[Congressional Record Volume 141, Number 195 (Friday, December 8, 1995)]
[Senate]
[Pages S18264-S18268]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




               FLAG DESECRATION CONSTITUTIONAL AMENDMENT

  The Senate continued with the consideration of the joint resolution.
  Mr. McCONNELL. Mr. President, on Monday I will be offering an 
amendment in the nature of a substitute to the underlying proposed 
constitutional amendment, and I ask unanimous consent that this 
amendment appear in the Record at this point. It will be cosponsored by 
Senator Bennett of Utah, Senator Dorgan, and Senator Bumpers.
  There being no objection, the amendment was ordered to be printed in 
the Record, as follows:


                           proposed amendment

       Strike all after the enacting clause and inserting the 
     following:

     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 United 
     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 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.''.
       Amend the title so as to read: ``A joint resolution to 
     provide for the protection of the flag of the United States 
     and free speech, and for other purposes.''.

  Mr. McCONNELL. Mr. President, every single Senator believes in the 
sanctity of the American flag. It is our most precious national symbol. 
The flag represents the ideas, values and traditions that unify us as a 
people and as a nation. Brave men and women have fought and given their 
lives and are now entering a war-torn region in defense of the freedom 
and way of life that our flag represents.
  For all these reasons, those who desecrate the flag deserve our 
contempt. After all, when they defile the flag, they dishonor America. 
But the issue before this body is: How do we appropriately deal with 
the misfits who burn the flag?
  Many of my colleagues who support a constitutional amendment to ban 
flag-burning say the only way to ensure flag-burners get the punishment 
they deserve is to amend the Bill of Rights for the first time in over 
200 years. The first amendment, which they propose to alter, contains 
our most fundamental rights: free speech, religion, assembly, and the 
right to petition the Government. The freedoms set forth in the first 
amendment, arguably, were the foundation on which this great Republic 
was established.
  Amending the Constitution was made an arduous process by the Founding 
Fathers for good reason. The requirements--approval by two-thirds of 
each House of Congress and ratification by three-fourths of the State 
legislatures--ensure that highly emotional issues of the day will not 
tear at the fabric of the Constitution. Since the addition of the Bill 
of Rights, the Constitution has been amended on only 17 occasions.
  Let me repeat, Mr. President, after the initial 10 amendments known 
as 

