[Congressional Record Volume 145, Number 28 (Tuesday, February 23, 1999)]
[House]
[Pages H704-H707]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                   JERRY SOLOMON FLAG PROTECTION ACT

  The SPEAKER pro tempore. Under the Speaker's announced policy of 
January 6, 1999, the gentleman from California (Mr. Cunningham) is 
recognized for 60 minutes.
  Mr. CUNNINGHAM. Mr. Speaker, I am joined tonight by the gentleman 
from New York (Mr. Sweeney) that replaced Jerry Solomon, and the 
gentleman from California (Mr. Hunter), a colleague of mine from San 
Diego.
  Before I go into what we are going to talk about, which is a flag 
amendment that was first brought up before this Congress by Jerry 
Solomon from New York, I would make a statement to the gentleman from 
New York (Mr. Owens) that Republicans will join him gladly in school 
construction. Last year, in the 105th, we offered a bill for school 
construction that gave a 30 percent tax incentive for school 
construction for private companies to build them. The President vetoed 
that, and he came back with a school construction bill.
  We would even support that if the gentleman will waive Davis-Bacon, 
which is the union wage which costs 35 percent more to build those 
schools. What we propose is to have an amendment to waive Davis-Bacon, 
let the schools keep the money instead of going to the unions, let the 
schools keep it and develop teacher training or equipment for the 
schools and whatever.
  So, I would say to the gentleman there is room for maneuver. We want 
school construction, but we want the majority of the money going to the 
schools, not to a special interest group.
  Mr. OWENS. Mr. Speaker, would the gentleman from California agree to 
join me in a special order in the future to talk about this, the two of 
us?
  Mr. CUNNINGHAM. I will, my friend.
  Mr. Speaker, as I mentioned, the gentleman from New York (Mr. 
Sweeney) took Jerry Solomon's place in New York and he swore that he 
would carry on the fight of the great Jerry Solomon, who just retired. 
And there was no one, not the gentleman from California (Mr. Hunter), 
not myself or the gentleman from New York (Mr. Sweeney), who can speak 
with the passion that Jerry Solomon did on this particular bill. As a 
matter of fact, I am going to title it the Jerry Solomon Flag 
Protection Act when we submit this thing.
  We have 230 cosponsors, Mr. Speaker, and I think that is a great 
tribute to this body, both bipartisan. The great gentleman from 
Pennsylvania (Mr. Murtha) is cosponsor on the other side of the aisle 
and well respected by both parties and will go forward with the message 
as well on his side. But with 230 cosponsors in the last Congress, we 
had 312 votes, well over the requirement of two-thirds to pass this.
  What I would like to do, Mr. Speaker, is speak of just a few ideas 
for 5 minutes, maybe 10, and then I will turn over the mike to my 
colleagues and let

[[Page H705]]

