vote, so
that the public has a clear understanding as to what conduct
they intend to criminalize.
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.
For example, it is not uncommon for Americans to celebrate
the Fourth of July with a backyard barbecue, using paper cups
and plates decorated with a flag motif. Such disposable
``flags'' are 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?
To take another example, after the terrorist atrocities of
September 11, 2001, Americans wrote in indelible marker
messages of grief and support all over flags. Among countless
examples of this, a famous one was a huge flag that had flown
at the World Trade Center; hundreds of people wrote messages on
it and it was then sent to our troops in Afghanistan. See
``Ground Zero flag being sent to Marine unit in Afghanistan,''
Associated Press, November 26, 2001; see also ``Writing on flag
upsets veteran: Man says Ground Zero flag should be
destroyed,'' Charleston Gazette, November 30, 2001. Similarly,
President Bush himself has been photographed signing his
autograph on American flags. See ``He signed what?'' The Fort
Worth Star-Telegram, August 4, 2003. Senator Feingold pointed
to another example during the 2000 floor debate on this
amendment: On July 10, 1999, the day that the U.S. Women's
Soccer team won a thrilling sudden death victory in the final
of the Women's World Cup, an excited and patriotic group of
fans unfurled a flag for the TV cameras with the words ``Thanks
Girls!'' written on it with some type of chalk or marker. See
Congressional Record, March 28, 2000, at S1797.
These are unquestionably acts of physical desecration. The
Uniform Flag Law prohibits placing any word or other marks on a
flag, and supporters of the proposed amendment have regularly
cited writing on flags as a desecration. Writing on the flag
also runs afoul of the Federal Flag Code, which states that the
flag ``should never have placed upon it, nor on any part of it,
nor attached to it any mark, insignia, letter, word, figure,
design, picture, or drawing of any nature.'' 4 U.S.C. Sec. 8.
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 the
proposed amendment on April 28, 1999, the late 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?
Perhaps the most powerful example of the vagueness and
mischief of this amendment came from Senator Durbin, who noted
at the Committee markup on June 24, 1998, 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.
3. Use of the word ``desecration'' in S.J. Res. 4 undermines the First
Amendment religion clauses
Numerous religious leaders and people of faith have
expressed 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 on April 20, 1999: ``Desecration of an
object is possible only if the object is recognized as
sacred.'' 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
religiousinstitutions, not the government, determine what is
sacred. That principle underlies both the Establishment and the Free
Exercise Clauses of the First Amendment. The proposed 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 made this point in his subcommittee
testimony on June 6, 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.
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
Censorship on the basis of beliefs--referred to in the case
law as content or viewpoint discrimination--is a classic evil
that the First Amendment is designed to prevent. ``[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). 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. R.A.V. v. City
of St. Paul, 505 U.S. 377 (1992).
Proponents of S.J. Res. 4 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 is silent on the question, although it clearly
assumes that only beliefs and values that are disapproved of by
the majority of Americans--it refers to them as ``disrespect''
or ``contempt'' for the flag--constitute desecration. Earlier
majority reports took starkly inconsistent positions. The
report in the 106th Congress insisted that the amendment ``is
not intended to--and would not--discriminate against specific
messages or points of view, and is thus `content neutral' to
that extent.'' S. Rpt. 98, 106th Cong., 2d Sess. (2000). By
contrast, the report in the 105th Congress 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. S. Rpt. 298, 105th
Cong., 2d Sess. 39-42 (1998).
At the Committee hearing on April 20, 1999, Senator Leahy
asked the majority's principal academic witness, Professor
Richard Parker, whether Congress could pass legislation under
the proposed amendment 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.'' But if a flag
amendment is adopted, would basic First Amendment principles
like the R.A.V. rule continue to apply to flag-related speech?
The late Senator John Chafee discussed the dangers of
content-based restrictions in his statement for the Committee's
April 1999 hearings. 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.''
