[Senate Report 108-334]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 646
108th Congress                                                   Report
 2d Session                                                     108-334




                August 25, 2004.--Ordered to be printed

   Filed, under authority of the order of the Senate of July 22, 2004


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

                              R E P O R T

                             together with


                       [To accompany S.J. Res. 4]

    The Committee on the Judiciary, to which was referred the 
joint resolution (S.J. Res. 4) to propose an amendment to the 
Constitution so that ``Congress shall have power to prohibit 
the physical desecration of the flag of the United States,'' 
having considered the same, reports favorably thereon, and 
recommends that the joint resolution do pass.


  I. Summary..........................................................2
 II. Legislative History..............................................3
III. Discussion.......................................................7
          A. The Flag in Our Culture.............................     7
              1. The Flag and the September 11, 2001 Attacks.....     7
              2. A Powerful Reminder of Sacrifice................     8
              3. The Flag as a Symbol in a Culture of Symbols....     8
 IV. The Flag in American Law........................................10
          A. The Constitution's Framers..........................    10
              1. James Madison...................................    11
              2. Thomas Jefferson................................    12
          B. Statutory Protection for the Flag...................    12
              1. Promotion of respect for the flag...............    13
              2. Protection for the flag: striking the balance...    13
              3. Judicial application of flag protection 
                  statutes: respecting the balance...............    15
          C. Judicial Amendment of the Constitution: Restriking 
              the Balance........................................    16
          D. The Need for a Constitutional Amendment.............    19
  V. The Proposed Constitutional Amendment...........................21
          A. What it says and means..............................    21
          B. Several constitutional amendments were spurred by 
              Supreme Court decisions............................    21
          C. What the Proposed Amendment is not..................    22
              1. No Reduction in First Amendment rights..........    22
              2. No Disrespect in Amending the Constitution......    24
              3. No Slippery Slope...............................    24
          D. Let the People Decide...............................    25
          E. The Ratification Debate.............................    26
 VI. Vote of the Committee...........................................27
VII. Text of S.J. Res. 4.............................................27
VIII.Cost Estimate...................................................27

 IX. Regulatory Impact Statement.....................................28
  X. Minority Views..................................................29
 XI. Supplemental Views..............................................67
     Appendix A......................................................69
     Appendix B......................................................72

                               I. Summary

    The Flag of the United States is both a legally described 
symbol of our Federal Government and its sovereignty, and an 
important wellspring of culture, loyalty, pride, unity and 
resolve. The dual roles in government and culture explain why 
the flag is a national resource and treasure worthy of 
    The flag protection amendment is simple and narrow. It 
reads: ``Congress shall have the power to prohibit the physical 
desecration of the flag of the United States.'' It does not 
make anything illegal. If it is enacted, the amendment would 
simply authorize--but not require--Congress to pass a law 
protecting the American flag. Such laws existed for 200 years 
prior to two Supreme Court decisions in 1989 and 1990, and 
those laws had been enforced by five other Supreme Court 
rulings and numerous state court cases. James Madison and 
Thomas Jefferson supported legal protections for the flag, and 
so did Supreme Court Justice Hugo Black, who was perhaps the 
leading exponent of First Amendment freedoms ever to sit on the 
Supreme Court.
    All fifty states have passed resolutions calling on 
Congress to pass a flag amendment. The U.S. House of 
Representatives has passed the amendment in each of the last 
four consecutive sessions of Congress, including this one. 
President Bush supports it as well. Only the Senate--indeed 
only a handful of Senators--stands between S.J. Res. 4 and the 
state-by-state debate on ratification.
    Some critics say that the flag amendment would offend the 
right to free speech as guaranteed by the First Amendment. But 
the proposed amendment would not affect anyone's ability to 
express any opinion whatsoever about the flag, the country, the 
government's actions oranything else. Americans will continue 
to have the right to express their views in public, in private, in 
newspapers, on the Internet, and through broadcast media. The fact is, 
acts of disrespect to the flag such as burning it and urinating on it 
add nothing whatsoever to any debate about our nation's polices, 
priorities, or direction. Desecrating the flag is not a right that 
Americans value. Throughout the Committee's consideration of S.J. Res. 
4, no one has stated that flag desecration is acceptable behavior. In 
fact, a number of Senators who voted against the measure made a point 
of labeling flag desecration reprehensible conduct.\1\
    \1\ Transcript of Proceedings, Committee on the Judiciary, 
``Letting the People Decide: The Constitutional Amendment Authorizing 
Congress to Prohibit the Physical Desecration of the Flag of the United 
States,'' March 10, 2004 (hereinafter, ``Hearing Transcript''), pp. 14, 
21, 27.
    Moreover, the flag amendment is about much more than 
speech. Its passage and ratification would be an important 
demonstration that the American people still run the 
government, and not the other way around. The most basic 
question about the structure of our Federal Government is the 
balance of power among the three branches: executive, 
legislative, and judicial. For almost 200 years, the 
legislative branch had the power to make laws concerning 
physical desecration of the flag. That changed in 1989 and 1990 
when the Supreme Court ruled that flag burning is ``speech.'' 
The effect of that decision was a reallocation of power from 
Congress to the Supreme Court--which is now the only branch of 
government that can decide whether a flag desecration law can 
exist. An overwhelming number of Americans disagree with that 
result. By giving the discretion back to Congress, the flag 
amendment would restore the power of the people to determine 
flag desecration policy through their elected representatives.
    If the Senate passes the flag amendment this year, the 
nationwide debate over state ratification will be one of the 
greatest public discussions in American history. It will 
encourage a deeper study of our nation's history and values. It 
will inspire our young people to understand and appreciate the 
heroic selflessness displayed during previous generations. And 
it will cause many Americans to renew their faith in--and 
commitment to--the ideals and values of America that are 
greater than anyone's personal self interest.

