[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.''
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