more flags were burned under cover of night at Central Cemetery. An unidentified individual in Worchester, MA, on June 1, 1996, dragged the American flag on the ground from his bicycle as part of a gay pride parade. And, on August 14, 1996, in Bunker Hill, MA, unknown persons tore down the American flag, breaking the upper pulley at the Bunker Hill American Legion Post, threw the flag down on the ground in the parking lot, and then spun their wheels, throwing rocks over the flag. The actions of these individuals can hardly be called an expression of speech. It is behavior of the ugliest kind and should not be tolerated. Letting the American people have the final say on this issue seems so logical and democratic. Clearly, a flag protection constitutional amendment has the support of the vast majority of Americans. If former Senator Simon's prognosis is accurate, that it would be the fastest ratified amendment in our history, why should the American people be denied an opportunity to decide the ultimate fate of this issue? If this is truly a government of the people, by the people and for the people, the amendment process surely demonstrates democracy-in-action.

In the First Session of the 105th Congress, the House of Representatives continued their support of an amendment by a super-majority vote of 310-114 in passing House Joint Resolution 54. Your Subcommittee on the Constitution, Federalism and Property Rights has considered the issue and has forwarded the bill to you for your action. I encourage this Committee to echo the voice of the House, your Subcommittee, and the American people and forward S.J. Res 40 to the Senate with your positive recommendation.

PREPARED STATEMENT OF CHRIS CHRISTIANSON, CHAIRMAN OF MISSOURI'S CITIZENS FLAG ALLIANCE

Mr. Chairman and members of the Committee, it is an honor to submit testimony to this committee regarding S.J. Res. 40, a proposed constitutional amendment to prohibit the physical desecration of the American flag. The amendment reads: Congress shall have power to prohibit the physical desecration of the Flag of the United States.

The Citizens Flag Alliance (CFA) is a national coalition of 126 grassroots organizations which have come together to persuade Congress to pass a proposed constitutional amendment to protect "Old Glory." CFA represents 20 million concerned American citizens from all walks of life. I am just one of the fifty State Chairmen who freely volunteers their time, energy and effort to achieve passage of S.J. Res. 40.

The movement to protect the American flag from physical desecration is about values. It is about right and wrong; not the frequency of occurrence. More importantly, it is about the democratic process and about "We the People" having a say in how we want to be governed.

In 1989, the United States Supreme Court's 5-4 decision meant that the only way to protect the American flag is through a constitutional amendment. Texas v. Johnson invalidated flag desecration laws in 48 States and the District of Columbia. Missouri was one of those 48 States. The citizens of Missouri recognized a need for that law and lived under that law for many years without feeling that anyone's First Amendment rights were being curtailed. Even Congress voiced "profound disappointment" and "concern" over the Supreme Court's decision. In fact, Congress tried to correct the Court's ruling by passing a federal statute, the Flag Protection Act of 1989. Less than a year following its enactment, the Court ruled the new law unconstitutional.

The Flag of the United States of America is a national treasure that deserves to be protected. It is the one unifying symbol for a nation of immigrants. This issue is truly a grassroots issue. Gallup surveys indicate 78 percent of Americans favor flag protection and 82 percent say the people should have the right to decide the question of flag protection through the ratification process.

Last Congress, a similar measure, H.J. Res. 79, passed in the House of Representatives by a vote of 312-120. Unfortunately, the effort failed in the Senate by just 3 votes. But this is an issue that will not go away, because it is not a fleeting passion and flag desecration is not behavior that people will learn to tolerate. This issue_cuts deep into the fundamental principles of honor, respect, faith and loyalty. Our Founding Fathers knew that the Constitution was not a perfect document and that changes would need to be made.

Last June, H.J. Res. 54 passed in the House by a vote of 310-114 in response to 49 state legislatures, representing 99 percent of the population, who have passed Memorial Resolutions petitioning Congress to send an amendment to the states for ratification. On May 14, 1992 the Missouri State Legislature passed a memorial res

55-230 99-5

olution calling on Congress to let the people decide. The measure passed the legislature with overwhelming support.