                        II. Legislative History

    On June 21, 1989, the United States Supreme Court issued 
its decision in Texas v. Johnson, 491 U.S. 397 (1989). In that 
case, Gregory Johnson had been convicted of violating a Texas 
statute for knowingly desecrating an American flag. Johnson 
burned a flag at a political demonstration outside the Dallas, 
Texas City Hall during the 1984 Republican National Convention. 
The Texas Court of Criminal Appeals reversed his conviction. 
Johnson v. State, 755 S.W.2d 92 (1988). In a 5-4 decision, the 
United States Supreme Court affirmed the reversal, holding that 
Johnson's burning of the flag was expressive conduct, a form of 
symbolic speech protected by the First Amendment.
    On July 18, 1989, following the Supreme Court's decision in 
Johnson, Senators Robert Dole, Alan Dixon, Strom Thurmond, and 
Howell Heflin, as principal cosponsors, introduced Senate Joint 
Resolution 180, a proposed amendment to the U.S. Constitution, 
which would have given Congress and the States power to 
prohibit the physical desecration of the American flag. On July 
18, 1989, Senators Joseph Biden, William Roth, and William 
Cohen, as principal cosponsors, introduced S. 1338 (The Biden-
Roth-Cohen Flag Protection Act of 1989), which proposed to 
amend the federal flag desecration statute, 18 U.S. Code 
Section 700(a). The Judiciary Committee held hearings on August 
1, August 14, September 13, and September 14 of 1989 on the 
proposed legislation and constitutional amendment. 
Approximately 20 hours of testimony were received from 26 
witnesses, including a broad range of constitutional scholars, 
historians, representatives of veterans' organizations, members 
of the Senate, and attorneys from the Department of Justice. On 
September 21, 1989, the Judiciary Committee approved S. 1338 
and ordered the bill favorably reported.
    On September 12, 1989, the House of Representatives passed 
H.R. 2978 (The Flag Protection Act of 1989), in order to 
protect the physical integrity of the flag of the United 
States. H.R. 2978 was similar to S. 1338, and also sought to 
amend 18 U.S. Code Section 700(a).
    On October 5, 1989, the Senate passed H.R. 2978, which was 
enacted October 28, 1989. Under this statute, codified at U.S. 
Code Title 18, Section 700(a), ``(W)hoever knowingly mutilates, 
defaces, physically defiles, burns, maintains on the floor or 
ground or tramples upon any flag of the United States shall be 
fined under this Title or imprisoned for not more than one 
year, or both.'' An exception was made for ``conduct consisting 
of the disposal of a flag when it has become worn or soiled.''
    In the wake of the Flag Protection Act's passage, on 
October 19, 1989, S.J. Res. 180, the proposed constitutional 
amendment, failed to obtain the necessary two-thirds vote of 
the full Senate, by vote of 51 to 48. At the time, it was 
generally believed that the recently passed statute would 
survive constitutional scrutiny and an amendment was thus 
    On June 11, 1990, the Supreme Court struck down the Flag 
Protection Act in United States v. Eichman, 495 U.S. 928 
(1990), holding that the 1989 Act, like the Texas statute in 
Texas v. Johnson, violated the First Amendment. Eichman 
involved individuals who knowingly set fire to several American 
flags on the steps of the United States Capitol while 
protesting American foreign policy, and other individuals who 
knowingly burned a United States flag in Seattle while 
protesting passage of the 1989 Flag Protection Act. According 
to the Court, the First Amendment protected the physical acts 
engaged in by those individuals.
    Shortly after the Supreme Court's decision, the Senate 
Judiciary Committee held a hearing to consider what measures 
might be taken to protect the American flag. The Committee 
heard from eight witnesses, including representatives from the 
Justice Department.
    As a result of those hearings, an amendment to the U.S. 
Constitution was introduced that would have given Congress and 
the States the power to prohibit the physical desecration of 
the flag (Senate Joint Resolution 332). On June 26, 1990, 
however, the proposed amendment failed to receive the necessary 
two-thirds vote of the full Senate, by a vote of 58 to 42.
    On March 21, 1995, Senators Hatch and Howell Heflin (D-AL), 
as principal cosponsors, along with a bipartisan group of 53 
additional cosponsors, introduced Senate Joint Resolution 31, 
another proposed amendment to the U.S. Constitution identical 
to that introduced in both 1989 and 1990.
    On June 6, 1995, a hearing on S.J. Res. 31 was held by the 
Subcommittee on the Constitution, Federalism and Property 
Rights of the Judiciary Committee.
    On July 20, 1995, the Judiciary Committee voted 12 to 6 to 
report favorably S.J. Res. 31. The House of Representatives 
voted 312 to 120 in favor of an identical resolution, H.J. Res. 
79, on June 28, 1995. On December 12, 1995, however, S.J. Res. 
31 failed to obtain the necessary two-thirds vote of the full 
Senate, by a vote of 63 to 36.
    Efforts to protect the flag did not end there. On February 
4, 1998, Senator Hatch, along with Senator Max Cleland (D-GA), 
introduced S.J. Res. 40. The two senators were joined by an 
additional 53 original cosponsors in this effort, among those 
the Majority Leader, Senator Trent Lott, who explained that by 
introducing S.J. Res. 40 the Senate was beginning ``the process 
of restoration * * * and renewal. * * * We examine the events 
of recent years in the context of history in an effort to 
restore and renew our faith in this place we call America. The 
lynchpin of this process will be our restoration of what our 
flag--our American flag, the flag of these United States, the 
flag of what our founders referred to as `We, the people'--
means to us as a people, as citizens, as people united in the 
common cause of Freedom.''
    On February 13, 1997, a similar resolution, H.J. Res. 54, 