[[Page S 18265]]
the Bill of Rights, we have altered the Constitution only 17 times in 
the history of our country.
  And only one of those amendments--prohibition--actually constricted 
freedom, and it was soon repealed. The 22d amendment also restricts 
freedom by limiting the President to two terms, but we will have the 
term limits debate another day.
  The proposed constitutional amendment before us does just that--it 
rips the fabric of the Constitution at its very center: the first 
amendment.
  Our respect and reverence for the flag should not provoke us to cause 
damage to the Constitution, even in the name of patriotism.
  Mr. President, I seek no protection, no safe harbor, no refuge for 
those who heap scorn on our Nation by desecrating the flag.
  The only thing that those who provocatively burn the flag deserve is 
swift and certain punishment.
  Therefore, the statutory amendment I have proposed would ensure that 
acts of deliberately confrontational flag-burnings are punished with 
stiff fines and even jail time.
  My amendment will prevent desecration of the flag and at the same 
time, protect the Constitution.
  Those malcontents who desecrate the flag do so to grab attention for 
themselves and to inflame the passions of patriotic Americans. And, 
speech that incites lawlessness or is intended to do so, the Supreme 
Court has made abundantly clear, merits no first amendment protection. 
From Chaplinsky's ``fighting words'' doctrine in 1942 to Brandenburg's 
``incitement'' test in 1969 to Wisconsin versus Mitchell's ``physical 
assault'' standard in 1993, the Supreme Court has never protected 
speech which causes or intends to cause physical harm to others.
  And, that, Mr. President, is the basis for this amendment, that I am 
discussing. My amendment outlaws three types of illegal flag 
desecration. First, anyone who destroys or damages a U.S. flag with a 
clear intent to incite imminent violence or a breach of the peace may 
be punished by a fine of up to $100,000, or up to 1 year in jail, or 
both.
  Second, anyone who steals a flag that belongs to the United States 
and destroys or damages that flag may be fined up to $250,000 or 
imprisoned up to 2 years, or both.
  And third, anyone who steals a flag from U.S. property and destroys 
or damages that flag may also be fined up to $250,000 or imprisoned up 
to 2 years, or both.
  Some of my colleagues will argue that we've been down the statutory 
road before and the Supreme Court has rejected it.
  However, the Senate's previous statutory effort wasn't pegged to the 
well-established Supreme Court precedents in this area.
  This amendment differs from the statutes reviewed by the Supreme 
Court in the two leading cases: Texas versus Johnson (1989) and U.S. 
versus Eichman (1990).
  In Johnson, the defendant violated a Texas law banning the 
desecration of a venerated object, including the flag, in a way that 
will offend--offend, Mr. President--one or more persons. Johnson took a 
stolen flag and burned it as part of a political protest staged outside 
the 1984 Republican Convention in Dallas. The State of Texas argued 
that its interest in enforcing the law centered on preventing breaches 
of the peace.
  But the Government, according to the Supreme Court, may not--may 
not--``assume every expression of a provocative idea will incite a riot 
* * *.'' Johnson, according to the Court, was prosecuted for the 
expression of his particular ideas: dissatisfaction with Government 
policies. And it is a bedrock principle underlying the first amendment, 
said the Court, that an individual cannot be punished for expressing an 
idea that offends. I repeat, the Court said you cannot be punished for 
engaging in offensive speech.
  The Johnson decision started a national debate on flag-burning and as 
a result, Congress, in 1989, enacted the Flag Protection Act. In 
seeking to safeguard the flag as the symbol of our Nation, Congress 
took a different tack from the Texas Legislature. The Federal statute 
simply outlawed the mutilation or other desecration of the flag.
  But in Eichman, the Supreme Court found congressional intent to 
protect the national symbol insufficient--insufficient--to overcome the 
first amendment protection for expressive conduct exhibited by flag-
burning.
  The Court, however, clearly left the door open for outlawing flag-
burning that incites lawlessness. The Court said: ``the mere 
destruction or disfigurement of a particular physical manifestation of 
the symbol, without more, does not diminish or otherwise affect the 
symbol itself in any way.''
  But, Mr. President, you do not have to take my word on it. The 
Congressional Research Service has offered legal opinions to Senators 
Bennett and Conrad concluding that this initiative will withstand 
constitutional scrutiny:
  ``The judicial precedents establish that the [amendment]''--referring 
to the amendment I have just been discussing--``if enacted, while not 
reversing Johnson and Eichman, should survive constitutional attack on 
first amendment grounds.''
  In addition, Bruce Fein, a former official in the Reagan 
administration and respected constitutional scholar concurs:
  ``In holding flag desecration statutes unconstitutional in Johnson, 
the Court cast no doubt on the continuing vitality of Brandenburg and 
Chaplinsky as applied to expression through use or abuse of the flag. 
[The amendment] ``--referring to my amendment--falls well within the 
protective constitutional umbrella of Brandenburg and Chaplinsky * * * 
[and it] also avoids content-based discrimination which is generally 
frowned on by the First Amendment.''
  Mr. President, several other constitutional specialists also agree 
that this initiative will withstand constitutional challenge. A memo by 
Robert Peck, and Prof. Robert O'Neil and Erwin Chemerinsky concludes 
that the amendment ``conforms to constitutional requirements in both 
its purpose and its provisions.''
  Mr. President, I ask unanimous consent that the CRS memos, the Bruce 
Fein letter, and the legal memo from Robert Peck, Professors O'Neil and 
Chemerinsky, and Johnny Killian be printed in the Record at this point.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                                Great Falls, VA, October 21, 1995.
     Senator Mitch McConnell,
     U.S. Senate, Russell Senate Office Building, Washington, DC.
       Dear Senator: This letter responds for your request for an 
     appraisal of the constitutionality of the proposed ``Flag 
     Protection and Free Speech Act of 1995.'' I believe it easily 
     passes constitutional muster with flying banners or guidons.
       The only non-frivolous constitutional question is raised by 
     section 3(a). It criminalizes the destruction or damaging of 
     the flag of the United States with the intent to provoke 
     imminent violence or a breach of the peace in circumstances 
     where the provocation is reasonably likely to succeed. In 
     Chaplinsky v. New Hampshire (1942), the Supreme Court upheld 
     the constitutionality of laws that prohibit expression 
     calculated and likely to cause a breach of the peace. Writing 
     for a unanimous Court, Justice Frank Murphy explained that 
     such ``fighting'' words ``are no essential part of any 
     exposition of ideas, and are of such slight social value as a 
     step to truth that any benefit that may be derived from them 
     is clearly outweighed by the social interest in order and 
     morality.''
       In Brandenburg v. Ohio (1969), the Court concluded that the 
     First Amendment is no bar to the punishment of expression 
     ``directed to inciting or producing imminent lawless action 
     and is likely to incite or produce such action.''
       In holding flag desecration statutes unconstitutional in 
     Texas v. Johnson (1989), the Court cast no doubt on the 
     continuing vitality of Brandenburg and Chaplinsky as applied 
     to expression through use or abuse of the flag. See 491 U.S. 
     at 409-410.
       Section 3(a) falls well within the protective 
     constitutional umbrella of Brandenburg and Chaplinsky. It 
     prohibits only expressive uses of the flag that constitute 
     ``fighting'' words or are otherwise intended to provoke 
     imminent violence and in circumstances where the provocation 
     is reasonably likely to occasion lawlessness. The section is 
     also sufficiently specific in defining ``flag of the United 
     States'' to avoid the vice of vagueness. The phrase is 
     defined to include any flag in any size and in a form 
     commonly displayed as a flag that would be perceived by a 
     reasonable observer to be a flag of the United States. The 
     definition is intended to prevent circumvention by 
     destruction or damage to virtual flag representations that 
     could be as provocative to an audience as mutilating the 
     genuine article. Any potential chilling effect on free speech 
     caused by inherent definitional vagueness, moreover, is 
     nonexistent because the only type of expression punished by 
     section 3(a) is that intended 

