[Congressional Record Volume 141, Number 199 (Thursday, December 14, 1995)]
[Senate]
[Pages S18660-S18661]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                  NOTE

  (In the Record of December 12, 1995, beginning on page S18387, an 
improper version of the statement by Senator Cohen was reflected. The 
permanent Record will be changed to reflect the following correct 
statement.)
  Mr. COHEN. Mr. President, I have lamented on a number of occasions 
the erosion of civility in our public discourse. This is a trend that 
has had a negative impact on our politics and on the relationship 
between the government and the citizenry. The heightened level of 
rhetoric, the slash-and-burn tactics, and the accusations of bad faith, 
have made it more difficult for politicians to communicate with each 
other and to communicate with those we represent. It has made it more 
difficult for reasonable people to reach agreement and far too easy for 
unreasonable voices to dominate the debate.
  The breakdown in the tone of our discourse is symptomatic of a wider 
problem which many have described as a deterioration of civil society. 
Our civil society is the collection of public and private institutions, 
and accepted moral principles, that bind us together as a community of 
citizens. Civil society is what makes us a nation of community, rather 
than merely a group with common voting rights.
  There is abundant evidence that our civil society is fraying around 
the edges. People lack faith in the capacity of government to act in 
the interest of the people. There is a growing lack of confidence in 
our public schools--one of the great unifying forces in our country. 
Americans are less engaged in fewer communal activities than we once 
were. We are much more apt to stay at home to rent a video, communicate 
on the faceless Internet, or channel-surf on cable TV, than we are to 
attend a PTA meeting, march in a parade--or even join a bowling league, 
as one Harvard professor's study revealed.
  It is against this background that today we consider the 
constitutional amendment to prohibit desecration of the U.S. flag. The 
argument for protecting the flag is a weighty one: The U.S. flag is a 
unique symbol of our nationhood. When our troops go to battle to fight 
for our Nation, they march under the banner of the flag; each day when 
our children go to school, they pledge allegiance to the flag; when a 
national leader or world dignitary dies, the flag is flown at half 
mast; when one of our athletes wins a gold medal at the Olympic Games, 
the flag of the United States is raised; when a soldier or police 
officer dies, his or her coffin is draped with the flag; when 
immigrants are naturalized, they salute to the flag.
  In this diverse Nation, respect for the flag is a common bond that 
brings us together as a nation. Our common reverence for the flag is 
part of what makes us citizens of a country, not just individuals that 
happen to live in the same geographic area.
  There is also no denying that when the flag is burned, desecrated, 
despoiled, or trampled upon, the potency of the flag as a symbol is 
denigrated. When the flag is burned, whether by Iranian fundamentalists 
during the hostage crisis or by American protestors here at home, we 
are rightly outraged because these acts represent a direct affront to 
our Nation. By tolerating flag desecration, we are condoning actions 
that undermine the fabric of our national life.
  Critics of the flag amendment have reminded us that because flags 
owned by the Government are still protected under current law, this 
amendment will only restrict what individuals can do with flags that 
they own personally. But the flag is not a mere piece of property like 
a car or television, it is more than the fabric and dye and stitching 
that make it up. The design of the American flag and the values it 
represents belong to all of us; in a sense, it is community property. 
We the people maintain part ownership of that flag and should be able 
to control how our property may be treated.
  This is not a very radical principle. Federal law already controls 
what we can or cannot do with our own money. Anyone that mutilates, 
cuts, defaces, disfigures, or perforates a dollar bill can be fined or 
put in jail for 6 months. Similarly, in O'Brien versus United States 
the Supreme Court upheld the 

[[Page S18661]]
conviction of a protestor that burned his draft card on the ground that 
the Government had a substantial interest in protecting a document 
necessary for the efficient functioning of the selective service 
system. Why is our interest in protecting currency or Government 
documents any stronger than protecting our greatest national symbol?
  Opponents of the flag amendment also maintain that it trivializes the 
Bill of Rights by carving out an exception to the first amendment. This 
argument is based on the classic libertarian belief that truth can only 
emerge from complete freedom of expression and that the Government 
cannot be trusted to distinguish between acceptable and unacceptable 
forms of action or speech.
  This first amendment absolutism, however, is contrary to our 
constitutional tradition. The list of types of speech that may be 
regulated or banned by the Government according to our Supreme Court 
precedents is lengthy: libel, obscenity, fighting words, child 
pornography, deceptive advertising, inciteful speech, speech that 
breaches personal privacy, speech that undermines national security, 
nude dancing, speech by public employees, infringements of copyright, 
and speech on public property, to name a few.
  And consider how narrow the flag amendment's restriction of speech 
really is and how little it limits our ability to protest against the 
Government. Even if the amendment is enacted one could still write or 
say anything about the Government; one could still burn a copy of the 
Constitution or effigies of political leaders; indeed, one could put a 
picture of a flag being burned on the Internet and circulate it to 
millions of people across the world with the push of a button.
  Recall the words the protestors chanted while Gregory Lee Johnson set 
a flag on fire and gave rise to this entire controversy:

