[Congressional Record Volume 151, Number 91 (Friday, July 1, 2005)]
[Senate]
[Pages S7911-S7912]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. BENNETT (for himself, Mr. Conrad, and Mr. Byrd):
  S. 1370. 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. BENNETT. Mr. President, I rise today to introduce legislation on 
behalf of myself and Senator Conrad that has to do with the desecration 
of the flag. All of us are angered when we see someone burn or 
otherwise desecrate the American flag, and I believe it is appropriate 
that we take such steps as are appropriate to deal with such 
desecration.
  Over the years I have been in the Senate, I have opposed amending the 
Constitution to deal with this issue for two reasons. First, there are 
not that many cases of flag desecration for us to see as we look around 
the country. And I am reluctant to amend the Constitution to deal with 
a non-problem. Flag desecration hit its peak during the Vietnam years, 
but it has virtually disappeared now and occurs, ironically, only when 
debate about amending the Constitution becomes a subject of public 
discourse. We seem to stimulate flag desecration when we have the 
debate on amending the Constitution with respect to it.
  So for that reason, I have consistently opposed a constitutional 
amendment on desecration of the flag.
  However, as I have studied the matter and spent time with the legal 
experts at the Congressional Research Service over at the Library of 
Congress, I have found that there are things that can be done with 
respect to flag desecration that also establish our reverence for the 
flag, but do not require a constitutional amendment.
  I have introduced this legislation before. It has not progressed in 
the congressional process to the opportunity for a vote, and I am not 
sure it will this time. But I wish to make it clear to my constituents 
and to others who have concern about this problem that my objection to 
a constitutional amendment should not be construed as demonstrating 
indifference to the issue of reverence for the flag.
  Senator Conrad has joined me on this occasion as he has at previous 
times when this legislation has been introduced, and I am happy to have 
him as an original co-sponsor on the bill at this time.
  Mr. BYRD. Mr. President, will the distinguished Senator yield?
  Mr. BENNETT. I will be happy to yield.
  Mr. BYRD. I wish to associate myself with the remarks of the 
distinguished Senator, and I would appreciate if he would add my name 
as a co-sponsor.
  Mr. BENNETT. Mr. President, I am happy to ask unanimous consent that 
the honorable Senator from West Virginia be added as an original co-
sponsor to the bill.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.
  Mr. BENNETT. I have been interested at the reaction that has come 
from my constituents as I have held this position over the years. I 
remember a conversation with Utah's most respected pollster just before 
I cast my first vote against the flag amendment. He said: Senator, 
according to my polls, 80 percent of the people of Utah are in favor of 
a constitutional amendment with respect to the flag, and something like 
60 percent of them consider it a voting issue. That is, they would be 
more likely to vote against a candidate who voted against the flag 
amendment than they would to vote for him. We talked about it, and he 
said: What are you going to do? I said: Regardless of the poll numbers, 
I am going to vote against the amendment. He laughed a little and he 
said: That is what I thought. I think it will stand you in good stead 
with your constituents who will respect your courage even if they do 
not agree with your position.
  I was grateful for those words of encouragement, and I am happy to 
report that has happened.
  I ask unanimous consent that at the end of my statement, two 
editorials be printed in the Record from Utah's two newspapers with the 
highest circulation, the Salt Lake Tribune and the Deseret Morning 
News.
  The ACTING PRESIDENT pro tempore. Without objection, it is so 
ordered.

  (See Exhibit 1.)
  Mr. BENNETT. The Salt Lake Tribune editorial makes this comment:

       If respect for something has to be required by law, then it 
     isn't respect. If regard for a symbol of freedom has to be 
     imposed by carving a hole out of our basic charter of rights, 
     then it isn't freedom.

  And it concludes with this sentence:

       The rare act of torching an American flag is one of two 
     things: pointless or meaningful. If it is pointless, the 
     worst it could be called is vandalism, and should be treated 
     as such. If it is meaningful, even full of meaning we don't 
     like, then it is and must remain constitutionally protected 
     expression.

