H. Rept. 105-121 - 105th Congress (1997-1998)
June 05, 1997, As Reported by the Judiciary Committee

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House Report 105-121 - TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE UNITED STATES




[House Report 105-121]
[From the U.S. Government Printing Office]



105th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES

 1st Session                                                    105-121
_______________________________________________________________________


 
 TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE UNITED STATES

_______________________________________________________________________


  June 5, 1997.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

    Mr. Canady, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 54]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 54) proposing an amendment to the 
Constitution of the United States authorizing the Congress to 
prohibit the physical desecration of the flag of the United 
States, having considered the same, reports favorably thereon 
without amendment and recommends that the joint resolution do 
pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           1
Purpose and Summary........................................           2
Background and Need for the Legislation....................           2
Hearings...................................................           5
Committee Consideration....................................           5
Vote of the Committee......................................           6
Committee Oversight Findings...............................           6
Committee on Government Reform and Oversight Findings......           7
New Budget Authority and Tax Expenditures..................           7
Congressional Budget Office Cost Estimate..................           7
Constitutional Authority Statement.........................           8
Section-by-Section Analysis and Discussion.................           8
Dissenting Views...........................................          10
Dissenting Views of Hon. Rick Boucher......................          19

                          Purpose and Summary

    H.J. Res. 54 proposes to amend the Constitution to allow 
Congress to prohibit the physical desecration of the flag of 
the United States.
    The proposed amendment reads simply: ``The Congress shall 
have power to prohibit the physical desecration of the flag of 
the United States.'' The amendment itself does not prohibit 
flag desecration. It merely empowers Congress to enact 
legislation to prohibit the physical desecration of the flag 
and establishes boundaries within which it may legislate. Prior 
to the Supreme Court decision in Texas v. Johnson, 109 S.Ct. 
2533 (1989), forty-eight states and the Federal Government had 
laws on the books prohibiting desecration of the flag. The 
purpose of the proposed constitutional amendment is to restore 
the power to protect the flag to the Congress. \1\
---------------------------------------------------------------------------
    \1\ H.J. Res. 79, which the House voted on in the first session of 
the 104th Congress read: ``Congress and the States shall have power to 
prohibit the physical desecration of the flag of the United States.'' 
H.J. Res. 54 permits only the Congress to take such action.
---------------------------------------------------------------------------

                Background and Need for the Legislation

    In June of 1989, the United States Supreme Court in Texas 
v. Johnson, 109 S.Ct. 2533, held that the burning of an 
American flag as part of a political demonstration was 
expressive conduct protected by the First Amendment to the U.S. 
Constitution. After publicly burning a stolen American Flag in 
a protest outside of the 1984 Republican National Convention in 
Dallas, Texas, Gregory Johnson was convicted of desecrating a 
flag in violation of Texas law. The Texas law prohibited the 
intentional desecration of a national flag in a manner in which 
``the actor knows will seriously offend one or more persons 
likely to observe or discover his action.'' \2\ His conviction 
was upheld by the Court of Appeals for the Fifth District of 
Texas at Dallas, but reversed by the Texas Court of Criminal 
Appeals. The 5-4 U.S. Supreme Court opinion affirmed the 
decision of the Court of Criminal Appeals: Johnson's conviction 
was inconsistent with the First Amendment because his actions 
constituted ``symbolic free expression.''
---------------------------------------------------------------------------
    \2\  Tex. Penal Code Ann. Section 42.09(a)(3), Desecration of a 
Venerated Object, provides as follows: ``(a) A person commits an 
offense if he intentionally or knowingly desecrates:
---------------------------------------------------------------------------
      ``(1) a public monument;
      ``(2) a place of worship or burial; or
      ``(3) a state or national flag.
``(b) For purposes of this section, `desecrate' means deface, damage, 
or otherwise physically mistreat in a way that the actor knows will 
seriously offend one or more persons likely to observe or discover his 
action.
``(c) An offense under this section is a Class A misdemeanor.''
    Justice Rehnquist filed a dissenting opinion in which 
Justices O'Connor and White joined.\3\ Justice Rehnquist noted 
the unique history of the American Flag:
---------------------------------------------------------------------------
    \3\ Justice Stevens filed a separate dissenting opinion.

          The American Flag, then, throughout more than 200 
        years of our history, has come to be the visible symbol 
        embodying our Nation. It does not represent the views 
        of any particular political party, and it does not 
        represent any particular political philosophy. The flag 
        is not simply another ``idea'' or ``point of view'' 
        competing for recognition in the marketplace of ideas. 
        Millions and millions of Americans regard it with an 
        almost mystical reverence regardless of what sort of 
        social, political, or philosophical beliefs they may 
        have. I cannot agree that the First Amendment 
        invalidates the Act of Congress, and the laws of 48 of 
        the 50 States, which make criminal the public burning 
---------------------------------------------------------------------------
        of the flag. Texas v. Johnson, 109 S.Ct. at 2552.

    Justice Rehnquist also pointed out that Chief Justice Earl 
Warren, and Justices Black and Fortas all expressed the view 
that the States and the Federal Government had the power to 
protect the American Flag from desecration and disgrace.
    In response to the Johnson decision, in September of 1989, 
Congress passed the ``Flag Protection Act of 1989'' under 
Suspension of the Rules by a vote of a 380 to 38. The Act 
amended the Federal Flag Statute (18 U.S.C. 700) attempting to 
make it ``content-neutral'' so that it would pass 
constitutional muster. As stated in the House Judiciary 
Committee report, ``the amended statute focuses exclusively on 
the conduct of the actor, irrespective of any expressive 
message he or she might be intending to convey.'' \4\
---------------------------------------------------------------------------
    \4\ ``Flag Protection Act of 1989'', H. Rep. No. 101-231, 101st 
Cong., 1st Sess. 2 (1989). The Act became law without the President's 
signature on October 28, 1989 (Pub. L. 101-131).
---------------------------------------------------------------------------
    On June 11, 1990, in United States v. Eichman, 496 U.S. 
311, the Supreme Court in another 5-4 decision struck down the 
newly-enacted ``Flag Protection Act of 1989,'' ruling that it 
infringed on expressive conduct protected by the First 
Amendment. Although the Government conceded that flag burning 
constituted expressive conduct, it claimed that flag burning, 
like obscenity or ``fighting words'' was not fully protected by 
the First Amendment. The Government also argued the ``Flag 
Protection Act'' was constitutional because, unlike the Texas 
statute struck down in Texas v. Johnson, the Act was ``content-
neutral'' and simply sought to protect the physical integrity 
of the flag rather than to suppress disagreeable communication.
    Justice Brennan, writing for the majority, rejected the 
Government's argument, noting that:

          Although the Flag Protection Act ``contains no 
        explicit content- based limitation on the scope of 
        prohibited conduct, it is nevertheless clear that the 
        Government's asserted interest is ``related' to the 
        suppression of free expression,' '' 491 U.S., at 410, 
        109 S.Ct., at 2543, and concerned with the content of 
        such expression. [T]he Government's desire to preserve 
        the flag as a symbol for certain national ideals is 
        implicated ``only when a person's treatment of the flag 
        communicates [a] message'' to others that is 
        inconsistent with those ideals. U.S. v. Eichman, 110 
        S.Ct. 2404 (1990).

