The proposed amendment is inconsistent with the established American principles of freedom of expression and will work serious harm of unpredictable proportions, while it solves no problem that could justify such costs. I respectfully submit that, exercising their independent judgment in their proper role, this Committee and the Senate should reject the amendment.

PREPARED STATEMENT OF ROBERT D. EVANS ON BEHALF OF THE AMERICAN BAR ASSOCIATION

On behalf of the American Bar Association, I thank you for this opportunity to submit a statement in support of the First Amendment right to free speech and against S.J. Res. 14, the proposed constitutional amendment to ban flag desecration. As members of the legal profession, the over 400,000 men and women of the American Bar Association have a special obligation to protect and defend principles embodied in the Constitution and the Bill of Rights. Of these principles, none are more cherished than the individual freedoms guaranteed to all Americans under the First Amendment. Religious Freedom. A Free Press. The Right to Assemble. Freedom of Speech. Each of these rights is essential to a free and democratic society. Our flag is a national treasure worthy of the reverence most Americans afford it. It uniquely symbolizes both the power of authority and the individual rights of the people. The flag stands as a powerful symbol of our nation's sovereignty, unity and patriotism—but also of the freedoms found in the Bill of Rights. National strength, unity and patriotism are compatible with the freedom to protest against such authority, even by destroying in a peaceful manner its preeminent symbol. While such an expressive act is offensive to most of us, the fact that such protest is tolerated gives this nation its strength.

Government may neither prohibit the expression of an idea simply because it is offensive, nor designate acceptable ways to peacefully communicate a message. Justice Jackson stated in West Virginia State Board of Education vs. Barnette, "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." This amendment seeks to impose patriotism by government decree.

Proponents of this measure argue that it would merely restore the right of the people to protect the physical integrity of the flag. The historical record reads otherwise. There is no 200 years of precedent or implicit understanding that was "suddenly" overturned by the Supreme Courts decision in Texas v. Johnson in 1989. There is not a single reference to the flag in the Constitution and its original ten amendments, the Bill of Rights. Our founding fathers saw no need to afford constitutional protection to the newly adopted symbol of our nation. To the contrary, they specifically added the Bill of Rights to limit the government's ability to restrict the fundamental rights of the individual. This proposal would amend the Bill of Rights in a manner that runs counter to the intent of the Framers and the spirit of the Constitution.

Make no mistake, this amendment is not about restoration, but restriction. The proposed constitutional amendment to ban flag desecration would, for the first time in our nation's history, amend the First Amendment to diminish the vital protections conferred by the Bill of Rights and give greater protection to the symbolic value of the flag than to the freedoms and ideals it represents.

Proponents of this amendment argue that the act of flag desecration is not a protected form of political speech. They argue that conduct that does not involve the spoken or written word is not protected speech under the First Amendment. History and the courts have long recognized that speech extends beyond written and spoken words and encompasses symbolic conduct. Of course, by common sense we know that pictures-or actions can be worth a thousand words. A band of patriots dumps tea into Boston Harbor, a single student stands in front of a tank in Tiananmen Square, an African American woman refuses to give up her seat on a bus—each conveys a powerful message without requiring a single written or spoken word. Political dissent is often more powerfully expressed through peaceful acts of protest than through words.

Certainly we recognize that flying or saluting a flag communicates a message of support for the ideals it symbolizes and the government and policies it represents, just as desecration of a flag communicates disappointment in, or a lack of support for a government or its policies. Free speech under the Constitution provides the same protection to flag burning as it does flag waving. The fact that most of us find flag desecration to be offensive does not take away its status as protected political expression.

It is true that not all conduct is protected under the First Amendment and that some limitations have been placed on the right of free speech. Violent expressive conduct involving flag desecration is already subject to these limitations. In fact, the majority of the incidents cited by proponents of the amendment would be punishable under current law. Persons who engage in flag desecration that involves stolen property, vandalism, violence or imminent danger, or breach of the peace are subject to arrest and prosecution under applicable existing laws. Neither a constitutional amendment nor any new statute is needed to punish those malicious acts.

Since its founding, our nation has thrived on the vigor of free speech and robust dissent. The rare incidents of flag desecration do not present a danger to our society. The remedy for expressive actions that offend the majority is not criminal sanction, but increased political discourse. America has nothing to fear from free and open debate, even in the form of hurtful or offensive treatment of the symbol of our constitutional government. This is because our national strength stems from our tolerance of a diverse range of views in the vast "marketplace of ideas." Justice Brandeis, in Whitney v. California, eloquently put it this way:

To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to espouse through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. The court in Texas v. Johnson offered a similar answer:

The way to preserve the flag's special role is not to punish those who feel differently about these matters. It is to persuade them that they are wrong *** because it is our flag involved, one's response to the flag burner may exploit the uniquely persuasive power of the flag itself. We can imagine no more appropriate response to burning a flag than waving one's own, no better way to counter a flag burner's message than by saluting the flag that burns. ***

We are a nation of diverse ideological and often intense political views. We hate flag burning. But survey results show that the majority of Americans who initially indicate support for a flag protection amendment oppose it once they understand its impact. The switch is dramatic; support for an amendment plummets from 64 percent to 38 percent. The majority of Americans recognize that the proposed flag desecration amendment is simply incompatible with our democracy and liberty.

