[Congressional Record Volume 150, Number 42 (Tuesday, March 30, 2004)]
[Senate]
[Pages S3368-S3369]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. DORGAN (for himself, Mr. Bennett, and Mr. Conrad):
  S. 2259. A bill to provide for the protection of the flag of the 
United States, and for other purposes; to the Committee on the 
Judiciary.
  Mr. DORGAN. Mr. President, 15 years ago the U.S. Supreme Court, in a 
5 to 4 decision, struck down a Texas flag protection statute. The 
Supreme Court ruled that burning an American flag was a form of 
``speech,'' and therefore protected under the first amendment of the 
Constitution.
  I disagreed with the Court's decisions then and I still do. I don't 
believe that the act of desecrating a flag is an act of speech. And I 
believe that our flag, as our national symbol, can and should be 
protected by law.
  In the intervening years since the Supreme Court decision, I have 
supported Federal legislation that would make flag desecration illegal. 
Yet on several occasions, I have also voted against amendments to the 
Constitution to do the same.
  I voted that way because, while I believe that flag desecration is 
despicable conduct that should be prohibited by law, I also believe 
that amending our Constitution is a step that should be taken only 
rarely, and then only as a last resort.
  In the past year I have once again reviewed in detail nearly all of 
the legal opinions and written materials published by constitutional 
scholars and courts on all sides of this issue. After that review, I 
have concluded that there remains a way to protect our flag without 
having to alter the Constitution of the United States. So I am joining 
Senator Bennett today to introduce bipartisan legislation that 
accomplishes that goal.
  The bill we introduce today protects the flag but does so without 
altering the Constitution. A number of respected constitutional 
scholars tell us they believe this type of statute will be upheld by 
the U.S. Supreme Court.

[[Page S3369]]

This statute protects the flag by criminalizing flag desecration when 
its intended purpose is to incite violence.
  I know that supporters of a constitutional amendment will be 
disappointed by my decision to support this statutory remedy to protect 
the flag, rather than support an amendment to the U.S. Constitution. I 
know they are impatient to correct a decision by the Supreme Court that 
they and I believe was wrong.
  I have wrestled with this issue for a long time, and I wish I were 
not, with my decision, disappointing those, including many of my 
friends, who passionately believe that we must amend the Constitution 
to protect the flag. But, in the end, I know that our country will be 
better served reserving our attempts to alter the Constitution only for 
those things that are, in the words of James Madison, ``extraordinary 
occasion.''
  More than 11,000 constitutional amendments have been proposed since 
our Constitution was ratified. However, since the ratification of the 
Bill of Rights in 1791 only 17 amendments have been enacted. These 17 
include 3 reconstruction era amendments that abolished slavery and gave 
African Americans the right to vote.
  The amendments included giving women the right to vote, limiting 
Presidents to two terms, and establishing an order of succession in 
case of a President's death or departure from office. The last time 
Congress considered and passed a new constitutional amendment was when 
it changed the voting age to 18, more than a quarter of a century ago. 
All of these matters were of such scope they required a constitutional 
amendment to be accomplished. They could not have been accomplished 
otherwise.
  But protecting the American flag can be accomplished without amending 
the Constitution, and that is a critically important point.
  The bill we are introducing today, on a bipartisan basis, 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 may also be fined 
up to $250,000 or imprisoned up to 2 years, or both.
  Constitutional scholars, including those at the Congressional 
Research Service, the research arm of Congress, and Duke University's 
Professor William Alstyne, have concluded that this statute passes 
constitutional muster, because it recognizes that the same standard 
that already applies to other forms of speech applies to burning the 
flag as well.
  This is the same standard which makes it illegal to falsely cry 
``fire'' in a crowded theater. Reckless speech that is likely to cause 
violence is not protected under the ``fighting words'' standard, long 
recognized by the Supreme Court of the United States.
  So we are offering this bipartisan legislation with the confidence 
that its passage would meaningfully and effectively protect our 
cherished flag.
  I believe that future generations, and our Founding Fathers, would 
agree that it is worthwhile for us to find a way to protect our flag 
without altering the Constitution. And so I ask those colleagues who, 
like me, care deeply about both our flag and our Constitution, to 
support this legislation.
  I ask unanimous consent that the full text of the bill be printed in 
the Record following my remarks.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2259

       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 Act of 
     2004''.

     SEC. 2. FINDINGS AND PURPOSE.

       (a) Findings.--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 
     Constitution.
       (b) Purpose.--The purpose of this Act is 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) Definition of Flag of the United States.--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 that would be taken to be a flag by the 
     reasonable observer.
       ``(b) 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 under circumstances in which the 
     person knows that it is reasonably likely to produce imminent 
     violence or a breach of the peace, shall be fined not more 
     than $100,000, imprisoned not more than 1 year, or both.
       ``(c) 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 who intentionally destroys or 
     damages that flag, shall be fined not more than $250,000, 
     imprisoned not more than 2 years, or both.
       ``(d) 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 who 
     intentionally destroys or damages that flag, shall be fined 
     not more than $250,000, imprisoned not more than 2 years, or 
     both.
       ``(e) 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.''
       (b) Technical and Conforming Amendment.--The chapter 
     analysis for chapter 33 of title 18, United States Code, is 
     amended by striking the item relating to section 700 and 
     inserting the following:

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