[Congressional Record Volume 145, Number 83 (Monday, June 14, 1999)]
[Senate]
[Pages S6922-S6923]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                                FLAG DAY

  Mr. HATCH. Mr. President, today is Flag Day. Utahns, and indeed 
Americans all across our great country, revere the flag as the unique 
symbol of the United States and of the principles, ideals, and values 
for which our country stands. Who can forget the majestic image of the 
Marines raising Old Glory on the island of Iwo Jima during World War II 
or of school children pledging their allegiance to the American flag?
  Over the years, the love and devotion our diverse people have for the 
American flag has been reflected in the actions of our legislatures. 
During the Civil War, for example, Congress awarded the Medal of Honor 
to Union soldiers who rescued the flag from falling into rebel hands.
  During World War I, the National Conference of Commissioners on 
Uniform State Laws adopted the Uniform Flag Act that numerous state 
legislatures adopted to prohibit flag desecration.
  Congress declared the ``Star Spangled Banner'' to be our national 
anthem.
  In 1949, Congress expressed the love the American people for their 
flag by establishing June 14 as Flag Day. Congress also adopted ``The 
Pledge of Allegiance to the Flag'' and the manner of its recitation 
which millions of school children observe each school day.
  In 1968, Congress adopted a federal statute to prohibit flag 
desecration. More recently, Congress designated John Philip Sousa's 
``The Stars and Stripes Forever'' as the national march.
  As with numerous societal interests that affect free speech, 
legislatures of 48 States and the federal government and the courts 
also have long respected society's interest in protecting the flag by 
balancing this interest against the individual's interest in conveying 
a message through the means of destruction of the flag instead of 
through the means of oral or written speech.
  The Supreme Court continues to strike the balance in favor of 
society's interests in public safety, national security, protection 
from obscenity, libel, and the protection of children even though these 
interests can and do implicate the First Amendment.
  In the 1989 case of Texas v. Johnson, however, the Supreme Court 
abandoned the traditional balance in favor of society's interest in 
protecting the flag and adopted an absolute protection for the 
individual's interest in communicating through the means of physically 
destroying the American flag.
  Congress responded to the Johnson decision with a statutory attempt 
to restore balanced protection to the physical integrity of the 
American flag--the Flag Protection Act of 1989. However, in the 1990 
case of United States v. Eichman, the Supreme Court relied on the new 
rule it created in Johnson to reject statutory protection of the flag.
  The recent reintroduction of another flag protection statute, which 
has been introduced in prior Congresses, is also clearly unenforceable 
under the Johnson and Eichman precedents. Even Professor Lawrence 
Tribe, a defender of the statute struck down in Eichman, has stated 
that the reintroduced statute cannot be upheld under the new rule of 
Johnson and Eichman.
  Moreover, in the 1992 case of R.A.V. v. City of St. Paul, the Supreme 
Court clearly stated that it will no longer uphold statutory protection 
of the flag from desecration. Accordingly, the only realistic way to 
restore traditional balanced protection for the flag is with a 
constitutional amendment.
  In March of this year, Senator Cleland and I introduced Senate Joint 
Resolution 14, a constitutional amendment to protect the American flag.

[[Page S6923]]

 This amendment restores balanced protection to the flag by allowing 
Congress to prohibit only the physical desecration of the flag, while 
retaining the full existing freedoms for oral and written speech.
  Thus, a would-be flag burner would still be able to convey his 
particular message by speaking at a rally, writing to a newspaper, and 
voting at the ballot box. He would not, however, be able to burn a flag 
or to stuff a flag into a toilet, as has been done since the Johnson 
and Eichman decisions.
  Nearly 80 percent of the American people and 49 state legislatures 
support the constitutional amendment to restore balanced protection to 
the American flag. By sending this amendment to the States for 
ratification, Congress would help restore traditional balanced 
protection for the flag while protecting the robust freedom of 
expression that Americans enjoyed when the Marines raised the flag over 
Iwo Jima and when Congress created Flag Day.
  Mr. REID. Mr. President, I ask unanimous consent that the order for 
the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Kyl). Without objection, it is so ordered.

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