[House Report 106-191]
[From the U.S. Government Publishing Office]






106th Congress                                                   Report
  1st Session           HOUSE OF REPRESENTATIVES                106-191

======================================================================



 
CONSTITUTIONAL AMENDMENT AUTHORIZING CONGRESS TO PROHIBIT THE PHYSICAL 
              DESECRATION OF THE FLAG OF THE UNITED STATES

                                _______


   June 18, 1999.--Referred to the House Calendar and ordered to be 
                                printed

                                _______
                                

 Mr. Hyde, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                      [To accompany H.J. Res. 33]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
joint resolution (H.J. Res. 33) proposing an amendment to the 
Constitution of the United States authorizing the Congress to 
prohibit the physical desecration of the flag of the United 
States, having considered the same, reports favorably thereon 
without amendment and recommends that the joint resolution do 
pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
Purpose and Summary........................................           2
Background and Need for the Legislation....................           2
Hearings...................................................           5
Committee Consideration....................................           5
Vote of the Committee......................................           6
Committee Oversight Findings...............................           6
Committee on Government Reform Findings....................           7
New Budget Authority and Tax Expenditures..................           7
Congressional Budget Office Cost Estimate..................           7
Constitutional Authority Statement.........................           8
Section-by-Section Analysis and Discussion.................           8
Dissenting Views...........................................          10

                          Purpose and Summary

    H.J. Res. 33 proposes to amend the Constitution to allow 
Congress to prohibit the physical desecration of the flag of 
the United States.
    The proposed amendment reads simply: ``The Congress shall 
have the power to prohibit the physical desecration of the flag 
of the United States.'' The amendment itself does not prohibit 
flag desecration. It merely empowers Congress to enact 
legislation to prohibit the physical desecration of the flag 
and establishes boundaries within which it may legislate. Prior 
to the Supreme Court decision in Texas v. Johnson, 109 S.Ct. 
2533 (1989), forty-eight states and the Federal Government had 
laws on the books prohibiting desecration of the flag. The 
purpose of the proposed constitutional amendment is to restore 
the power to protect the flag to the Congress.

                Background and Need for the Legislation

    In June, 1989, the United States Supreme Court in Texas v. 
Johnson, 109 S.Ct. 2533, held that the burning of an American 
flag as part of a political demonstration was expressive 
conduct protected by the First Amendment to the U.S. 
Constitution. After publicly burning a stolen American Flag in 
a protest outside of the 1984 Republican National Convention in 
Dallas, Texas, Gregory Johnson was convicted of desecrating a 
flag in violation of Texas law. The Texas law prohibited the 
intentional desecration of a national flag in a manner in which 
``the actor knows will seriously offend one or more persons 
likely to observe or discover his action.''\1\
---------------------------------------------------------------------------
    \1\ Tex. Penal Code Ann. Section 42.09(a)(3), Desecration of a 
Venerated Object, provides as follows: ``(a) A person commits an 
offense if he intentionally or knowingly desecrates:

      ``(1) a public monument;
      ``(2) a place of worship or burial; or
      ``(3) a state or national flag.
      ``(b) For purposes of this section, `desecrate' means 
      deface, damage, or otherwise physically mistreat in a way 
      that the actor knows will seriously offend one or more 
      persons likely to observe or discover his action.
      ``(c) An offense under this section is a Class A 
      misdemeanor.''
    His conviction was upheld by the Court of Appeals for the 
Fifth District of Texas at Dallas, but reversed by the Texas 
Court of Criminal Appeals. The 5-4 U.S. Supreme Court opinion 
affirmed the decision of the Court of Criminal Appeals: 
Johnson's conviction was inconsistent with the First Amendment 
because his actions constituted ``symbolic free expression.''
    Justice Rehnquist filed a dissenting opinion in which 
Justices O'Connor and White joined.\2\
---------------------------------------------------------------------------
    \2\ Justice Stevens filed a separate dissenting opinion.
---------------------------------------------------------------------------
    Justice Rehnquist noted the unique history of the American 
Flag:

          The American Flag, then, throughout more than 200 
        years of our history, has come to be the visible symbol 
        embodying our Nation. It does not represent the views 
        of any

        particular political party, and it does not represent 
        any particular political philosophy. The flag is not 
        simply another ``idea'' or ``point of view'' competing 
        for recognition in the marketplace of ideas. Millions 
        and millions of Americans regard it with an almost 
        mystical reverence regardless of what sort of social, 
        political, or philosophical beliefs they may have. I 
        cannot agree that the First Amendment invalidates the 
        Act of Congress, and the laws of 48 of the 50 States, 
        which make criminal the public burning of the flag. 
        Texas v. Johnson, 109 S.Ct. at 2552.