was introduced in the House of Representatives by Congressmen 
Gerald B. Solomon (R-NY) and William O. Lipinski (D-IL) and 283 
other original cosponsors.
    On March 25, 1998, the Subcommittee on the Constitution, 
Federalism, and Property Rights held a hearing on S.J. Res. 40. 
The subcommittee heard testimony from Alan G. Lance, Attorney 
General, State of Idaho; Bruce Fein, Esquire; Roger Breske, 
Member, Wisconsin State Senate; Professor Stephen B. Presser, 
Northwestern University School of Law, Chicago, Illinois; 
Professor Robert Justin Goldstein, Oakland University, 
Rochester, Michigan; Adrian Cronauer, Esquire, Burch and 
Cronauer, Washington, D.C.; Stan Tiner, Alabama Register, 
Mobile, Alabama; Patrick Brady, Chairman, Citizen's Flag 
Alliance, Sumner, Washington; Rose E. Lee, Former National 
President, Gold Star Wives of America, Arlington, Virginia; 
Mary Frost, President, Selective Learning Network, Kansas City, 
Missouri; Keith A. Kreul, Fennimore, Wisconsin; Francis J. 
Sweeney, Secretary/Treasurer, Steamfitters Local Union 449, 
Pittsburgh, Pennsylvania.
    On June 17, 1998, the resolution was polled out of the 
subcommittee by a vote of 5 to 3, and referred to the full 
Judiciary Committee. The Committee took up the legislation on 
June 24, 1998, and voted 11 to 7 to report favorably S.J. Res. 
    Following the full Committee vote, the Committee held a 
hearing on July 8, 1998. The Committee heard testimony from 
Gary G. Wetzel, Oak Creek, Wisconsin; Sean C. Stephenson, 
LaGrange, Illinois; John Schneider, Westlake, California; Tommy 
Lasorda, Los Angeles, California; Marvin Virgil Stenhammar, 
Ashville, North Carolina; Professor Richard D. Parker, Harvard 
University Law School; Clint Bolick, Esquire, Vice President 
and Director of Litigation, Institute for Justice, Washington, 
    The House Committee on the Judiciary addressed a similar 
resolution, H.J. Res. 54, the prior year and favorably reported 
H.J. Res. 54 out on May 14, 1997, by a vote of 20 to 9. On June 
12, 1997, the House of Representatives voted 310 to 114 in 
favor of H.J. Res. 54.
    At the beginning of the 106th Congress, on March 17, 1999, 
Senators Hatch and Cleland introduced S.J. Res. 14, a 
constitutional amendment to permit Congress to enact 
legislation prohibiting the physical desecration of the 
American flag identical to S.J. Res. 40 from the previous 
Congress. Senators Hatch and Cleland were joined by an 
additional 55 original cosponsors in that effort.
    On February 24, 1999, a resolution proposing an amendment 
identical to that proposed in S.J. Res. 14 was introduced in 
the House of Representatives as H.J. Res. 33 by Congressmen 
Randy Cunningham (R-CA) and John P. Murtha (D-PA) and 260 
additional original cosponsors. H.J. Res. 33 was approved by 
the House of Representatives on June 24, 1999, by a vote of 305 
to 124.
    On April 20, 1999, the Senate Judiciary Committee held a 
hearing on S.J. Res. 14. The Committee heard testimony from 
retired Maj. Gen. Patrick Brady, chairman of the Citizens Flag 
Alliance, Sumner, WA; Maribeth Seely, fifth grade teacher, 
Branchville, NJ; Prof. Gary May, University of Southern 
Indiana, Newburgh, IN; Rev. Nathan Wilson, West Virginia 
Council of Churches, Charleston, WV; retired Lt. General Edward 
Baca, former chief, National Guard Bureau, Albuquerque, NM; and 
Professor Richard Parker, Williams Professor of Law, Harvard 
Law School, Cambridge, MA.
    On April 21, 1999, the resolution was polled out of the 
subcommittee by a vote of 5 to 3, and referred to the full 
Judiciary Committee.
    On April 28, 1999, the Judiciary Committee held a second 
hearing on S.J. Res. 14. The Committee heard testimony from 
Senator John Chafee of Rhode Island; Senator John McCain of 
Arizona; Senator Bob Kerrey of Nebraska; Senator Max Cleland of 
Georgia; Senator Chuck Hagel of Nebraska; former Senator John 
Glenn of Ohio; and Randolf Moss, Acting Assistant Attorney 
General of the Office of Legal Counsel, Department of Justice, 
Washington, DC.
    The Committee took up the legislation on April 29, 1999, 
and voted 11 to 7 to report S.J. Res. 14 to the full Senate 
with a favorable recommendation. On March 29, 2000, cloture was 
invoked by a vote of 100 to 0, and then the measure failed to 
pass by a vote of 63 to 37.
    During the 107th Congress, Senators Hatch and Cleland 
introduced S.J. Res. 7 on March 13, 2001. The measure, which 
was identical to the previous S.J. Res. 40, was referred to the 
Committee on the Judiciary. S.J. Res. 7 was referred to the 
Subcommittee on the Constitution on July 15, 2002. No action 
was taken on S.J. Res. 7.
    At the beginning of the 108th Congress, on January 16, 
2003, Senators Hatch and Diane Feinstein (D-CA) introduced S.J. 
Res. 4, a resolution identical to S.J. Res. 7 and the other 
most recent resolutions. On March 10, 2004, the Committee held 
a hearing on the measure. The Committee heard testimony from 
the Honorable Daniel J. Bryant, Assistant Attorney General for 
the Office of Legal Policy, Department of Justice; retired 
Major General Patrick Brady, Chairman of the Citizens Flag 
Alliance; Lawrence J. Korb, Senior Fellow at the Center for 
American Progress, Adjunct Senior Fellow at the Council on 
Foreign Relations, and Senior Adviser to the Center for Defense 
Information; John Andretti, a native of Bethlehem, Pennsylvania 
and a respected NASCAR Nextel Cup Series driver for Dale 
Earnhardt, Inc.; Gary E. May, Associate Professor of Social 
Work at the University of Southern Indiana in Evansville; and 
Professor Richard D. Parker, the Paul W. Williams Professor of 
Criminal Justice at Harvard Law School.
    S.J. Res. 4 was referred to the Subcommittee on the 
Constitution, Civil Rights and Property Rights, and the 
subcommittee approved the measure by a vote of 5 to 4 on June 
2, 2004. On July 20, 2004, the full Committee voted to send 
S.J. Res. 4 to the floor with a favorable recommendation by a 
vote of 11 to 7.

