PREPARED STATEMENT OF NATIONAL CAMPAIGN FOR FREEDOM OF EXPRESSION The National Campaign for Freedom of Expression, an educational and advocacy network of artists, arts organizations, and concerned citizens founded to promote the First Amendment right to freedom of artistic expression, opposes S.J. Res. 40, the proposed constitutional amendment that will allow Congress to prohibit the physical desecration of the flag. The flag is a revered symbol of freedom, but the amendment, if enacted, will diminish the very freedom the flag symbolizes and do more damage to the meaning of the flag than any single physical act of desecration ever could. The amendment would limit our cherished freedom of speech, and, for the first time in our nation's history, nullify a fundamental liberty preserved by the Bill of Rights. The flag would thus become a symbol not of our devotion to freedom but rather of our limited tolerance for political dissent. However, the harm caused by amending the Constitution to protect the flag goes way beyond its symbolic assault on the First Amendment. Most significantly, the amendment belittles our nation's position as the flagship of democracy and hinders our ability to press for human rights reforms around the world. Just last week, President Clinton courageously stood on Chinese soil and admonished the Chinese government to tolerate political dissent, challenging it to restore fundamental freedoms to the Chinese people. Amending the Constitution to remove flag desecration from the realm of protected speech, robs all representatives of our country of credibility in such situations. As Americans told the Chinese government and numerous world governments before it that did not fully acknowledge its citizens' rights to protest governmental actions, democratic principles best prove themselves by facing adversity without squelching freedom. If the United States acts affirmatively to "draw the line” between acceptable and unacceptable political dissent, what moral authority do we have telling other governments that they cannot? Moreover, although the present Congress may intend only to pass laws addressing the handful of incidents of flag desecration that occur each year, the amendment empowers future Congresses to go much further. The amendment authorizes a proliferation of laws that would criminalize much more than the very rare acts of flag burning, perhaps banning well-recognized educational, political, commercial, and artistic uses of flag imagery. There are those who say that the public support some polls suggest the flag amendment enjoys is reason enough to merit its passage. However, the Constitution and the First Amendment specifically were intended to protect the unpopular. It would be tragic to limit the fundamental liberty of political dissent relying on a pollster's phrasing of a question or a million dollar public relations campaign. And perhaps the popular support the flag enjoys is the most compelling argument against the passage of the amendment. This support demonstrates that we hardly need a constitutional amendment to preserve the flag's cherished place in our de mocracy. It is sadly ironic that respect for the flag, the symbol of our devotion to democratic principles, drives this monumental assault on our most essential of liberties. Symbols are only as important as the profound belief systems upon which they are based. Without freedom, the flag has no meaning at all. Neither our nation nor our flag is so fragile that it needs constitutional protection at the expense of our cherished liberties. NATIONAL UNION BUILDING, PREPARED STATEMENT OF ROBERTO BEDOYA, SENATE JUDICIARY COMMITTEE, HEARING ON FLAG AMENDMENT S.J. RES. 40, JULY 8, 1998 The National Association of Artists' Organization (NAAO), a national arts service organizations representing over 700 arts organizations and individuals across the country, urge the Senate Judiciary Committee to oppose the adoption of a constitutional amendment banning "desecration" of the flag of the United States. The First Amendment to the Constitution says that "Congress shall make no law *** abridging the freedom of speech." The U.S. Supreme Court has determined that flag defacement can be a legitimate form of speech. NAAO strongly believes in the right of citizens to engage in speech which may be a form of protest. Our democracy's strength lies in its capacity to hear the voices of all its citizens. To create a law that would limit the speech of those citizens who may voice their dissent in a symbolic use of the flag would be a serious mistake. We implore you to reject this effort to reframe the Constitution of our Nation. Sincerely, ROBERTO BEDOYA, PREPARED STATEMENT OF EMERGENCY COMMITTEE TO DEFEND THE FIRST AMENDMENT Dear Senator: As concerned Americans who cherish both the American flag and the constitutional freedoms that it symbolizes, we formed the Emergency Committee to Defend the First Amendment in 1989 to convey our common view that the Constitution should not be amended in order to permit criminal penalties to be imposed on those who burn or otherwise harm an American flag in the course of political or social protest. The Emergency Committee maintained its position when similar constitutional amendments were proposed in 1990, 1995 and 1997. Once again, we urge members of the Senate to defeat the latest proposal to criminalize flag desecration. The Committee has no other legal or political agenda, and is made up of scholars and citizens from across the political spectrum. Earlier co-chairs of the Committee were the late Erwin N. Griswold, former U.S. Solicitor General and former Dean of Harvard Law School, and Charles Fried, also a former U.S. Solicitor General and now a judge of the Massachusetts Supreme Judicial Court. We attach a list of current Committee members and their principal affiliations. The fundamental issue has not changed since 1989. It is, very simply, whether we protect the flag or the Constitution. We cannot do both. That is the reality and, at bottom, why the Emergency Committee strongly urges the defeat of the Resolution before you. Of course