[[Page S 18266]]
     by the speaker to provoke imminent lawlessness, not a thoughtful 
     response. The First Amendment was not intended to protect 
     appeals to imminent criminality.
       Section 3(a) also avoided content-based discrimination 
     which is generally frowned on by the First Amendment. It does 
     not punish based on a particular ideology or viewpoint of the 
     speaker. Rather, it punishes based on calculated provocations 
     of imminent violence through the destruction or damage of the 
     flag of the United States that are reasonably likely to 
     succeed irrespective of the content of the speaker's 
     expression. Such expressive neutrality is not 
     unconstitutional discrimination because the prohibition is 
     intended to safeguard the social interest in order, not to 
     suppress a particular idea. See F.C.C. v. Pacifica 
     Foundation, 438 U.S. 726, 744-746 (1978).
       I would welcome the opportunity to amplify on the 
     constitutionality of section 3(a) as your bill progresses 
     through the legislative process.
           Very truly yours,
                                                       Bruce Fein,
                                                  Attorney at Law.

                              [Memorandum]

     To: Interested parties.
     From: Robert S. Peck, Esq.; Robert M. O'Neil, professor, 
         University of Virginia Law School; Erwin Chemerinsky, 
         Legion Lex Professor of Law, University of Southern 
         California.
     Re S. 1335, the Flag Protection and Free Speech Act of 1995.
     Date: November 7, 1995.
       This memorandum will analyze the constitutional 
     implications of S. 1335, the Flag Protection and Free Speech 
     Act of 1995. As its name implies and the legislation states 
     as its purpose, S. 1335 seeks ``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.'' S. 1335, 104th Cong., 1st Sess. Sec. 2(b) 
     (1995). This memorandum concludes that the bill conforms to 
     constitutional requirements in both its purpose and its 
     provisions.
       It would be a mistake to conclude that S. 1335 is 
     unconstitutional simply because the U.S. Supreme Court 
     invalidated the Flag Protection Act of 1990 in its decision 
     in United States v. Eichman, 496 U.S. 310 (1990). In this 
     decision, as well as its earlier flag-desecration opinion, 
     the Court specifically left open a number of options for 
     flag-related laws, including the approach undertaken by S. 
     1335. The Court reiterated its stand in its 1992 cross-
     burning case, indicating that flag burning could be 
     punishable under circumstances where dishonoring the flag did 
     not comprise the gist of the crime (R.A.V. v. City of St. 
     Paul, 112 S.Ct. 2538, 2544 (1992)).
       Unlike the 1990 flag law that the Court negated, S. 1335 is 
     not aimed at suppressing non-violent political protest; in 
     fact, it fully acknowledges that constitutionally protected 
     right. In contrast, the Flag Protection Act, the Court said, 
     unconstitutionally attempted to reserve the use of the flag 
     as a symbol for governmentally approved expressive purposes. 
     S. 1335 makes no similar attempt to prohibit the use of the 
     flag to express certain points of view. Instead, it both 
     advances a legitimate anti-violent purpose while remaining 
     solicitous of our tradition of ``uninhibited, robust, and 
     wide-open'' public debate (New York Times v. Sullivan, 376 
     U.S. 254, 270 (1964)).
       Moreover, the statute is sensitive to, and complies with 
     several other constitutional considerations, namely: (1) it 
     does not discriminate between expression on the basis of its 
     content or viewpoint, since it avoids the kind of 
     discrimination condemned by the Court in R.A.V.;  (2) it does 
     not provide opponents of controversial political ideas with 
     an excuse to use their own propensity for violence as a means 
     of exercising a veto over otherwise protected speech, since 
     it requires that the defendant have a specific intent to 
     instigate a violent response; and (3) it does not usurp 
     authority vested in the states, since it does not intrude 
     upon police powers traditionally exercised by the states. 
     Each of these points will be discussed in greater detail 
     below.
       One additional point is worth noting. Passing a statute is 
     far preferable to enacting a constitutional amendment that 
     would mark the first time in its more than two centuries as a 
     beacon of freedom that the United States amended the Bill of 
     Rights. Totalitarian regimes fear freedom and enact broad 
     authorizations to pick and choose the freedoms they allow. 
     The broadly worded proposed constitutional amendment follows 
     that blueprint by giving plenary authority to the federal and 
     state governments to pick and choose which exercises of 
     freedom will be tolerated. On the contrary, American 
     democracy has never feared freedom, and no crisis exists that 
     should cause us to reconsider this path. Because the Court 
     has never said that Congress lacks the constitutional power 
     to enact a statute to prevent the flag from becoming a tool 
     of violence, a statute--rather than a constitutional 
     amendment--is an incomparably better choice.


