[Congressional Record Volume 141, Number 108 (Thursday, June 29, 1995)]
[Extensions of Remarks]
[Page E1366]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]


       PROVIDING FOR CONSIDERATION OF HOUSE JOINT RESOLUTION 79, 
 CONSTITUTIONAL AMENDMENT TO PROHIBIT PHYSICAL DESECRATION OF THE FLAG

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                               speech of

                           HON. KWEISI MFUME

                              of maryland

                    in the house of representatives

                        Wednesday, June 28, 1995
  Mr. MFUME. Mr. Speaker, today we vote on legislation which would 
create a constitutional amendment that would authorize the Congress and 
the States to prohibit the physical desecration of the Nation's flag.
  There are many dangers presented by this constitutional amendment, 
particularly to the first amendment right to free speech and free 
expression. In 1989, the Supreme Court handed down a decision which 
supported this argument. In effect, the decision reversed 48 State flag 
protection laws that were already on the books. In response to this 
decision, Congress passed the Flag Protection Act in 1989 and deleted 
any reference to an individual's intent in mutilating the flag. 
However, in 1990, the Supreme Court ruled that the statute was 
unconstitutional because it infringed on the first amendment right to 
freedom of speech and freedom of expression. The statute was found to 
``suppress[es] expression out of concern for its communicative 
impact.''
  I agree that the burning of the American flag is disrespectful and I 
am often disgusted and disturbed by this act. I also feel compelled to 
protect the right of any American to express themselves as they see 
fit. In a democratic society, we have the enormous and sometimes 
difficult duty of protecting all forms of speech.
  House Joint Resolution 79 seeks to eliminate the already rare 
incidents of flag burning. From 1777 to 1989, there were only 45 
incidents reported. Since the 1989 and 1990 Supreme Court decisions 
which deemed the flag-desecration statutes unconstitutional, there has 
been no outbreak of flag burning. In fact, fewer than 10 flag burning 
incidents have been reported since 1990.
  There is no flag burning problem sufficient to justify the radical 
step of amending the Constitution.
  The Supreme Court has been consistent in its rulings that the 
destruction of the flag is a political statement and political 
expression, which is exactly the kind of unpopular speech which the 
first amendment has always sought to protect. For example, in Street v. 
New York, Sidney Street publicly burned the American flag in protest of 
the shooting of civil rights activist James Meredith. He was convicted 
under a New York law which made it illegal to mutilate a flag or to 
show contempt for it in words or conduct. The Supreme Court overturned 
the decision and stated that the language was too broad because it 
punished not only Street's actions but his words as well.
  The amendment we debated today was written with such broad strokes 
that it fails to define desecration and fails to establish which flags 
or representations of the flag are to be protected. Such open-endedness 
and vague wording provides Congress and the States with enormous powers 
to criminalize a broad range of acts which fall short of flag burning 
or mutilation.
  This bill would amend the Bill of Rights and damage the first 
amendment's protection of freedom of expression.
  Prohibiting the right of expression is characteristic of a 
totalitarian society not a democracy such as ours. We must not erode 
the right of citizens to express their political opinions no matter how 
repugnant they may seem to some. There is only one thing more 
distressing than the desecration of this national symbol and that is 
the desecration of the principles which it represents. It is certainly 
a sad day in this country when we invest all of our beliefs into a 
single symbol and are willing to forgo real constitutional rights for 
it.
  The freedom of expression that is guaranteed to every citizen of the 
United States carries with it a great responsibility. Any attempts to 
curb that right must not be taken lightly. If so, our freedom of speech 
and expression becomes the price for adopting a constitutional 
amendment.


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