    Justice Stevens wrote a dissenting opinion in which Chief 
Justice Rehnquist, Justice White and Justice O'Connor joined. 
He expressed unanimous agreement with the proposition expressed 
by the majority that ``the Government may not prohibit the 
expression of an idea simply because society finds the idea 
itself offensive or disagreeable.'' He went on, however, to 
note that methods of expression may be prohibited under a 
number of circumstances and set forth the following standard:

          If (a) the prohibition is supported by a legitimate 
        societal interest that is unrelated to suppression of 
        the ideas the speaker desires to express; (b) the 
        prohibition does not entail any interference with the 
        speaker's freedom to express those ideas by other 
        means; and the interest in allowing the speaker 
        complete freedom of choice among alternative methods of 
        expression is less important than the societal interest 
        supporting the prohibition. Eichman, 496 U.S., at 319.

Justice Stevens felt that the statute satisfied each of these 
concerns and thus should have withstood constitutional 
scrutiny.
    Once the Supreme Court ruled a second time that flag 
burning was expressive speech protected by the First Amendment, 
it became apparent that no statute could adequately protect the 
U.S. Flag from desecration--a constitutional amendment was 
necessary. On June 21, 1990, the House considered H.J. Res. 
350, an identical amendment to H.J. Res. 79. The amendment was 
rejected by a vote of 254 to 177.
    Since that time, forty-nine states have passed resolutions 
calling on Congress to pass an amendment to protect the flag of 
the United States from physical desecration and send it back to 
the States for ratification.
    Opponents of the amendment have argued that H.J. Res. 54 
limits free speech as guaranteed by the first amendment to the 
U.S. Constitution. The first amendment states, ``Congress shall 
make no law .  .  . abridging freedom of speech .  .  .'' H.J. 
Res. 54 gives Congress the power to prohibit the physical 
desecration of the flag of the United States. It does not 
prevent anyone from making any statement or saying anything--
regardless of how objectionable it may be. Until the Supreme 
Court's decisions in Texas v. Johnson in 1989 and U.S. v. 
Eichman in 1990, punishing the physical desecration of the flag 
was considered entirely in keeping with the protections of the 
first amendment. Forty-eight states and the Federal Government 
had laws banning flag desecration.
    As pointed out by Justice Rehnquist in Texas v. Johnson, 
Chief Justice Earl Warren, and Justices Black and Fortas all 
expressed the view that the States and the Federal Government 
had the power to protect the Flag from desecration and 
disgrace. Former Chief Justice Earl Warren in Street v. New 
York, 394 U.S. 576, 605 (1969) stated, ``I believe that States 
and the Federal Government do have power to protect the flag 
from acts of desecration and disgrace.'' In the same case, 
Justice Hugo Black, a zealous proponent of freedom of speech 
wrote, ``It passes my belief that anything in the Federal 
Constitution bars .  .  . making the deliberate burning of the 
American flag an offense.'' Id. at 610. Again in Street, 
Justice Abe Fortas stated, ``The flag is a special kind of 
personality. Its use is traditionally and universally subject 
to special rules and regulations .  .  .  . The States and the 
Federal Government have the power to protect the flag from acts 
of desecration.'' Id. at 615-617.
    In addition, opponents argue that H.J. Res. 54 proposes an 
unprecedented limitation on the content of speech. This 
assertion is both historically and legally inaccurate. Until 
1989, forty-eight states and the federal government had laws 
criminalizing the physical desecration of the flag and there 
was no perceived conflict with freedom of speech. In addition, 
on numerous occasions, the Supreme Court has upheld government 
regulation of pure speech. For example, speech that is likely 
to incite an immediate, violent response, Chaplinsky v. New 
Hampshire, 315 U.S. 568 (1942); obscenity, Miller v. 
California, 413 U.S. 15 (1973); and libel, New York Times v. 
Sullivan, 367 U.S. 254 (1970) are not protected under the first 
amendment.
    In conclusion, H.J. Res. 54 furthers the legitimate 
interest of the federal government in protecting the American 
flag and it does not interfere with a speaker's freedom to 
express his or her ideas by other means. It is the only 
remaining avenue by which the Congress can pass legislation to 
protect the flag of the United States from physical 
desecration.

                                Hearings

    The Committee's Subcommittee on the Constitution held one 
day of hearings on H.J. Res. 54 on April 30, 1997. Testimony 
was received from 17 witnesses: Representative Gerald Solomon; 
Representative David Skaggs; Representative William Lipinski; 
Representative John Shimkus; Representative Gary Ackerman; 
Representative Martin Frost; Maribeth Seely, Teacher, 
Sandystone Walpack School, Layton, NJ; Lawrence Korb, Director, 
Center for Public Policy Education; Francis Sweeney, Financial 
Secretary, Steamfitters Local Union 449, Pittsburgh, PA; Carol 
Van Kirk, Nebraska American Legion Auxiliary; Carole Shields, 
President, People for the American Way; Alan Lance, Attorney 
General, State of Idaho; Professor Richard Parker, Harvard 
University; Professor Norman Dorsen, Stokes Professor of Law, 
New York University School of Law; Honorable Robert Zukowski, 
Wisconsin State Legislature; Roger Pilon, Director, Center for 
Constitutional Studies, Cato Institute; Major General Patrick 
Brady, Chairman, Citizens Flag Alliance.
    Testimony was also received from N. Lee Cooper, President, 
American Bar Association; Terry Anderson, Former U.S. Marine 
and Staff Sergeant; James Warner, U.S. Marine decorated for his 
service in the Vietnam conflict; Professor Jamin Raskin, First 
Amendment Counsel to the ACLU.