    Justice Rehnquist also pointed out that former Chief 
Justice Earl Warren, and former Justices Black and Fortas all 
expressed the view that the States and the Federal Government 
had the power to protect the American Flag from desecration and 
disgrace.
    In response to the Johnson decision, in September of 1989, 
Congress passed the ``Flag Protection Act of 1989'' under 
Suspension of the Rules by a vote of a 380 to 38. The Act 
amended the Federal Flag Statute (18 U.S.C. 700) attempting to 
make it ``content-neutral'' so that it would pass 
constitutional muster. As stated in the House Judiciary 
Committee report, ``the amended statute focuses exclusively on 
the conduct of the actor, irrespective of any expressive 
message he or she might be intending to convey.''\3\
---------------------------------------------------------------------------
    \3\ ``Flag Protection Act of 1989'', H. Rep. No. 101 231, 101st 
Cong., 1st Sess. 2 (1989). The Act became law without the President's 
signature on October 28, 1989 (Pub. L. 101 131).
---------------------------------------------------------------------------
    On June 11, 1990, in United States v. Eichman, 496 U.S. 
311, the Supreme Court, in another 5-4 decision, struck down 
the newly-enacted ``Flag Protection Act of 1989,'' ruling that 
it infringed on expressive conduct protected by the First 
Amendment. Although the Government conceded that flag burning 
constituted expressive conduct, it claimed that flag burning, 
like obscenity or ``fighting words'' was not fully protected by 
the First Amendment. The Government also argued the ``Flag 
Protection Act'' was constitutional because, unlike the Texas 
statute struck down in Texas v. Johnson, the Act was ``content-
neutral'' and simply sought to protect the physical integrity 
of the flag rather than to suppress disagreeable communication.
    Justice Brennan, writing for the majority, rejected the 
Government's argument, noting that:

        Although the Flag Protection Act ``contains no explicit 
        content-based limitation on the scope of prohibited 
        conduct, it is nevertheless clear that the Government's 
        asserted interest is `related to the suppression of 
        free expression,' '' 491 U.S., at 410, 109 S.Ct., at 
        2543, and concerned with the content of such 
        expression. [T]he Government's desire to preserve the 
        flag as a symbol for certain national ideals is 
        implicated ``only when a person's treatment of the flag 
        communicates [a] message'' to others that is 
        inconsistent with those ideals. U.S. v. Eichman, 110 
        S.Ct. 2404 (1990).

    Justice Stevens wrote a dissenting opinion in which Chief 
Justice Rehnquist, Justice White and Justice O'Connor joined. 
He expressed unanimous agreement with the proposition expressed 
by the majority that ``the Government may not prohibit the 
expression of an idea simply because society finds the idea 
itself offensive or disagreeable.'' He went on, however, to 
note that methods of expression may be prohibited under a 
number of circumstances and set forth the following standard:

          If (a) the prohibition is supported by a legitimate 
        societal interest that is unrelated to suppression of 
        the ideas the speaker desires to express; (b) the 
        prohibition does not entail any interference with the 
        speaker's freedom to express those ideas by other 
        means; and the interest in allowing the speaker 
        complete freedom of choice among alternative methods of 
        expression is less important than the societal interest 
        supporting the prohibition. Eichman, 496 U.S., at 319.