  Now turning to the editorial from the Deseret Morning News, the lead 
paragraph there says:

       Once again, the House of Representatives has passed a 
     constitutional amendment to protect the American flag from 
     desecration. This is an annual event almost as predictable as 
     the swallows returning to Capistrano. So, too, is the 
     Senate's annual ritual of not passing it.

  They conclude with this comment which I am happy to include in the 
record because it says nice things about me. We always like comments 
that do that. It says:

       One of the Senate votes against it belongs to Utah Senator 
     Bob Bennett, who normally agrees with much that Senator Hatch 
     supports. He has said he is unwilling to overturn 200 years 
     of tradition in regard to the First Amendment.
       He's right. The Constitution is no place for feel-good 
     amendments that do nothing but restrict freedoms.

  Finally, Mr. President, I share with you the comment that I have had 
from one of my colleagues also, and I will not speak directly for him 
but associate myself with the line. He said: When my Senate career is 
over, I don't want the most important constitutional vote that I have 
cast to be one that weakens the first amendment.

[[Page S7912]]

  I ask unanimous consent the text of the bill be printed in the 
Record.
  The ACTING PRESIDENT pro tempore. The Senator from Texas.
  Mr. CORNYN. I thank the Chair. I am glad to be here in the Chamber 
during the remarks of the Senator from Utah and have him explain for 
all of our benefit his position on important issues such as flag 
desecration. While I think some of us differ about the means to the 
end, I think the end is important, and that is protecting the symbol of 
our country and the symbol of our freedom. For myself, I think if we 
can offer protection to a symbol of our country like the bald eagle, 
then we should offer protection to other symbols of our country 
including our flag. But I always consider Senator Bennett to be one of 
the wise men in the Senate, and I certainly defer to his great judgment 
and wisdom. I appreciate his introduction today, and I look forward to 
studying it more closely.

                               Exhibit 1

             [From the Deseret Morning News, Jun. 24, 2005]

                        Dump the Flag Amendment

       Once again, the House of Representatives has passed a 
     constitutional amendment to protect the American flag from 
     desecration. This is an annual event almost as predictable as 
     the swallows returning to Capistrano. So, too, is the 
     Senate's annual ritual of not passing it.
       This year, there is reason to think the Senate may be 
     inching closer to passing it, and that's a concern.
       Few things are as reprehensible as watching someone protest 
     the government by burning the flag. Particularly at a time 
     when the nation is involved in a military conflict, it is a 
     stunning affront to brave men and women who are sacrificing 
     their all for freedom.
       But it would be wrong to rewrite the Constitution to equate 
     a forced honoring of the flag with other freedoms guaranteed 
     by the Bill of Rights. As upsetting as it is, flag burning is 
     a form of expression every bit as much as flag waving. And a 
     nation that attributes part of its greatness to its 
     willingness to tolerate dissent and protest can't afford to 
     stifle this type of speech.
       Flag burning--an occurrence so rare most Americans would be 
     hard-pressed to pinpoint the last time they saw it--would not 
     disappear because of an amendment. Chances are, it would 
     become more prevalent, out of some misguided attempt to stand 
     on principle. That would harm public morale at an important 
     point in history, and the pride many Americans feel in their 
     ability to tolerate free speech would feel more hollow.
       Besides, an amendment would raise a number of troubling 
     questions that surely would be tested by 1 the nation's 
     detractors. Would it be illegal to desecrate something that 
     was almost a flag? For instance, if protesters create 
     something that looks like the flag but has less than 50 
     stars, could they be punished for burning it? And what about 
     hanging the flag upside down or in other ways considered 
     disrespectful? A lot of clothes these days, from hats to T-
     shirts to blue jeans, contain images of the flag. Would 
     these, too, be covered under the amendment? Would they, 
     themselves, be illegal?
       Courts would be kept busy for decades answering these and 
     other questions.
       This is the sixth time the flag amendment has passed the 
     House. Should it pass the Senate, where its sponsor is Utah 
     Sen. Orrin Hatch, it would be almost assured of ratification 
     by the states. All 50 states already have resolutions calling 
     for it to pass.
       One of the Senate votes against it belongs to Utah Sen. Bob 
     Bennett, who normally agrees with much that Hatch supports. 
     He has said he is unwilling to overturn 200 years of 
     tradition in regard to the First Amendment.
       He's right. The Constitution is no place for feel-good 
     amendments that do nothing but restrict freedoms.
                                  ____