                        Committee Consideration

    On May 8, 1997 the Subcommittee on the Constitution met in 
open session and ordered reported favorably the resolution H.J. 
Res. 54, without amendment, by a voice vote, a quorum being 
present. On May 14, 1997 the Committee met in open session and 
ordered reported favorably the resolution H.J. Res. 54, without 
amendment by a recorded vote of 20 to 9, a quorum being 
present.

                         Vote of the Committee

    Final Passage. Mr. Canady moved to report H.J. Res. 54, 
without amendment, favorably to the whole House. The resolution 
was reported favorably by a rollcall vote of 20-9.

                                                 ROLLCALL NO. 1                                                 
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present   
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................              X   ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................              X   ..............  ..............
Mr. Coble.......................................................              X   ..............  ..............
Mr. Smith (TX)..................................................              X   ..............  ..............
Mr. Schiff......................................................  ..............  ..............  ..............
Mr. Gallegly....................................................              X   ..............  ..............
Mr. Canady......................................................              X   ..............  ..............
Mr. Inglis......................................................              X   ..............  ..............
Mr. Goodlatte...................................................              X   ..............  ..............
Mr. Buyer.......................................................              X   ..............  ..............
Mr. Bono........................................................              X   ..............  ..............
Mr. Bryant (TN).................................................              X   ..............  ..............
Mr. Chabot......................................................              X   ..............  ..............
Mr. Barr........................................................              X   ..............  ..............
Mr. Jenkins.....................................................              X   ..............  ..............
Mr. Hutchinson..................................................              X   ..............  ..............
Mr. Pease.......................................................              X   ..............  ..............
Mr. Cannon......................................................              X   ..............  ..............
Mr. Conyers.....................................................  ..............              X   ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Schumer.....................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............              X   ..............
Mr. Nadler......................................................  ..............              X   ..............
Mr. Scott.......................................................  ..............              X   ..............
Mr. Watt........................................................  ..............              X   ..............
Ms. Lofgren.....................................................  ..............              X   ..............
Ms. Jackson Lee.................................................  ..............              X   ..............
Ms. Waters......................................................  ..............              X   ..............
Mr. Meehan......................................................  ..............              X   ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................              X   ..............  ..............
Mr. Rothman.....................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................              X   ..............  ..............
                                                                 -----------------------------------------------
    Total.......................................................             20               9   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

         Committee on Government Reform and Oversight Findings

    No findings or recommendations of the Committee on 
Government Reform and Oversight were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the resolution, H.J. Res. 54, the 
following estimate and comparison prepared by the Director of 
the Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 16, 1997.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Office has prepared 
the enclosed cost estimate for H.J. Res. 54, a joint resolution 
proposing an amendment to the Constitution of the United States 
authorizing the Congress to prohibit the physical desecration 
of the flag of the United States.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz, who can be reached at 226-2860, and Leo Lex who can 
be reached at 225-3220.
            Sincerely,

                                           June E. O'Neill, Director.  
    Enclosure.

H.J. Res. 54--A joint resolution proposing an amendment to the 
    Constitution of the United States authorizing the Congress 
    to prohibit the physical desecration of the flag of the 
    United States

    H.J. Res. 54 would propose amending the U.S. Constitution 
to give the Congress power to prohibit the physical desecration 
of the U.S. flag.
    CBO estimates that enacting this resolution would have no 
significant impact on the federal budget. H.J. Res. 54 would 
not affect direct spending or receipts; therefore, pay-as-you-
go procedures do not apply. This legislation contains no 
intergovernmental or private-sector mandates as defined in the 
Unfunded Mandates Reform Act of 1995 and would impose no costs 
on the budgets of state, local, or tribal governments. To 
become part of the Constitution, three-fourths of the states 
would be required to ratify the proposed amendment within seven 
years of its submission to the states by the Congress.
    The CBO staff contacts for this estimate are Mark 
Grabowicz, who can be reached at 226-2860, and Leo Lex, who can 
be reached at 225-3220. This estimate was approved by Paul N. 
Van de Water, Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(l)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article V of the Constitution, which 
provides that the Congress has the authority to propose 
amendments to the Constitution.

                      Section-by-Section Analysis

    H.J. Res. 54 simply states ``[t]he Congress shall have 
power to prohibit the physical desecration of the flag of the 
United States.''
    Congress clearly possessed this power prior to the 
decisions of the United States Supreme Court in Texas v. 
Johnson and U.S. v. Eichman. Those decisions held that the act 
of physically desecrating the flag by burning was expressive 
conduct protected by the First Amendment. The First Amendment 
to the U.S. Constitution, which states, ``Congress shall make 
no law .  .  . abridging freedom of speech .  .  .'' limits the 
power of Congress. H.J. Res. 54 makes clear that Congress does 
have the power to pass legislation to prohibit the physical 
desecration of the flag of the United States.
    This proposed constitutional amendment sets the parameters 
for future action by the Congress on this issue. After the 
amendment is ratified, the elected representatives of the 
people will once again have the power and can decide whether to 
enact legislation to prohibit the physical desecration of the 
flag.
    There are two key issues that will need to be resolved in 
enacting legislation to protect the flag from physical 
desecration.
    First, Congress may want to flesh out the meaning of 
``physical desecration.'' The amendment itself requires 
physical contact with the flag. Congress could not punish mere 
words or gestures directed at the flag, regardless of how 
offensive they were. Webster's Ninth New Collegiate Dictionary 
defines ``desecrate'' as follows: ``1: to violate the sanctity 
of: PROFANE 2: to treat irreverently or contemptuously often in 
a way that provokes outrage on the part of others.'' 
``Desecrate'' is defined in Black's Law Dictionary as ``to 
violate sanctity of, to profane, or to put to unworthy use.'' 
Congress could clearly prohibit burning, shredding and similar 
defilement of the flag. In addition, the term ``desecrate'' 
clearly implies that the physical act must demonstrate contempt 
for the flag.
    Second, Congress will have to decide what representations 
of the flag of the United States are to be protected. Of 
course, the resolution in no way changes the fact that the 
authority to determine ``what constitutes the flag of the 
United States'' is defined by the United States Congress at 4 
U.S.C. 1. In enacting a statute, Congress will need to decide 
which representations of the flag are to be protected from 
physical desecration. They may define the flag of the United 
States as only a cloth, or other material readily capable of 
being waved or flown, with the characteristics of the official 
flag of the United States as described in 4 U.S.C. 1 or a 
``flag'' could be anything that a reasonable person would 
perceive to be a flag of the United States even if it were not 
precisely identical to the flag as defined by statute. This 
would allow states and the Congress to prevent a situation 
whereby a representation of a United States flag with forty-
nine stars or twelve red and white stripes was burned in order 
to circumvent the statutory prohibition.
                            DISSENTING VIEWS