    Justice Stevens felt that the statute satisfied each of 
these concerns and thus should have withstood constitutional 
scrutiny.
    Once the Supreme Court ruled a second time that flag 
burning was expressive speech protected by the First Amendment, 
it became apparent that no statute could adequately protect the 
U.S. Flag from desecration--a constitutional amendment was 
necessary. Since that time, forty-nine states have passed 
resolutions calling on Congress to pass an amendment to protect 
the flag of the United States from physical desecration and 
send it back to the States for ratification. Additionally, the 
House of Representatives has twice passed constitutional 
amendments aimed at protecting the U.S. flag from desecration. 
In 1995, the House adopted, by a vote of 312-120, a 
constitutional amendment granting both Congress and the states 
the power to pass laws prohibiting the physical desecration of 
the flag. However, the Senate vote in 1995 failed, by three 
votes, to reach the two-thirds vote threshold that is required 
by the Constitution. In 1997, the House passed, by a vote of 
310-114, a constitutional amendment, H.J. Res. 54, granting 
Congress the power to prohibit the physical desecration of the 
flag. The amendment was not considered on the Senate floor 
during the 105th Congress. H.J. Res. 33 is identical to H.J. 
Res. 54.
    Opponents of the amendment have argued that H.J. Res. 33 
limits free speech as guaranteed by the first amendment to the 
U.S. Constitution. The first amendment states, ``Congress shall 
make no law . . . abridging freedom of speech . . .'' H.J. Res. 
33 gives Congress the power to prohibit the physical 
desecration of the flag of the United States. It does not 
prevent anyone from making any statement or saying anything--
regardless of how objectionable it may be. Until the Supreme 
Court's decisions in Texas v. Johnson in 1989 and U.S. v. 
Eichman in 1990, punishing the physical desecration of the flag 
was considered entirely in keeping with the protections of the 
first amendment. Forty-eight states and the Federal Government 
had laws banning flag desecration.
    As pointed out by Justice Rehnquist in Texas v. Johnson, 
Chief Justice Earl Warren, and Justices Black and Fortas all 
expressed the view that the States and the Federal Government 
had the power to protect the Flag from desecration and 
disgrace. Former Chief Justice Earl Warren in Street v. New 
York, 394 U.S. 576, 605 (1969) stated, ``I believe that States 
and the Federal Government do have power to protect the flag 
from acts of desecration and disgrace.'' In the same case, 
Justice Hugo Black, a zealous proponent of freedom of speech 
wrote, ``It passes my belief that anything in the Federal 
Constitution bars . . . making the deliberate burning of the 
American flag an offense.'' Id. at 610. Again in Street, 
Justice Abe Fortas stated, ``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.'' Id. at 615-617.
    In addition, opponents argue that H.J. Res. 33 proposes an 
unprecedented limitation on the content of speech. This 
assertion is both historically and legally inaccurate. Until 
1989, forty-eight states and the federal government had laws 
criminalizing the physical desecration of the flag and there 
was no perceived conflict with freedom of speech. In addition, 
on numerous occasions, the Supreme Court has upheld government 
regulation of pure speech. For example, speech that is likely 
to incite an immediate, violent response, Chaplinsky v. New 
Hampshire, 315 U.S. 568 (1942); obscenity, Miller v. 
California, 413 U.S. 15 (1973); and libel, New York Times v. 
Sullivan, 367 U.S. 254 (1970) are not protected under the first 
amendment.
    In conclusion, H.J. Res. 33 furthers the legitimate 
interest of the federal government in protecting the American 
flag and it does not interfere with a speaker's freedom to 
express his or her ideas by other means. It is the only 
remaining avenue by which the Congress can pass legislation to 
protect the flag of the United States from physical 
desecration.

                                Hearings

    The Committee's Subcommittee on the Constitution held a 
hearing on H.J. Res. 33 on March 23, 1999. Testimony was 
received from 13 witnesses: Representative Randy ``Duke'' 
Cunningham; Representative Steve Buyer; Representative John 
Lewis; Representative John Sweeney; Representative Wayne 
Gilchrest; Mr. Stephan Ross, concentration camp survivor and 
senior staff psychologist for the City of Boston Community 
Schools and Centers; Stephen Presser, Raoul Berger Professor of 
Legal History, Northwestern University School of Law; Major 
General Patrick Brady (USA-Ret), Chairman of the Citizen Flag 
Alliance's Board of Directors; Bishop Carlton Pearson, 
presiding Bishop over the Azusa Interdenominational Fellowship, 
Shawntel Smith, former Miss America from Oklahoma; Captain 
Joseph E. Rogers, (U.S.N.R.-Ret.), corporate counsel, Alcatel 
USA; David Skaggs, former United States Representative and 
current Executive Director of the Democracy and Citizenship 
Program at the Aspen Institute; Douglas C. Clifton, executive 
editor of the Miami Herald.