Freedom of speech is not absolute. The list of exceptions is rather lengthy and clearly demonstrates that a distinct difference can and has been made in various kinds of speech. Disturbing the peace, yelling “FIRE” in a crowded theater, libel, slander and conveying a threat are all limitations placed on speech because each crosses the line of acceptable, reasonable, tolerable conduct. Once that line is crossed, it becomes illegal conduct. Willful, wanton misconduct; therefore, has boundaries upheld by the Supreme Court. This amendment would include the American flag within those boundaries already clearly established by the Court. The physical desecration of an American flag crosses that line in the minds, hearts and souls of the vast majority of American citizens.

Mr. Chairman, I want you to know how proud I was that our own Senator Ashcroft successfully_supported this matter as the Chairman of your Subcommittee on the Constitution, Federalism and Property Rights during their consideration and approval. With your leadership and the support of this Committee, it is my hope the Senate will now prove to the American people their voice has been heard loud and clear. The American flag is more than just a piece of cloth; it is the fabric of this nation.

PREPARED STATEMENT OF WILLIAM CHRISTOFFERSEN, STATE CHAIRMAN, THE

CITIZENS FLAG ALLIANCE STATE OF UTAH

Chairman Hatch and Members of the Senate Judiciary Committee, thank you for allowing me the opportunity to participate in this great debate concerning a constitutional amendment to provide Congress the power to prohibit the physical desecration of the Flag of the United States. It's a long way from Utah to the Halls of Congress, but I want you to hear the voice of hard working Americans who work, pay taxes, go to church, raise their kids, vote and try to be good citizens because they believe in America. As the State Chairman of the Citizens Flag Alliance, I would like to submit this written testimony.

In 1989, the United States Supreme Court ruled 5-4 that the physical desecration of the American flag was protected under the First Amendment as freedom of expression (Texas v. Johnson). Wisely, the Senate voted 99-0 expressing its collective disapproval of that decision. Congress' first attempt to fix the problem was to pass a federal statute, the Flag Protection Act of 1989. The day the new law went into effect, it was challenged giving the Supreme Court another opportunity to address the issue. Again a 5-4 decision (United States v. Eichman) ruled the new fix unconstitutional on the same grounds.

So then Congress took another shot at the problem with a proposed constitutional amendment in 1990. Although it received a simple majority in both chambers, it ultimately failed to muster the necessary super-majority. Many in Washington, DC, thought the issued had died, but it still burned in the hearts and minds of Americans across the nation. Slowly but surely, one by one, State legislatures began to pass memorial resolutions calling on Congress to try again and send a constitutional amendment to the states for ratification that would restore the laws against physical desecration of the American flag. Before long 49 State legislatures had formally sent their request to Members of Congress. Utah and 48 sister States have passed memorial resolutions asking Congress to send the flag amendment to the States to allow the people to decide. There were only four dissenting votes in the entire Utah State Legislature; three in the House and one in the Senate. Governor Mike Leavitt continues to publicly endorse the flag protection constitutional amendment efforts of the Citizens Flag Alliance.

According to various polls and surveys, 78 percent of the American people favor flag protection. In Utah, Mr. Chairman, 82 percent of the people are in favor of an amendment to the Constitution. Moreover, 82 percent of Americans (nationally) believe they should have the right to decide the question of flag protection (through ratification).

All but one of Utah's Congressional Delegation voted for passage of a constitutional amendment during the 104th Congress. In the 105th Congress all of Utah's House members were original cosponsors of H.J. Res. 54, which pulled the supermajority support of 310 members of the House. The Honorable Orrin Hatch, Utah's Senior Senator and Chairman of this Committee, continues to lead the fight to protect the flag, once again sponsoring the measure in this Congress. The people of Utah are extremely proud of his leadership during the flag protection campaign and on many other issues important to Utah.