    We strongly oppose H.J. Res. 54, which would--for the first 
time in our Nation's history--modify the Bill of Rights to 
limit freedom of expression. Although the motives of the 
proposition's supporters are well-intended, we believe that 
adopting H.J. Res. 54 is wrong as a matter of principle, wrong 
as a matter of precedent, and wrong as a matter of practice.
    H.J. Res. 54 responds to a perceived problem--flag 
burning--that is all but nonexistent in American life today. 
Studies indicate that in all of American history from the 
adoption of the United States flag in 1777 through the Texas v. 
Johnson \1\ decision in 1989 there were only 45 reported 
incidents of flag burning.\2\ Moreover, most incidents of flag 
burning can be successfully prosecuted today under laws 
relating to breach of peace or inciting violence--all fully 
within current constitutional constraints. \3\
---------------------------------------------------------------------------
    \1\ 491 U.S. 397 (1989)(in a 5-4 decision authored by Justice 
Brennan, the Court found that Texas flag desecration law was 
unconstitutional as applied in that it was a ``content-based'' 
restriction). Subsequent to Johnson, Congress enacted the Flag 
Protection Act in an effort to craft a more content neutral law. In 
United States v. Eichman, 496 U.S. 310 (1990), the Court overturned 
several flag burning convictions brought under the new law, finding 
that the federal law continued to be principally aimed at limiting 
symbolic speech.
    \2\ Robert J. Goldstein, Two Centuries of Flagburning in the United 
States, 163 Flag Bull. 65 (1995).
    \3\ See Hearing on H.J. Res. 79, Proposing an Amendment to the 
Constitution of the United States Before the Subcomm. on Constitution 
of the House Comm. on the Judiciary, 104th Cong., 1st Sess. (May 24, 
1995) [hereinafter, 1995 House Judiciary Hearings] (statement of Bruce 
Fein at 1) (``While I believe the Johnson and Eichman decisions were 
misguided, I do not believe a constitutional amendment would be a 
proper response. Flag desecrations when employed as ``fighting words'' 
or when intended and likely to incite a violation of law remain 
criminally punishable under the Supreme Court precedents in Chaplinsky 
v. New Hampshire (1942) and Brandenburg v. Ohio (1969)'').
---------------------------------------------------------------------------
    By embedding a principle prohibiting flag desecration into 
the Constitution, we will have elevated the flag over other 
cherished symbols, including not only national symbols such as 
the Declaration of Independence and Statue of Liberty, but 
religious symbols such as crosses and Bibles.
    Ironically, H.J. Res. 54 will not even achieve the 
sponsors' stated purpose--protecting the American flag and 
honoring American's veterans. History has taught us that 
restrictive legislation merely encourages more flag burning in 
an effort to protest the law itself, \4\ and a vaguely worded 
constitutional amendment such as H.J. Res. 54 will surely cause 
such efforts to increase many times over. If we truly want to 
honor our veterans, it would be far more constructive for 
Congress to ensure that money is available under the budget to 
provide them promised health care benefits and pension 
payments. Thus, while we condemn those who would dishonor our 
nation's flag, we believe that rather than protecting the flag, 
H.J. Res. 54 will merely serve to dishonor the Constitution and 
compromise the very ideals our nation was founded on. As Jim 
Warner, a Vietnam veteran and prisoner of the North Vietnamese 
from October 1967 to March 1973, has written:
---------------------------------------------------------------------------
    \4\ In his extensive survey of the history of American flag 
desecration law, Robert Goldstein writes, that ``[a]lthough the purpose 
of the [Flag Protection Act adopted by Congress in 1968] was to 
supposedly end flag burnings, its immediate impact was to spur perhaps 
the largest single wave of such incidents in American history.'' Robert 
J. Goldstein, Saving ``Old Glory'': The History of the American Flag 
Desecration Controversy 215 (1995).

          The fact is, the principles for which we fought, for 
        which our comrades died, are advancing everywhere upon 
        the Earth, while the principles against which we fought 
        are everywhere discredited and rejected. The flag 
        burners have lost, and their defeat is the most fitting 
        and thorough rebuke of their principles which the human 
        could devise. Why do we need to do more? An act 
        intended merely as an insult is not worthy of our 
        fallen comrades. It is the sort of thing our enemies 
        did to us, but we are not them, and we must conform to 
        a different standard.  .  .  . Now, when the justice of 
        our principles is everywhere vindicated, the cause of 
        human liberty demands that this amendment be rejected. 
        Rejecting this amendment would not mean that we agree 
        with those who burned our flag, or even that they have 
        been forgiven. It would, instead, tell the world that 
        freedom of expression means freedom, even for those 
        expressions we find repugnant. \5\
---------------------------------------------------------------------------
    \5\ See Hearing on H.J. Res. 54, Proposing an Amendment to the 
Constitution of the United States Before the Subcomm. on the 
Constitution of the House Comm. on the Judiciary, 105th Cong., 2nd 
Sess. (April 30, 1997) (forthcoming) [hereinafter 1997 House Judiciary 
Hearings] (statement of Jim Warner). These thoughts are echoed by Terry 
Anderson, a former U.S. Marine Staff Sergeant and Vietnam veteran, who 
was held hostage in Lebanon, who writes that ``[H.J. Res. 54] is an 
extremely unwise restriction of every American's Constitutional rights. 
The Supreme Court has repeatedly held that the First Amendment protects 
symbolic acts under its guarantee of free speech. Burning or otherwise 
damaging a flag is offensive to many (including me), but it harms no 
one and is so obviously an act of political speech that I'm amazed 
anyone could disagree with the Court.'' (Id. statement of Terry 
Anderson).

    Survey results show that the majority of Americans who 
initially indicate support for a flag protection amendment 
oppose it once they understand its impact on the Bill of 
Rights. In a 1995 Peter Hart poll, 64 percent of registered 
voters surveyed said they were in favor of such an amendment; 
but when asked if they would oppose or favor such an amendment 
if they knew it would be the first in our Nation's history to 
restrict freedom of speech and freedom of political protest, 
support plummeted from 64 percent to 38 percent.

