cause its content offends us. It is a form of political speech and that is The CHAIRMAN. But we do that in other ways. Mr. BOLICK. We may do that in the context of pornography, but we have never done it in the context of political speech and that is what we are talking about here. The CHAIRMAN. Or defecating or urinating or burning things? Give me a break. Mr. BOLICK. If you take my property and do any of those things to it, that is one thing. But just as we have throughout our history had symbolic acts, like, Mr. Chairman, you pointed out the toppling of the Lenin statue before, or the raised fist at Tiananmen Square, or the burning of the cross which is protected under the U.S. Constitution-I find that extremely offensive. I am sure there are people who actually find that even more offensive than burning the flag. But the fact is that it conveys a message and once we begin the process of saying that political speech can be banned because its content offends us, then we have really nullified the purpose of the Bill of Rights. It is a modern-day Alien and Sedition Acts. Mr. PARKER. I beg to differ. The clearest example is this. Let's say I go out in just a few minutes, collar a member of the press and knowingly make a false statement about a member of this committee, a false statement knowingly made that defames you, that damages your reputation. The law, at least as made by the Supreme Court in opinions written by Justice Brennan, is clear. You may sue me under New York Times v. Sullivan and Garrison v. Louisiana. That is political speech, but because it defames you and it is knowingly false, you may sue me. Indeed, Justice Brennan went so far in Garrison v. Louisiana in 1964 as to say that this limitation on political speech is essential in order to enhance the system of freedom of speech itself, and that is precisely the point I am making here. Senator FEINGOLD. But, professor, I couldn't imprison you for that. Mr. PARKER. No, and there is no reason Congress under our amendment would have to provide for a prison sentence with respect to flag desecration if a majority of the Senators do not wish to do that. Senator FEINGOLD. But they could. Mr. PARKER. They could. I guess I have a great deal of faith, though, in the Congress that whatever statute Congress chooses to enact would be a reasonable one. The CHAIRMAN. Well, let me just ask you this. Now, Mr. Bolick has said that this is similar to the Alien and Sedition Acts. Do you think that an amendment banning the physical desecration of the flag is on a par with the infamous Alien and Sedition Acts? Mr. PARKER. Not at all. My understanding-now, correct me if I am wrong-is that the Alien and Sedition Acts had to do with the outlawing of criticism of the Government. Now, there is a difference between the Government and the Nation, and there is a difference between criticism, verbal criticism, written criticism, and physical desecration of the unique symbol of the Nation. Those two distinctions, I think, suggest how different this amendment is from the Alien and Sedition Acts. The CHAIRMAN. I think one of the critical issues here is how we draw distinctions between conduct and speech. It is a very difficult issue, but given its importance the American people are entitled to make known their views, it seems to me. In my opinion, this amendment will not change anybody's ability to register dissatisfaction with America or any of America's policies. Now, do you believe that prohibition of flag desecration will limit the ability of any of our protesters to criticize our Government? Mr. PARKER. Hardly, sir. I mentioned my days in the civil rights movement from roughly 1963 to 1966. We during those days did not desecrate any American flag. We proudly displayed it, and yet we found many ways, hundreds, thousands of ways of getting attention and getting our views across. So I, as an old demonstrator, am thoroughly confident of the truth of what you say. The CHAIRMAN. Do you have anything more you would care to say? Mr. BOLICK. No, Mr. Chairman. The CHAIRMAN. Well, I think this has been a good discussion by both of you and we appreciate both of you making the effort to do your statements and to be here and to answer questions because these aren't easy questions and the answers aren't easy either. We appreciate both of you here. We do have a statement from Senator Ashcroft which we will include in the record at this point. [The prepared statement of Senator Ashcroft follows:] PREPARED STATEMENT OF HON. JOHN ASHCROFT, A U.S. SENATOR FROM THE STATE OF MISSOURI Mr. Chairman thank you for scheduling time for this hearing so that this Committee may debate what I feel is an important—and much needed-Constitutional amendment granting Congress the power to protect our Flag from desecration. I would like to take a few minutes to speak in support of this proposed amendment. In 1995, I was an original cosponsor of an amendment to the Constitution designed to protect the symbol of our nation and its ideals. When that resolution was narrowly defeated, we vowed that this issue would not go away, and it has not. As Chairman of the Subcommittee on the Constitution, Federalism, and Property Rights, I recently conducted a hearing on "The Tradition and Importance of Protecting