                            III. Discussion

A. The flag in our culture

    The American flag has a profound meaning to American 
culture that far exceeds its nominal significance as the item 
described by law as the symbol of our Federal government. It 
would be a Herculean task to list all of the published songs, 
poems, essays, stories, paintings andother creative works that 
reflect Americans' love of the flag, and it would be impossible to 
catalog all of the privately created objects, from quilts to mailboxes 
to letters and photographs, that display the private thoughts and 
emotions evoked by Old Glory.
            1. The flag and the September 11, 2001 attacks
    The horrible terrorist attacks of September 11, 2001 proved 
within hours that the American people--along with their friends 
around the globe--see the American flag as a signal of strength 
and purpose and freedom. By the close of business that day, the 
nation's largest retailer had sold 88,000 American flags, 
compared to 6,000 on that date in 2000.\2\ Within two days, it 
sold out of its stock of 500,000 flags.\3\ People around the 
world flew the American flag on September 11, 2001, and the 
days immediately thereafter. The tattered flag found amid the 
ruins of the World Trade Center became an icon of proud 
survival, not unlike the flag Francis Scott Key famously 
observed ``was still there'' in the morning after a night of 
shelling by British forces during the War of 1812. And the 
brilliant red, white and blue hanging over the blackened, 
charred wing of the Pentagon inspired many people around the 
globe by showing the United States would not surrender to the 
forces that tried to inflict great harm on our country. 
Americans, together with citizens of other countries who wished 
to express their sympathy and support for our country, turned 
to the flag as the unifying image of endurance and resolve. The 
killing of innocents did not create these feelings for the 
flag; it tapped them and brought them to the surface. The 
realization that our country was under attack stoked an 
emotional flame for the colors, design, history and meaning of 
the United States flag, demonstrating again that it is a 
national treasure worthy of protection.
    \2\ Associated Press, September 13, 2001, Chuck Bartels.
    \3\ Associated Press, September 21, 2001, Anne D'innocenzio.
    One of the most moving tributes to the victims of the 
September 11 attacks was a display of over 3,000 flags--one for 
each victim--in Sandy, Utah in September 2002. Organized by 
Paul Swenson, the silent tribute was not only a fitting 
remembrance of the fallen, but also a wonderful demonstration 
of the power of the American flag. Each flag represented a 
human life. Together, they moved the emotions of many. When a 
request was made for volunteers to help set up the flags, over 
500 showed up, eager to work. There is simply no other item or 
object or symbol that can serve as a tribute, rally a 
community, and inspire the best in people as the American flag.
            2. A powerful reminder of sacrifice
    Untold millions of Americans have sacrificed in profound 
ways to build the United States into the world's beacon of hope 
and freedom of thought and opportunity. They have put their 
lives on the line and their plans on hold as they served in the 
armed forces; they have dedicated their creative energies to 
solving America's difficulties; they have paid taxes to enable 
America's defense and general welfare; they have foregone 
personal glory or riches in the name of community. All such 
sacrifices have strengthened our country and added to the cause 
of liberty, for which it was founded. Many Americans reflect 
upon their sacrifices, and those of others, when they see the 
American flag.
    No transaction in America is more solemn than the moment in 
a military funeral when a folded flag is handed to a widow, or 
a mother, or a father, whose family member has fallen in the 
line of duty to our country. In return for the life of a loved 
one, too many Americans have received a flag, folded at a 
funeral, as a token of the selfless and total sacrifice that 
person, and that family, and those loved ones, have made in 
order to further America's well being. It is common for such 
folded flags to be displayed in a prominent place such as on a 
mantle above a fireplace or on a bookshelf. When Americans look 
at such flags, they feel the loss of the person it represents, 
and they feel the solace--often too little--that the person 
they miss died in an honorable way. The emotions woven into the 
fabric of such flags is far too profound to fade or unravel.
    People who have such flags in their living rooms or family 
rooms certainly are excused if they find it difficult to look 
the other way at acts of flag desecration. An item that evokes 
so strongly the memory of a beloved individual should be 
treated with respect. Someone for whom the flag brings 
immediate memories of a departed loved one should not have to 
see a flag purposely humiliated by being torn, or burned, or 
urinated upon. The country that can require a person to give 
his or her life in furtherance of its interests overseas should 
not render itself powerless to protect its flag and those who 
are hurt by its abuse and humiliation here at home. Indeed, it 
is painfully ironic to most Americans that, although the 
government can fine a person for urinating on a public street, 
the Supreme Court has determined that the government cannot 
increase that fine by even a dollar if the act takes place on 
the cherished symbol of our country rather than the bare 
            3. The flag as a symbol in a culture of symbols
    Perhaps one reason that some people see the flag as a mere 
symbol, unworthy of protection, is that American society is 
awash in symbols. Nearly every company, organization, group or 
club has a logo, design or other icon. Many of those are 
displayed on flags. Americans are accustomed to seeing 
corporate flags flying side-by-side with Old Glory, whether in 
front of buildings, in stores, or in car sales lots. Perhaps 
some Americans therefore think that the notion of legal 
protections for the American flag is as absurd as the idea of 
federal law protecting commercial trademarked designs.
    Our country's founders did not experience an overload of 
logos. The only flags they saw flying on poles were their 
country's, their state's, or a military banner. The flag on a 
ship meant sovereignty, and its removal was an act of war. A 
banner captured in war meant victory over the fighters who gave 
it up.
    Today, a chief executive officer of a company with a flag 
would not tolerate seeing the logo desecrated. In fact, 
companies spend untold tens of millions of dollars per year 
protecting their trademarked logos and designs. If an employee 
were to desecrate a company flag, the employee would almost 
certainly face some sort of reprimand. No sensible director, 
officer or employee would put a company flag in the hands of 
someone who intended to desecrate it, and no such company 
official would defend the purposeful destruction of its symbol 
as an important means of communicating dissenting views about 
company policies or priorities.
    Of course, it is not possible to trademark the American 
flag\4\, and it would not be productive to do so. But it is 
useful to compare the kinds of protections that our senators, 
if they were CEOs of companies, would give to corporate logos, 
in contrast to the complete lack of protection that 
approximately one-third of our senators are willing to provide 
for the American flag. The civil law allows remedies against 
people who damage corporate symbols and logos. A company whose 
trademarked flag is misappropriated can recover ``(1) 
defendant's profits, (2) any damages sustained by the 
plaintiff, and (3) the costs of the action.'' \5\ And the 
damages award can be up to three times the amount of actual 
loss.\6\ This law is meant to be a powerful economic deterrent 
to anyone who would despoil a corporate trademark.
    \4\ 15 USCS Sec. 1052(b) (2004).
    \5\ 15 USCS Sec. 1117(b) (2004).
    \6\ 15 USCS Sec. 1117(a) (2004).
    The overwhelming majority of American people understand and 
honor the difference between Old Glory and privately owned 
trademarks used in commerce. For example, as John Andretti 
testified before the Committee,\7\ fans of NASCAR racing are 
accustomed to seeing many brightly colored corporate logos and 
several signal flags, each with a particular meaning. Even amid 
the excited confusion of a crowded stadium, however, fans 
display a reverence and solemnity toward the one banner that 
stands for our country's common values: the American flag. Such 
people have not allowed our modern commercial culture to make 
Old Glory appear to be just another emblem, or just another 
brand that a person may or may not prefer over a competing 
product. The American flag is different. It stands above all 
others as a cultural and governmental treasure. If the CEOs of 
our republic--its citizens--decide that the American flag 
should be protected by federal law, then the senators they 
elected should let them do it. A vote for S.J. Res. 4 is a vote 
for letting the American people decide, through their state 
legislatures, whether or not such legal protections should be 
    \7\ Hearing Transcript, pp. 59-64.