                  Importance of Freedom of Expression

    Freedom of expression is one of the preeminent human rights 
and is central to fostering all other forms of freedom. 
Professor Emerson notes that since as early as the Renaissance, 
free and open expression has been considered to be an essential 
element of human fulfillment: ``The theory [of free expression] 
grew out of an age that was awakened and invigorated by the 
idea of a new society, in which man's mind was free, his fate 
determined by his own powers of reason, and his prospects of 
creating a rational and enlightened civilization virtually 
unlimited.'' \6\
---------------------------------------------------------------------------
    \6\ Thomas I. Emerson, Toward a General Theory of the First 
Amendment, 72 Yale L.J., 877, 886 (1963).
---------------------------------------------------------------------------
    Freedom of expression also provides an important safety 
valve for society. Professor Greenwalt writes that ``those who 
are resentful because their interests are not accorded fair 
weight, and who may be doubly resentful because they have not 
even had a chance to present those interests, may seek to 
attain by radical changes in existing institutions what they 
have failed to get from the institutions themselves. Thus 
liberty of expression, though often productive of divisiveness, 
may contribute to social stability.''\7\
---------------------------------------------------------------------------
    \7\ Greenwalt, Speech and Crime, A.B.F. Res.J 645, 672-3 (1980). 
See also Rotunda, Treatise on Constitutional Law: Substance and 
Procedure Sec. 20.6 at 18 (2d ed. 1992).
---------------------------------------------------------------------------
    Freedom of expression also serves as an important tool in 
checking the abuse of powers by public officials. Professor 
Blasi has noted that this ``checking function'' should be 
accorded a level of protection higher than that given any other 
type of communication because ``the particular evil of official 
misconduct is of a special order.'' \8\
---------------------------------------------------------------------------
    \8\ See Redish, The Value of Free Speech, 130 U. Penn. L.Rev., 591, 
611 (1982).
---------------------------------------------------------------------------
    Perhaps the most important function served by a system of 
free expression is that it allows for free and open exchange of 
thoughts--referred to by Justice Holmes as the ``marketplace of 
ideas.'' \9\ In a 1644 speech before the English Parliament 
criticizing censorship laws, Milton articulated the notion that 
free expression helps to prevent human error through ignorance:
---------------------------------------------------------------------------
    \9\ Justice Holmes articulated his ``marketplace of ideas'' theory 
of free speech in his dissent in Abrams v. United States, 250 U.S. 616, 
630 (1919): ``[T]he ultimate good desired is better reached by free 
trade in ideas .  .  . the best test of truth is the power of the 
thought to get it accepted in the competition in the market.''

          [T]hough all the winds of doctrine were let loose to 
        play upon the earth, so truth be in the field, we do 
        injuriously, by licensing and prohibiting, to misdoubt 
        her strength. Let her and falsehood grapple, whoever 
        knew truth put to the worse in a free and open 
        encounter? \10\
---------------------------------------------------------------------------
    \10\ J. Milton, Areopagitica, A Speech for the Liberty of 
Unlicensed Printing to the Parliament of England (1644).

    In his 1859 essay On Liberty, John Stuart Mill further 
expanded upon this vision when he recognized the public good 
and enlightenment which results from the free exchange of 
---------------------------------------------------------------------------
ideas:

          First, if any opinion is compelled to silence, that 
        opinion for aught we can certainly know, be true .  .  
        . Secondly, though this silenced opinion be in error, 
        it may, and very commonly does, contain a portion of 
        the truth .  .  . Thirdly, even if the received opinion 
        be not only true but the whole truth; unless it is 
        suffered to be and actually is, vigorously and 
        earnestly contested, it will by most of those who 
        receive it, be held in the manner of a prejudice. \11\
---------------------------------------------------------------------------
    \11\ J.S. Mill, On Liberty Ch. II. (1859).

    The American system of government is itself premised on 
freedom of expression. Professor Emerson notes: ``Once one 
accepts the premise of the Declaration of Independence--that 
governments derive `their just powers from the consent of the 
governed'--it follows that the governed must, in order to 
exercise their right of consent, have full freedom of 
expression both in forming individual judgments and in forming 
the common judgments.'' \12\
---------------------------------------------------------------------------
    \12\ Thomas I. Emerson, Toward a General Theory of the First 
Amendment, supra note 6 at 883.
---------------------------------------------------------------------------
    The founding fathers recognized the difficulties in 
maintaining a system of free expression against the ``tyranny 
of the majority.'' In the Federalist Papers James Madison 
expressed concern as to the unfettered power of the majority: 
``By a faction I understand a number of citizens, whether 
amounting to a majority or a minority of the whole who are .  .  
. adverse to the rights of other citizens, or to the permanent 
and aggregate interests of the community.'' \13\ It is for 
these reasons that the Constitution not only explicitly 
protected freedom of expression, \14\ but created a judiciary 
possessing the power of review over all legislative and 
executive action. These twin safeguards--a written constitution 
and an independent judiciary--have served to foster in this 
country the freest society in human history.
---------------------------------------------------------------------------
    \13\ The Federalist No. 10 (J. Madison) at 57 (J. Cooke ed. 1961).
    \14\ Indeed the framers chose to include freedom of speech in the 
first amendment of the Bill of Rights, and wrote its protection in 
absolute terms: ``Congress shall make no law .  .  . abridging freedom 
of speech.  .  .  .''. The strictness of the language is in contrast 
with the fourth amendment, for example which prohibits only 
``unreasonable searches and seizures.''
---------------------------------------------------------------------------

             H.J. Res. 54 is Wrong as a Matter of Principle

    Unfortunately H.J. Res. 54 belies our system of unfettered 
political expression. In so doing, it not only undermines our 
commitment to freedom of expression and opens the door to 
selective prosection based on political belief, but diminishes 
our nation's international standing.
    The true test of any nation's commitment to freedom of 
expression lies in its ability to protect unpopular expression, 
such as flag desecration. In 1929 Justice Holmes wrote that it 
was the most imperative principle of our constitution that it 
protects not just freedom for the thought and expression we 
agree with, but ``freedom for the thought we hate.'' \15\ As 
Justice Jackson so eloquently wrote in 1943:
---------------------------------------------------------------------------
    \15\ United States v. Schwimmer, 254 U.S. 644, 655 (1929) (Holmes, 
J., dissenting).

          Freedom to differ is not limited to things that do 
        not matter much. That would be a mere shadow of 
        freedom. The test of its substance is the right to 
        differ as to things that touch the heart of the 
        existing order. If there is any fixed star in our 
        constitutional constellation, it is that no official, 
        high or petty, can prescribe what shall be orthodox in 
        politics, nationalism, religion or other matters of 
        opinion. \16\
---------------------------------------------------------------------------
    \16\ West Virginia Board of Education v. Barnette, 319 U.S. 624, 
642 (1943).