At last week's hearing, two witnesses supporting the amendment testified against making flag desecration a felony or misdemeanor. Major General Patrick H. Brady, Chairman of the Citizen's Flag Alliance, stated that the appropriate penalty for flag burning was a citation equivalent to a "traffic ticket" and/or a "fine" or compulsory education akin to "traffic school." Professor Parker allowed that Congress could do anything, but that a "jail term was not reasonable." Where is the sense of proportion? Amend the Constitution to allow for the equivalent of a traffic ticket? Amending our Constitution is a serious endeavor that must be reserved for issues of the fundamental structure of American government and social order.

This amendment is not a magic panacea for any social or moral issue we face as a nation. Indeed, the time and effort expended on this issue detracts from much more serious problems facing our nation that demand Congress' attention. From violence in our streets and schools, to the economic security of our older generation, to questions of race, to questions of war, our nation is faced today with a myriad of challenges that will determine the shape of the society we will all share. How our nation faces these challenges will have far more impact on our youth than passage of a constitutional amendment on flag desecration.

Flag burning is an important form of political dissent around the world. If Congress rejects the constitutional amendment to prohibit flag desecration, as we hope it will, it does not mean that the government supports or endorses such action. The vast majority of those who oppose such an amendment, including the American Bar Association, deplore any act of flag desecration and hold the flag in high regard. It does mean that our government is defending the principles embodied in the Constitution that have preserved individual liberties for over 200 years. I urge members of the committee to stand firm against emotional appeals for the proposed flag amendment. Protect the freedoms of belief and expression guaranteed to all Americans under the First Amendment by opposing S.J. Res. 14.

Senator LEAHY. Like you, I thank the Senators who are here and taking this time, and Senator Glenn, who wanted to be here last week but had a NASA commitment in Houston and so is here today. The four Senators who are here are all close friends of all of us on this panel, and they don't need to hear my speech. As I said, I will put that in the record.

The CHAIRMAN. We were happy to accommodate you, Senator Glenn. You look much more relaxed than I have been used to seeing you in the past. A lot happier, too. [Laughter.]

Senator GLENN. So is Annie.

The CHAIRMAN. Well, this is the order of the Senators, the suggested order, and if anybody has any objection, we will listen. But we will start with Senator Kerrey, and then Senator Hagel needs to follow Senator Kerrey, as I understand it. Then, Senator Chafee, if we can go to you at that point, we would like to do that.

Senator CHAFEE. That is fine.

The CHAIRMAN. As soon as Senator McCain comes in, we will try to accommodate him after the three of you, and then Senator Glenn, of course, and we will let Senator Cleland be the last one for this first panel.

So, Senator Kerrey, we welcome you. We are proud of you, and we look forward to your testimony.

STATEMENT OF HON. J. ROBERT KERREY, A U.S. SENATOR FROM THE STATE OF NEBRASKA

Senator KERREY. Thank you very much, Mr. Chairman and members of the committee. First of all, I take from your opening remarks, at least, that hope springs eternal. I hope that we don't have a repeat of last year where there was an attempt to get a consent to limit debate to 2 hours. Whenever this comes to the fore, I would never attempt to filibuster this.

The CHAIRMAN. I don't think anybody would.

Senator KERREY. I do hope we have an ample time on the floor to get a full debate this year.

The CHAIRMAN. Well, if you will allow me to interrupt, I wasn't for the 2-hour thing, as far as I was concerned. I felt like I think they talked in those terms because it was at the end of the session. But I think this deserves a full and fair debate.

Senator KERREY. Thank you, Mr. Chairman.

Well, Mr. Chairman, it is obvious that you are winning converts. Each election brings you closer to the 67 votes that you need or two-thirds of those present and voting to send this 17-word amendment to the States for their ratification, where there are now 49 legislatures that have indicated that they intend to ratify this amendment.

These 17 words would make it constitutional for the Congress to pass a law giving the Government the power to prohibit the physical desecration of the flag of the United States of America.

Mr. Chairman, like you, I respect the views of those that are different than mine, and I especially support and respect the views of those who support this amendment. And, especially, I want to pay tribute to the American Legion and the American Legion Auxiliary. These patriots have done more than any others to help especially young Americans understand that freedom is not free. And

to them I say that I have listened with an open mind to their arguments and their appeals to have me support this amendment. Regretfully and respectfully. I must once again say no.

