RESPONSES OF RICHARD D. PARKER TO QUESTIONS FROM SENATOR LEAHY

Answer 1. The amendment would authorize only Congress to enact legislation prohibiting physical desecration of the flag.

Answer 2. The question is premised on the idea that the flag amendment is meant to serve "purely symbolic purposes." This premise is mistaken. Like other amendments, this one is meant to vindicate a very important principle. Like other amendments, it is meant to correct a mistaken decision by the Supreme Court and, so, to restore the long-standing state of constitutional law under the First Amendment. And, like other amendments, it is meant to authorize Congress to enact a law that would affect actual behavior as well as providing a basis for punishment. There is nothing "purely symbolic" about it.

Answer 3. My "empirical basis" for suggesting that the amendment by taking a clear stand on a matter of principle and by undoing the mistaken legitimation of flag desecration in a 5-4 Court decision-would "help instill public patriotism and community values" is a combination of common sense and long study of American legal, political and social history.

RESPONSES OF RICHARD D. PARKER TO QUESTIONS FROM SENATOR THURMOND

Answer 1. It is generally agreed by people on both sides of this issue that, in the 1790's, the framers of the Bill of Rights did not think they were protecting desecration of the flag as part of the First Amendment. It took almost two centuries for the First Amendment to be so "amended"-by five members of the Supreme Court. The purpose of the amendment under consideration now is to restore to the First Amendment the meaning that its framers took for granted.

Answer 2. The Supreme Court has never-repeat: never-understood the guarantee of free speech to be "absolute." Significantly, the one Justice who did often seem to endorse "absolutism"-Justice Hugo Black-specifically and adamantly opposed extending such protection to expressive conduct in general and to flag desecration in particular.

Answer 3. Congress not only could, but already has passed a statute protecting the flag without interfering with "commercial items such as clothing and caps." Indeed, the Senate passed it by a vote of 91-9. It is the Flag Protection Act of 1989.

RESPONSES OF RICHARD D. PARKER TO QUESTIONS FROM SENATOR FEINGOLD Answer 1. The question-like the statement by Acting Attorney General Moss, submitted to the Committee on April 20-suggests a concern that settled doctrines of constitutional law such as the "void for vagueness" doctrine and the rule of the R.A.V. case, might not apply to a statute enacted under the proposed amendment. With respect, I must say that I cannot imagine what could have given rise to this concern. For it is absolutely baseless.

The "Void for Vagueness" Doctrine. I assume the idea here is that words in the amendment "physical desecration" and perhaps "flag"- —are themselves "vague." But many, even most, words in significant provisions of the Constitution are "vague" by that standard. (Think of the words "commerce among the several states" or "general welfare.") The point, however, is that the "void for vagueness" doctrine has nothing to do with language in the Constitution. Rather, it has to do with language in statutes. The flag amendment is intended to validate a specific statute the Flag Protection Act of 1989-carefully drafted, with much expert advice, and enacted by a 91-9 vote in the Senate. When the Constitution employs general terms to grant Congress power, it is up to Congress to legislate in ways that satisfy the "void for vagueness" doctrine, whether under the First Amendment or the Due Process Clause. Plainly, the 1989 Act showed that this can be done with respect to prohibition of "physical desecration of a flag of the United States." The "void for vagueness" doctrine thus would not be affected in the slightest by the flag amendment; it would apply to any statute enacted under the amendment; and Congress has demonstrated that such a statute can be drafted so as to pass review under the doctrine. The Rule of the R.A.V. Case. This rule bars government from proscribing sub-categories of generally "proscribable" expressive activity-such as "obscenity" or "fighting words' -if the sub-categories are defined by their particular message or point of view. What the flag amendment would do would be to establish "physical desecration of a flag of the United States" as an activity generally "proscribable" by Congress. The R.A.V. rule would not be affected in the slightest by ratification of the amendment. Rather, it would forbid Congress to punish only those instances of the

generally "proscribable” activity—i.e., “physical desecration” of a flag-by Democrats or by anti-war demonstrators or by people protesting actions by the President. Again, the Flag Protection Act of 1989 passes review under this rule. The exception it makes for "disposal of a flag when it has become worn or soiled" does not discriminate within generally "proscribable" activity in terms of viewpoint. Rather, it plainly is designed to track, and give effect to, the definition of that activity-"physical desecration" of a flag.

Answer 2. The hypotheticals involving flag "decoration on clothing" and symbols on flags ranging from "Elvis Presley" to a "dollar sign" to a "swastika❞—tend, at one and the same time, to exaggerate and to trivialize the reach of a statute protecting the American flag from physical desecration. This is, of course, a familiar mode of opposition to all proposals that are expressed in words. With respect, let me suggest that in our system of government there is good reason-in assessing the words of any constitutional provision-to trust Congress (enacting laws) and the Judiciary (enforcing them) to weed out both excessive and trivial cases. As I have said, Congress demonstrated that it deserves that trust in the Flag Protection Act of 1989. It defined "flag" as "in a form that is commonly displayed." And it provided for punishment only of one who "knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground or tramples upon" a flag. The courts have shown time and again that they, similarly, can be trusted in sorting out any remaining ambiguities in such statutory language.