    And there can be no doubt that ``symbolic speech'' relating 
to the flag falls squarely within the ambit of traditionally 
protected speech. Our nation was borne in the dramatic symbolic 
speech of the Boston Tea Party, and our courts have long 
recognized that expressive speech associated with the flag is 
protected speech under the first amendment.
    Beginning in 1931 with Stromberg v. California \17\ (state 
statute prohibiting the display of a ``red flag'' overturned) 
and continuing through the mid-1970's with Smith v. Goguen \18\ 
and Spence v. Washington \19\ (overturning convictions 
involving wearing a flag patch and attaching a peace sign to a 
flag), the Supreme Court has consistently recognized that flag-
related expression is entitled to constitutional protection. 
Indeed, by the time Gregory Johnson was prosecuted for burning 
a U.S. flag outside of the Republican Convention in Dallas, the 
State of Texas readily acknowledged that Johnson's conduct 
constituted ``symbolic speech'' subject to protection under the 
first amendment. \20\ Those who seek to justify H.J. Res. 54 on 
the grounds that flag desecration does not constitute 
``speech'' are therefore denying decades of well understood 
court decisions. \21\
---------------------------------------------------------------------------
    \17\ 283 U.S. 359 (1931). Absent this decision, a State could 
theoretically have prevented its citizens from displaying the U.S. 
flag.
    \18\ 415 U.S. 94 (1972).
    \19\ 418 U.S. 405 (1974).
    \20\ Texas v. Johnson, supra note 1 at 397.
    \21\ See also, Note, The Supreme Court--Leading Cases, 103 Harv. 
L.Rev. 137, 152 (1989)(``the majority opinion [in Johnson] is a 
relatively straightforward application of traditional first amendment 
jurisprudence''); Sheldon H. Nahmod, The Sacred Flag and the First 
Amendment, 66 Ind. L.J. 511, 547 (1991) (``Johnson is an easy case if 
well-established first amendment principles are applied to it'').
---------------------------------------------------------------------------
    While we deplore the burning of an American flag in hatred, 
we recognize that it is our allowance of this conduct that 
reinforces the strength of the Constitution. As one federal 
court wrote in a 1974 flag burning case, ``the flag and that 
which it symbolizes is dear to us, but not so cherished as 
those high moral, legal, and ethical precepts which our 
Constitution teaches.'' \22\ The genius of the Constitution 
lies in its indifference to a particular individual's cause. 
The fact that flag burners are able to take refuge in the first 
amendment means that every citizen can be assured that the Bill 
of Rights will be available to protect his or her rights and 
liberties should the need arise.
---------------------------------------------------------------------------
    \22\ U.S. ex rel Radich v. Criminal Court of N.Y., 385 F.Supp. 165, 
184 (1974).
---------------------------------------------------------------------------
    H.J. Res. 54 will also open the door to selective 
prosecution based purely on political beliefs. When Peter 
Zenger was charged with ``seditious libel'' in the very first 
case involving freedom of speech on American soil, his lawyer, 
James Alexander warned:

          The abuses of freedom of speech are the excrescences 
        of Liberty. They ought to be suppressed; but whom dare 
        we commit the care of doing it? An evil Magistrate, 
        entrusted with power to punish Words, is armed with a 
        Weapon the most destructive and terrible. Under the 
        pretense of pruning the exuberant branches, he 
        frequently destroys the tree. \23\
---------------------------------------------------------------------------
    \23\ Philadelphia Gazette, Nov. 17, 1737, quoted in Levy, Legacy of 
Suppression 135 (1960).

    The history of the prosecution of flag desecration in this 
country bears out these very warnings. The overwhelming 
majority of flag desecration cases have been brought against 
political dissenters, while commercial and other forms of flag 
desecration has been almost completely ignored. An article in 
Art in America points out that during the Vietnam War period, 
those arrested for flag desecration were ``invariably critics 
of national policy, while 'patriots' who tamper with the flag 
are overlooked.'' \24\ Whitney Smith, director of the Flag 
Research Center has further observed that commercial misuse of 
the flag was ``more extensive than its misuse by leftists or 
students, but this is overlooked because the business interests 
are part of the establishment.'' \25\
---------------------------------------------------------------------------
    \24\ See Robert J. Goldstein, Saving Old Glory: The History of the 
American Flag Desecration Controversy, supra note 4 at 154.
    \25\ Id.
---------------------------------------------------------------------------
    Almost as significant as the damage H.J. Res. 54 would do 
to our own Constitution, is the harm it will inflict on our 
international standing in the area of human rights. 
Demonstrators who cut the communist symbols from the center of 
the East German and Romanian flags prior to the fall of the 
Iron Curtain committed crimes against their country's laws, yet 
freedom-loving Americans justifiably applauded these brave 
actions. If we are to maintain our moral stature in matters of 
human rights, it is therefore essential that we remain fully 
open to unpopular dissent, regardless of the form it takes. 
\26\
---------------------------------------------------------------------------
    \26\ See, e.g., 1997 House Judiciary Hearings, supra note 5 
(statement of PEN American Center, Feb. 5, 1997) (``To allow for the 
prosecution of [flag burners] would be to dilute what has hitherto been 
prized by Americans everywhere as a cornerstone of our democracy. The 
right to free speech enjoys more protection in our country than perhaps 
any other country in the world.'')
---------------------------------------------------------------------------
    To illustrate, when the former Soviet Union adopted 
legislation in 1989 making it a criminal offense to 
``discredit'' a public official, Communist officials sought to 
defend the legislation by relying on, among other things, the 
United States flag desecration statute. \27\ By adopting H.J. 
Res 54 we will be unwittingly encouraging other countries to 
enact and enforce other more restrictive limitations on speech 
while impairing our own standing to protest such actions.
---------------------------------------------------------------------------
    \27\ Rotunda, Treatise on Constitutional Law: Substance and 
Procedure, supra note 7, Sec. 20.49 at 352.
---------------------------------------------------------------------------

             H.J. Res. 54 is Wrong as a Matter of Precedent

    Adoption of H.J. Res. 54 will also create a number of 
dangerous precedents in our legal system. The Resolution will 
encourage further departures from the first amendment and 
diminish respect for our Constitution.
    If we approve H.J. Res. 54, it is unlikely to be the last 
time Congress acts to restrict our first amendment liberties. 
As President Reagan's Solicitor General Charles Fried testified 
in 1990:

          Principles are not things you can safely violate 
        ``just this once.'' Can we not just this once do an 
        injustice, just this once betray the spirit of liberty, 
        just this once break faith with the traditions of free 
        expression that have been the glory of this nation? Not 
        safely; not without endangering our immortal soul as a 
        nation. The man who says you can make an exception to a 
        principle, does not know what a principle is; just as 
        the man who says that only this once let's make 2+2=5 
        does not know what it is to count. \28\
---------------------------------------------------------------------------
    \28\ Measures to Protect the American Flag, Hearing before the 
Senate Comm. on the Judiciary, 101st Cong., 2d Sess. (June 21, 
1990)(statement of Charles Fried at 113)[hereinafter 1990 Senate 
Judiciary Hearings].