                        Committee Consideration

    On April 14, 1999, the Subcommittee on the Constitution met 
in open session and ordered favorably reported the resolution, 
H.J. Res. 33, by a vote of 7 to 4, a quorum being present. On 
May 26, 1999, the Committee met in open session and ordered 
favorably reported the resolution, H.J.Res. 33, without 
amendment, by voice vote, a reporting quorum being present..

                         Vote of the Committee

    Mr. Watt offered an amendment to strike ``the'' on page 3, 
line 9 of the resolution and insert, ``Not inconsistent with 
the first article of amendment to this Constitution, the''. 
Thus, the proposed amendment would read, ``The Congress shall 
have the power to prohibit, not inconsistent with the first 
article of amendment to this Constitution, the physical 
desecration of the flag of the United States.'' The Watt 
amendment was defeated by a roll call vote of 7-17.

                                                   ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Sensenbrenner...............................................  ..............  ..............  ..............
Mr. McCollum....................................................  ..............  ..............  ..............
Mr. Gekas.......................................................  ..............              X   ..............
Mr. Coble.......................................................  ..............  ..............  ..............
Mr. Smith (TX)..................................................  ..............              X   ..............
Mr. Gallegly....................................................  ..............              X   ..............
Mr. Canady......................................................  ..............              X   ..............
Mr. Goodlatte...................................................  ..............              X   ..............
Mr. Bryant......................................................  ..............              X   ..............
Mr. Chabot......................................................  ..............              X   ..............
Mr. Barr........................................................  ..............              X   ..............
Mr. Jenkins.....................................................  ..............              X   ..............
Mr. Hutchinson..................................................  ..............              X   ..............
Mr. Pease.......................................................  ..............  ..............  ..............
Mr. Cannon......................................................  ..............              X   ..............
Mr. Rogan.......................................................  ..............              X   ..............
Mr. Graham......................................................  ..............  ..............  ..............
Ms. Bono........................................................  ..............              X   ..............
Mr. Bachus......................................................  ..............              X   ..............
Mr. Scarborough.................................................  ..............              X   ..............
Mr. Conyers.....................................................  ..............  ..............  ..............
Mr. Frank.......................................................  ..............  ..............  ..............
Mr. Berman......................................................  ..............  ..............  ..............
Mr. Boucher.....................................................  ..............  ..............  ..............
Mr. Nadler......................................................              X   ..............  ..............
Mr. Scott.......................................................              X   ..............  ..............
Mr. Watt........................................................              X   ..............  ..............
Ms. Lofgren.....................................................              X   ..............  ..............
Ms. Jackson Lee.................................................              X   ..............  ..............
Ms. Waters......................................................  ..............  ..............  ..............
Mr. Meehan......................................................  ..............  ..............  ..............
Mr. Delahunt....................................................  ..............  ..............  ..............
Mr. Wexler......................................................  ..............  ..............  ..............
Mr. Rothman.....................................................  ..............              X   ..............
Ms. Baldwin.....................................................              X   ..............  ..............
Mr. Weiner......................................................              X   ..............  ..............
Mr. Hyde, Chairman..............................................  ..............              X   ..............
                                                                 -----------------------------------------------
    Total.......................................................              7              17   ..............
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform were received as referred to in clause 
3(c)(4) of Rule XIII of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of House Rule XIII is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the resolution, H.J. Res.33, the following estimate 
and comparison prepared by the Director of the Congressional 
Budget Office under section 402 of the Congressional Budget Act 
of 1974:
                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 27, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.J. Res. 33, proposing 
an amendment to the Constitution of the United States 
authorizing Congress to prohibit the physical desecration of 
the flag of the United States.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Susanne S. 
Mehlman (for federal costs), who can be reached at 226-2860, 
and Lisa Cash Driskill (for the state and local impact), who 
can be reached at 225-3220.
            Sincerely,
                                  Dan L. Crippen, Director.
H.J. Res. 33--Proposing an amendment to the Constitution of the United 
        States authorizing Congress to prohibit the physical 
        desecration of the flag of the United States.
    H.J. Res. 33 would propose amending the Constitution to 
allow the Congress to enact legislation that would prohibit 
physical desecration of the U.S. flag. The legislatures of 
three-fourths of the states would be required to ratify the 
proposed amendment within seven years for the amendment to 
become effective. By itself, this resolution would have no 
impact on the federal budget. If the proposed amendment to the 
Constitution is approved by the states, then any future 
legislation prohibiting flag desecration could impose 
additional costs on U.S. law enforcement agencies and the court 
system to the extent that cases involving desecration of the 
flag are pursued and prosecuted. However, CBO does not expect 
any resulting costs to be significant. Because enactment of 
H.J. Res. 33 would not affect direct spending or receipts, pay-
as-you-go procedures would not apply.
    H.J. Res. 33 contains no intergovernmental or private-
sector mandates as defined in the Unfunded Mandates Reform Act 
and would impose no costs on state, local, or tribal 
governments. In order for the amendment to become part of the 
Constitution, three-fourths of the state legislatures would 
have to ratify the resolution within seven years of its 
submission to the states by the Congress. However, no state is 
required to take action on the resolution, either to reject it 
or to approve it.
    On April 30, 1999, CBO transmitted a cost estimate for S. 
J. Res. 14, as reported by the Senate Committee on the 
Judiciary on April 29, 1999. S. J. Res. 14 and H.J. Res. 33 are 
identical, as are the two estimates.
    The CBO staff contacts for this estimate are Susanne S. 
Mehlman (for federal costs), who can be reached at 226-2860, 
and Lisa Cash Driskill (for the state and local impact), who 
can be reached at 225-3220. This estimate was approved by 
Robert A. Sunshine, Deputy Assistant Director for Budget 
Analysis.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article V of the Constitution, which 
provides that the Congress has the authority to propose 
amendments to the Constitution.