              [From the Salt Lake Tribune, Jun. 24, 2005]

   Flag Desecration: Amendment Would Limit the Rights That the Flag 
                               Symbolizes

       If respect for something has to be required by law, then it 
     isn't respect. If regard for a symbol of freedom has to be 
     imposed by carving a hole out of our basic charter of rights, 
     then it isn't freedom.
       We sympathize with those whose eyes water, fists clench or 
     guts churn whenever they see someone destroying an American 
     flag. It is generally a juvenile act by someone who just 
     wants to attract attention by shocking the straights.
       But living in a free nation requires putting up with a lot 
     of attention-getting behavior, especially the kind that 
     neither breaks our arm nor picks our pocket.
       Thus much praise is due Utah's Sen. Robert Bennett and Rep. 
     Jim Matheson for showing the political maturity to again 
     oppose a proposed constitutional amendment that would allow 
     Congress to ``prohibit the physical desecration of the flag 
     of the United States.''
       That amendment passed the House Wednesday, with Utah Reps. 
     Chris Cannon and Rob Bishop in the 286-130 majority. It now 
     goes to the Senate, where Utah's Orrin Hatch will again push 
     for its passage.
       It is sad to see Hatch, who has been showing some wisdom 
     born of soul-searching on issues such as immigration reform 
     and stem-cell research, still clinging to this rote response 
     to a problem that doesn't exist and wouldn't need solving if 
     it did.
       For one thing, the amendment is represented as a simple 
     patriotic statement. But the fact is that it would, if 
     passed, by two-thirds of the Senate and ratified by three-
     fourths of the states, become a field day for anti-anything 
     activists, smarty-pants lawyers and activist judges.
       By one definition of the word, to ``desecrate'' is to 
     defile a sacred object. Sacred is a religious, not a civil, 
     term. Thus it could be argued that it is etymologically 
     impossible to ``desecrate'' a symbol of an earthly nation.
       The other meaning of the word is basically to treat 
     something with disrespect. That would including burning and 
     soiling. But would it also include the woman who just the 
     other day wore a flag-patterned bikini top to frolic in the 
     Olympic fountain at the Gateway?
       The rare act of torching an American flag is one of two 
     things: pointless or meaningful. If it is pointless, the 
     worst it could be called is vandalism, and should be treated 
     as such. If it is meaningful, even full of meaning we don't 
     like, then it is, and must remain, constitutionally protected 
     expression.

  Mr. CONRAD. Mr. President, as we prepare to celebrate our Nation's 
independence this weekend, many familiar images come to my mind: 
fireworks, family, celebration, community, parades, apple pie and 
everything American. Above all, I think of the flag on the Fourth of 
July.
  The American flag is a powerful symbol in this country. It represents 
many things to many Americans--our Nation, our independence, our 
principles, and our sacrifices, among other things. To some of our 
brave servicemen and women who fought for this country, the flag 
symbolizes our freedom. To others, including parents of soldiers killed 
in battle, the flag is symbolic of all Americans who gave their lives 
in all wars.
  I have the utmost respect for the flag as a symbol of our Nation and 
our freedom, and abhor acts of desecration against it. Burning a flag, 
or otherwise dishonoring it, is repugnant to me, my colleagues, and the 
brave men and women who serve and have served in the Armed Forces, as 
well as the vast majority of American citizens. We must protect the 
flag from the acts of those few who would dishonor it.
  That is why I am joining Senator Bennett today in introducing the 
Flag Protection Act of 2005, to criminalize flag desecration. While 
other flag protection statutes have been found to be unconstitutional, 
this bill was carefully crafted to avoid the problems of previous 
statutes. In fact, the American Law Division of the Congressional 
Research Service has studied it and believes it would pass 
Constitutional muster.
  It is my hope that we can act quickly to protect the flag. This bill 
will accomplish that goal, and I ask my colleagues to give it serious 
consideration.
                                 ______