[Congressional Record Volume 141, Number 162 (Thursday, October 19, 1995)]
[Senate]
[Pages S15338-S15339]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. McCONNELL (for himself, Mr. Bennett, and Mr. Dorgan):
  S. 1335. A bill to provide for the protection of the flag of the 
United States and free speech, and for other purposes; to the Committee 
on the Judiciary.


            the flag protection and free speech act of 1995

 Mr. McCONNELL. Mr. President, on behalf of myself, Senator 
Bennett and Senator Dorgan, I am introducing a bill to outlaw the 
desecration of the American flag.
  Flag burning is a despicable act. And we should have zero tolerance 
for those who deface our flag. Make no mistake about it--I am disgusted 
by those who desecrate our symbol of freedom, under which so many men 
and women, including my father, have gone into battle in order to 
preserve our way of life.
  Many patriotic Americans believe that we need a Constitutional 
amendment to ban flag burning. The Supreme Court has rejected laws 
which have attempted to ban flag burning, finding such laws to be in 
conflict with the first amendment's protection of free speech. So, the 
supporters of the Constitutional amendment argue that the only way to 
get it done right is to change the Constitution.
  Flag burners must be punished for their vile behavior. But the 
precedent of amending the Bill of Rights is a dangerous one. I fear 
that if we amend the first amendment this year, soon the fifth 
amendment's protection of private property rights or the second 
amendment's protection of the right to bear arms, will be under 
assault.
  So, I have been searching for an alternative which will result in the 
swift and certain punishment for those who commit the contemptible act 
of defacing the flag, but leave the first amendment untouched.
  This bill achieves those purposes. The deviants who burn the flag do 
so to provoked or incite patriotic Americans. And, it is well 
established that fighting words or speech which incites lawlessness is 
not protected by the first amendment. My bill provides for imprisoning 
and fining those who damage a flag intending to incite a breach of the 
peace. It also punishes anyone who steals a flag belonging to the 
Federal Government or a flag displayed on Federal property.
  This bill will get the job done without tampering with the first 
amendment. There have been well-respected conservative voices who have 
cautioned against amending the first amendment to ban flag burning, 
including George Will, Charles Krauthammer, Cal Thomas, Bruce Fein. But 
perhaps the most compelling words have come from Jim Warner, a patriot 
and hero who fought in Vietnam and survived more than 5 years of 
torture and brutality as a prisoner or war:

       We don't need to amend the Constitution in order to punish 
     those who burn our flag. They burn the flag because they hate 
     America and they are afraid of freedom. What better way to 
     hurt them than with the subversive idea of freedom? Spread 
     freedom. [When a] flag in Dallas was burned to protest the 
     nomination of Ronald Reagan, . . . he told us how to spread 
     the idea of freedom when he said that we should turn America 
     into a ``city shining on a hill, a light to all nations.'' 
     Don't be afraid of freedom, it is the best weapon wee have.

  I hope my colleagues will study this bill and consider it, as we 
approach the significant debate on a Constitutional amendment to ban 
flag desecration.
  Mr. President, I ask unanimous consent that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1335

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Flag Protection and Free 
     Speech Act of 1995''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--The Congress finds that--
       (1) the Flag of the United States is a unique symbol of 
     national unity and represents the values of liberty, justice, 
     and equality that make this Nation an example of freedom 
     unmatched throughout the world;
       (2) the Bill of Rights is a guarantee of those freedoms and 
     should not be amended in a manner that could be interpreted 
     to restrict freedom, a course that is regularly resorted to 
     by authoritarian governments which fear freedom and not by 
     free and democratic nations;
       (3) abuse of the flag of the United States causes more than 
     pain and distress to the overwhelming majority of the 
     American people and may amount to fighting words or a direct 
     threat to the physical and emotional well-being of 
     individuals at whom the threat is targeted; and
       (4) destruction of the flag of the United States can be 
     intended to incite a violent response rather than make a 
     political statement and such conduct is outside the 
     protections afforded by the first amendment to the Unites 
     States Constitution.
       (b) Purpose.--It is the purpose of this Act to provide the 
     maximum protection against the use of the flag of the United 
     States to promote violence while respecting the liberties 
     that it symbolizes.

     SEC. 3. PROTECTION OF THE FLAG OF THE UNITED STATES AGAINST 
                   USE FOR PROMOTING VIOLENCE.

       (a) In General.--Section 700 of title 18, United States 
     Code, is amended to read as follows:

     ``Sec. 700. Incitement; damage or destruction of property 
       involving the flag of the United States

       ``(a) Actions Promoting Violence.--Any person who destroys 
     or damages a flag of the United States 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, shall be fined not more than $100,000 
     or imprisoned not more than 1 year, or both.
       ``(b) Damaging a Flag Belonging to the United States.--Any 
     person who steals or knowingly converts to his or her use, or 
     to the use of another, a flag of the United States belonging 
     to the United States and intentionally destroys or damages 
     that flag shall be fined not more than $250,000 or imprisoned 
     not more than 2 years, or both.
       ``(c) Damaging a Flag of Another on Federal Land.--Any 
     person who, within any lands reserved for the use of the 
     United States, or under the exclusive or concurrent 
     jurisdiction of the United States, steals or 

[[Page S 15339]]
     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 or damages that flag shall be fined 
     not more than $250,000 or imprisoned not more than 2 years, 
     or both.
       ``(d) Construction.--Nothing in this section shall be 
     construed to indicate an intent on the part of Congress to 
     deprive any State, territory or possession of the United 
     States, or the Commonwealth of Puerto Rico of jurisdiction 
     over any offense over which it would have jurisdiction in the 
     absence of this section.
       ``(e) Definition.--As used in this section, the term `flag 
     of the United States' means any flag of the United States, or 
     any part thereof, made of any substance, in any size, in a 
     form that is commonly displayed as a flag and would be taken 
     to be a flag by the reasonable observer.''.
       (b) Clerical Amendment.--The table of sections for chapter 
     33 of title 18, United States Code, is amended by striking 
     the item relating to section 700 and inserting the following 
     new item:

``700. Incitement; damage or destruction of property involving the flag 
              of the United States.''.
                                 ______