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Mr. CHABOT. Thank you.
PREPARED STATEMENT OF GARY E. MAY Good morning. I am extremely flattered and humbled by your invitation and interest in listening to my thoughts about the proposed amendment to the Constitution. I gladly accepted the invitation as yet another opportunity for me to be of service to my country.
As a Vietnam veteran who lives daily with the consequences of my service to my country, and as the son of a WWII combat veteran, and the grandson of a WWI combat veteran, I can attest to the fact that not all veterans, indeed perhaps most veterans, do not wish to exchange fought-for freedoms for protecting a tangible symbol of these freedoms. I oppose this amendment because it does not support the freedom of expression and the right to dissent.
This is among the core principles under our Constitution that my family and I served to support and defend. It would be the ultimate irony for us to place ourselves in harm's way and for my family to sacrifice to gain freedom for other nations and not to protect our freedom here at home.
My late father in law, Robert E. Speer, endured horrible, prolonged combat as a member of Merrill's Marauders. My older brother, Edward C. May, saw duty with the Army in Korea during the Vietnam era.
I barely knew my grandfather who died when I was young. I do know that he saw combat while serving in the Army during WWI. His service included his being gassed. He never received any government benefits. My father didn't know all of the details of his father's service, but he has no recall of grandpa referring to the flag as a reason for his service and sacrifice. After the war, he returned to his Winslow, Indiana home and worked to provide for his family.
My Father, Charles W. May, who died nearly a year ago, was a WWII Army combat veteran who served in the European Theater of Operations from 1944 to 1946. He saw combat with Battery “B” 500th Armored Field Artillery Battalion, 14th Armored Division. The flag or its protection was not a powerful motivating force for himself or any of his fellow combatants. It was the fight for freedom that really mattered.
I joined the U.S. Marine Corps while still in high school in 1967. This was a time of broadening public dissent and demonstration against our involvement in Vietnam. I joined the Marines, these protests notwithstanding, because I felt that it was my duty to do so. I felt duty-bound to answer President Kennedy's challenge to “ask not what your country can do for you; ask what you can do for your country.” My country was asking me to serve in Vietnam, ostensibly because people there were being arbitrarily denied the freedoms we enjoy as Americans.
During my service with K Company, 3rd Battalion, 27th Marines following the Tet Offensive of 1968 in Vietnam, I sustained bilateral above the knee amputations as a result of a landmine explosion on April 12, 1968. My military awards include the Bronze Star, with combat “V”, Purple Heart, with star, Vietnam Campaign, Vietnam Service, and National Defense medals.
While serving in Vietnam, I never once heard one of my fellow Marines say they were there protecting the flag. Frankly, most of us didn't know why we were there, but we knew it was important to do what was necessary to stay alive. Additionally, most of us there were the sons of WWII veterans whose decisions to serve were influenced by family traditions and a sense of what was right and expected of citizens.
Upon my return from Vietnam, I enrolled at the University of Evansville where there were occasional student protests of the war. I felt a strong identity with these protesters, because I too, felt that the war was wrong and that that feeling demanded expression-after all, this is what I had served to protect.
I graduated with a Bachelor of Arts in Sociology. I earned my Master of Science in Social Work degree from the University of Tennessee in 1974. I am married to the former Peggy Speer of Haubstadt, Indiana. We have two children, Andrea, a middle school teacher in Indianapolis, and Alex, a supermarket manager.
Now, over 35 years after I lost my legs in combat, I am again called upon to defend the freedoms which my sacrifices in combat were said to preserve. It's been a long 35+ years. I have faced the vexing challenge of reconciling myself with the reality of my military history and the lessons I have learned from it and the popular portrayal of veterans as one dimensional patriots, whose patriotism MUST take the form of intolerance, narrow-mindedness, euphemisms, and reductionism-where death in combat is referred to as “making the ultimate sacrifice” and the motivation for service and the definition of true patriotism is reduced to dedication to a piece of cloth.