                      IV. The Flag in American Law

A. The Constitution's Framers

    When the Constitution's Framers adopted the flag as the 
fledgling nation's symbol in 1777, they understood the long 
history of law surrounding the flag as an emblem of national 
sovereignty. The Framers inherited from England a legal 
tradition of protecting flags as practical instruments 
affecting title to areas of land and water, rights of trade and 
citizenship, causes of war citable in international law, and 
similar matters of the utmost weight. Thus, the original intent 
and understanding regarding the flag's protection consisted of 
sovereignty concerns. The Framers understood that the flag they 
adopted and sought to protect, apart from being merely a 
patriotic or other type of symbol, as an incident of 
sovereignty. By recognizing the sovereignty interest in the 
flag, which historically meant responding to violations of its 
physical integrity, the Framers sought treatment for the United 
States, at home and abroad, as a sovereign nation.
    By pronouncements in the earliest years of the Republic, 
the Framers made clear that the flag, and its physical 
requirements, related to the existence and sovereignty of the 
nation and in no way interfered with the rights established by 
the First Amendment. The sovereignty interest in the flag's 
adoption was tied to concrete legal and historical factors 
which distinguished it sharply from any asserted ideology, 
patriotism, or viewpoint. The Framers, through their words and 
actions, demonstrated the historic core of consistency between 
flag protection and the First Amendment. As the Supreme Court 
has explained: ``from the earliest periods in the history of 
the human race, banners, standards and ensigns have been 
adopted. It is not then remarkable that the American people * * 
* early in their history, prescribed a flag as symbolical of 
the existence and sovereignty of the Nation.'' Halter v. 
Nebraska, 205 U.S. 34, 41 (1907).
    In America, the tradition that ``insults to the flag * * * 
and indignities put upon it * * * [are] sometimes punished * * 
*'' id., started with one of the earliest prosecutions in 
American history: Endecott's case. In the 1600s, just as 
England had proceeded against those who failed to treat 
properly the flag, so Massachusetts colonists prosecuted, 
tried, and convicted a domestic defacer of the flag in 1634. 
The trial court concluded that defacing the flag was an act of 
    Endecott's case establishes a key historic point: from the 
earliest days of the legal system in America, the law deemed an 
individual to be engaging in a punishable act for defacing a 
flag, even domestically and in peacetime. Defacing the flag 
invaded a sovereign government interest, even when undertaken 
for reasons of protest. At the time, the colonists saw the need 
to punish the act in clear sovereignty terms: defacing the flag 
would be taken as an act of rebellion, even when unaccompanied 
by danger of violence or general revolt.
    The original intent of the nation's Founders clearly 
indicates the importance of protecting the flag as an incident 
of American sovereignty.
            1. James Madison
    James Madison, as an original draftsman of the First 
Amendment, was an authoritative source on sovereignty matters. 
In this regard, Madison consistently emphasized the legal 
significance of infractions on the physical integrity of the 
flag. On three different occasions, Madison recognized and 
sustained the legitimacy of the sovereignty interest in 
protecting the flag.
    His earliest pronouncements concerned an incident in 
October 1800, when the Algerian ship Dey of Algiers forced a 
United States man-of-war--the George Washington--to haul down 
its flag and replace it with that of Algiers. As Secretary of 
State under President Thomas Jefferson, Madison pronounced such 
a situation as a matter of international law, a dire invasion 
of sovereignty, which ``on a fit occasion'' might be 
``revived.'' Brief for the Speaker and Leadership Group of the 
U.S. House of Representatives, Amicus Curiae, at 33 United 
States v. Eichman, 496 U.S. 310 (1990) (No. 89-1433) 
[hereinafter, Brief], citing II American State Papers 348 
(Lowrie and Clarke ed. 1982).
    Madison continued his defense of the integrity of the flag 
when he pronounced an act of flag defacement in the streets of 
an American city to be a violation of law. Specifically, Mr. 
Madison pronounced a flag defacement in Philadelphia as 
actionable in court. As Judge Robert Bork described this 
historic pronouncement: ``The tearing down in Philadelphia in 
1802 of the flag of the Spanish Minister `with the most 
aggravating insults,' was considered actionable in the 
Pennsylvania courts as a violation of the law of nations.'' 
Brief at 34, citing 4 J. Moore, Digest of International Law 627 
(1906) (quoting letter from Secretary of State Madison to 
Governor McKean (May 11, 1802)).
    And, on June 22, 1807, when the British ship Leopard fired 
upon and ordered the lowering of an American frigate's (The 
Chesapeake) flag, Madison told the British Ambassador ``that 
the attack on the Chesapeake was a detached, flagrant insult to 
the flag and sovereignty of the United States.'' Brief at 34, 
citing I. Brandt, James Madison: Secretary of State 1800-1809 
413 (1953) (quoting British dispatch). A letter by Madison to 
Monroe stated Mr. Madison's view that ``the indignity offered 
to the sovereignty andflag of the nation demands * * * an 
honorable reparation * * * [such as] an entire abolition of 
impressments from vessels under the flag of the United States * * *'' 
Brief at 35, citing Letter from James Madison to James Monroe (July 6, 
1807). Madison's statement suggests his belief that protecting the 
physical integrity of the flag ensured the protection of the nation's 
    Madison did not conclude--as some defenders of the right to 
deface the flag contend--that the First Amendment protected 
Americans' rights to tear down a flag, or that defacing the 
flag was a form of expression protected by the First Amendment. 
On the contrary, it would appear that Madison had an intimate 
familiarity with the significance of protecting the physical 
integrity of the flag, especially as such protection related to 
the First Amendment, which he helped draft and move through the 
First Congress. He knew there had been no intent to withdraw 
the traditional physical protection from the flag.
    Madison's pronouncements consistently emphasized that 
``insults'' to the physical integrity of the flag continued to 
have the same legal significance in a variety of different 
contexts, abroad, at sea, and at home. To Madison, sovereignty 
entailed a relationship not only between nations and foreign 
entities, but between nations and domestic persons in wartime 
and peacetime.
            2. Thomas Jefferson
    Like Madison, Thomas Jefferson sought to protect the 
sovereignty interest in the flag. Jefferson recognized its 
complete consistency with the Bill of Rights, and deemed abuse 
of that interest a serious matter of state, not the suppression 
of some form of protected expression. Thus, for Jefferson, the 
flag as an incident of sovereignty involved a concrete legal 
status with very practical advantages for the nation and 
citizens, who obtained those advantages through protecting a 
flag from usurpation or indignities.
    During the period of foreign war and blockades in the 
1790s, the American flag was a neutral flag, and the law of 
trade made foreign ships desire to fly it.\8\ As George 
Washington's Secretary of State, Jefferson instructed American 
consuls to punish ``usurpation of our flag.'' Brief at 35, 
citing 9 Writing of Thomas Jefferson 49 (mem. ed. 1903). 
Jefferson stated ``you will be pleased * * * to give no 
countenance to the usurpation of our flag * * * but rather to 
aid in detecting it * * *'' Id.
    \8\ As it did in the time of Thomas Jefferson and James Madison, 
the flag continues to serve important sovereignty interests on the high 
seas. During the Persian Gulf War, for instance, foreign tankers in the 
Gulf flew the American flag, so that an act of aggression against the 
tankers would be the equivalent of an attack against the United States 
and its sovereign interest in protecting allied vessels in wartime.
    To prevent invasion of the sovereignty interest in the 
flag, Jefferson did not consider the First Amendment an 
impediment to a ``systematic and severe'' course of punishment 
for persons who violated the flag. Id. Jefferson recognized the 
sovereignty interest in the flag, considered protecting it and 
punishing its abusers highly important, even after adoption of 
the Bill of Rights.
    Madison and Jefferson intended for the government to be 
able to protect the flag consistent with the Bill of Rights. 
This was based upon their belief that obtaining sovereign 
treatment was distinct from an interest in protecting against 
the suppression of expression. Madison and Jefferson 
consistently demonstrated that they sought commerce, 
citizenship, and neutrality rights through the protection of 
the flag. They did not seek to suppress the expression of 
alternative ``ideas,'' ``messages,'' ``views,'' or 
``meanings;'' Madison and Jefferson would therefore have found 
such an interest anathema.
    Thus, from the time of the Endecott case to the present, 
protection of the flag has continued to serve the Framers' 
original intent, as an instrument and embodiment of this 
nation's sovereignty. Those who both framed the First Amendment 
and adopted the flag had an original purpose for the flag quite 
unrelated to control of expression. The Founders considered the 
protection of the flag as an incident of sovereignty, not a 
suppression of expression.