i. s. 1335 punishes violence or incitement to violence, not expressive 
                                conduct

       The fatal common flaw in the flag-desecration prosecution 
     of Gregory Lee Johnson, whose Supreme Court case started the 
     controversy that has led to the proposed constitutional 
     amendment, and the subsequent enactment by Congress of the 
     Flag Protection Act of 1989 was the focus on punishing 
     contemptuous views concerning the American flag (Eichman, 496 
     U.S. at 317-19; Texas v. Johnson, 491 U.S. 397, 405-07 
     (1989)). In both instances, law was employed in an attempt to 
     reserve use of the flag for governmentally approved 
     viewpoints (i.e., patriotic purposes). The Court held such a 
     reservation violated bedrock First Amendment principles in 
     that the government has no power to ``ensure that a symbol be 
     used to express only one view of that symbol or its 
     referents.'' (Id. at 417.)
       Johnson had been charged with desecrating a venerated 
     object, rather than any of a number of other criminal charges 
     that he could have been prosecuted for and that would not 
     have raised any constitutional issues. Critical to the 
     Supreme Court's decision in his case, as well as to the 
     Texas courts that also held the conviction 
     unconstitutional, was the fact that ``[n]o one was 
     physically injured or threatened with injury.'' 491 U.S. 
     at 399. The Texas Court of Criminal Appeals noted that 
     ``there was no breach of the peace nor does the record 
     reflect that the situation was potentially explosive.'' 
     Id. at 401 (quoting 755 S.W.2d 92, 96 (1988)). Thus, the 
     primary concern addressed by S. 1335, incitement to 
     violence, was not at issue in the Johnson case. The 
     Eichman Court found the congressional statute to be 
     indistinguishable in its intent and purpose from the 
     prosecution reviewed in Johnson and thus also 
     unconstitutional.
       In reaching its conclusion about the issue of 
     constitutionality, the Court, however, specifically declared 
     that ``[W]e do not suggest that the First Amendment forbids a 
     State to prevent `imminent lawless action.' '' Id. at 410 
     (quoting Brandenburg v. Ohio, 395 U.S. 444, 447 (1969)). In 
     Brandenburg, the Court said that government may not ``forbid 
     or proscribe advocacy of the use of force or of law violation 
     except where such advocacy is directed to inciting or 
     producing imminent lawless action and is likely to incite or 
     produce such action.'' 395 U.S. at 447. It went on to state 
     that ``[a] statute which fails to draw this distinction 
     impermissibly intrudes upon the freedoms guaranteed by the 
     First and Fourteenth Amendments. It sweeps within its 
     condemnation speech which our Constitution has immunized from 
     government control.'' Id. at 448.
       S. 1335 merely takes up the Court's invitation to focus a 
     proper law on ``imminent lawless action.'' It specifically 
     punishes ``[a]ny 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.'' S. 
     1335, at Sec. 3(a). The language precisely mirrors the 
     Court's Brandenburg criteria. It does not implicate the 
     Constitution's free-speech protections, because ``[t]he First 
     Amendment does not protect violence.'' NAACP v. Claiborne 
     Hardware Co., 458 U.S. 886, 916 (1982).
       More recently, the Court put it this way: ``a physical 
     assault is not by any stretch of the imagination expressive 
     conduct protected by the First Amendment.'' Wisconsin v. 
     Mitchell, 113 S.Ct. 2194, 2199 (1993). Under the Court's 
     criteria, for example, a symbolic protest that consists of 
     hanging the President in effigy is indeed protected symbolic 
     speech. Although hanging the actual President might convey 
     the same message of protest, a physical assault on the 
     nation's chief executive cannot be justified as 
     constitutionally protected expressive activity and could 
     constitutionally be singled out for specific punishment. S. 
     1335 makes this necessary distinction as well, protecting 
     the use of the flag to make a political statement, whether 
     pro- or anti-government, while imposing sanctions for its 
     use to incite a violent response.
       Courts and prosecutors are quite capable of discerning the 
     difference between protected speech and actionable conduct. 
     Federal law already makes a variety of threats of violence a 
     crime. Congress has, for example, targeted for criminal 
     sanction interference with commerce by threats or violence, 
     18 U.S.C. Sec. 1951, (1994), incitement to riot, 18 U.S.C. 
     Sec. 2101, tampering with consumer products, 18 U.S.C. 
     Sec. 1365, and interfering with certain federally protected 
     activities. 18 U.S.C. Sec. 245. S. 1335 fits well within the 
     rubric that these laws have previously occupied. It cannot be 
     reasonably asserted that S. 1335 attempts to suppress 
     protected expression.