Mr. Chairman, I fear that the unintended consequences of these 17 words and the laws that will be enacted later will be far worse than the consequences of us witnessing the occasional and shocking and disgusting desecration of this great symbol of liberty and freedom. Real patriotism, Mr. Chairman, cannot be coerced. It must be a voluntary, unselfish, brave act to sacrifice for others.

When Americans feel coercion, especially when the coercion is by their Government, they tend to rebel. So none of us should be surprised, Mr. Chairman, if one unintended consequence of the laws that prohibit unpopular conduct such as this is an actual increase in the incidents of flag desecration.

Another unintended consequence will be the diversion of police resources from efforts to protect us from dangerous crimes, and I regard this as a serious matter. The efforts to protect us from those who desecrate the flag will require police officers to train themselves to decide when and where to respond to complaints. We pass the laws, but others have the responsibility of enforcing them, and they will receive complaints from neighbors about neighbors or friends or people that are desecrating the flag that they want the police to respond to. These laws will give the power of the Government to local law enforcement agencies to come in and decide when some individual is desecrating the American flag.

Mr. Chairman, there are 45 words in the first amendment, and this simple amendment protects the rights of citizens to speak, to assemble, to practice their religious beliefs, to publish their opinions and petition their government for redress of grievance.

The 17 words that are in this proposed 28th amendment would limit what the majority of Americans believe is distasteful and offensive speech. Although this seems very reasonable, since a growing majority of Americans do not approve of flag desecration, Mr. Chairman, it is only reasonable if we forget that it is our right to speak the unpopular or offensive that needs the most protecting by our Government.

In this era of political correctness, where the fear of 30-second ads has homogenized and sterilized our language of any distasteful truth, this amendment takes us in the opposite direction of that envisioned by our Founding Fathers whose words and deeds bravely challenged the comfortable status quo.

Mr. Chairman, I took the liberty of going and buying a flag that I intend to give to this committee because I believe all of you on this committee are patriots and believe that you all love your country and that you especially are moved by the symbol that this flag represents. I bought this flag because it reminds me every time I look at it that patriotism and the cause of freedom produces widows—widows who hold this flag to their bosom as if it were the live body of their loved one.

This flag says more about what it means to be an American than thousands of words spoken by me. But, Mr. Chairman, current law protects this flag. If anyone chooses to desecrate my flag and survives my vengeful wrath, they will face prosecution by our Government. Such acts of malicious vandalism are prohibited by law.

Mr. Chairman, the law also protects me and allows me to give a speech born of my anguish or my anger during which I set this flag aflame. Do we really want to pass a law making it a crime for a citizen, despondent over war, despondent over abortion, despondent about something else they see going on in their country, that burns this flag? Do we really want a law that says that our police will go out and arrest them and put them in jail?

Mr. Chairman, I hope not. Patriotism calls upon us to be brave enough to endure and withstand such an act, to tolerate the intolerable.

Mr. Chairman, I sincerely and respectfully thank you for your patriotism and all of those who hold views different than mine. I will pray this amendment does not pass. But I thank God for the love of country exhibited by those who do.

The CHAIRMAN. Thank you, Senator Kerrey.

Senator Hagel.

STATEMENT OF HON. CHUCK HAGEL, A U.S. SENATOR FROM THE STATE OF NEBRASKA

Senator HAGEL. Mr. Chairman, thank you. I wish to express my thanks, along with my distinguished friend and colleague from Nebraska, for an opportunity to appear here this morning.

It is not often Nebraska gets to go first, Bob. I credit that more because of your presence than mine, so thank you for bringing me along.

I wish to take a different approach than Bob. I have supported this effort, and I, like Bob and all of us here today, very much respect and appreciate the points of view here. There are legitimate questions about this, constitutional questions, relevant questions, differences of opinion and philosophy. But I have come over the last couple of years to this position as a result of some of the thoughts that I wish to share with you this morning.

This is about a statement as much as anything else. It is a statement about America's priorities. I don't see it as depriving individuals of their liberties to say what they wish, to make this an important part of the most important document in our country, the Constitution of the United States.

We all know that freedom also is attached to responsibility, and when you wish to express yourself, you have some responsibility for that expression.

We know that if this amendment passes and our States ratify it and it becomes our newest addition to the Constitution, it will not stop nuts from burning the American flag. We understand that.

But this is a symbol. Senator Kerrey very appropriately identified that symbol. The American flag is a symbol, and America always is in need of a rallying symbol of dignity, respect for others. All that is embodied in our American way of life. The American flag represents that.

This is not a trivial issue. This is not a trivial amendment, in my opinion. This is a very relevant amendment.

The Founding Fathers gave us the ability to amend the Constitution. And why did they do that? This is a breathing, living, dynamic paper. But more than a paper, it is us.