               Section-by-Section Analysis and Discussion

    H.J. Res. 33 simply states ``[t]he Congress shall have 
power to prohibit the physical desecration of the flag of the 
United States.'' Congress clearly possessed this power prior to 
the decisions of the United States Supreme Court in Texas v. 
Johnson and U.S. v. Eichman. Those decisions held that the act 
of physically desecrating the flag by burning was expressive 
conduct protected by the First Amendment. The First Amendment 
to the U.S. Constitution, which states, ``Congress shall make 
no law . . . abridging freedom of speech . . .'' limits the 
power of Congress. H.J. Res. 33 makes clear that Congress does 
have the power to pass legislation to prohibit the physical 
desecration of the flag of the United States.
    This proposed constitutional amendment sets the parameters 
for future action by the Congress on this issue. After the 
amendment is ratified, the elected representatives of the 
people will once again have the power and can decide whether to 
enact legislation to prohibit the physical desecration of the 
flag.
    There are two key issues that will need to be resolved in 
enacting legislation to protect the flag from physical 
desecration.
    First, Congress may want to flesh out the meaning of 
``physical desecration.'' The amendment itself requires 
physical contact with the flag. Congress could not punish mere 
words or gestures directed at the flag, regardless of how 
offensive they were. Webster's Ninth New Collegiate Dictionary 
defines ``desecrate'' as follows: ``1: to violate the sanctity 
of: PROFANE 2: to treat irreverently or contemptuously often in 
a way that provokes outrage on the part of others.'' 
``Desecrate'' is defined in Black's Law Dictionary as ``to 
violate sanctity of, to profane, or to put to unworthy use.'' 
Congress could clearly prohibit burning, shredding and similar 
defilement of the flag. In addition, the term ``desecrate'' 
clearly implies that the physical act must demonstrate contempt 
for the flag.
    Second, Congress will have to decide what representations 
of the flag of the United States are to be protected. Of 
course, the resolution in no way changes the fact that the 
authority to determine ``what constitutes the flag of the 
United States'' is defined by the United States Congress at 4 
U.S.C. 1. In enacting a statute, Congress will need to decide 
which representations of the flag are to be protected from 
physical desecration. They may define the flag of the United 
States as only a cloth, or other material readily capable of 
being waved or flown, with the characteristics of the official 
flag of the United States as described in 4 U.S.C. 1 or a 
``flag'' could be anything that a reasonable person would 
perceive to be a flag of the United States even if it were not 
precisely identical to the flag as defined by statute. This 
would allow states and the Congress to prevent a situation 
whereby a representation of a United States flag with forty-
nine stars or twelve red and white stripes was burned in order 
to circumvent the statutory prohibition.
                            Dissenting Views