 II. S. 1335 Does Not Unconstitutionally Discriminate on the Basis of 
                          Content or Viewpoint

       The Supreme Court has repeatedly recognized that ``above 
     all else, the First Amendment means that government has no 
     power to restrict expression because of its message, its 
     ideas, its subject matter, or its content.'' Police 
     Department v. Mosley, 408 U.S. 92, 95 (1972). On this basis, 
     the Court recently invalidated a St. Paul, Minnesota 
     ordinance that purported to punish symbolic expression when 
     it constituted fighting words directed toward people because 
     of their race, color, creed, religion or gender. Fighting 
     words is a category of expression that the Court had 
     previously held to be outside the First Amendment's 
     protections. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-
     72 (1942). In R.A.V. v. City of St. Paul, 112 S.Ct. 2538, 
     2543 (1992), the Court gave this statement greater nuance by 
     stating that categories of speech such as fighting words are 
     not so entirely without constitutional import ``that they may 
     be made the vehicles for content discrimination unrelated to 
     their distinctively proscribable content.'' Explaining this 

[[Page S 18267]]
     concept, the Court gave an example involving libel: ``the government 
     may proscribe libel; but it may not make the further content 
     discrimination of proscribing only libel critical of the 
     government.'' Id.
       As a further example, the Court said a city council could 
     not enact an ordinance prohibiting only those legally obscene 
     works that contain criticism of the city government. Id. As 
     yet another example, the Court stated that ``burning a flag 
     in violation of an ordinance against outdoor fires could be 
     punishable, whereas burning a flag in violation of an 
     ordinance against dishonoring the flag is not.'' Id. at 2544. 
     The rationale behind this limitation, the Court explained, 
     was that government could not be vested with the power to 
     ``drive certain ideas or viewpoints from the marketplace.'' 
     Id. at 2545 (quoting Simon & Schuster, Inc. v. Members of 
     the N.Y. State Crime Victims Bd., 112 S.Ct. 501, 508 
     (1991)).
       No such danger exists under S. 1335. Both the patriotic 
     group that makes use of the flag to provoke a violent 
     response from dissenters and the protesters who use the flag 
     to provoke a violent response from loyalists are subject to 
     its provisions. A law that would only punish one or the other 
     perspective would have the kind of constitutional flaw 
     identified by the Court in R.A.V. Moreover, the legislation 
     recognizes, as the Supreme Court itself did (``the flag 
     occupies a ``deservedly cherished place in our community,'' 
     491 U.S. at 419) that the flag has a special status that 
     justifies its special attention. Similarly, the R.A.V. Court 
     noted that a law aimed at protecting the President against 
     threats of violence, even though it did not protect other 
     citizens, is constitutional because such threats ``have 
     special force when applied to the person of the President.'' 
     Id. at 2546. The rule against content discrimination, the 
     Court explained, is not a rule against underinclusiveness. 
     For example, ``a State may choose to regulate price 
     advertising in one industry but not in others, because the 
     risk of fraud is in its view greater there.'' Id. 
     (parenthetical and citation omitted).
       The federal laws cited earlier that make certain types of 
     threats of violence into crimes are not thought to pose 
     content discrimination problems because they deal with only 
     limited kinds of threats. To give another example, federal 
     law also makes the use of a gun in the course of a crime 
     grounds for special additional punishment. See 18 U.S.C. 
     Sec. 924(c). In Brandenburg, the Court found that a Ku Klux 
     Klan rally at which guns were brandished and overthrow of the 
     government discussed remained protected free speech. Because 
     guns were used for expressive purposes in Brandenburg and 
     found to be beyond the law's reach there does not mean that 
     the law enhancing punishment because a gun is used during the 
     commission of a crime unlawfully infringes on any expressive 
     rights.
       The gun law makes the necessary constitutional distinctions 
     that the Court requires, and so does S. 1335's concentration 
     on crimes involving the American flag rather than protests 
     involving the flag. S. 1335 properly identifies in its 
     findings the reason for Congress to take special note of the 