A few years ago, near the anniversary of my injuries in Vietnam, I had a conversation with a colleague at the University. I mentioned the anniversary of my wounding to her and asked her what she was doing in 1968. Somewhat reluctantly, she said, “I was protesting the war in Vietnam.” I was not offended. After all, our nation was born out of political dissent. Preservation of the freedom to dissent, even if it means using revered icons of this democracy, is what helps me understand losing my legs.
The strength of our nation is found in its diversity. This strength was achieved through the exercise of our First Amendment right to freedom of expression—no matter how repugnant or offensive the expression might be. Achieving that strength has not been easy—it's been a struggle, a struggle lived by some very important men in my life and me.
In addition to my own military combat experience, I have been involved in veterans' affairs as a clinical social worker, program manager, board member, and advocate since 1974. I have yet to hear a veteran I have lived or worked with say that his/her service and sacrifice was in pursuit of protecting the flag. When confronted with the horrific demands of combat, most of us who are honest say we fought to stay alive. Combatants do not return home awestruck by the flag. Putting the pretty face of protecting the flag on the unforgettable, unspeakable, abominations of combat seems to trivialize what my fellow veterans and I experienced. This depiction is particularly problematic in light of the current events in Iraq.
I am offended when I see the flag burned or treated disrespectfully. As offensive and painful as this is, I still believe that those dissenting voices need to be heard. This country is unique and special because the minority, the unpopular, the dissenters and the downtrodden, also have a voice and are allowed to be heard in whatever way they choose to express themselves that does not harm others. Supporting freedom of expression, even when it hurts, is the truest test of our dedication to the belief that we have that right.
Free expression, especially the right to dissent with the policies of the government, is one important element, if not the cornerstone of our form of government that has greatly enhanced its stability, prosperity, and strength of our country. This freedom of expression is under serious attack today. The smothering, oppressive responses to publicly expressed misgivings about our incursion into Iraq and ad hominem attacks against those who dare to express them are alarming. “Supporting our troops” does not mean suspending critical analysis and muffling public debate and discourse.
Freedom is what makes the United States of America strong and great, and freedom, including the right to dissent, is what has kept our democracy going for more than 200 years. And it is freedom that will continue to keep it strong for my children and the children of all the people like my father, late father in law, grandfather, brother, me, and others like us who served honorably and proudly for freedom.
The pride and honor we feel is not in the flag per se. It's in the principles that it stands for and the people who have defended them. My pride and admiration is in our country, its people and its fundamental principles. I am grateful for the many heroes of our country-and especially those in my family. All the sacrifices of those who went before me would be for naught, if an amendment were added to the Constitution that cut back on our First Amendment rights for the first time in the history of our great nation.
I love this country, its people and what it stands for. The last thing I want to give the future generations are fewer rights than I was privileged to have. My family and I served and fought for others to have such freedoms and I am opposed to any actions which would restrict my children and their children from having the same freedoms I enjoy.
The proposed amendment will apparently prohibit yet to be defined abuses of the flag which are deemed offensive. Who shall write the definition? Will destroying the flag in the interest of registering strong objection to a military excursion violate the law? What about reducing this revered icon to a lamp shade? Would the inclusion of a flag in a wall hanging violate the law? What if used as a curtain? Who decides?
If one peruses the pages of the periodicals of the traditional veterans' organizations, many of which apparently support this amendment, one will observe many uses of this revered symbol. Do those who object to a flag motif in clothing have recourse under the proposed amendment? If the flag can be worn on the uniform shoulder by safety and law enforcement personnel, is it permissible for it to be worn on underclothing? Who will check?
The proposal seems unenforceable. It raises the specter of the “flag police,” whose duties would include searching out violations and bringing offenders to the bar of
justice. That this is defended in the name of freedom and in the memory of valiant sacrifices by millions of this country's veterans is duplicitous and cynical.
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. Our record of service to veterans of all wars is not exemplary. In May 1932, in the midst of the Great Depression, WWI veterans had to march on this Capitol to obtain their promised bonuses. WWII veterans were unknowingly exposed to radiation during atomic testing. Korean veterans, perhaps more than any living U.S. veterans, have been forgotten. Vietnam veterans are still battling to obtain needed treatment for their exposure to life-threatening herbicides and withheld support upon their return. In my area, businesses and churches are soliciting donations to support the families of U.S. troops in Iraq. The list goes on.