the United States Flag." I firmly believe that the Flag of the United States deserves constitutional protection from desecration because of its unique importance to our great nation. Americans of diverse social and political backgrounds are united in their respect for the American Flag and for what it represents. This symbol-the American Flag-has enjoyed a long history of protection from desecration. Chief Justice Harlan, upholding a 1903 Nebraska statute proscribing use of the Flag in advertisements states, [To] every true American the Flag is a symbol of the nation's power,— the emblem of freedom in its truest, best sense. It is not extravagant to say that to all lovers of the country it signifies government resting on the consent of the governed; liberty regulated by law; the protection of the weak against the strong; security against the exercise of arbitrary power; and absolute safety for free institutions against foreign aggression. During the Subcommittee's hearing we heard testimony that established that the Uniform Flag Act of 1917 provided a model that 48 of the 50 states used to pass laws providing criminal penalties for Flag burning. In the 1989 case of Texas v. Johnson, however, the Supreme Court decided by the narrowest of margins that such laws violated the First Amendment. I, for one, have serious doubts about that decision. It seems difficult to believe that protection of our flag-with its deep historical roots—somehow violated the Constitution all along. I sincerely doubt that the Framers intended the First Amendment of the Constitution to prevent Congress from protecting the Flag of the nation for which they shed their blood. Finally, I cannot accept the notion that in protecting our nation's symbol we will somehow undermine the First Amendment as it is applied in other contexts. The Flag is wholly unique, with no rightful comparison. An amendment protecting the Flag from desecration will provide no aid or comfort in any future campaigns to restrict speech. The best evidence of this truth is that limits on Flag desecration coexisted with our precious First Amendment liberties for nearly a century before the Supreme Court's decision in Texas v. Johnson. There is no doubt that protection of the Flag remains necessary. Sadly, at no other time in history has our country so needed such a symbol of sacrifice, honor and freedom. At a time when our national leaders too rarely extol our nation's virtues, and many dismiss national pride as arrogance, America needs, more than ever, to protect our nation's flag. The CHAIRMAN. We will also insert into the record several written statements in support of the amendment. [The statements referred to follow:] PREPARED STATEMENT OF EVERETT ALVEREZ, JR., PRESIDENT, CONWAL Mr. Chairman and members of the Committee, I am honored to offer my testimony to this distinguished panel regarding an issue that, for me, is on of both emotion and sentiment; returning to the American people the right to protect their flag. I offer my opinion regarding efforts to protect the flag from a rather unique perspective as both a former prisoner of war and an individual who, at one time, saw no need for an amendment to our Constitution to protect our flag. But today, I have come around on that position and now believe constitutional protection of our flag is necessary, because, simply put, our flag is the symbol of the freedoms and values of the American people. But more importantly, it is a symbol of our Constitution which too represents our freedoms our freedom to speak, argue, and debate, but not to desecrate. As a U.S. Naval aviator shot down by the North Vietnamese during the Vietnam War, I spent eight and a half years as a prisoner of war, including several years in the famous, or rather infamous, Hanoi Hilton. As "guests" of the Hilton and other POW camps, the other prisoners and I would hold a weekly ritual to lift our spirits; the one ritual our captors could never break. Every Sunday, a coded message was sent through the camp to signal the start of a secret, weekly church service. After whispering a prayer, we would turn to the east, place our hands over our heart and recite the pledge of allegiance. In my mind, I could see the red, white and blue field of the stars and stripes, but more importantly, I saw in our flag a symbol that represented my freedom, my family, and my country. For one brief moment, as POW's, we were all united in one purpose and we were, in some small way, one country and one nation. No matter how cruelly we were treated, our prayer to our God and our pledge to our flag was never broken. When I returned home from the Vietnam War, I naively wanted to believe that everyone shared in this same devotion to our flag. I could never understand why someone would want to desecrate our flag; the same flag that I was brought up to revere and respect. I did not believe a flag amendment was necessary because I felt all Americans held the flag in awe. After all, respect is not something you can legislate, it is something you are taught. For me, it was inconceivable that any one would use the flag as a symbol of protest. Needless to say, I was disheartened and disappointed to learn that during my years of captivity and, in the years since, our flag has