     flag: ``it is a unique symbol of national unity.'' 
     Sec. 2(a)(1). It notes that ``destruction of the flag of the 
     United States can occur to incite a violent response rather 
     than make a political statement.'' Sec. 2(a)(4). As a result, 
     Congress has developed the necessary legislative facts to 
     justify such a particularized law.
       In its only post-R.A.V. decision on a hate-crimes statute, 
     the Court upheld a statute that enhanced the punishment of an 
     individual who ``intentionally selects'' his victim on the 
     basis of race, religion, color, disability, sexual 
     orientation, national origin or ancestry. Wisconsin v. 
     Mitchell, 113 S. Ct. 2194 (1993). A fair reading of the 
     Court's unanimous decision in that case supports the 
     conclusion that the Court would not strike down S. 1335 on 
     R.A.V. grounds. In Mitchell, the Court concluded that the 
     statute did not impermissibly punish the defendant's 
     ``abstract beliefs,'' id. at 2200 (citing Dawson v. 
     Delaware, 112 S. Ct. 1093 (1992)), but instead spotlighted 
     conduct that had the potential to cause a physical harm 
     that the State could properly proscribe. S. 1335 similarly 
     eschews ideological or viewpoint discrimination to focus 
     on the intentional provocation of violence, a harm well 
     within the government's power to punish.


            III. S. 1335 does not encourage a heckler's veto

       First Amendment doctrine does not permit the government to 
     use the excuse of a hostile audience to prevent the 
     expression of political ideas. Thus, the First Amendment will 
     not allow the government to give a heckler some sort of veto 
     against the expression of ideas that he or she finds 
     offensive. As a result, the Court has observed, ``in public 
     debate our own citizens must tolerate insulting, and even 
     outrageous, speech in order to provide `adequate breathing 
     space' to the freedoms protected by the First Amendment.'' 
     Boos v. Barry, 485 U.S. 312, 322 (1988). Any other approach 
     to free speech ``would lead to standardization of ideas 
     either by legislation, courts, or dominant political or 
     community groups.'' Terminiello v. Chicago, 337 U.S. 1, 4 
     (1949). Thus, simply because some might be provoked and 
     respond violently to a march that expresses hatred of the 
     residents of a community, that is insufficient justification 
     to overcome the First Amendment's protection of ideas, no 
     matter how noxious they may be deemed. See, e.g., Collin v. 
     Smith, 578 F.2d 1197 (7th Cir.), Cert. denied, 436 U.S. 953 
     (1978).
       The Supreme Court's flag-burning decisions applied this 
     principle. In Johnson, the state of Texas attempted to 
     counter the argument against its flag-desecration prosecution 
     by asserting an overriding governmental interest; it claimed 
     that the burning of a flag ``is necessarily likely to disturb 
     the peace and that the expression may be prohibited on this 
     basis.'' 491 U.S. at 408 (footnote omitted). The Court 
     rejected this argument on two grounds: (1) no evidence had 
     been submitted to indicate that there was an actual breach of 
     the peace, nor was evidence adduced that a breach of the 
     peace was one of Johnson's goals; Id. at 407, and (2) to hold 
     ``that every flag burning necessarily possesses [violent] 
     potential would be to eviscerate our holding in Brandenburg 
     [that the expression must be directed to and likely to incite 
     or produce violence to be subject to criminalization].'' Id. 
     at 409.
       S. 1335 avoids the problems that Texas had by requiring 
     that the defendant have ``the primary purpose and intent to 
     incite or produce imminent violence or a breach of the peace, 
     . . . in circumstances where the person knows it is 
     reasonably likely to produce imminent violence or a breach of 
     the peace.'' S. 1335, at Sec. (a)(a). If Texas had 
     demonstrated that Johnson had intended to breach the peace 
     and was likely to accomplish this goal, Johnson could have 
     been convicted of a crime for burning the U.S. flag. Texas, 
     however, never attempted to prove this.
       Moreover, S. 1335 does not enable hecklers to veto 
     expression by reacting violently because it requires that the 
     defendant have the specific intent to provoke that response, 
     while at the same time taking away any bias-motivated 
     discretion from law enforcers. The existence of a scienter 
     requirement and a likelihood element is critical to 
     distinguishing between a law that unconstitutionally punishes 
     a viewpoint because some people hate it and one that 
     legitimately punishes incitement to violence.