The Citizens Flag Alliance (CFA) is a national coalition of 126 organizations that have come together for one goal: to persuade Congress to propose an amendment to the Constitution which would protect the American Flag from intentional physical desecration. Mr. Chairman, I am one of fifty State Chairmen who volunteer their time, energy and efforts to ensure passage of S.J. Res. 40. We sincerely believe protecting the flag is as much about values as rights. During the 104th Congress, H.J. Res. 79 passed in the House as a result of our continued dedication to this worthwhile cause, but fell three votes short in the Senate. In the First Session of the 105th Congress, all three members of Utah's Congressional delegation said “yes” to the Flag Amendment—they said "yes" to the American people. Nothing would please me more than to see all of Utah's five federally-elected officials unanimous in their support for Flag protection.

Mr. Chairman, now it is up to you and your colleagues to follow the lead of your Subcommittee on the Constitution, Federalism and Property rights and forward this bill to the Senate with the encouragement for them to allow the American people to exercise their voice once again. Support S.J. Res. 40 to prohibit the physical desecration of the flag of the United States.

PREPARED STAtement of MICHAEL P. CLINE, MASTER SERGEANT (RET), EXECUTIVE DIRECTOR, THE ENLISTED ASSOCIATION OF THE NATIONAL GUARD OF THE UNITED STATES

Mr. Chairman, Members of the National Security Subcommittee of the House Appropriations Committee: I am honored to have this opportunity to present the views of the Enlisted men and women of the National Guard of the United States. Our members are very appreciative of the support extended to them in the past, and are very confident that you will, through your diligent and conscientious efforts, give serious consideration to a fundamental issue facing the United States today.

Mr. Chairman, I am asking today for your support of S.J. Res. 40 which proposes an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States. This amendment does not prohibit the desecration, it allows Congress to decide what measures should and will be used to protect our flag.

The Enlisted Association of the National Guard of the United States is a member organization of the Citizen's Flag Alliance, a national coalition of 126 organizations whose purpose is to persuade Congress to protect the United States Flag from intentional, physical desecration. The Citizens Flag Alliance and the Enlisted Association of the National Guard of the United States believes that the flag is unique among our traditional national emblems and deserves respect, care and protection. As a reflection of our nation's heritage, it is the one national symbol that transcends political parties. During its long service as our nation's banner during periods of peace, war and domestic turmoil, it has persevered as a symbol of unity, sacrifice, justice and national resolve. To a vast majority of Americans, the flag represents the hope, freedom and values that we hold dear.

The flag of the United States of America is a symbol of the patriotism, courage and determination of our forefathers as well as all the men and women who have served and died for this country. It's the ultimate symbol of freedom, strength and honor. Allowing its defilement shows disrespect for those ideals and for those individuals who have sacrificed for those ideals.

Creating legislation against conduct and speech that the American public generally finds profoundly offensive, vulgar or obscene is one of the functions of American lawmakers. Flag desecration can easily be found as offensive, if not more so, as public nudity or foul language broadcast over public radio or television. In our society, it has always been necessary to balance license against liberty; there have always been limits on free speech in order for us to co-exist in this society.

The first flag protection laws were enacted in the 1880s and for more than 100 years the flag enjoyed legal protection. Forty-eight states and the District of Columbia had flag desecration laws on the books in 1989 when the Supreme Court invalidated them with Texas vs. Johnson, ruling that burning the U.S. flag is a form of free speech guaranteed under the First Amendment of the U.S. Constitution. Congress responded with the passage of the Flag Protection Act of 1989 which was struck down by the Supreme Court by declaring it in conflict with the first Amendment. This was a clear message to flag protectionists that their only recourse is an Amendment to the Constitution of the U.S. which would allow federal and state governments to enact laws to protect the U.S. flag. Grassroots support of protecting the flag has grown and become a priority for many Americans across the nation. Gallup

surveys indicate 78 percent of Americans favor flag protection; the citizens of the United States want to protect their flag!

I would like to thank the Chairman and Members of this committee for this opportunity to provide testimony in favor of S.J. Res. 40. The Enlisted Association of the National Guard of the United States urges you to consider this matter carefully. Thank you.