    Adoption of H.J. Res. 54 will also diminish and trivialize 
our Constitution. \29\ If we begin to second guess the courts' 
authority concerning matters of free speech, we will not only 
be carving an awkward exception into a document designed to 
last for the ages, but will be undermining the very structure 
created under the Constitution to protect our rights. This is 
why Madison warned against using the amendment process to 
correct every perceived constitutional defect, particularly 
concerning issues which inflame public passion. \30\ 
Conservative legal scholar Bruce Fein emphasized this concern 
when he testified before the Subcommittee at 1995 House 
Judiciary hearings:
---------------------------------------------------------------------------
    \29\ Inserting the term ``desecration'' into the Constitution would 
in and of itself seem highly inappropriate. Webster's New World 
Dictionary defines ``desecrate'' as ``to violate the sacredness of,'' 
and in turn defines ``sacred'' as ``consecrated to a god or God; holy; 
or having to do with religion.'' The introduction of these terms could 
create a significant tension within our constitutional structure, in 
particular with the religion clause of the first amendment.
    \30\ Legal philosopher Lon Fuller also highlighted this very 
problem over four decades ago: ``We should resist the temptation to 
clutter up [the constitution] with amendments relating to substantive 
matters. [In that way we avoid] .  .  . the obvious unwisdom of trying 
to solve tomorrow's problems today. But [we also escape the] more 
insidious danger [of] the weakening effect [such amendments] have on 
the moral force of the Constitution itself.''
---------------------------------------------------------------------------
L. Fuller, American Legal Philosophy at Mid-Century, 6 J.L. Ed. 457, 
465 (1954), as cited in Hearings on Proposed Flag Desecration Amendment 
before the Subcomm. on Constitution of the Senate Comm. on the 
Judiciary, 104th Cong., 1st Sess. (June 6, 1995)[hereinafter, 1995 
Senate Judiciary Hearings] (statement of Gene R. Nichol).

          While I believe the Johnson and Eichman decisions 
        were misguided, I do not believe a Constitutional 
        amendment would be a proper response.  .  .  . To 
        enshrine authority to punish flag desecrations in the 
        Constitution would not only tend to trivialize the 
        Nation's Charter, but encourage such juvenile temper 
        tantrums in the hopes of receiving free speech 
        martyrdom by an easily beguiled media .  .  . It will 
        lose that reverence and accessibility to the ordinary 
        citizen if it becomes cluttered with amendments 
        overturning every wrong-headed Supreme Court decision. 
        \31\
---------------------------------------------------------------------------
    \31\ 1995 House Judiciary Hearings supra note 3 (statement of Bruce 
Fein at 1-2).

    And, as Professor Norman Dorsen points out in his 
testimony, not including the Bill of Rights, which was ratified 
in 1791 as part of the original pact leading to the 
Constitution, only 17 amendments have been added to it and very 
few of these reversed constitutional decisions of the Supreme 
Court. To depart from this tradition now .  .  . would be an 
extraordinary act that could lead to unpredictable mischief in 
coming years. \32\
---------------------------------------------------------------------------
    \32\ See 1997 House Judiciary Hearings, supra note 5(statement of 
Professor Norman Dorsen, New York University School of Law).
---------------------------------------------------------------------------

             H.J. Res. 54 is Wrong as a Matter of Practice

    As a practical matter, H.J. Res. 54 is so poorly drafted 
and conceived that there can be no doubt it will open up a 
``Pandora's Box'' of litigation. Not only are its terms 
incredibly open ended and vague, but the Resolution gives us no 
guidance as to its intended Constitutional scope or parameter. 
While the amendment's supporters claim they are merely drawing 
a line between legal and illegal behavior, in actuality, they 
are drawing no line at all, but merely granting the federal 
government open-ended authority to prosecute dissenters who use 
the flag in a manner deemed inappropriate.
    There is little understanding or consensus concerning the 
meaning of such crucial terms as ``desecration'' and ``flag of 
the United States.'' Depending on the statute ultimately 
adopted under the Amendment's authority, ``desecration'' could 
apply to canceling flag postage stamps or use of the flag by 
Olympic athletes. The term ``flag of the United States'' could 
include underwear from the ``Tommy Hilfiger'' collection as 
well as a Puerto Rican flag including a likeness of the U.S. 
flag. \33\
---------------------------------------------------------------------------
    \33\ 1995 House Judiciary Hearings supra note 3 (statement of 
Representative Serrano). See also, Rotunda, Treatise on American 
Constitutional Law: Substance and Procedure, supra note 7, Sec. 20.49 
at Sec. 90 (If we adopt laws outlawing flag desecration ``there will be 
future problems defining what is a flag. Will it be a crime for someone 
to burn a flag? Or burning fireworks in the shape of an American flag? 
May a movie director (filming Francis Scott Key watching Fort McHenry) 
order that the American flag of 1812 be shot at and otherwise defaced? 
Will it be a crime for the post office to cancel (i.e, deface) a stamp 
that has on it a copy of the American flag? If a flag design is on a 
birthday cake, will it be a federal crime to light the birthday candles 
on the cake? Will cutting the cake deface it? Is it defacing the flag 
to display it upside down?'').
---------------------------------------------------------------------------
    The Resolution's sponsors also appear to have little 
understanding as to its Constitutional scope or breadth. H.J. 
Res. 54 gives us no guidance whatsoever as to what if any 
provisions of the first amendment, the Bill of Rights, or the 
Constitution in general that it is designed to overrule. \34\ 
During debate of the 1995 proposed amendment, amendment sponsor 
Charles Canady (R-FL) asserted that the flag desecration 
amendment would simply restore the status quo before the 
Supreme Court ruled in 1989. \35\ He later insisted, however 
that the amendment would also allow the states to criminalize 
wearing clothing with the flag on it. \36\ The latter 
interpretation goes well beyond overturning Johnson and 
indicates that the flag desecration amendment could permit 
prosecution under statutes that were otherwise 
unconstitutionally void for vagueness. For example, the Supreme 
Court in 1974 declared unconstitutionally vague a statute that 
criminalized treating the flag contemptuously and did not 
uphold the conviction of an individual wearing a flag patch on 
his pants. \37\ Chairman Canady's interpretation of the flag 
desecration amendment would allow such a prosecution despite 
the statute's vagueness.
---------------------------------------------------------------------------
    \34\ Since H.J. Res. 54 is drafted to modify the entire 
Constitution, rather than any portion of the first amendment, it is 
unclear whether and to what extent it will supersede provisions in the 
Bill of Rights relating to ``void for vagueness'' (first and fifth 
amendment), overbreadth and least restrictive alternatives test (first 
amendment), search and seizure (fourth amendment), due process and 
self-incrimination (fifth amendment), cruel and unusual punishment 
(eighth amendment) and provisions in the Constitution relating to the 
supremacy clause (Article VI, Section 2) and the speech and debate 
clause (Article I, Section 6). See e.g., 1990 Senate Judiciary 
Hearings, supra note 29 (statement of Walter Dellinger); William Van 
Alstyne, Stars and Stripes and Silliness Forever, Legal Times at 34 
(October 2, 1989).
    \35\ House Comm. on the Judiciary, Markup Session of H.R.J. Res. 
79, 104th Cong., 1st Sess. 109 (1995).
    \36\ Id. at 110.
    \37\ Smith v. Goguen, 415 U.S. 566, 568-69 (1974).
---------------------------------------------------------------------------
    It is insufficient to respond to these concerns by 
asserting that the courts can easily work out the meaning of 
the terms in the same way that they have given meaning to other 
terms in the Bill of Rights such as ``due process.'' Unlike the 
other provisions of the Bill of Rights, H.J. Res. 54 represents 
an open-ended and unchartered invasion of our rights and 
liberties, rather than a back-up mechanism to prevent the 
government from usurping our rights.