I must add that the last two sentences of the question are misguided. The fear invoked in the first should be laid to rest by the R.A.V. rule. And the suggestion in the second that the flag amendment would "modify" the First Amendment is simply mistaken. To the contrary, it would restore to the First Amendment its longstanding meaning-a meaning "amended" away by a 5-4 vote of the Court.

Answer 3. I would urge Congress, in enacting a statute under the proposed amendment, to stick with traditional forms of punishment. That is what it did in the Flag Protection Act of 1989.

I hope these responses are of use to the Committee. Again, I thank you and the Committee for giving me the opportunity to participate in this stage of the process provided for by Article V of the Constitution.

Sincerely,

RICHARD D. PARKER, Williams Professor of Law.

RESPONSE OF GARY E. MAY TO A QUESTION FROM SENATOR HATCH Question 1. You eloquently stated that the veterans of World War I, World War II, and the Vietnam War fought for freedom of speech, including freedom for dissenters to physically desecrate the American flag. However, the Supreme Court of the United States did not interpret the First Amendment to protect the physical desecration of the flag until 1989 after the conclusion of all these wars. Texas v. Johnson, (1989). Would you respond to this?

Answer. Thank you for giving me the opportunity to respond to your observation and query:

My testimony included the assertion that the freedoms fought for by military veterans of all wars, more than tangible symbols of these freedoms, were powerful motivating forces which fueled their service and sacrifice. It does not follow that because the Supreme Court had not made a ruling on flag desecration as a protected form of speech until after the wars I cited in my testimony that this was implicitly not included among the freedoms for which service was rendered during those wars. In my opinion, to suggest that wars are fought and service is rendered to preserve the freedoms and cultural milieu up to and including a specific moment in time— the time of the war, for example-and not beyond that moment is incorrect. I don't believe most World War II veterans would say they do not support integration even though the landmark Brown v. Board of Education decision was well after the end of the war in which they fought. Similarly, Korean veterans probably don't oppose the Civil Rights Act, even though it followed their war. Certainly, as a person with a disability, I support civil rights protections, such as the Americans with Disabilities Act, for people with disabilities—which wasn't passed by Congress and signed by President Bush until 1990.

In my experience, veterans fought to protect, preserve and extend freedoms. We fought for our form of government, for our institutions, and for the opportunities for others to experience such freedoms and government. We also fought with the understanding that we would receive meaningful benefits upon discharge. I do not believe

that most veterans fought to protect our flag-but for everything that it represents, including freedom of speech.

RESPONSE OF GARY E. MAY TO A QUESTION FROM SENATOR LEAHY

Question. In your opinion, what are the most pressing issues facing our veterans? Answer. Thank you for giving me the opportunity to respond to your query. In my opinion, one of the most pressing and overlooked issues facing America's veterans is the long term impact of military service on veterans and their families. The programs funded by the Agent Orange Class Assistance Program (AOCAP) found a high incidence of disabilities and health problems among children of Vietnam veterans, for example. These community-based programs also found many lingering consequences of service among veterans, including PTSD, substance abuse problems, marital discord, poverty, and estrangement from potential sources of help such as the Department of Veterans Affairs, Department of Health and Human Service, and others. The programs found an aggressive case management approach to be very effective in working with these families. Such an approach helped families navigate the patchwork of programs and services. An important focus of the AOCAP-funded programs was also to debunk the myths among non veteran oriented service providers that the Veterans Administration "takes care of veterans and their families".

While the services funded by the Agent Orange settlement were targeted to Vietnam veterans and their families it was clear that veterans of other periods of service had similar needs. My own early clinical experience as a Social Worker in Veterans Administration medical center and outpatient clinic settings, where most of my clients were World War II veterans, were very similar to the experience of the AOCAP-funded programs.

More detailed descriptions of the experiences of AOCAP programs can be found in The legacy of Vietnam veterans and their families Survivors of war: Catalysts for Change, (1995). Rhoades, D.K., Leaveck, M.R. & Hudson, J.C., eds. This book is available from the Government Printing Office.

Thankfully, most Americans will never experience the consequences of war, but for those who do and for their families, I think we have an enormous obligation. Our response must be substantive, targeted, meaningful, and available. Historically, the Department of Veterans Affairs has been seen as the sole institution to fulfill this obligation. The experience of AOCAP programs and the performance of many community-based veteran service organizations which emerged during and following the Vietnam War underscored the need for services to be actively outreach oriented and community-based v. passively institutionally-based.

Currently, the programs previously funded through AOCAP are represented by Veterans Families of America (VFA). I was the founding president of this organization, which began as the National Alliance of Veteran Family Service Organizations, and still serve on its board of directors. VFA is working with the Department of Veterans Affairs, Health and Human Services, and other federal agencies to secure funding to revitalize the former AOCAP programs and expand their reach to veterans and families from all eras and conflicts.

