Mr. CHABOT. Thank you. Professor, let me ask you a question real quick. My time is running out. I have got one for you, Mr. May, but I am running out of time here.

Do you believe that this proposed amendment to the Constitution carves out an exception to the First Amendment or was it the Supreme Court's decision in the Johnson case that carved out an exception to our traditional view of flag burning, and does this measure really amend the Bill of Rights as opponents of the amendment sometimes have claimed?

Mr. PARKER. Absolutely not. It was the Supreme Court majority of five which, in effect, amended the First Amendment. This is designed to restore the traditional meaning of the First Amendment.

Mr. CHABOT. And is there anything short of amending the Constitution at this point, given the decision of the Supreme Court, is there anything else we can do to protect the flag?

Mr. PARKER. Absolutely nothing, sir.

Mr. CHABOT. My time is expired and I will at this point recognize the gentleman from New York, Mr. Nadler, for 5 minutes.

Mr. NADLER. Mr. May, you testified that you've worked with veterans over the years and you're a disabled Vietnam veteran yourself. It's all very well to see all this emotional testimony about veterans, but do you believe that Congress in practical terms have provided adequate assistance to our veterans in terms of health care and other necessary benefits, or do you think present Government policy adequately shows respect for our veterans?

Mr. MAY. I think there is substantial distance to be traveled yet for the public response to be reflective of what I would deem to be a true commitment to veterans and their service. For example, in my area, we have veterans who need to wait months in order to get an appointment with the local VA outpatient clinic. In my own case, I've been waiting for weeks now to get authorization to be evaluated for new prostheses. In my case, my need is directly attributable to my service, since I was injured while I was in the service.

I think, really, an unmined area, though, for services and to consider the impact of combat, is on families, as I indicated in my testimony. The Agent Orange Benefits Act of 1996, that was a long time ago, but that, for the first time, extended benefits to children of Vietnam veterans whose health conditions might be attributable, or where there is a fair amount of evidence that it was attributable to the veteran's service in Vietnam and exposure to Agent Orange. There's a lot we can do yet.

Mr. NADLER. Thank you. Professor Parker, let me say before I ask you the question that I think everyone who opposes this amendment on this panel certainly in Congress loves the flag as much as anyone else. The question is whether we can impose-is whether it's proper as an expression of American freedom to use the criminal law to punish someone who disagrees with us.

Let me ask you a question. Do you think that it would be right to arrest actors in a film or a play who, playing Nazi soldiers, burn an American flag?

Mr. PARKER. It would all depend on what was the applicable statute, wouldn't it? If the statute

Mr. NADLER. You know perfectly well, I assume, that no one would use a statute to arrest actors who, as part of portraying Nazi soldiers burning a flag, I don't think anybody would arrest them.

Mr. PARKER. I can't imagine they would, but I don't-but IMr. NADLER. Okay. Now, but on the other hand, on the other hand, the real purpose of this amendment is that people who aren't actors who do the exact same act, using that to express their disagreement with the policy of the current Government, that should be criminalized. That's what you're testifying, essentially.

Mr. PARKER. Again, I'm sorry, but it would depend on what the applicable statute was, which is up to Congress. The amend

ment

Mr. NADLER. Well, but the applicable statute that this amendment-the only purpose of this amendment is to make a statute possible that would make criminal the burning of the flag, right? Mr. PARKER. Well, would there be an intent element? Most

Mr. NADLER. Intent for what? Intent to burn the flag, or intent by burning the flag to express an opinion that we don't approve of? That's the key.

Mr. PARKER. Well, I doubt the latter would be anything Congress would write into the law, but Congress might add an intent

Mr. NADLER. But what does desecration mean? When we burn the flag to dispose of it respectfully, that's not desecration. Mr. PARKER. That's right. Yes.

Mr. NADLER. When someone burns the flag to say that he doesn't agree with invading Iraq or the Vietnam war or whatever, that's desecration, right?

Mr. PARKER. There's no question that what Congress is empowered to do by this amendment is to regulate content, but not to discriminate by point of view. The flag doesn't stand for any particular policy. It doesn't stand for the flag. It stands for

Mr. NADLER. So in other words, in other words, burning a flag per se is neutral. It may be done properly to dispose of it. It may be done harmlessly by actors in a play portraying villains, such as Nazi soldiers. But if done by people with the intent of expressing an unpopular point of view, that's desecration?