them have as much time as they want. We can go back and on the 
different issues that have come up in previous bills all the way from 
the sovereignty issue, to first amendment rights on the issue, and the 
actual flag amendment itself.
  What I would like to start off the debate with, Mr. Speaker, is to 
start off that some would say that this violates the first amendment or 
that the flag is merely a piece of cloth and why should there be a 
penalty for the desecration of the flag?
  Before a Supreme Court case called Texas vs. Johnson, 48 states held 
that it was a crime to desecrate the flag. It was a narrow Supreme 
Court decision by five to four that changed 200 years of policy. We 
think that is wrong. Eighty percent of the American people feel that 
that is wrong, Mr. Speaker.
  Let me speak to those that would say that the flag is merely a piece 
of cloth. I have a friend that was a prisoner of war for nearly 6\1/2\ 
years in Vietnam and his treatment was not exactly in the best stead. 
On occasion, they would be allowed to gather together. Now, this 
gentleman, a POW 6\1/2\ years, it took him nearly 4 years to gather 
bits of thread and knit an American flag on the inside of his shirt. 
And when they would have a meeting, he would take his shirt off, turn 
it inside out, and hang it above them and they would have the meeting 
under this American flag.
  Well, that was fine until the Vietnamese guards broke in, Mr. 
Speaker. They saw the prisoner without his shirt on, they looked on the 
wall, and saw the American flag. Well, they ripped it to shreds. They 
took it and stomped it in the floor and they took out this POW and 
brutally beat him for some 3 hours. When they brought him back into the 
room, he was unconscious. He had broken bones, internal damage to 
himself. He was so bad, his colleagues did not think that he would even 
survive the night, his wounds were so bad.
  So, they went about and huddled in a corner just to discuss the 
happenings and they comforted their fellow POW as much as they could on 
a bale of straw and they went back in the corner. They heard a stirring 
and they looked out in the center of the floor and there was that 
broken body POW that had regained consciousness and he had drug himself 
to the center of the floor and started gathering those bits of thread 
so that he could knit another American flag.
  The flag is not just a piece of cloth for all different nationalities 
that have come to this country and fought under the flag or served or 
fought for civil rights or fought battles or draped a coffin or even 
seen the flag fly over national tragedies. It is more than that.
  Mr. Speaker, the last stanza of the Star Spangled Banner asks a 
question and I would ask us to think about what that stanza says. I am 
not going to read it, but ask my colleagues to look it up. It asks a 
question and I think the answer is yes. That symbol is very, very 
important.
  In California we had a proposition, Prop 187. It had its supporters 
and it had its people that did not support Prop 187. There was a group 
of protesters up in the northern section of my district and one of the 
protesters had burned an American flag. They started pouring lighter 
fluid on another one.
  One of the protesters who was against Prop 187, which I support, he 
was out there protesting until the young man saw the protesters burning 
the American flag. He reached over and he grabbed and he protected that 
flag and he himself, even though once was with this group of 
protesters, they turned on him and brutally beat him because he was 
trying to save the American flag.
  So for many Americans, the flag has special meaning and it is not 
just a piece of cloth.
  If we take a look, I talked to one of my colleagues, the gentleman 
from San Diego, California (Mr. Bilbray). The flag he has in his office 
draped the coffin of his father. He respects it that much.
  The father of the gentleman from New York (Mr. Sweeney), was a 
veteran who I understand his sister has their flag. And that flag is 
more, I guarantee, to those individuals than just a piece of cloth. It 
is a symbol. It is a piece of love. It is a piece of honor. It is a 
piece of democracy and what it stands for in this country.
  Mr. Speaker, I would yield to my friends to speak from their heart. 
This is not a partisan issue. This is something that we deeply believe 
in, that over 80 percent of the American people support, Mr. Speaker, 
and we hope to pass this amendment in the House.
  We passed it in the last Congress, but the Senate did not have time 
to complete it. We will pass it in the House. This time we will pass it 
in the Senate. It will go the President and he will sign it. It will go 
to the States where they have to have two-thirds to ratify it. Mr. 
Speaker, 49 States have petitioned Congress, 49 State governments have 
petitioned Congress for us to pass this amendment. So there is 
overwhelming support across the aisle and in the Republican party as 
well.

                              {time}  1945

  Mr. Speaker, I yield to the gentleman from New York (Mr. Sweeney).
  Mr. SWEENEY. Mr. Speaker, I just recently became a Member of this 
House, so I have not been a part of some of the occurrences of the past 
and some of the events of the past.
  I have heard, though, that some people believe this House is divided 
by partisanship. Mr. Speaker, this House is not divided by 
partisanship, as my good friend the gentleman from California (Mr. 
Cunningham) pointed out.
  To show proof of that, I commend my colleagues' attention to the list 
of original cosponsors of the bill to be introduced tomorrow. There are 
more than 230 names on this list. More than 230 Members of this House 
have extended their hands across the aisle to join together to 
cosponsor the Flag Protection Amendment.
  I congratulate the gentleman from Pennsylvania (Mr. Murtha) and the 
gentleman from California (Mr. Cunningham) for going forward and 
putting in the hard work and the effort to obtain those cosponsors.
  Together we represent the united front of Republicans and Democrats 
working to ensure that Old Glory will be protected from physical 
desecration through an amendment to the United States Constitution.
  Mr. Speaker, I bring your attention to the testimony of Professor 
Richard D. Parker given before the Senate Committee on the Judiciary 
July 8 of last year. Mr. Parker is the Williams Professor of Law at 
Harvard Law School and a self-proclaimed liberal Democrat who, as a 
young man, participated in the Civil Rights movement. In the marches, 
Professor Parker proudly waived the flag, using it as a symbol to 
emphasize that we are all Americans despite our differences.
  Professor Parker stated,

       A robust system of free speech depends, after all, on 
     maintaining a sense of community. It depends on some 
     agreement that, despite our differences, we are ``one,'' that 
     the problem of any American is ``our'' problem. Without this 
     much community, why listen to anyone else? Why not just see 
     who can yell the loudest? Or push hardest?
       It is thus for minority and unpopular viewpoints that the 
     aspiration to, and respect for the unique symbol, of the 
     national unity is thus most important.