Veterans and their families need services and opportunities, not symbolism. Recruitment for military service is predicated in part on a quid pro quo-if honorable service is rendered, then meaningful post service benefits will follow. Our record of making good on this contract is not good. The favorable expressed sentiment for veterans by supporters of the flag desecration amendment would be better placed in support of extending and stabilizing services responsive to the day-to-day needs of ordinary veterans and their families.

RESPONSE OF MARIBETH SEELY TO A QUESTION FROM SENATOR HATCH

APRIL 27, 1999.

DEAR SENATOR HATCH: The following is my answer to the question posed to me in a fax from your office:

Answer. In my view, the cognitive ability of ten and eleven year old children is not developed to the point where he or she would accurately interpret the action of the police protecting the rights of a flag burner. Children understand that burning the flag is wrong. After all, they salute that same flag everyday. They would be confused to see a policeman who in their minds is a community helper protect flag burning.

I did poll my fifth graders, and without exception and with the abilities commensurate with their age, they said that they would not want to see someone burning the American flag. I think, at this point, they would see this as yet another example of violence.

MARIBETH SEELY.

RESPONSE OF LT. GEN. EDWARD D. BACA TO A QUESTION FROM SENATOR LEAHY

Question 1. In your opinion, what are the most pressing issues facing our veterans?

Answer. In my interaction with veterans, I have found there are a number of issues of importance they would like to see Congress address. They include a constitutional amendment that would return to the American people the right to protect their flag, health care, funding of VA Hospitals and improved benefits. Access and funding are the keys when it comes to health care. Values are at the essence of the flag debate.

Asking a veteran to choose which issue is "most" important is like asking a father to choose a favorite among his children. All are equally important and equally valuable.

The American Legion has made a flag-protection amendment their number one priority for the last ten years. At the same time, they continue to play an active role in working to improve veterans health care and veterans benefits. There is no reason why Congress cannot address all of these issues.

When I told Jose Quintera I would be testifying before the Senate in favor of a flag-protection amendment he told me, "Tell them how much my flag means to me and to other veterans.” Jose is only one man, but he is echoing the sentiments of millions of others veterans-veterans, who like Jose, will one day be buried under the Stars and Stripes.

ADDITIONAL SUBMISSIONS FOR THE RECORD

APRIL 20, 1999

AMERICA BAR ASSOCIATION, GOVERNMENTAL AFFAIRS OFFICE, Washington, DC, April 20, 1999.

DEAR SENATOR: On behalf of the American Bar Association, I write to urge you to oppose S.J. Res. 14, the proposed Constitutional Amendment to prohibit the physical desecration of the flag of the United States.

The Association deplores any desecration of the flag, but we must not forget that the flag is a symbol of both national unity and sovereignty and the individual freedoms we so uniquely enjoy in this country-the freedom to think one's own thoughts, to express one's beliefs, and to associate freely with those of like mind. Nowhere are these principles tested more than when the beliefs of a few individuals offend the sensibilities of the majority. But I would call your attention to the words of Justice Jackson in West Virginia State Board of Education vs. Barnette:

[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.

Our institutions cannot be destroyed by the exercise of First Amendment freedoms, only strengthened. Even in the scarce instances in our history in which the flag has been physically abused in political protest, the ideas and ideals that the flag symbolizes have never been damaged by such abuse. For the ideals of freedom and liberty that the flag represents are held secure in the hearts and minds of the American people and can easily withstand these infrequent episodes of political dissent.

The flag does not stand unprotected today. For those who physically abuse the flag for the purpose of inciting others or inflaming conflicts, rather than for peaceful political protest, the punishment is sure and certain. There is a myriad of laws already in place that would punish the vast majority of incidents of flag desecration cited by proponents of the amendment. A review of those cases shows that the persons charged with flag desecration were also charged and prosecuted under local criminal statutes, such as theft, vandalism, destruction of property, disorderly conduct, or public disturbance.

The proposed flag amendment therefore targets the very speech that the Constitution now protects-peaceful political dissent. The American people do not want or need Congress to go to the extreme of tampering with the First Amendment to deal with the very rare actions of a few individuals who physically abuse the flag in political protest.

As a symbol, the flag is important, but not more important than the Bill of Rights. The ideals to be protected reside not in the flag, but in the principles the flag represents; and those ideals remain long after any particular flag has fallen to the ravages of time or the destructive hands of an enemy at war or a political dissenter at home. We urge you to express your support for the principle of freedom of speech which our flag represents by opposing S.J. Res. 14.

Sincerely,

ROBERT D. EVANS.

PREPARED STATEMENT OF WALTER CRONKITE

With the myriad of serious issues now facing Congress and the Nation, I am at a loss to understand the congressional rush to take up the flag desecration amendment. Congress has pursued this unwise amendment for almost a decade, trying to punish the acts of a handful of immature, flag-burning hooligans who have successfully aroused our anger but who pose no threat to our flag.

This tiny band of malcontents has inspired a threat by otherwise thoughtful, serious citizens to amend the very foundation of our liberties, which has stood solid and unshaken through political and economic crises, through insurrection and civil war, through assaults by foreign ideologies. The Senate has steadfastly rejected such an amendment twice before. It should do so again for the third and final time.