Mr. PARKER. It could also be desecration if they were expressing a popular point of view.

Mr. NADLER. Could you ever see such a prosecution?

Mr. PARKER. I suppose so, sure. Again, Congress is the group that's empowered here. I do trust Congress. I don't

Mr. NADLER. I don't trust let me say this. I don't trust Congress. [Laughter.]

I certainly do not trust Congress to

Mr. CHABOT. Mr. Nadler and I finally agree on something. [Laughter.]

Mr. NADLER. I do not trust Congress or any other legislative body to protect unpopular opinions. That's why we have the Bill of Rights. In the Supreme Court in a 1943 decision, during the middle of World War II, upholding the right of Jehovah's Witnesses-I'm sure you are familiar with the decision, Professor-upholding the right of Jehovah's Witnesses to refrain from the compulsory recitation of the Pledge of Allegiance in public schools, a decision which was met with similar denunciations and even violence the flag

burning decision was met with, Justice Jackson, in explaining that decision, said, "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, free press, freedom of worship and assembly, and other fundamental rights may not be submitted to a vote. They depend on the outcome of no elections."

It seems to me that what we are really debating here is whether we agree with Justice Jackson that people whose views we hate, whose action in burning a flag, an action I would detest personally, to express a view that I may agree with or a view that I may detest, but nonetheless, the Constitution protects their right to do those things as free speech and the people who are proposing this amendment are saying it should not protect that form of expression.

Mr. CHABOT. The gentleman's time is expired. The witness has an opportunity to address the question.

Mr. PARKER. Briefly sir, I guess, then, that by the logic of your argument, all hate speech regulation would be wrong. One comment on Justice Jackson. He said that the Constitution removes, or the Supreme Court's interpretation of the Constitution removes issues from the control of majorities. That's technically right, but it doesn't remove them from the control of super-majorities. That's the point of Article V of the Constitution. The people have the right to amend the Constitution and they may use that right to correct Supreme Court decisions that were wrongly decided.

Mr. NADLER. May I have one extra minute to comment on this? Mr. CHABOT. The gentleman's time is expired. With unanimous consent, the gentleman is granted one additional minute, if he stays within the minute.

Mr. NADLER. I will stay within the minute. Clearly, we have the right to amend the Constitution. No one denies that. The whole point of the Bill of Rights, though, is that we should extend freedom of speech, freedom of worship, even to people we hate, even to people whose views we hate, freedom of speech to people whose views we hate, freedom of religion to people's religions we can't stand, and that shouldn't be subject to popular votes. Obviously, we could amend the Constitution. We could amend the Constitution to make the country a tyranny. It doesn't mean it's a good idea. Mr. PARKER. Absolutely.

Mr. CHABOT. The gentleman's time has expired.

The gentleman from Iowa, Mr. King, is recognized for 5 minutes. Mr. KING. Thank you, Mr. Chairman.

I direct my first question to Mr. May. The statement was made in opening remarks here before the testimony that those who support this amendment value the symbol more than the freedom, and I direct this question to you, Mr. May, as one whom I think is the most likely to be able to shed some light on that statement, since I connect with that intellectually.

Mr. MAY. My interpretation

Mr. KING. Yes.

Mr. MAY. of that statement? Well, I think some of the proponents have merged the flag with the rights and the freedoms and the values that we thousands, millions of veterans have fought for over the years, and it's as if the flag, which is the symbolic representation, becomes that which it represents rather than just a symbol of that. So if we destroy the flag, implicitly, we destroy those freedoms.

Mr. KING. If we have our freedoms and our liberty, those things embodied in the Declaration and the Bill of Rights on the one hand, and the symbol of the flag on the other hand, and we have the choice between the two, can you conceive of an American valuing the symbol of the flag more than the freedoms that it represents? Is that a conceivable concept for you as a patriotic American?

Mr. MAY. Well, I think to the extent that, as I said, some seem to have merged those two, then I think it is something that I am seeing and have seen, that people seem to be willing, not because of that clear distinction that you point out but because of the absence of a bright line, have been willing to forego or move away from some of those freedoms in the interest of preserving the symbol of those freedoms.