B. Statutory protection for the flag

    Over the years, Congress and the States have recognized the 
devotion our diverse people have for the flag. They have 
enacted statutes that both promote respect for the flag and 
protect the flag from desecration.
            1. Promotion of respect for the flag
    In 1940, Congress declared the Star Spangled Banner to be 
our national anthem. And in 1949, Congress established June 14 
as Flag Day--a day expressly set aside to remember and dwell 
upon the significance of the flag. Congress has also 
established ``The Pledge of Allegiance to the Flag'' and the 
manner of its recitation. The pledge states: ``I pledge 
allegiance to the flag, of the United States of America, and to 
the Republic for which it stands. One nation, under God, 
indivisible, with liberty and justice for all.'' 4 U.S.C. 4. 
The pledge demonstrates the universal understanding that the 
flag represents the Nation and the ideals of its citizens. It 
is thus a transcendent symbol of unity and nationhood.
    In 1987, Congress chose to honor the flag by designating 
John Philip Sousa's ``The Stars and Stripes Forever'' as the 
national march (36 U.S.C. 304). Further, Congress has not only 
established the design of the flag (4 U.S.C. 1 and 2), but also 
the manner of its proper display in the Flag Code (36 U.S.C 
173-179). The Flag Code is merely hortatory, however, and is 
not legally enforceable.
            2. Protection for the flag: striking the balance
    After a rash of flag desecrations arising from the 
presidential campaign of 1896, States began to prosecute the 
commercial use of the American flag, which was deemed 
disrespectful, as well as verbal and physical desecration of 
the flag.\9\ While some of these older statutes were struck 
down by activist courts under the now-defunct Lochner 
rationale, dealing with substantive due process and economic 
legislation, the courts perceived no First Amendment problem 
with the statutes.\10\
    \9\ In Rushtrat v. People, 57 N.E. 41, 46 (Ill. 1900), and People 
ex rel. McPike v. Van De Carr, 86 N.Y.S. 644, 91 A.D. 20 (App. Div. 
1904), the courts of Illinois and New York struck down statutes 
prohibiting the certain commercial or advertising uses of the national 
flag, but permitting other commercial uses. The courts held the 
statutes were unenforceable based on the implied constitutional right 
to choose and to carry on one's occupation without governmental 
interference and based on economic classifications made by the 
statutes. Rushtrat, 57 N.E. at 46; McPike, 86 N.Y.S. at 649-50.
    This brand of conservative judicial activism, which was used to 
strike down pro-labor and other economic legislation, came to its 
fruition in Lochner v. New York, 198 U.S. 45 (1905). Since Lochner, 
however, the Supreme Court and the overwhelming majority of the state 
courts have since abandoned the activist judicial review of economic 
legislation. See, e.g., West Coast Hotel Co. v. Parrish, 300 U.S. 379 
    \10\ In McPike, 86 N.Y.S. at 648, the Supreme Court of New York, 
specifically upheld the portion of the statute that prohibited 
desecration or casting contempt upon the flag, in a noncommercial 
context, as a means of preventing breaches of the peace.
    The Supreme Court of the United States, at least with 
respect to the American flag, eschewed the Lochner rationale, 
and upheld a state flag protection statute in Halter v. 
Nebraska, 205 U.S. 34 (1907). The Nebraska statute viewed both 
commercial use of the flag and physical mutilation of the flag 
as equally repugnant forms of desecration. Chief Justice Harlan 
wrote for the Court:

          It is not, then, remarkable that the American people, 
        acting through the legislative branch of the 
        Government, early in their history, prescribed a flag 
        as symbolical of the existence and sovereignty of the 
          * * * [L]ove both of the common country and of the 
        state will diminish in proportion as respect for the 
        flag is weakened. Therefore a state will be wanting in 
        care for the well-being of its people if it ignores the 
        fact that they regard the flag as a symbol of their 
        country's power and prestige, and will be impatient if 
        any disrespect is shown towards it.