          iv. s. 1335 is consistent with federalism principles

       Earlier this year, the Supreme Court held that the Gun-Free 
     School Zones Act of 1990, 18 U.S.C. Sec. 922(q)(1)(a) 
     unconstitutionally exceeded the power of Congress to regulate 
     commerce. United States v. Lopez, 63 U.S.L.W. 4343 (1995). In 
     doing so, the Court reaffirmed the original principle that 
     ``the powers delegated by the [] Constitution to the federal 
     government are few and defined. Those which are to remain in 
     the State governments are numerous and indefinite.'' Id. at 
     4344 (quoting The Federalist No. 45, pp. 292-293 (C. Rossiter 
     ed. 1961) (James Madison)).
       S. 1335 respects these principles by directing its 
     sanctions only at preventing the use of the national flag to 
     incite violence, preventing someone from damaging an American 
     flag belonging to the United States, or damaging, on federal 
     land, an American flag stolen from another person. Each of 
     these acts have a clear federal nexus and remain properly 
     within the jurisdiction of the federal government. Moreover, 
     the bill concedes jurisdiction to the states wherever it may 
     properly be exercised. S. 1335, at Sec. 3(a)(d).


                             v. conclusion

       S. 1335 is carefully crafted to avoid constitutional 
     difficulties by being solicitous of federalism and freedom of 
     speech by focusing on incitement to violence. By doing so, it 
     meets all constitutional requirements.
                                                                    ____

                                   Congressional Research Service,


                                      The Library of Congress,

                                 Washington, DC, October 23, 1995.
     To: Hon. Robert F. Bennett (Attention: Lisa Norton).
     From: American Law Division.
     Subject: Constitutionality of flag desecration bill.
       This memorandum is in response to your request for a 
     constitutional evaluation of S. 1335, 104th Congress, a bill 
     to provide for the protection of the flag of the United 
     States and free speech and for other purposes.
       Briefly, the bill would criminalize the destruction or 
     damage of a United States flag under three circumstances. 
     First, subsection (a) would penalize such conduct 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.
       Second, subsection (b) would punish any person who steals 
     or knowingly converts to his or her use, or to the use of 
     another, a United States flag belonging to the United States 
     and who intentionally destroys or damages that flag. Third, 
     subsection (c) punishes 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 knowingly converts to his or her use, or to the use 
     of another, a flag of the United States belonging to another 
     person and who intentionally destroys or damages that flag.
       Of course, the bill is intended to protect the flag of the 
     United States in circumstances under which statutory 
     protection may be afforded. The obstacle to a general 
     prohibition of destruction of or damage to the flag is the 
     principle enunciated in United States v. Eichman, 496 U.S. 
     310 (1990), and Texas v. Johnson, 491 U.S. 397 (1989), that 
     flag desecration, usually through burning, is expressive 
     conduct if committed to ``send a message,'' and that the 
     Court would review 