We share Senator Chafee's concern that in real life, the
amendment and its implementing statute--even if facially
neutral and non-discriminatory--would be enforced on the basis
of content. History tells us that police and prosecutors would
select for punishment those flag desecrators whom they, or
their constituents, found insufficiently respectful, patriotic,
or conformist. See Goldstein, Flag Burning and Free Speech, at
24-30 (describing how prosecutions under early flag desecration
laws were invariably directed against perceived political
dissidents, such as anti-war protestors). Physical desecration
in the service of views that are approved by the authorities or
the mainstream, like those following September 11 (see supra,
Part X.E.2), would not be prosecuted.
However enforced, content-neutral legislation prohibiting
flag desecration would work another kind of mischief. Such
legislation--if it survived vagueness and overbreadth
challenges (assuming such challenges could be brought) \20\--
would inevitably inhibit or silence a great range of expressive
behavior, much of which most people consider benign or even
beneficial. In short, the amendment would create havoc for free
expression for the purpose of solving no real problem.
---------------------------------------------------------------------------
\20\ Acting Assistant Attorney General Randolf Moss, who testified
for the Clinton Administration against the proposed amendment on April
28, 1999, noted that it would be ``profoundly difficult'' to identify
just how much constitutional doctrine the amendment would supersede. We
do not know, for instance, whether the amendment is intended, or would
be interpreted, to authorize implementing legislation 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. 4 argue, unconvincingly, that no
statutory alternative is available to address the issue of flag
burning. As noted above (in Part X.B.5), 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
IV.C), 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. Proponents have argued that its language is at least
as clear as other constitutional text such as ``unreasonable
searches and seizures,'' ``probable cause,'' ``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 when it frightens people into
silence and empowers government to search, seize, hold and
punish American citizens.
The impulse to punish ideas that 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 athletes 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 us of our love for the flag, for our country, and for
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 have 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. 4 not be approved by
the Senate.
Patrick Leahy.
Ted Kennedy.
Herb Kohl.
Russell D. Feingold.
Charles Schumer.
Dick Durbin.
XI. SUPPLEMENTAL VIEW OF SENATOR EDWARD M. KENNEDY
Since the majority states, in Section IV. C. 1 of its
views, that there would be ``no reduction in First Amendment
rights,'' they should have no objection to an amendment to the
resolution so stating, and I recommend consideration and
addition of such an amendment before the resolution is
considered on the Senate floor.
Ted Kennedy.
APPENDIX A
----------
General Colin L. Powell, USA (Ret),
Alexandria, VA, May 18, 1999.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
Dear Senator Leahy: Thank you for your recent letter asking
my views on the proposed flag protection amendment.
I love our flag, our Constitution and our country with a
love that has no bounds. I defended all three for 35 years as a
soldier and was willing to give my life in their defense.
Americans revere their flag as a symbol of the Nation.
Indeed, it is because of that reverence that the amendment is
under consideration. Few countries in the world would think of
amending their Constitution for the purpose of protecting such
a symbol.
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.
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.
I understand how strongly so many of my fellow veterans and
citizens feel about the flag and I understand the powerful
sentiment in state legislatures for such an amendment. I feel
the same sense of outrage. But I step back from amending the
Constitution to relieve that outrage. The First Amendment
exists to insure that freedom of speech and expression applies
not just to that with which we agree or disagree, but also that
which we find outrageous.
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.
Finally, I shudder to think of the legal morass we will
create trying to implement the body of law that will emerge
from such an amendment.
If I were a member of Congress, I would not vote for the
proposed amendment and would fully understand and respect the
views of those who would. For or against, we all love our flag
with equal devotion.
Sincerely,
Colin L. Powell.
P.S. The attached 1989 article by a Vietnam POW gave me
further inspiration for my position.
When They Burned the Flag Back Home
(By James H. Warner)
THOUGHTS OF A FORMER POW
In March of 1973, when we were released from a prisoner of
war camp in North Vietnam, we were flown to Clark Air Force
base in the Philippines. As I stepped out of the aircraft I
looked up and saw the flag. I caught my breath, then, as tears
filled my eyes, I saluted it. I never loved my country more
than at that moment. Although I have received the Silver Star
Medal and two Purple Hearts, they were nothing compared with
the gratitude I felt then for having been allowed to serve the
cause of freedom.