  Mr. Speaker, though we have a broad base of support, the Flag 
Protection Amendment does have its opponents. The small minority who 
oppose a constitutional amendment prohibiting the physical desecration 
of the flag believe that such a law would infringe on the first 
amendment.
  In his testimony, Mr. Parker also makes an interesting point to those 
who oppose the Flag Protection Amendment. He says,

       As the word goes forth that nothing is sacred, that the 
     aspiration to unity and community is just a ``point of view'' 
     competing with others, and that any hope of being noticed (if 
     not getting a hearing) depends on behaving more and more 
     outrageously, won't we tend to trash not just the flag, but 
     the freedom of speech itself?

  Mr. Speaker, there is a reason, as the gentleman from California (Mr. 
Cunningham) has pointed out, that we don caskets of fallen heroes with 
this great flag. In fact, as the gentleman from California (Mr. 
Cunningham) pointed out, it is entirely appropriate and fitting today 
that I stand before my colleagues in support of this bill, because it 
was a year ago today that my father, a veteran of two theaters during 
World War II, passed away. I know that one of his greatest honors was 
serving his country, and I know that my family thought it was a great 
honor to have his casket draped with our great flag.

[[Page H706]]

  I had intended initially when I first came to this Congress to 
introduce my own bill, and I step back and recognize that the gentleman 
from California (Mr. Cunningham) and the gentleman from Pennsylvania 
(Mr. Murtha) had put in many, many years in an effort to pass this 
legislation. Rather than stand before that and serve as an obstacle to 
that passage, I join happily and willingly with them for passage.
  Opponents of the proposed amendments imagine themselves as champions 
of the theory of free speech, but their argument is based in a strange 
disdain for it in practice.
  Mr. Speaker, I do not think there is a single Member of this list of 
cosponsors who does not passionately defend the right to free speech. I 
do as well, and I just as passionately defend this amendment. The right 
to free speech is the bedrock of America's founding, and the flag is a 
symbol of our freedom.
  I implore my colleagues in this House to duly consider the remarks of 
Professor Parker, the considerations of all of us Americans who support 
this amendment and join our efforts to protect the great flag of the 
United States of America.
  Mr. CUNNINGHAM. Mr. Speaker, I yield to the great gentleman from 
California (Mr. Hunter), who is a Vietnam War veteran, Army special 
forces, who not only fought under the flag but nearly gave his life for 
it.
  Mr. HUNTER. Mr. Speaker, I thank my friend for that great 
introduction, one of the best I have ever had, but I have to confess I 
did nothing special in Vietnam, and it was just that I happened to show 
up, like many people over there.
  I want to thank my friend who really was a combat veteran and who was 
nominated for the Congressional Medal of Honor and the only member of 
the Navy to have shot down five MIGs and become an ace in the Vietnam 
conflict. I am just his wing man in this operation.
  I want to thank the gentleman from New York (Mr. Sweeney) for his 
very eloquent remarks, and I want to thank him also for the 
participation of his father in two of our conflicts.
  I think that goes to this issue. The flag is a piece of property. It 
is property that represents freedom, represents sacrifice, represents 
in many cases the ultimate sacrifice, that is, the giving of one's 
life. If my colleagues see the great movie that is out now, ``Saving 
Private Ryan,'' it is evident that that sacrifice in many cases was 
enormous.
  So every American owns a piece of the flag, and that is a problem 
with burning it. When one is burning it, one is really burning some of 
the property that belongs to every American, and we do not have the 
right to do that.
  For those who would say that burning the flag represents speech, I 
think that Chief Justice Rehnquist made the right observation, and I 
would paraphrase his words, when he said, ``Burning the flag is not a 
political statement. It is not speech. It is an inarticulate grunt.'' I 
think that is true.
  Look at all of the ways that one can communicate now with others, 
whether one is communicating with a large body of people or 
communicating just with another individual. One not only has all of the 
classic methods of communication, of speaking to people and, in this 
century, talking over the telephone, now talking over the electronic 
media, radio, television, one now has computers. One now has e-mail.
  There have never been as many methods of speaking, of communicating 
as we have today because of high technology. So why do we have to say 
that we are going to characterize this inarticulate grunt, this 
burning, putting the torch to something, why are we going to classify 
that as speech?
  In fact, I thought that speech was supposed to take the place of 
burning, of destruction, of destroying something to make a point. That 
is the whole point of speech. Speech is the alternative.