Mr. KING. But if we have that distinction, then it is a difficult thing to define, would you grant that?

Mr. MAY. If we have the distinction, I think it's very easy to define and I think under those circumstances, more people would side for protecting that which is represented by the flag than would side with protecting the flag itself.

Mr. KING. Thank you, Mr. May. The Americans I know stand for the freedom.

But I would direct a question then to General Brady, and this remark was made in testimony and you said that if we approve this amendment, I believe that all the sacrifices of the people that went before me would be for naught. Mr. May's statement. How does that resonate with you as a holder of the Congressional Medal of Honor?

Major BRADY. You know, my view of this thing is that what we're really talking about here is the Constitution. All the soldiers that I ever knew, all the people that I ever knew that went into combat, that's what they were fighting for. In a more practical sense, in a more immediate sense, they were fighting for their buddies and their own lives and everything. But the thing that got them there, the thing that motivated them was the Constitution.

The flag was a physical embodiment of the values embedded in that Constitution and that's why more Medal of Honors have been given for flag-related actions than for any other action. They died for that flag, but they did not die for a piece of cloth. They died for the values embedded in that flag and those values are in our sacred Constitution.

So, you know, it's not the flag, as we say, stupid, it's the Constitution that this is all about, and that's what concerns most of us. Mr. KING. Thank you, General Brady. There has been so much powerful testimony here, I don't know that I can enhance this with any further question except to make the statement that in this city this spring, I have watched flags desecrated by the hundreds and

it is a chilling and saddening thing to see going down the streets of Washington, D.C.

Thank you, Mr. Chairman. I yield back the balance of my time. Mr. CHABOT. Thank you, Mr. King.

The gentleman from Virginia, Mr. Scott, is recognized for 5 minutes.

Mr. SCOTT. Thank you, Mr. Chairman.

Mr. May, I just want to let you know that every time we consider the constitutional amendment, there is virtually every time a concurrent slashing of veterans benefits. Just in the last couple of weeks, we voted to cut veterans' benefits, veterans' health care, disability benefits $28 billion, and then we come up with this. So, I mean, you have to understand what the process is.

Some things have been said here. The Chairman mentioned stealing somebody's flag and burning it. That's illegal. I mean, that's not what we're talking about here, and General Brady, you mentioned, you kept talking about burning the flag and didn't know it was legal to burn the flag, was that your testimony?

Major BRADY. No. What my testimony is, that the vast majority of the American people do not know that it is legal to burn the American flag and there have been three or four arrests recently by policemen of people who desecrated the flag, the policemen themselves not being aware that what that person did was legal.

Mr. SCOTT. We heard somebody talking about all the flag burnings they've seen. The only time I've seen the flag burned was a flag burned by the American Legion. The photos in the paper—I'm saying what I have physically, what I have seen with my eyes, and are more flags burned by Boy Scouts and the American Legion or by political protestors?

Major BRADY. You're talking about the retirement of a flag? Is that what you're talking about?

Mr. SCOTT. Yes.

Major BRADY. You think that's a desecration of the flag?

Mr. SCOTT. Oh, okay. We're talking not burning, we're talking about desecration?

Major BRADY. Desecration means to put to unworthy use. When you retire a damaged flag, that is not

Mr. SCOTT. Okay. Now we're getting there. So we're not talking about burning the flag. We're talking about disrespect.

Major BRADY. Yes. It says desecrated. It doesn't say burned.

Mr. SCOTT. Okay. Now we're getting there. And Professor Parker said we're talking about content, so as the gentleman from New York said, if you burn the flag while you're saying something respectful, that's okay. That's your testimony?

Major BRADY. It's certainly not my testimony.

Mr. SCOTT. Well, if you burn the flag and say something nice and respectful while you're burning the flag, that would be okay?

Major BRADY. If it's a worn-out flag and it's done by the Legion, certainly and, in fact, they do

Mr. SCOTT. If you burn the flag and say something insulting, then that should be a criminal act.

Major BRADY. I see, yes. One thing is an act and the other thing is free speech. You're free to say anything you want about the flag. You're just not free to burn it.