been desecrated by individuals trying to make some sort of statement or perhaps gain a moment of fame. Today, I feel our flag has been taken away from the American people by the courts, who I believe have misinterpreted the First Amendment by saying it's okay to desecrate our national banner. Fortunately, for the American people, there is a way to repair the damage and that is through a constitutional amendment. Let me stress that the amendment I support does not, on its own, protect the flag. The amendment merely returns to the American people the right to protect their flag. And through polls, state legislatures and assemblies of service organizations like the 126 members of the Citizens Flag Alliance representing over 20 million Americans, 80 percent of Americans have indicated their confidence that they can act fairly and sensibly through their national legislature to protect the U.S. Flag. It has been said that the flag represents the right to burn it. However, the vast majority of the American people, myself included, don't see it that way. Our flag is the symbol of those things that are most important to us as a nation-freedom, security, sacrifice, family-it reminds us all, especially those of us who were prisoners of war, of the losses we suffered individually as a nation. To say an individual's freedom would be limited or put in jeopardy by allowing the American people to protect their flag is to truly misunderstand the definition of the word "freedom" itself. But perhaps it is not until you have lost your freedom that you understand how precious it is. During moments of badly needed inspiration, when I had lost my freedoms, I visualized the American Flag. For me, and for the other prisoners, those few moments every week were essential for our existence. Members of the Committee, I would ask that you consider my story of why the flag deserves protection and I'd ask that you consider the millions of Americans who may have a different story to tell and who also agree our flag deserves protection. But most important, I'd ask that you consider the stories that could not be told here today-the stories from those individuals who returned home from the wars we have fought, not like the veterans you see here today, but who returned in coffins draped in the American Flag. Thank you. PREPARED STATEMENT OF MARTY CONATSER, CHAIRMAN, CITIZENS FLAG ALLIANCE, DEPARTMENT COMMANDER, THE AMERICAN LEGION STATE OF ILLINOIS Chairman Hatch and members of the Committee on the Judiciary I am honored to submit this testimony in regard to S.J. Res. 40, a constitutional amendment to protect the flag from physical desecration. Thank you for holding these hearings and providing this opportunity. As the State Commander of The American Legion this past year, I can attest to the tenor of the people of the state of Illinois as it regards the effort to pass a constitutional amendment to protect the flag. Without question, the vast majority of the people in Illinois favor this action. I know because 1,000 people turned out on a Sunday afternoon in downtown Chicago during the Memorial Day weekend to rally around the flag. Hundreds more participated in the annual Memorial Day parade in Bloomington the next day and stayed to hear our National Commander and Adrienne Watson, a sixth generation descendant of Betsy Ross, talk about the need for this amendment. In just the past couple of years, flags have been burned or desecrated in Chicago Heights, Galesburg, Oak Lawn, Chicago, Aurora and Springfield. The frequency of these incidents isn't at issue, but the reason for these tragedies can be summed up by the statement of one of the boys caught in Aurora when he indicated it was his right to protest. Protest what? They were simply burning a flag in the middle of a parking lot. Obviously, these young boys have not been exposed to the values for which our flag stands. It is this erosion of values that should be our concern. If we condone such reprehensible conduct in the name of principle, then our society is truly on the precipice of the slippery slope of disaster. The real victims of flag desecration are our children. The greatest tragedy in flag mutilation is the disrespect it teaches our children-disrespect for the values it embodies, and disrespect to those who have sacrificed for those values. Disrespect is the genesis of hate, it provokes the dissolution of our unity-a unity which has only one symbol-the flag. Burning or otherwise desecrating a flag is not speech, it is conduct. You can't burn a flag with your tongue. It is an insult to the intelligence of the vast majority of common-sense Americans to call flag burning or desecration speech. I believe, as do most Americans, the Supreme Court erred in its narrow 5 to 4 decision to expand the principle of free speech to include such vulgar behavior. An amendment to the constitution appears to be the only way to correct this error and return to the people the right to protect the flag. Mr. Chairman, the American public needs your help, and the help of your Committee and the Senate to right this wrong. Let the people decide. Pass S.J. Res. 40 and allow the process to work. Whether or not the amendment is ratified, it will at least be the decision of the will of the people on