the flag is a revered national symbol that properly stirs deep emotions and loyalties. And of course the Congress has the power to propose a constitutional amendment to the States for ratification that would prohibit its desecration. But such an action would be both unnecessary and unwise. It is unnecessary because there is no apparent loss of esteem for the American flag based on the extremely few incidents in which individuals have chosen to physically abuse the flag in the course of political protest. There is certainly no current problem warranting the heavy artillery of a constitutional amendment. Indeed, incidents of this sort, like ugly racist or bigoted speech, like the Nazi march in Skokie, Illinois, inspire the vast majority of Americans to express and reaffirm our shared patriotic values. Existing laws are ample to punish incitements to riot or breaches of the peace caused by flag burning or other acts of desecration. An amendment would be unwise for several reasons. Initially, there will be uncertainty and confusion over just what the amendment prohibits. In an era when the flag is used, not always tastefully, for commercial purposes and on a variety of festive occasions, prosecutors and courts could be kept busy trying to determine just what a "flag" is and to sort out what constitutes "desecration" from what doesn't. For example, would a flag patch on dusty blue jeans or on a Fourth of July cake be punishable? Once the criminal law became involved, these would be serious and time-consuming questions for many people ** and for the courts. * The most important reason that the proposed amendment should be rejected is that it compromises the principle of unfettered political expression that has always been a cornerstone of American liberty, and it would do so in an unprecedented way-by placing a constitutional limit on the substance of the Bill of Rights for the first time in more than 200 years. One of the glories of or form of government is its tolerance for expression that other countries would ruthlessly punish. We urge the Congress not to dilute this precious attribute of our constitutional system. As the Supreme Court said so well in Texas v. Johnson in 1989, and again in U.S. v. Eichman the following year, to punish those who desecrate the flag for political or social purposes would violate "the bedrock principle underlying the First Amendment * that the Government may not prohibit expression of an idea simply because society finds the idea offensive or disagreeable." The Court cited 13 judicial precedents in support of this fundamental proposition. The contrary claim is made that the flag is special and that to permit its physical abuse would weaken its symbolic effect for the American people. When this contention was made to the Supreme Court, Justice Antonio Scalia responded. “Not at all,” he said, when somebody does that to the flag it becomes “even more a symbol of the country." Justice Scalia is a leader of the conservative wing of the high court. When he and Justice Anthony Kennedy, another conservative, joined the Johnson and Eichman opinions, they recognized that to punish flag desecration is not "conservative"; to the contrary, it undermines the Nation's deepest values, which conservatives traditionally support. Indeed, one can responsibly suggest that those who would make the flag into an icon are veering close to idolatry because the concept of "desecration" applies only to religious objects and not to other things, no matter how justly admired. Indeed, an article in the journal Christianity Today made exactly this point when it opposed efforts to make the flag "sacred" although it is not a religious object. In commenting on the flag desecration amendment that was proposed in 1989, the late Erwin Griswold observed that when public pressure would drive lawmakers to imprudent_action, "the situation calls for statesmanship, the same statesmanship shown in Philadelphia in 1787 when the Founding Fathers drew up the Constitution." Dean Griswold aptly referred to Chief Justice Harlan Fiske Stone's wise caution that at such times we must rely "on the 'sober second thought of the community in order to avoid a great mistake." We respectfully urge the Judiciary Committee to follow Dean Griswold's advice. This is a time for leadership to preserve our Bill of Rights from the first amendment in its history. As a Texas member of Congress said when this issue was presented in 1990, "I do love the flag because it symbolizes the United States, but I love the ideals put into words by the U.S. Constitution even more than the flag." Or as a Nebraska Representative said the same year when he decided to oppose the amendment, "I don't want my tombstone inscription to be that I supported an amendment to weaken the Constitution." The greatest patriotic act you can perform on this issue is to resist the easy path and stand loyally by the Constitution and Bill of Rights by defeating this unwise and unnecessary amendment. PREPARED STATEMENT OF FEMINISTS FOR FREE EXPRESSION We urge the Committee not to recommend the adoption of a constitutional amendment banning "desecration" of the flag of the United States. Feminists for Free Expression is an anti-censorship organization formed in 1992 to remind Americans that censorship is especially detrimental to women's interests and to feminist speech. We use imagery drawn from the American flag on our letterhead because we consider that the flag is a symbol of the Constitution, and especially of the First Amendment of the Bill of Rights. It would be ironic, to say the least, if the Congress itself desecrated that symbol by limiting the sway of the First Amendment in its protection of symbolic speech. One of the glories of our system is the protection we give to political and artistic speech and especially to unpopular political dissent. The flag is a positive symbol for many Americans. But it also stands for the actions of our government, whether positive or negative, and as such, may be used to represent governmental actions and even traditions that dissenters may find unworthy. Therefore, attacks