                               Conclusion

    Adoption of H.J. Res. 54 will undermine our commitment to 
freedom of expression and do real damage to the constitutional 
system set up by our forefathers. If we amend the Constitution 
to outlaw flag desecration, we will be joining ranks with 
countries such as China and Iran and the regimes of the former 
Soviet Union and South Africa. \38\
---------------------------------------------------------------------------
    \38\ Roman Rollnick, ``Flag Amendment would put U.S. with Iran, 
China,'' UPI (July 1, 1989).
---------------------------------------------------------------------------
    We believe we have come too far as a nation to risk 
jeopardizing our commitment to freedom in such a fruitless 
endeavor to legislate patriotism. As the Court wrote in West 
Virginia Board of Education v. Barnette:

          [The] ultimate futility of .  .  . attempts to compel 
        coherence is the lesson of every such effort from the 
        Roman drive to stamp out Christianity as a disturber of 
        its pagan unity, the Inquisition, as a means to 
        religious and dynastic unity, the Siberian exiles as a 
        means to Russian unity, down to the last failing 
        efforts of our present totalitarian enemies. Those who 
        begin coercive elimination of dissent soon find 
        themselves exterminating dissenters. Compulsory 
        unification of opinion achieves only the unamity of the 
        graveyard. \39\
---------------------------------------------------------------------------
    \39\ 319 U.S. 624, 641 (1943).

    If we adopt H.J. Res. 54, we will be denigrating the vision 
of Madison and Jefferson, and glorifying the simple-mindedness 
of Johnson and Eichman. If we tamper with our Constitution, we 
will have turned the flag, an emblem of unity and freedom, into 
a symbol of intolerance. We will not go on record as supporting 
a proposal which will do what no foreign power has been able to 
---------------------------------------------------------------------------
do--limit the freedom of expression of the American people.

                                   John Conyers, Jr.
                                   Barney Frank.
                                   Howard L. Berman.
                                   Rick Boucher.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Martin T. Meehan.

                 DISSENTING VIEWS OF HON. RICK BOUCHER

     On May 8, 1997, I, along with Congressman Wayne Gilchrest, 
(R-MD) introduced H.R. 1556, the ``Flag Protection Act of 
1997,'' which imposes criminal penalties on those who desecrate 
the United States flag. H.R. 1556 is a statutory alternative to 
H.J. Res. 54, and would punish flag desecration, regardless of 
whether it occurs on public or private property, without 
weakening the freedoms provided under the First Amendment to 
the U.S. Constitution.
    It is unfortunate that the majority would not permit a vote 
on H.R. 1556 as a substitute to H.J. Res. 54, which, if 
adopted, will have a detrimental impact on the Constitution and 
on the rights of individuals. Our strength as a nation and our 
distinction as the freest people on earth derives in 
significant part from the broad guarantee of freedom of speech 
contained in the First Amendment. Proponents of a statutory 
alternative to the proposed Amendment agree that H.R. 1556 
achieves the same goal of protecting our flag without cutting 
back on the freedom of expression guaranteed by the First 
Amendment.
    H.R. 1556 would criminalize the destruction or damage of a 
U.S. flag when the person engaging in it does so with the 
primary purpose and intent to incite or produce imminent 
violence or a breach of the peace and in circumstances where 
the person knows it is reasonably likely to produce imminent 
violence or a breach of the peace. It would punish any person 
who steals or knowingly converts to his or her use, or to the 
use of another, a U.S. flag belonging to the United States and 
who intentionally destroys or damages that flag. Finally, H.R. 
1556 would punish any person who, within any lands reserved for 
the use of the United States or under the exclusive use or 
concurrent jurisdiction of the U.S., steals or knowingly 
converts to his or her use, or to the use of another, a flag of 
the United States belonging to another person, and 
intentionally destroys that flag.
    Several constitutional scholars, including Professors 
Laurence Tribe and Erwin Chemerinsky, have observed that the 
provisions of the bill are constitutional. Moreover, the 
Congressional Research Service has reviewed the bill and issued 
a memorandum which concludes that it is constitutional. H.R. 
1556 offers protection for the flag in circumstances under 
which statutory protection may still be afforded after the 
Supreme Court decisions in United States v. Eichman \1\ and 
Texas v. Johnson. \2\
---------------------------------------------------------------------------
    \1\ 496 U.S. 310 (1990).
    \2\ 491 U.S. 397 (1989).
---------------------------------------------------------------------------
    This tough criminal statute would have the added advantage 
of protecting the flag now, not three years from now--the 
probable time it would take to ratify a constitutional 
amendment. Moreover, it would have the twin virtues of 
outlawing flag desecration while preserving all of our First 
Amendment freedoms.

                                   Rick Boucher.