PREPARED STATEMENT OF JAMes O. Coats, STATE REPRESENTATIVE, STATE OF NORTH DAKOTA

For the record, Mr. Chairman, I am Representative James O. Coats of Mandan, North Dakota. In reality, North Dakota is a young State compared to some of the other States. North Dakota received its Statehood in 1889; the Legislators early on passed Senate Bill 209, which said: "ANY WILLFUL DESECRATION OF THE UNITED STATES FLAG IS A MISDEMEANOR AND IS PUNISHABLE BY A FINE OF NOT LESS THAN $5.00, NOR MORE THAN $25.00, 30 DAYS IN JAIL, OR BOTH."

The session laws of 1973, Chapter 116 Sec. 7 12.1-07-02 placed in the Century Code says: "A PERSON IS GUILTY OF A CLASS A MISDEMEANOR IF HE KNOWINGLY CASTS CONTEMPT UPON ANY FLAG OF THE UNITED STATES BY PUBLICLY MUTILATING, DEFACING, DEFILING, BURNING, OR TRAMPLING UPON IT."

The people respected and obeyed these laws. Flag desecration was unheard of because it was illegal. Now, since the Texas vs. Johnson Supreme Court decision, we have to tell our young children when they see pictures or television programs of persons desecrating the flag during the most formative years of their life, it's perfectly legal to perform this defiant act of hatred, repugnant to every American who cherishes all that America stands for.

In 1991, HCR 4021, a memorializing resolution, which I was the prime sponsor of, passed in both Houses of the North Dakota Legislature, was filed with the Secretary of State, and was forwarded to the North Dakota Congressional Delegation asking for a Constitutional Amendment to protect the United States Flag from physical desecration. Twice such amendments passed in the U.S. House of Representatives, but failed to muster the 67 votes necessary for passage in the U.S. Senate. Several United States statutes passed in the Federal Congress in an attempt to prevent physical desecration of our Country's beloved flag, only to be declared unconstitutional by the Supreme Court, just like the North Dakota laws of 1901 and 1973, along with 47 other States who had similar laws.

I ask each member to consider and think about these facts concerning our Flag. Our Flag that has its own anthem, our Flag that has its own pledge, our Flag that has its holiday, our Flag that represents the highest ideals of INDIVIDUAL LIBERTY, JUSTICE, AND EQUAL OPPORTUNITY FOR ALL. Our Flag that 4,494 North Dakota men and women died for in combat serving our Country.

President George Washington, in his farewell address said: "THE BASIS OF OUR POLITICAL SYSTEM OF GOVERNMENT IS THE RIGHT OF THE PEOPLE TO MAKE AND ALTER THEIR CONSTITUTIONS OF GOVERNMENT."

I ask each of you to give the right back to the people to decide if Congress shall have the power to prohibit the physical desecration of the UNITED STATES FLAG. I urge each one of you to vote in the affirmative and send this resolution to the full Senate with a DO PASS RECOMMENDATION!

PREPARED STATEMENT OF MARIE F. CURRIE, CHAIRMAN, CITIZENS FLAG ALLIANCE STATE OF ARIZONA

Thank you, Chairman Hatch and members of this Committee, for holding these hearings on this important issue and for providing me this opportunity to submit testimony in support of a constitutional amendment to protect the flag from physical desecration. As the Chairman of the Citizens Flag Alliance for the state of Arizona, I deem it a great privilege.

Arizona is one of the 49 states which has passed a memorializing resolution to have the flag protection amendment passed by Congress and returned to them for ratification. I am pleased that both Senators McCain and Kyl have signed onto S.J. Res. 40 as cosponsors of the bill. They, as well as the majority of Arizona residents, support this effort and reject the 1989 and 1990 Supreme Court decisions which declared flag protection laws invalid. First Amendment rights should not be construed to mean that vile and offensive conduct must be tolerated in the name of any principle written into the Constitution by our Founding Fathers.