  The idea that some people can only manifest their feeling about their 
country by burning a piece of this property that really belongs to all 
of us because of the joint and common American sacrifice that has 
touched almost every single family that lives in this land does not 
make any sense.
  So, Mr. Speaker, I think that we are following exactly the right 
course here in following the lead of the gentleman from California (Mr. 
Cunningham) and the gentleman from New York (Mr. Sweeney), that lead 
that was initiated by Jerry Solomon, a great Member of this House of 
Representatives, and also supported by another great patriotic 
gentleman who used to stand here many times with us, Bob Dornan, who 
flew every single airplane that the U.S. military ever made and who 
loved our flag and stood in front of and stood every time that flag 
went by, whether it was a parade or any other type of event and who 
used to offer very articulate arguments on behalf of the flag in this 
Chamber.
  So let us move forward on this.
  Also, I wanted to mention, the gentleman from Louisiana (Mr. 
Livingston) is leaving today. And watching the gentleman from 
California (Mr. Cunningham) make some comments about the gentleman from 
Louisiana in his testimonial today reminded me that the gentleman from 
Louisiana (Mr. Livingston) was another individual who supported this 
amendment very strongly and has been a great Member of this House. I 
know that this is his wish that we pass this amendment to protect the 
American flag.
  So the United States is not just made of the stock market and tax 
cuts and the latest movie and all of the things that other people 
around the world think represents America. It is also made of tradition 
and a legacy of a lot of people, many of whom knew America for only a 
short period of time. If one goes over to the Arlington Cemetery, one 
will notice a lot of people that were killed in America's wars that did 
not spend much time in this country before they were killed and did not 
get to have that piece of enjoyment.
  But the idea that this flag is part of their legacy, part of that 
tradition and that it represents property, a little bit of which is 
owned by every single American family, that is a good fundamental 
principle upon which we should act to protect the American flag with 
this piece of legislation and ultimately with this amendment.
  So I want to thank my good friend. I want to thank him also for his 
great service to this country in a very difficult time and his hard 
work. I know one thing about the gentleman from California (Mr. 
Cunningham) and that is he is tenacious. He will have the rest of us up 
here working away, pushing away on this amendment until we get this 
thing passed.
  Mr. CUNNINGHAM. Mr. Speaker, one of the things that I would like to 
go through is that there has been some arguments in past debate, and it 
will be a handful of individuals that feel that their first amendment 
rights are abridged if we pass this amendment. I am not chastising 
their feelings or their intent. They may believe that the first 
amendment is touched.
  But I would like to go through what some of the Supreme Court 
Justices have said about the first amendment rights and some other 
folks as well. First of all, they would say, how can you reconcile the 
Flag Protection Amendment with the first amendment's guarantee for free 
speech? It does not limit free speech, Mr. Speaker. The first amendment 
freedoms are not absolute.
  This compatibility was consistent with the views of the framers of 
the Constitution who strongly supported government actions to prohibit 
flag desecration. As I mentioned, actually 48 States had this amendment 
before the famous Texas versus Johnson Supreme Court decision, which 
was a narrow five to four decision, which overruled 200 years of 
history.
  Such leading proponents of individual rights, the gentleman from 
California (Mr. Hunter) talks about Judge Rehnquist, but members such 
as fighters for justice and liberty and the first amendment, like Judge 
Earl Warren, Justice Abe Fortas, Justice Hugo Black, each have opinions 
that the Nation could consistently work with the first amendment and 
prosecute physical desecration of the flag.
  As Justice Black, perhaps the leading exponent of the first amendment 
freedoms to ever sit on the Supreme Court stated, ``It passes my belief 
that anything in the Federal Constitution bars making deliberate 
burning of the American flag an offense.''
  Former Chief Justice Earl Warren stated, ``I believe that the States 
and the Federal Government do have the power to protect the flag from 
acts of desecration and disgrace.''

[[Page H707]]

  Moreover, Justice Fortas, ``The flag is a special kind of a 
personality.'' I think each person that views the flag, whether it is 
singing the National Anthem or The Star Spangled Banner or saying the 
pledge, people view that differently.
  As one walks down the mall here in Washington and one looks at it, I 
have seen literally thousands of people stop and take a look at the 
flag and the other monuments that we have to this great country. But 
Justice Fortas, ``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.
  Mr. Speaker, another very famous individual, Mr. Thomas Jefferson, 
while serving as George Washington's Secretary of State, instructed 
American counsels to punish those that violated our flag. James Madison 
pronounced flag desecration in Philadelphia as objectionable in court 
and requested penalties for such.