Halter, 205 U.S. at 41, 42.
    That the Court viewed commercial use of the flag as 
demeaning the integrity of the Nation's preeminent symbol is 
made clear by its statement, ``Such [commercial] use tends to 
degrade and cheapen the flag in the estimation of the people, 
as well as to defeat the object of maintaining it as an emblem 
of national power and national honor.'' Id. at 42. Recognizing 
the importance of the flag to the Nation, the Supreme Court 
upheld Nebraska's statute that punished commercial and 
noncommercial desecration of the flag.
    Holdings such as Halter precipitated the National 
Conference of Commissioners on Uniform State Laws to approve 
the Uniform Flag Act in 1917 which was similar to the statute 
approved in Halter.\11\ Although the opinion dealt directly 
only with the commercial desecration portion of the statute, 
the Commissioners were of the opinion that Halter affirmed in 
all respects the validity of a statute that prohibited all 
disrespect for the flag, whether by commercial use or by 
casting contempt on the flag by word or act. Accordingly, the 
Commissioners drafted a similar model statute. A number of 
States soon adopted all or part of the Uniform Flag Act as 
their flag protection statute or as a supplement to previously 
existing statutes. These States included Arizona, Louisiana, 
Maine, Maryland, Michigan, Mississippi, New York, Pennsylvania, 
Rhode Island, South Dakota, Tennessee, Vermont, Virginia, 
Washington, and Wisconsin.\12\
    \11\ Section 3 of the Uniform Flag Act provided: ``No person shall 
publicly mutilate, deface, defile, defy, trample upon, or by word or 
act cast contempt upon any such flag, standard, color, ensign or 
    \12\ By 1951, these statutes were found in the various state laws 
as follows: Arizona, A.C.A. 43.2401 (1939); Louisiana, R.S. 14:116, 
14:117 (1950); Maine, R.S. c. 128 (1944); Maryland, Code Supp. 2159 
(1947); Michigan, Comp. Laws 750.244-750.247, 750.566 (1948); 
Mississippi, Code 2159 (1942); New York, McKinney's Penal Law, 1425, 
subdi. 16; Pennsylvania, 18 P.S. 4211; Rhode Island, Gen. Laws c. 612, 
38, 39 (1938); South Dakota, SDC 65.0601 to 65.0606; Tennessee, 
Williams' Code 102-107; Vermont, V.S. 8590-8605; Virginia, Code 18-354 
to 18-360 (1950); Washington, Rem. Rev. Stat. 2675-1 to 2675-7; 
Wisconsin, St. 348.479-348.484 (1947).
    In 1968, in response to the Vietnam War protests, Congress 
added Federal protection to the long-established State flag 
protection statutes by enacting 18 U.S.C. 700(a). To avoid 
infringing upon freedom of speech, Congress limited the 1968 
flag statute to acts of physical desecration. The language 
contained in the 1917 law applicable to the District of 
Columbia that made it a crime to `` `defy' or `cast contempt * 
* * by word or act' '' upon the American flag was omitted 
(emphasis supplied). The 1968 statute provided for a fine of 
not more than $1,000 or imprisonment for not more than one 
year, for anyone who ``knowingly casts contempt upon any flag 
of the United States by publicly mutilating, defacing, 
defiling, burning or trampling upon it * * *.''
    Indeed, prior to 1989, Congress, along with 48 States and 
the District of Columbia, had regulated physical misuse of the 
American flag. These statutes recognized the vital Government 
interest at stake in preserving the preeminent symbol of our 
Nation's history and people and reflected a balancing of this 
interest against the interest of the actor in conveying a 
message through the particular means of physically destroying 
the flag instead of through the traditional means of oral or 
written speech. On balance, these legislatures determined that 
the Government's interest prevailed.
            3. Judicial application of flag protection statutes: 
                    respecting the balance
    Even after the Supreme Court held that the First 
Amendment's free speech clause applied to the States, Gitlow v. 
New York, 268 U.S. 652 (1925), flag desecrations were punished. 
For example, in 1941, in State v. Schlueter, 23 A.2d 249 (N.J. 
1941), the Supreme Court of New Jersey affirmed a conviction 
for physical desecration of the American flag. Likewise, in 
1942, in Johnson v. State, 163 S.W.2d 153 (Ark. 1942), the 
Supreme Court of Arkansas affirmed a conviction for publicly 
exhibiting contempt for the flag. Of special significance, is 
the Arkansas court's refusal to accept the dissent's argument 
that free speech protections prevented prosecution of the 
defendant's desecration of the flag. Id. at 155-59 (Smith, 
C.J., dissenting). In People v. Picking, 42 N.E.2d 741 (N.Y.), 
cert. denied, 317 U.S. 632 (1942), the Supreme Court of New 
York affirmed a conviction for flag desecration and the Supreme 
Court of the United States denied certiorari review, allowing 
the conviction to stand. The results of these cases reflected 
the generally accepted legal tradition that punishment of flag 
desecration represented a balance of society's interest in 
protecting the flag and the actor's interest in choosing 
physical desecration as a means to convey a message instead of 
the traditional means of oral and written speech. The 
legislatures had struck the balance in favor of protecting 
society's interest, and the courts respected this balance.
    In 1968, in United States v. O'Brien, 391 U.S. 367 (1968), 
the Supreme Court upheld a conviction for burning a draft card, 
even though the conduct was intended to convey a political 
message. The Court stated: ``We cannot accept the view that an 
apparently limitless variety of conduct can be labeled `speech' 
whenever the person engaging in the conduct intends thereby to 
express an idea.'' Id. at 376. The Court balanced society's 
interest in maintaining an effective draft system against the 
draft card burner's interest in conveying a message through the 
particular means of physically destroying a draft card instead 
of through the traditional means of oral or written speech.\13\ 
On balance, the Court determined that the government's interest 
prevailed.\14\ In 1969, in Street v. New York, 394 U.S. 576 
(1969), the Court overturned a conviction of a defendant who 
burned a flag while speaking against the flag. The Court 
overturned the conviction on the narrow ground that the first 
amendment protected the defendant's verbal expression, but did 
not address the conduct of burning the flag. Id. at 579.\15\ 
However, in 1971, in Radich v. New York, 401 U.S. 531 (1971), 
the Supreme Court affirmed, by an equally divided vote, a 
conviction based solely on an act of physical desecration of 
the flag under a New York statute that punished both words and 
acts of desecration. In so doing, the Supreme Court upheld the 
traditional balance between society's interest in protecting 
the flag and the actor's interest in choosing to convey a 
message by destructive means instead of by readily available 
oral or written means.
    \13\ The four-part test announced in O'Brien was:

      [A] government regulation is sufficiently justified [1] if 
      it is within the constitutional power of the Government; 
      [2] if it furthers an important or substantial governmental 
      interest; [3] if the governmental interest is unrelated to 
      the suppression of free expression; and [4] if the 
      incidental restriction on alleged First Amendment freedoms 
      is no greater than is essential to the furtherance of that 

391 U.S. at 377.
    \14\ In Stromberg v. California, 283 U.S. 359 (1931), and West 
Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the 
Supreme Court had recognized, respectively, that a flag has 
communicative value and that school children could not be compelled to 
salute the flag in violation of their religious beliefs. These cases 
did not hold, however, that the Government's interest in preserving the 
preeminent symbol of our history and our people could not be balanced 
against an actor's interest in conveying a message through the 
particular means of physically destroying the flag instead of the 
traditional means of oral or written speech.
    \15\ Chief Justice Warren, and Justices Black, White, and Fortas 
all dissented. Chief Justice Warren took the majority to task for 
avoiding the question of whether the conviction could be premised on 
the physical desecration of the flag and stated: ``I believe that the 
States and the Federal Government do have the power to protect the flag 
from acts of desecration and disgrace.'' Street v. New York, 394 U.S. 
576, 605 (1969) (Warren, C.J., dissenting). Justice Fortas agreed with 
Chief Justice Warren. Id. at 615 (Fortas, J., dissenting). Justice 
Black, a well-known absolutist on Bill of Rights freedoms, observed in 
Street that: ``It passes my belief that anything in the Federal 
Constitution bars * * * making the deliberate burning of the American 
flag an offense.'' Id. at 610 (Black, J., dissenting). Justice White 
also opined that the majority erred in avoiding the physical-
desecration issue and stated that he would sustain a conviction for 
flag burning. Id. at 615 (White, J., dissenting).