The spotty record in veterans services is more shameful when one considers that the impact of military service on one's family has gone mostly unnoticed by policy makers. The dimensions of this impact and the efficacious responses of funded programs nationwide are chronicled 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. Agent Orange Class Assistance Program. Government Printing Office). In this volume, Congressman Lane Evans opines that:
“Although the government's legal obligation extends primarily to veterans, I believe the government also has a strong moral obligation to provide services to those family members who are affected by the veteran's experiences. Services should be offered to children with congenital disorders whose conditions are related to their parent's military service. Counseling should be offered to the family members of veterans with psychological or substance abuse problems related to their military service. By providing appropriate services and benefits, through either government or community-based organizations, the government would admit its responsibility and offer the assistance that some veterans and
their families desperately need.” (p. ix) The programs which were supported by the Agent Orange Class Assistance Program were later represented by Veterans Families of America, an organization whose member agencies demonstrated effectiveness in meeting veteran family needs, but whose continuation was ended due to lack of funding. I proudly served as a member of the board of Veterans Families of America.
Is our collective interest better served by amending the Constitution to protect a piece of cloth than by helping spouses understand and cope with the consequences of their loved ones' horrible and still very real combat experiences? Are we to turn our backs on the needs of children whose lives have been affected by their parents' military service? The Agent Orange Benefits Act of 1996 was a good start, but we shouldn't stop there. Veterans of Gulf War I are still left languishing, uncertain if their service exposed them to insidious health threatening contaminants. Does our obligation to our current combatants extend beyond labeling them heroes? Is our obligation to protect the flag greater, more righteous, more just, and more moral, than our obligation to help veterans and their families? I think not.
I respectfully submit that this assault on First Amendment freedoms in the name of protecting anything is incorrect and unjust. This amendment would create a chilling environment for political protest. The powerful anger which is elicited at the sight of flag burning is a measure of the love and respect most of us have for the flag.
Prohibiting this powerful symbolic discourse would stifle legitimate political dissent. If it is to be truly representative of our cherished freedoms, the flag itself must be available as a vehicle to express these freedoms.
This is among the freedoms for which I fought and gave part of my body. This is a part of the legacy I want to leave for my children. This is among the freedoms my grandfather was defending in WWI. It is among the freedoms my father and late father in law defended during their combat service during WWII.
Please listen to these perspectives of ordinary veterans who know first hand the implications of tyranny and denied freedoms. Our service is not honored by this onerous encroachment on Constitutionally guaranteed freedoms.
Mr. CHABOT. Professor Parker, you are recognized for 5 minutes.
STATEMENT OF RICHARD D. PARKER, WILLIAMS PROFESSOR OF LAW, HARVARD LAW SCHOOL Mr. PARKER. Thank you very much, Mr. Chairman, and I thank the committee for its invitation to me today.
Let me begin from a premise that will not be controversial, and that is that Government exists to and only to serve the people, to serve its interests, but not only its interests. Government exists also to serve the values of the people.
Freedom of expression is one of those most fundamental of our values, but it's not the only one. Indeed, the very meaning of the freedom of expression, its very scope depends on its accommodation with other values, many of which, in fact, undergird the freedom of expression itself.
Two things have long been clear about free expression. First, that at least outside the privacy of the home, it is not an absolute freedom. Second, it's no less clear that Government may regulate the content of speech in many circumstances, not only to deal with tangible harms to particular individuals, but also to correct generalized intangible harms. Let me give three examples.
First, obscenity. The Court said very clearly in 1973 and had assumed back into the 1940's that Government may prohibit the obscene speech in order to prevent a generalized pollution of the cultural environment and the degradation of women, in particular.
Secondly, statements that are knowingly or recklessly false about the public conduct of public officials which injure the reputation of those officials. Such statements may be regulated, may be officially sanctioned, not just in order to prevent the particular harm to a particular public official, but also, as Justice Brennan said in 1964, in order to vindicate the general premises of democracy.