how they want the issue resolved. Thank you for this opportunity to testify. PREPARED STATEMENT OF JOHN P. (JAKE) COMER, CHAIRMAN, CITIZENS FLAG ALLIANCE, STATE OF MASSACHUSETTS AND PAST NATIONAL COMMANDER OF THE AMERICAN LEGION Mr. Chairman and distinguished Members of the Committee, once again the grassroots of America brings to your attention an issue that continues to disturb the vast majority of people who still believe the 1989 United States Supreme Court 54 decision in Texas v. Johnson was wrong. The Citizens Flag Alliance (CFA) is a diverse, national coalition of 126 grassroots organizations, with a membership of over 20 million Americans, which came together seeking a constitutional amendment to protect the American flag. The CFA's 50 State Chairmen, who volunteer countless hours of time, energy and effort, will not allow this issue to just “fade away." Massachusetts is just one of the 49 state legislatures to pass a memorial resolution asking Congress to send to them such a constitutional amendment for ratification. The amendment simply reads: Congress shall have power to prohibit the physical desecration of the Flag of the United States. As National Commander of the American Legion (1987-1988), I traveled across the country and overseas. While this was prior to the Court decision in 1989, the Americans I met expressed deep passion and tradition when it came to the use of the American Flag in ceremonies, parades and flag displays along their streets and at their homes. I honestly believe most Americans see this issue as not so much about rights, but about values. Most Americans cherish the flag and what it represents. It is on behalf of these Americans the effort continues. Make no mistake, this is truly a grassroots movement. The average American is outraged by this Court ruling and wants it fixed. National polls consistently reflect that 78 percent of the American people surveyed (this percent holds true in a state poll in Massachusetts) favor a constitutional amendment to protect the flag. America is a government of We the people. It is not a government of its branches. Congress, the President and the Supreme Court serve only as trusted agents. Historically, this triad has worked well, but not perfectly. These trusted agents are responsible for their actions. The system of checks and balances was designed to insure no one branch of government is beyond approach. Clearly, Texas v. Johnson warrants a redress of grievances by We the people and the attention of lawmakers. The Court's job is to interpret the United States Constitution. It is the job of We the people to correct the Court when its interpretation is so dramatically inconsistent with the belief of the citizenry. The Founding Fathers knew the document was not perfect and crafted Article V to make necessary adjustments. Amending this Nation's most precious document is a very serious matter. By design, Article V is, justifiably, a laborious process. In the 104th Congress, a proposed constitutional amendment in the House of Representatives passed with a super majority (312-120). When the proposed amendment moved to the Senate, former Senator Simon of Illinois stood on the Capitol grounds at a press conference held by the American Bar Association and warned his colleagues that if they passed the pending flag amendment and sent it to the States, it would be the fastest ratified amendment in American history. Senator Simon and 35 of his colleagues were successful in defeating that constitutional amendment proposal. The deafening voice of the American people was temporarily silenced by just 3 votes. Nowhere does the Constitution grant absolute freedom of speech. Each person is held accountable for actions that violate the personal freedoms of others. Slander and libel are clearly punishable. Plagiarism is illegal. The Federal Communications Commission has the power to assess fines for violations of the public airways. The United States Capitol and the United States Supreme Court have punishable offenses for unauthorized assembly and demonstrations on its grounds even if the act is an expression of free speech. When the Citizens Flag Alliance held a rally in Washington, DC on the Capitol grounds, it had to obtain a permit for a parade and a permit for a press conference. Yet, when a group chose to physically desecrate flags on the steps of that Capitol to challenge the Flag Protection Act of 1989, a federal statute passed by Congress in an attempt to correct Texas v. Johnson, the law was ruled unconstitutional. When a teenager in Wisconsin lowered an American flag from the flag pole at a public golf course, defecated on the flag, then placed the flag on the steps of the clubhouse, this conduct was clearly an act of delinquency rather than freedom of speech, but the state's flag desecration law was ruled unconstitutional and he was exonerated. Massachusetts has witnessed its share of flag desecration cases in recent years. On May 25, 1996, flags and white crosses placed by AMVETS Post 29 at Monument Park in Fitchburg, MA, were destroyed during the night. The flags and crosses were among 116 that had been placed in the park two days before the Memorial Day weekend to honor fallen comrades. The following night in Orange, MA, fourteen |