                              {time}  2000

  Well, then, when the first amendment debate was covered, they said 
that is fair enough, to Mr. Solomon, but. Always followed by but. 
Still, there is a constitutional guarantee for expression of conduct. 
How do you express yourself if you do not do it verbally, or if you 
cannot express it by burning a flag? Do you not have the right for 
expressing conduct?
  The Supreme Court has accepted the premise that certain expressive 
acts are entitled to first amendment protections based on the principle 
that the government may not prohibit the expression of an idea simply 
because society finds the idea itself offensive or disagreeable. That 
was Texas versus Johnson. But they go on to say that not all activity 
with an expressive component is afforded first amendment protection.
  For example, someone who opposes wildlife protections cannot go out 
and shoot a Bald Eagle, because it is protected. It is not only a 
national symbol but it is wrong.
  Applying these principles, the Supreme Court upheld a statute 
prohibiting the destruction of draft cards against the first amendment 
challenge. The court stated that the prohibition served a legitimate 
purpose, facilitating draft induction in time of national crisis, that 
was unrelated to the suppression of the speaker's idea since the law 
prohibited the conduct regardless of the message sought to be conveyed 
by the destruction of the draft card.
  Four Supreme Court Justices, Justice Rehnquist, Justice O'Connor, 
Justice Stevens and Justice White, dissenting in United States versus 
Eichman, stated that Congress could prohibit flag desecration 
consistent with first amendment protections. Their reasons are as 
follows:
  The Federal Government had a legitimate interest in protecting the 
intrinsic value of the American flag, which, in times of national 
crisis, inspires. It motivates the average citizen to make personal 
sacrifices in order to achieve social goals of overriding importance.
  Mr. Speaker, we have all seen films of someone carrying the flag in a 
battlefield and going down; and his comrade, knowing that he would be 
killed, would pick up that flag and charge on, because it had 
significance. We have seen civil rights leaders carry the American flag 
at the forefront of their issues; their own kind of a battle fighting 
for justice in this country.
  So I would say that under the Constitution the Supreme Court has 
found that this amendment is proper, it is justifiable, and that it 
will pass both the House, the Senate, and we feel the President will 
sign it and the States will ratify it and make it illegal.
  Now, the amendment is not self-enacting, Mr. Speaker. It will have to 
go through the ratification of States. It will have to have a statute 
which will define the actions taken with the desecration of a flag. It 
will be refined. So this is not a self-enacting amendment, and that 
process will go through each of the States so that they can ratify 
their own decisions, which most of us support the States' statutes.
  Would a flag amendment reduce our freedoms under the Bill of Rights? 
Would this be the first time in our 200-year history that an amendment 
has limited the rights guaranteed under the first amendment?
  No, on both accounts. The proposed amendment would not reduce our 
freedoms under the Bill of Rights. Rather than posing a fundamental 
threat to our freedom under the Bill of Rights, the proposed amendment 
would mature constitutional freedoms. The Bill of Rights is a listing 
of the great freedoms our citizens enjoy today. It is not a license to 
engage in any type of behavior.
  The proposed amendment affirms the most basic conditions of our 
freedom, our bond to one another and our aspirations of national unity. 
That is what the American flag means to most of us, national unity and 
what brings us together, especially in a time of need, whether it is in 
combat or whether in civil strife within the boundaries of these United 
States.
  Mr. Speaker, I yield to the gentleman from California, if he has 
additional comments.
  Mr. HUNTER. Mr. Speaker, I just want to say to my friend that I think 
he has stated the issue very well, and I look forward to hundreds of 
our colleagues coming on board this effort, as many of them already 
have, and making sure that we succeed.
  Mr. CUNNINGHAM. I thank the gentleman from California.
  Does the gentleman from New York have any closing comments?
  Mr. SWEENEY. I just want to say to the gentleman from California (Mr. 
Cunningham), as one of my first pieces of legislation that I have been 
able to cosponsor, I am honored to be here, honored to be here as part 
of the gentleman's effort to push forward. The flag is a part of my 
family's heritage, and I feel very honored to be here.
  Mr. CUNNINGHAM. I thank my colleagues. God bless America.

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