    Because we honor the American flag for the tangible ideals 
of freedom and democracy that gave rise to it as well as for 
its richness as a symbol, we take issue with proponents of H.J. 
Res. 33, a measure that will purchase its protections of the 
American flag with the currency of the First Amendment.
    As a general matter, we take the view that the amendment 
process is a remedy of last resort afforded to Congress and 
that its powerful and rarely used force must be used with great 
care. Over more than 200 years, our Constitution has been 
amended only 27 times. If ratified, H.J. Res. 33 would--for the 
first time in our Nation's history--modify the Bill of Rights 
to limit freedom of expression. In this instance, the majority 
is reacting to a pair of Supreme Court decisions, Texas v. 
Johnson, 491 U.S. 397 (1989) and United States v. Eichman, 496 
U.S. 310 (1990), which held that state and federal government 
efforts to protect the flag against physical destruction by 
statute were content-based political speech restrictions and 
imposed unconstitutional limitations on that speech.
    Before we take the drastic action proposed here, there are 
three major questions we should be asking ourselves. First, is 
the problem of flag desecration \1\ so pervasive and so 
incapable of regulation as to require a constitutional 
amendment? We answer this question in the negative. Second, 
even if a single instance of flag desecration poses some harm 
to our national interests, does that possible consequence 
justify censoring our citizens out of symbolic expressions of 
disagreement with their government? We answer this question in 
the negative, as we would warn against joining the ranks of 
tyrannical nations. Finally, does the precise language of this 
measure achieve its stated goals of fostering national unity 
and keeping our political discourse civil? We again answer in 
the negative and point out that past efforts to protect the 
flag by force of criminal penalty have actually instigated flag 
burning.\2\
---------------------------------------------------------------------------
    \1\ We use the term ``desecration'' here, even though we are not 
quite sure what it means. Presumably, this term includes flag burning. 
It also could apply to disposing of a flag postage stamp, sitting on a 
pair of jeans with a flag likeness on the seat or wearing a shirt with 
a likeness of the flag that also contains unflattering words about the 
flag.
    \2\ In his extensive survey of the history of American flag 
desecration law, Robert Goldstein writes that ``[a]lthough the purpose 
of the [Flag Protection Act adopted by Congress in 1968] was to 
supposedly end flag burnings, its immediate impact was to spur perhaps 
the largest single wave of such incidents in American history.'' Robert 
J. Goldstein, Saving `Old Glory': The History of the American Flag 
Desecration Controversy 215 (1995).
---------------------------------------------------------------------------
    There is no disputing the fact that the instances of flag 
burning have been rare in our nation's history, and therefore 
the problem of flag desecration cannot be considered pervasive. 
Studies indicate, for instance, that from 1777 until the 1989 
Supreme Court decision in Texas v. Johnson, there were only 45 
reported cases of flag burning.\3\
---------------------------------------------------------------------------
    \3\ Robert J. Goldstein, ``Two Centuries of Flagburning in the 
United States, 163 Flag Bull. 65 (1995).
---------------------------------------------------------------------------
    In addition to the relative infrequency of flag burning, 
proponents of the measure cast the current state of the law as 
though Congress is impotent to protect the flag. However, even 
witnesses who disagree with the Supreme Court rulings in 
Johnson and Eichman have stated that the impact of those cases 
was not so broad. In 1995, Bruce Fein stated as much in 
subcommittee hearings. ``While I believe the Johnson and 
Eichman decisions were misguided, I do not believe a 
constitutional amendment would be a proper response, Flag 
desecrations when employed as `fighting words' or when intended 
and likely to incite a violation of law remain criminally 
punishable under the Supreme Court precedents in Chaplinsky v. 
New Hampshire and Brandenburg v. Ohio.'' \4\
---------------------------------------------------------------------------
    \4\ Indeed, a less drastic but workable statutory effort that uses 
the doctrine of both the Chaplinsky and Brandenburg decisions has been 
introduced in the House this session. See H.R. 1081 (introduced March 
11, 1999 before the 106th Congress, 1st Sess.).
---------------------------------------------------------------------------
    Many well-meaning proponents of this measure fashion the 
harm caused by flag desecration as ``qualitative.'' Thus, while 
they might concede that the instances are low in number, they 
insist that even one instance of flag desecration would work a 
substantial harm against our national interests. In 
subcommittee hearings on H.J. Res. 33, House Judiciary 
Committee Chairman Hyde even likened instances of flag 
desecration to ``hate crimes,'' rather than free speech 
deserving of protection.\5\ More generally, proponents of this 
legislation ask, ``What sort of country permits its flag to be 
destroyed in protest by its own citizens?''
---------------------------------------------------------------------------
    \5\ See Hearing on H.J. Res. 33, Proposing an Amendment to the 
Constitution of the United States Before the Subcomm. on the 
Constitution of the House Comm. on the Judiciary, 106th Cong., 1st 
Sess. (March 23, 1999).
---------------------------------------------------------------------------
    Perhaps those proponents should also ask themselves the 
opposite question. ``What sort of country limits the way in 
which its citizens engage in political protest?'' An honest 
answer will reveal that the amendment, if ratified, will push 
our political speech rights closer to countries like China and 
Iran and the former regimes of the Soviet Union and South 
Africa.\6\ However well-intentioned, H.J. Res. 33 would open 
the door to government suppression of political protest, an 
activity that is central to our democratic process.
---------------------------------------------------------------------------
    \6\ Roman Rollnick, ``Flag Amendment would put U.S. with Iran, 
China,'' UPI (July 1, 1989).
---------------------------------------------------------------------------
    We cannot legislate patriotism. The Supreme Court has 
already considered the consequences of doing so and has set 
forth a formidable argument against it. In West Virginia Board 
of Education v. Barnette, the Court said,