Research indicates both James Madison and Thomas Jefferson would favor the protection of the flag and would not see this as an incursion of First Amendment rights. Madison, on three different occasions, recognized and sustained the legitimacy of the sovereignty interest in protecting the flag.

The first occurred in 1800 when the Algerian ship Dey of Algiers forced a U.S. man-of-war named the George Washington to haul down its flag and replace it with that of Algiers. Madison was Secretary of State under Thomas Jefferson at the time. The second event happened in 1802 in the city of Philadelphia when the flag of the Spanish Minister was torn down and defaced, an actionable act punishable by law. And, in 1807, when the British ship Leopard fired upon and ordered the lowering of an American flag on The Chesapeake, Madison indicated to the British Ambassador: "that the attack on the The Chesapeake was a detached, flagrant insult to the flag and sovereignty of the United States."

It would appear obvious that Madison, as one who helped draft the First Amendment, understood there had been no intent to withdraw the traditional physical protection from the flag and that such conduct was not a protected form of expression. Like Madison, Thomas Jefferson sought to protect the sovereignty interest in the flag. During the 1790's, as George Washington's Secretary of State, he instructed American consuls to punish "usurpation of our flag." He recognized the sovereignty interest in the flag and considered protecting it and punishing its abusers highly important, even after adoption of the Bill of Rights. Therefore, both Madison and Jefferson intended for the government to be able to protect the flag consistent with the Bill of Rights.

In addition to our Founding Fathers, men like: Chief Justice Harlan, Chief Justice Earl Warren, Chief Justice Rehnquist, Justice Hugo Black, Justice Abe Fortas, and Justice Blackmun, have, as early as 1907, upheld flag protection laws in existence for over 100 years. These laws provided for the right of the American people to protect the flag from physical desecration-a right which was taken away from them by the controversial 1989 decision of the Supreme Court. It is obvious to me, the people want that right restored.

Mr. Chairman, the Court's decision leaves no alternative but to pass a constitutional amendment which specifically sets the flag aside for protection. The amendment as proposed is very narrowly written and allows only Congress to enact laws to determine the extent of this protection. I believe it is what is wanted by the people in my community, the people in our state, and the people in America. I ask you, your committee and the Senate, to put this decision in the hands of the people. That is the process laid down by our Founding Fathers and it is the process which the people have started to redress the problem created by the Court. Let the people decide!

PREPARED STATEMENT OF ALTON R. FORD, CHAIRMAN, CITIZENS FLAG ALLIANCE OF MICHIGAN

Mr. Chairman and members of the committee, as the Chairman of the Citizens Flag Alliance (CFA) from the State of Michigan, thank you for holding this hearing on S.J. Res. 40, a proposed constitutional amendment to prohibit the physical desecration of the flag of the United States.

The CFA represents over 20 million Americans and 126 diverse, community-based organizations, such as the Elks, The American Legion and the Grange just to mention a few. Their common goal is to have Congress pass a proposed constitutional amendment to protect "Old Glory." Unlike other proposed constitutional amendments recently debated in Congress, S.J. Res. 40 was truly initiated through a national grassroots effort. For this reason, I hope you pass this measure and let the people decide.

The movement to protect the American flag from physical desecration is about responsibility and respect. More importantly, it is about the democratic process and about "We the People" having a say in how we want to be governed. America's Founding Fathers created a form of government that placed the ultimate power of this nation in the hearts, hands and minds of common, everyday people. Passing this amendment will be a true exercise of the democratic process.

Last Congress, a similar measure, H.J. Res. 79 passed the House of Representatives by a vote of 312-120. Unfortunately, its counterpart, S.J. Res. 31, fell three votes shy in the Senate. This movement will not go away. In June, the House of Representatives again responded to the American people and passed H.J. Res. 54 by a vote of 310–114. A constitutional amendment to protect the flag from physical desecration is the only way to address the Supreme Court's 1989 decision in Texas v. Johnson. The American people have no other recourse.