[[Page S 18268]]
     limits on this conduct with exacting scrutiny; legislation that 
     proposed to penalize the conduct in order to silence the 
     message or out of disagreement with the message violates the 
     First Amendment speech clause.
       Rather clearly, subsections (b) and (c) would present no 
     constitutional difficulties, based on judicial precedents, 
     either facially or as applied. The Court has been plain that 
     one may not exercise expressive conduct or symbolic speech 
     with or upon the property of others or by trespass upon the 
     property of another. Eichman, supra, 496 U.S., 316 n., 5; 
     Johnson, supra, 412 n. 8; Spence v. Washington, 418 U.S. 405, 
     408-409 (1974). See also, R.A. v. City of St. Paul, 112 S.Ct. 
     2538 (1992) (cross burning on another's property). The 
     subsections are directed precisely to the theft or conversion 
     of a flag belonging to someone else, the government or a 
     private party, and the destruction of or damage to that flag.
       Almost as evident from the Supreme Court's precedents, 
     subsection (a) is quite likely to pass constitutional muster. 
     The provision's language is drawn from the ``fighting words'' 
     doctrine of Chaplinsky v. New Hampshire, 315 U.S. 568 (1942). 
     That case defined a variety of expression that was 
     unprotected by the First Amendment, among the categories 
     being speech that inflicts injury or tends to incite 
     immediate violence. Id., 572. While the Court over the years 
     has modified the other categories listed in Chaplinsky, it 
     has not departed from the holding that the ``fighting words'' 
     exception continues to exist. It has, of course, laid down 
     some governing principles, which are reflected in the 
     subsection's language.
       Thus, the Court has applied to ``fighting words'' the 
     principle of Brandenburg v. Ohio, 395 U.S. 444 (1969), under 
     which speech advocating unlawful action may be punished only 
     if it directed to inciting or producing imminent lawless 
     action and is likely to incite or produce such action. Id., 
     447. This development is spelled out in Cohen v. California, 
     403 U.S. 15, 20, 22-23 (1971). See also NAACP v. Claiborne 
     Hardware Co., 458 U.S. 886, 928 (1982); Hess v. Indiana, 414 
     U.S. 105 (1973).
       A second principle, enunciated in an opinion demonstrating 
     the continuing vitality of the ``fighting words'' doctrine, 
     is that it is impermissible to punish only those ``fighting 
     words'' of which government disapproves. Government may not 
     distinguish between classes of ``fighting words'' on an 
     ideological basis. R.A.V. v. City of St. Paul, 112 S.Ct. 2538 
     (1992).
       Subsection (a) is drafted in a manner to reflect both these 
     principles. It requires not only that the conduct be 
     reasonably likely to produce imminent violence or breach of 
     the peace, but that the person intend to bring about imminent 
     violence or breach of the peace. Further, nothing in the 
     subsection draws a distinction between approved or 
     disapproved expression that is communicated by the action 
     committed with or on the flag.
       In conclusion, the judicial precedents establish that the 
     bill, if enacted, would survive constitutional attack. 
     Subsections (b) and (c) are more securely grounded in 
     constitutional law, but subsection (a) is only a little less 
     anchored in decisional law.
       Because of time constraints, this memorandum is necessarily 
     brief. If, however, you desire a more generous treatment, 
     please do not hesitate to get in touch with us.

                                            Johnny H. Killian,

                                                Senior Specialist,
                                      American Constitutional Law.

  Mr. McCONNELL. I know my colleagues and their allies who support the 
constitutional amendment are motivated by the highest ideals and 
principles.
  I share their reverence for the flag and the values and history it 
represents. But even a constitutional amendment won't succeed in 
coercing proper respect for the flag. It will, however, do damage to 
the Constitution and the cause of freedom.
  After all, is that not what the flag signifies--freedom? That is what 
it signifies.
  Who can forget the pictures of the fall of the Berlin Wall, as nation 
after nation of Eastern Europe threw off the shackles of communism for 
freedom? The American flags flying over our embassies in the countries 
behind the Iron Curtain held the hopes and dreams of those subjugated 
under communism.
  Spreading freedom is uniquely our American creed. In our history, we 
have seen freedom triumph over our colonial forbearers, over the slave 
holders, over the Fascists and over the dictators.
  To narrow the Bill of Rights, even in the name of the flag and 
patriotism, constricts freedom and would reverse the 200-year American 
experiment with freedom that has made our Nation the envy of the world.
  Let us not give flag-burners--the miscreants who hate America and the 
freedom we cherish--more attention than they deserve. Do not let these 
few scoundrels with nothing better to do than burn our flag chase 
freedom from the shores of America.
  I urge adoption of my statutory alternative to punish those who 
desecrate the flag, rather than a constitutional amendment that strikes 
at the heart of our most cherished freedoms.
  So, Mr. President, in all likelihood, we will be voting on this 
amendment sometime either Monday or Tuesday, depending on whether a 
unanimous-consent agreement is entered into. I hope that the amendment 
will be given serious consideration by the Senate as an alternative 
approach which clearly would meet constitutional standards to amending 
the Constitution.
  Mr. President, on another matter, I ask unanimous consent to proceed 
as in morning business.
  The PRESIDING OFFICER (Mr. Inhofe). Without objection, it is so 
ordered.

                          ____________________