       Reagan and Mondale, which will it be? Either one means 
     World War III. Ronald Reagan, killer of the hour, perfect 
     example of U.S. power. America, the red, white, and blue, we 
     spit on you, you stand for plunder, you will go under.

  So regardless of whether we have a flag amendment, there are a 
multitude of ways to heap contempt on the Government, should one choose 
to do so. The effect of the amendment on free expression would be 
negligible.
  But if the impact of the restriction is so minimal, why do we need to 
raise this issue to such a level of importance? The answer is because 
the flag remains the most powerful symbol capable of unifying a 
diverse, disparate nation. It is a centrifugal, galvanizing force in 
our lives--and it will remain so only as long as it is not trashed, 
despoiled, or debauched by those who insist that one is free to indulge 
in any act to give expression to his or her thoughts.
  I also want to take issue with the contention that our liberal 
tradition prohibits us from ever making substantive value judgments 
about what is good speech and what is not or that we must always remain 
indifferent or neutral with respect to the ideas and images that 
bombard us over the airwaves or through the media. For when freedom is 
defined by the absence of all restraint, then liberty descends to 
license and license yields to disorder and dysfunction. As someone once 
observed, a river without its banks is not a river, but a flood.
  Senator Dole touched on this theme in a speech he gave earlier this 
year criticizing the violent movies being produced in Hollywood these 
days. It isn't inconsistent with the first amendment to speak out 
against movies that contain dozens of shootings, or gruesome acts of 
violence that are then copied in real life only days after the initial 
screening. It isn't an act of Government censorship for politicians to 
criticize music containing lyrics that denigrate women, glorify cop-
killers as role models, and promote racial divisiveness.
  Likewise, it is not Government censorship when the people amend the 
Constitution to prohibit one narrow, repulsive form of expression. The 
process of amending the Constitution does not consist of a dictatorial 
tyrant or imperial monarch exercising its power over enslaved subjects; 
rather it is the act of free people exercising their sovereign power to 
impose rules upon themselves. By enacting this amendment through the 
process set forth in article V of the Constitution, ``We the people'' 
will be determining that the message being expressed by those who burn 
the flag is not worthy of legal protection. The amendment represents a 
subjective, value-laden judgment by ``the people'' that our interest in 
preventing the damage that flag desecration inflicts upon our national 
character outweighs the meager contribution that flag burning makes to 
the advancement of knowledge and understanding of ideas. The Supreme 
Court balances interests in this manner in almost every constitutional 
case it decides. Why is it that we have no qualms about deferring to 
the value-judgments made by unelected jurists but we become squeamish 
when making such judgments through our most solemn act of self-
government--amending the Constitution?
  I do not believe this flag amendment sets a bad precedent by carving 
out an exception to the first amendment or that ``the people'' will act 
irresponsibly by amending the Constitution in a frequent or cavalier 
fashion. For one thing, the Constitution, in its wisdom, makes that too 
difficult to do. Also, I trust the people. They understand the value of 
liberty. I am confident that it will be the rare occasion that the 
people make an exception to our general tolerance for free expression 
by targeting a form of expressive activity for special treatment. And I 
am confident that our national character will be improved, not 
weakened, by the protection of our unique symbol of nationhood.
  I agree with Justice Stevens' opinion in Texas versus Johnson. He 
said:

       The value of the flag as a symbol cannot be measured. Even 
     so, I have no doubt that the interest in preserving that 
     value for the future is both significant and legitimate.
       Similarly, in my considered judgment, sanctioning the 
     public desecration of the flag will tarnish its value, both 
     those who cherish the ideas for which it waves and for those 
     who desire to don the robes of martyrdom by burning it. That 
     tarnish is not justified by the trivial burden on free 
     expression occasioned by requiring an available, alternative 
     mode of expression, including words critical of the flag, be 
     employed.

  So I support this resolution to send the flag protection amendment to 
the States for ratification. And I urge my colleagues to support it as 
well.

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