Because the mere sight of the flag meant so much to me when
I saw it for the first time after 5\1/2\ years, it hurts me to
see other Americans willfully desecrate it. But I have been in
a Communist prison where I looked into the pit of hell. I
cannot compromise on freedom. It hurts to see the flag burned,
but I part company with those who want to punish the flag
burners. Let me explain myself.
Early in the imprisonment the Communists told us that we
did not have to stay there. If we would only admit we were
wrong, if we would only apologize, we could be released early.
If we did not, we would be punished. A handful accepted, most
did not. In our minds, early release under those conditions
would amount to a betrayal, of our comrades of our country and
of our flag.
Because we would not say the words they wanted us to say,
they made our lives wretched. Most of us were tortured, and
some of my comrades died. I was tortured for most of the summer
of 1969. I developed beriberi from malnutrition. I had long
bouts of dysentery. I was infested with intestinal parasites. I
spent 13 months in solitary confinement. Was our cause worth
all of this? Yes, it was worth all this and more.
Rose Wilder Lane, in her magnificent book ``The Discovery
of Freedom,'' said there are two fundamental truths that men
must know in order to be free. They must know that all men are
brothers, and they must know that all men are born free. Once
men accept these two ideas, they will never accept bondage. The
power of these ideas explains why it was illegal to teach
slaves to read.
One can teach these ideas, even in a Communist prison camp.
Marxists believe that ideas are merely the product of material
conditions; change those material conditions, and one will
change the ideas they produce. They tried to ``re-educate'' us.
If we could show them that we would not abandon our belief in
fundamental principles, then we could prove the falseness of
their doctrine. We could subvert them by teaching them about
freedom through our example. We could show them the power of
ideas.
I did not appreciate this power before I was a prisoner of
war. 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.
Aneurin Bevan, former official of the British Labor Party,
was once asked by Nikita Khrushchev how the British definition
of democracy differed from the Soviet view. Bevan responded,
forcefully, that if Khrushchev really wanted to know the
difference, he should read the funeral oration of Pericles.
In that speech, recorded in the Second Book of Thucydides'
``History of the Peloponnesian War,'' Pericles contrasted
democratic Athens with totalitarian Sparta. Unlike the
Spartans, he said, the Athenians did not fear freedom. Rather,
they viewed freedom as the very source of their strength. As it
was for Athens, so it is for America--our freedom is not to be
feared, for our freedom is our strength.
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? Spread freedom.
The flag in Dallas was burned to protest the nomination of
Ronald Reagan, and he told us how to spread the idea of freedom
when he said that we should turn American into ``a city shining
on a hill, a light to all nations.'' Don't be afraid of
freedom, it is the best weapon we have.
APPENDIX B
----------
Veterans Defending the Bill of Rights,
Newburgh, IN, March 10, 2004.
Re oppose S.J. Res. 4, the Flag Desecration Constitutional Amendment.
Dear Senator: My name is Gary May and I am writing to you
today as the chair of a group called Veterans Defending the
Bill of Rights to urge you to oppose S.J. Res. 4, the flag
desecration constitutional amendment. I know you hear from many
veterans who support this amendment, but you should also know
that there are many veterans that have faithfully served our
nation who strongly believe that amending the Constitution to
ban flag desecration is the antithesis of what they fought to
preserve.
I lost both of my legs in combat while serving in the U.S.
Marine Corps in Vietnam. I challenge anyone to find someone who
loves this country, its people and what it stands for more than
I. It offends me when I see the flag burned or treated
disrespectfully. But, 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 dissident also have a voice. The freedom of
expression, even when it hurts the most, is the truest test of
our dedication to the principles that our flag represents.
In addition to my military combat experience, I have been
involved in veterans' affairs as a clinical social worker,
program manager, board member of numerous veterans
organizations, and advocated on their behalf since 1974.