on the flag are a crucial part of political dissent-perhaps uniquely so for artists. Kate Millett's mixed media representation of the flag in "The American Dream Goes to Pot"; Faith Ringgold's "The Flag is Bleeding" and Erika Rothenburg's "Flag Trophy" all use flags or images of flags to make political points visual. Those images are powerful precisely because they are disturbing and disrespectful. * Every member of Congress has taken an oath to uphold the Constitution, which only gained ratification after the words "Congress shall make no law * abridging the freedom of speech" were added to it. We hope you will make no such law. PREPARED STATEMENT OF THE AMERICAN BOOKSELLERS FOUNDATION FOR FREE EXPRESSION The American Booksellers Foundation for Free Expression opposes Senate Joint Resolution 40, the proposed constitutional amendment that would restrict the First Amendment for the first time in American history. The American Booksellers Association created ABFFE in 1990 in the wake of a worldwide campaign of terror that sought to suppress Salman Rushdie's book, Satanic Verses. Under the leadership of Ayattolah Khomeini, the government of Iran condemned Satanic Verses as heresy and sentenced Rushdie to death. Rushdie went into hiding, but other people involved in the publication of the book were attacked by Islamic militants, and one was killed. In the United States, terrorists threatened to bomb bookstores that sold Satanic Verses. ABFFE's job is to help booksellers defend free speech. Usually, the attacks do not come from abroad, and they are not normally acompanied by threats of violence. But bookstores are frequently the targets of people who wish to suppress material that they find offensive. Booksellers join the supporters of the flag amendment in condemning those who desecrate the American flag. Like them, we understand the importance of symbols. But the First Amendment is the principle that makes American democracy the freest in the world. The attachment of any caveat will weaken our defense against the ayatollahs both at home and abroad who are trying to impose on others their definitions of heresy and truth. It will do more damage than any flag burner ever could. PREPARED STATEMENT OF LAWRENCE J. KORB Mr. Chairman and Members of the Committee, I am submitting this statement in strong opposition to Joint Resolution 40, which proposed to amend the Constitution to give Congress the power to prohibit the physical desecration of the flag of the United States. Although I am employed by the Brookings Institution, I am speaking for myself and, to the best of my knowledge, I have not received any federal grant, contract, or subcontract in the past two fiscal years. As a 23-year navy and Vietnam veteran, as a former official in the Reagan Defense Department, as a former professor at the Navy War College and the Coast Guard Academy, and as a second generation American, I revere the flag and that "for which it stands." As much as any citizen, I still get a lump in my throat when I see the flag raised or lowered. Nonetheless, I am unalterably opposed to S.J. Res. 40. My opposition is based upon the following considerations. First, during my years of military and civilian service during the cold war, I believed I was working to uphold democracy against the totalitarianism of Soviet Communism 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 a part of our Constitution, this way of life will be diminished. America will be less free and more like the former Soviet Union and present-day China. Second, this proposed amendment is bad public policy. During our 206 years of history, the Bill of Rights has never been restricted by a constitutional amendment. If ratified by the Congress and the states, this amendment would be the first in our history to cut back on the First Amendment's guarantee of that freedom of expression that is so necessary to ensure the vigorous debate and dissent that is necessary to prevent the abuse of power in our democracy. This amendment could set a dangerous precedent for limiting our other fundamental freedoms. Would limits on freedom of the press be next? Third, this amendment is poorly drafted. It is phrased in such broad and vague language that it can and will have unintended consequences. These could include censorship of images of the flag in works of art, advertising, or commerce. Moreover, the amendment would permit indictments and prosecutions not only of protestors, but individuals who purchase these works of art, or who use advertisements that desecrate the flag. This could happen even though these consumers intend no disrespect. Fourth, the people, the Supreme Court, and previous Congresses do not support the basis for this amendment. In a 1995 poll, by 52 percent to 28 percent, Americans reject such an amendment when they discover that it would be the first amendment in our history to restrict our First Amendment freedoms. The highest court in the land has twice ruled that destruction of the flag for political purposes, although highly offensive to almost all Americans, is undeniably a political statement and a political expression. The Court has held that it is a bedrock principle underlying the First Amendment, that the government may not prohibit the expression of an idea simply because society finds the idea offensive and disagreeable. Finally, twice in this decade the Congress has rejected this amendment. Fifth, the amendment is unnecessary to punish most incidences of flag burning or mutilations. Desecrating a flag belonging to the government or a non-consenting individual is punishable under existing statutes. Moreover, flag desecration performed for the purpose of breaching the peace or with knowledge that it will produce an immediate danger is already punishable under the First Amendment. Finally, flag burning is exceedingly rare in this country. Since the Supreme Court's 1990 flag decision, there have been less than 35 burning incidents. In conclusion, I think that the motives of the sponsors and supporters of this amendment are beyond reproach. Indeed I understand why they and so many Amer |