Third example, hate speech. The Court in Virginia v. Black, of course, recently held that hate speech, cross burning, particularly designed to or intended to intimidate particular individuals, may be prevented, but that's not all it said. Go back to an early 1950's decision, the Boharnay decision. The Court made very clear in upholding a criminal libel law applied to prevent the libeling of racial groups that generalized harm can be done by hate speech and Government may prohibit it.
The prohibition of physical desecration of the flag, thus, is in keeping with this line of precedents. The value that runs through them all is the value of community, specifically national community. This is a value that's crucial to the freedom of speech, to its robustness, and in particular, community is a value that is essential to minorities, to protestors, to dissenters. For their protest or dissent to be effective, they must make connections with others. They must invoke the bonds that they share with others. The flag is the unique symbol, as Martin Luther King well knew, that enables them to do that.
But Congressman Nadler asked, “Well, what's the need?” The need specifically is that the Supreme Court by this five-to-four vote quite recently held that the flag represents simply one point of view. The purpose of this amendment is to correct that mistake on the part of five Supreme Court Justices.
But then I remember Congressman Frank has asked in the past, “Wouldn't it be enough simply for Government to encourage patri
otism, or for all of us to condemn flag desecration?” Well, that could be said about obscenity, couldn't it? That could be said about knowing or reckless false statements about the official conduct of public officials. Why sanction that? It could be said about hate speech. Why sanction that? The same is true here as there, and that is that a collective response to this kind of problem is often absolutely essential in order to vindicate the value of community that's at stake.
Finally, let me say that we should keep in mind that this amendment is not designed to change the First Amendment. Far from it.
's designed to restore the meaning that the First Amendment had for at least a century before the five-to-four vote in 1989 and to do so through one of the great provisions of our Constitution, Article V, the amendment process.
Article V, let me conclude by saying, should be understood for what it is. It is the cornerstone of legitimacy of American Government. American Government rests on the Constitution, but the Constitution does not rest on the Supreme Court. It doesn't rest on five people in robes. The Supreme Court can make some mistakes and it's the people who have the power under Article V to correct that mistake, those mistakes, and that is what is being proposed here. Thank you.
Mr. CHABOT. Thank you, Professor.
PREPARED STATEMENT OF RICHARD D. PARKER Whether Congress should be permitted, if it chooses, to protect the American flag from physical desecration has been debated for more than a decade. The debate has evolved over time but, by now, a pattern in the argument is clear. Today, I would like to analyze that pattern.
Consistently, the overwhelming majority of Americans has supported flag protection. Consistently, lopsided majorities in Congress have supported it too. In 1989, the House of Representatives voted 371–43 and the Senate 91–9 in favor of legislation to protect the flag. Since that route was definitively blocked by a narrow vote on the Supreme Court in 1990, over two thirds of the House and nearly two-thirds of the Senate have supported a constitutional amendment to correct the Court's mistake and, so, permit the majority to rule on this specific question. Up to 80% of the American people have consistently supported the amendment.
In a democracy, the burden should normally be on those who would block majority rule—in this case, a minority of the Congress, influential interest groups and most of the media, along with the five Justices who outvoted the other four—to justify their opposition. They have not been reluctant to do so. Indeed, they have been stunningly aggressive. No less stunning has been their unresponsiveness to (and even their seeming disinterest in) the arguments of the popular and congressional majority. What I am going to do is focus on the pattern of their self-justification.
I am going to speak frankly, not just as a law professor, but as an active Democrat. For a disproportionate share of the congressional, interest group and media opposition has been aligned with the Democratic Party. What has pained me, in the course of my involvement with this issue, are attitudes toward our democracy revealed in the structure of the argument against the flag amendment by so many of my fellow Democrats attitudes that would have seemed odd some years ago, when I worked for Senator Robert Kennedy, but that now seem to be taken for granted. I. ARGUMENTS ABOUT (SUPPOSED) EFFECTS OF THE CONSTITUTIONAL AMENDMENT:
TRIVIALIZATION AND EXAGGERATION The central focus of argument against the flag amendment involves the (supposedly) likely effects of its ratification. Typically, these effects are—at one and the same time—trivialized and exaggerated. Two general features of the argument stand out: its peculiar obtuseness and the puzzling disdain it exudes for the Congress and for the millions of proponents of the amendment.