Through all of my work in veterans' affairs, I have yet to hear
a veteran say that his or her service and sacrifice was in
pursuit of protecting the flag.
When confronted with the horrific demands of combat, the
simple fact is that most of us fought to stay alive. 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.
I am grateful for the many heroes of our country. All the
sacrifices of those who went before us 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 write to you today to attest to the fact
that many veterans do not wish to exchange fought-for freedoms
for protecting a tangible object.
To illustrate my point, here is what some of the Veterans
Defending the Bill of Rights have said about this amendment:
* * * to undertake to carve out an area of free
speech and say that this or that is unpatriotic because it is
offensive is a movement that will unravel our liberties and do
grave damage to our nation's freedom. The ability to say by
speech or dramatic acts what we feel or think is to be
cherished not demeaned as unpatriotic * * * I hope you will
hear my pleas. Please do not tinker with the First Amendment.--
Reverend Edgar Lockwood, Falmouth, Massachusetts, served as a
naval officer engaged in more than ten combat campaigns in
WWII.
My military service was not about protecting the
flag; it was about protecting the freedoms behind it. The flag
amendment curtails free speech and expression in a way that
should frighten us all.--Brady Bustany, West Hollywood,
California, served in the Air Force during the Gulf War.
The first amendment to our constitution is the
simplest and clearest official guarantee of freedom ever made
by a sovereign people to itself. The so-called `flag protection
amendment' would be a bureaucratic hamstringing of a noble act.
Let us reject in the name of liberty for which so many have
sacrificed, the call to ban flag desecration. Let us, rather,
allow the first amendment, untrammeled and unfettered by this
proposed constitutional red tape, to continue to be the same
guarantor of our liberty for the next two centuries (at least)
that is has been for the last two.--State Delegate John Doyle,
Hampshire County, West Virginia served as an infantry officer
in Vietnam.
As a twenty two year veteran, combat experience,
shot up, shot down, hospitalized more than a year, Purple Heart
recipient, with all the proper medals and badges I take very
strong exception to anyone who says that burning the flag isn't
a way of expressing yourself. In my mind this is clearly
covered in Amendment I to the Constitution--and should not be
``abridged''.--Mr. Bob Cordes, Maston, Texas was an Air Force
fighter pilot show down in Vietnam. He served for 22 years from
1956 to 1978.
Service to our country, not flag waving, is the
best way to demonstrate patriotism.--Mr. Jim Lubbock, St.
Louis, Missouri, served with the Army in the Phillipines during
WWII. His two sons fought in Vietnam, and members of his family
have volunteered for every United States conflict from the
American Revolution through Vietnam with the exception of
Korea. His direct ancestor, Stephen Hopkins, signed the
Declaration of Independence.
The burning of our flag thoroughly disgusts me.
But a law banning the burning of the flag pays right into the
hands of the weirdoes who are doing the burning. * * * By
banning the burning of the flag, we are empowering them by
giving significance to their stupid act. Let them burn the flag
and let us ignore them. Then their acts carries no
significance.--Mr. William Ragsdale, Titusville, Florida, an
engineer who worked in the space industry for over 30 years,
retired from the US Naval Reserve in 1984 with the rank of
Commander, having served in the Navy for over forty years
including active duty in both WWII and the Korean War. He has
two sons who served in Vietnam.
I fought for freedom of expression not for a
symbol. I fought for freedom of Speech. I did not fight for the
flag, or motherhood, or apple pie. I fought so that my mortal
enemy could declare at the top of his lungs that everything I
held dear was utter drivel * * * I fought for unfettered
expression of ideas. Mine and everybody else's.--Mr. John
Kelley, East Concord, Vermont, lost his leg to a Viet Cong hand
grenade while on Operation Sierra with the Fox Company 2nd
Battalion 7th Marines in 1967.
I hope you will join me and the Veterans Defending the Bill
of Rights in opposing S.J. Res. 4, the flag desecration
constitutional amendment.
Sincerely,
Gary E. May.