          [The] ultimate futility of . . . attempts to compel 
        coherence is the lesson of every such effort from the 
        Roman drive to stamp out Christianity as a disturber of 
        its pagan unity, the Inquisition, as a means to 
        religious and dynastic unity, the Siberian exiles as a 
        means to Russian unity, down to the last failing 
        efforts of our present totalitarian enemies. Those who 
        begin coercive elimination of dissent soon find 
        themselves exterminating dissenters. Compulsory 
        unification of opinion achieves only the unanimity of 
        the graveyard.'' \7\
---------------------------------------------------------------------------
    \7\ Barnette, 319 U.S. 624, 641 (1943).

    Finally, we submit that, if ratified, H.J. Res. 33 would 
not decrease instances of flag desecration but would actually 
increase such unsavory events. Political speech, whether 
outlawed or not, is by its nature urgent and incapable of 
repression. Those who would attempt to burn the flag today to 
protest their federal government will not be slowed much by the 
civil and criminal penalties imposed by the amendment. 
Political speech is not thwarted by criminal and civil 
consequence.
    The wise founders of our nation knew that political discord 
is in the nature of a political society. Rather than treat 
differences of opinion as something to be feared, the Framers 
of our government sought to use dissent in positive ways. \8\ 
When we limit the mode of dissent, we begin along a path of 
political speech restrictions that will inevitably lead to 
restrictions on the content of the dissent. We cannot endorse a 
proposal that protects the symbol of free speech--our flag--by 
diminishing free speech itself.
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    \8\ Professor Greenwalt reminds us of the importance of free 
expression when he writes:

      [T]hose who are resentful because their interests are not 
      accorded fair weight, and who may be doubly resentful 
      because they have not even had a chance to present those 
      interests, may seek to attain by radical changes in 
      existing institutions what they have failed to get from the 
      institutions themselves. Thus liberty of expression, though 
      often productive of divisiveness, may contribute to social 
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      stability.

Greenwalt, Speech and Crime, A.B.F. Res. J. 645, 672-3 (1980).
    In our view, the question of amending the constitution to 
protect the flag boils down to an unnecessary choice between 
national pride and national discourse. These two important ends 
are not mutually exclusive. Indeed, our national discourse, 
which has sometimes been tense and angry, can be considered 
reflective of our national pride. In the end, we, like the 
majority, hope that our citizens treat the United States flag 
with the honor and respect we believe it deserves. We simply 
believe that such honor and respect is even more meaningful 
when our citizens have a right to express their discontent, 
disappointment and even disdain for our government but choose 
not to do so.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Melvin L. Watt.
                                   Sheila Jackson Lee.
                                   Martin T. Meehan.
                                   Tammy Baldwin.
                                   Barney Frank.
                                   Rick Baucher.
                                   Robert C. Scott.
                                   Zoe Lofgren.
                                   Maxine Waters.

                                
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