C. Judicial amendment of the Constitution: Restriking the balance

    In 1974, in two decisions, the Supreme Court began to 
weaken the O'Brien decision with respect to the physical 
desecration of the American flag and to shift the balance away 
from the Government's interest in preserving the flag and 
toward the actor's interest in choosing destruction of the flag 
as a means to convey a message. In Smith v. Goguen, 415 U.S. 
566, 581-82 (1974), the Court overturned a flag-desecration 
conviction, stating that the Massachusetts flag-desecration 
statute, which punished words and acts of desecration, was void 
for vagueness, but adding ``[c]ertainly nothing prevents a 
legislature from defining with substantial specificity what 
constitutes forbidden treatment of United States flags.''\16\ 
The Court pointed to the Federal flag protection statute, which 
punished only acts of desecration, not words, as an example of 
a constitutional flag protection statute. Id. at 582 n.30. In 
Spence v. Washington, 418 U.S. 405 (1974), the Court broke with 
O'Brien by considering the communicative intent of the actor in 
desecrating his privately owned flag on private property, and 
issued a narrow, limited holding that the flag misuse statute, 
as applied to the particular defendant under the particular 
facts of the case, violated the First Amendment.\17\ The Court, 
however, was unwilling to state that there was no Government 
interest that outweighed the actor's interest in conveying a 
message through the particular means of physically destroying 
the flag instead of through the traditional means of oral or 
written speech.\18\
    \16\ Justice White concurred in the judgment, but added ``I would 
not question those statutes which proscribe mutilation, defacement, or 
burning of the flag or which otherwise protect its physical integrity, 
without regard to whether such conduct might provoke violence.' Smith 
v. Goguen, 415 U.S. 566, 587 (White, J., concurring the judgment). Then 
Associate Justice Rehnquist, joined by Chief Justice Burger, dissented, 
stating that he believed that the statute at issue passed 
constitutional muster under the O'Brien test and noting that the 
statute punished flag abuse regardless of whether a communicative 
intent existed and was thus unrelated to the suppression of free 
speech. Id. at 599 (Rehnquist, J., dissenting). Justice Blackmun also 
dissented, stating that the first amendment would not bar the 
defendant's conviction. Id. at 591 (Blackmun, J., dissenting).
    \17\ Chief Justice Burger dissented, stating:

      If the constitutional role of this Court were to strike 
      down unwise laws or restrict unwise application of some 
      laws, I could agree with the result reached by the Court. 
      That is not our function, however, and it should be left to 
      each State and ultimately to the common sense of its people 
      to decide how the flag, as a symbol of national unity, 
      should be protected.

Spence v. Washington, 418 U.S. 405, 416 (1974) (Burger, C.J., 
dissenting). Then Associate Justice Rehnquist, joined by Chief Justice 
Burger and Justice White, also dissented, stating:

      The statute under which appellant was convicted is no 
      stranger to this Court, a virtually identical statute 
      having been before the Court in Halter v. Nebraska, 205 
      U.S. 34 * * * (1907). In that case the Court held that the 
      State of Nebraska could enforce its statute to prevent use 
      of a flag representation on beer bottles, stating flatly 
      that ``a State will be wanting in care for the well-being 
      of its people if it ignores the fact that they regard the 
      flag as a symbol of their country's power and prestige * * 
      *.'' The Court then continued: ``Such use tends to degrade 
      and cheapen the flag in the estimation of the people, as 
      well as to defeat the object of maintaining it as an emblem 
      of national power and national honor.''
    \18\ A few lower courts, however, had begun to anticipate the trend 
in the Supreme Court's weakening of the traditional balance and had 
begun to strike down their State's flag desecration statutes. See, 
e.g., People v. Vaughn, 514 P.2d 1318 (Colo. 1973).
    Nonetheless, there was a dramatic change in Supreme Court 
jurisprudence. This change was clearly illustrated by the 
Radich case, in which, during a 3-year time span, the Federal 
courts first affirmed and then overturned the exact same 
conviction, based on the intervening changes in Supreme Court 
jurisprudence. In 1971, the Supreme Court affirmed, by an 
equally divided Court, Radich's flag-desecration conviction 
under a statute that punished both words and acts of 
desecration. Radich, 401 U.S. 531. However, by 1974, after the 
Supreme Court handed down Smith v. Goguen, 415 U.S. 566, and 
Spence v. Washington, 418 U.S. 405, the district court 
overturned Radich's conviction in a habeas proceeding, citing 
Goguen and Spence.\19\ United States ex rel. Radich v. Criminal 
Court of the City of New York, 385 F. Supp. 165 (S.D.N.Y. 
    \19\ After issuing its opinions in Smith v. Gougen and Spence v. 
Washington, the Supreme Court affirmed, without an opinion, a lower 
court's judgment that used the vagueness and overbreadth doctrines to 
strike down a portion of a New York statute that would have broadly 
prohibited use of representations of the flag as campaign buttons or 
posters. Cahn v. Long Island Vietnam Moratorium Comm., 418 U.S. 906 
(1974), aff'g 437 F.2d 344 (2d Cir. 1970). Prior to Gougen and Spence, 
the New York Court of Appeals had refused to apply the Second Circuit's 
holding in Cahn to strike down the desecration portion of the New York 
statute, holding instead, that photographs of a nude draped with a flag 
did not fall within the proscription of the flag desecration provision. 
People v. Keough, 290 N.E.2d 819 (N.Y. 1972).
    As late as 1982, however, the Supreme Court denied 
certiorari review of a case involving a conviction for the 
physical desecration of a flag under the Federal statute that 
punished only acts, not words, of desecration. Kime v. United 
States, 459 U.S. 949 (1982). The certiorari denial, which 
allowed the flag desecration conviction to stand, came in spite 
of a strenuous dissent by Justice Brennan to provide absolute 
protection to the destructive conduct. Id. (Brennan, J., 
dissenting). The majority of the Supreme Court still refused to 
abandon completely the traditional balance of society's 
interest in protecting the flag and the individual's interest 
in conveying an idea through physically destructive means.
    By 1989, however, the Court was prepared to completely 
abandon Halter, O'Brien, and Radich and to restrike the 
constitutional balance against the Government's interest and in 
favor of the flag desecrator's interest. In Texas v. Johnson, 
491 U.S. 397 (1989), by a 5-to-4 vote, the Supreme Court 
overturned a conviction for the physical desecration of an 
American flag on the broad grounds that the government's 
interest in preserving the Nation's preeminent symbol did not 
outweigh the interest of the flag desecrator in choosing to 
convey a message through the particular means of physically 
destroying the flag instead of through the traditional means of 
oral or written speech. The Court effectively created for 
Gregory Lee Johnson an absolute First Amendment right to burn 
and spit on the American flag.\20\
    \20\ Johnson participated in a political demonstration at the 1984 
Republican National Convention, protesting policies of the Reagan 
Administration and certain Dallas-based corporations. Johnson was given 
an American flag from a fellow protestor, who had taken it from a 
flagpole. At Dallas City Hall, Johnson unfurled the American flag, 
poured kerosene on it, and burned it. While the flag burned, protestors 
chanted: ``America, the red, white, and blue, we spit on you.'' Johnson 
was convicted of desecration of a venerated object in violation of sec. 
42.09 (a)(3) of the Texas Penal Code which, among other things, made 
illegal the intentional or knowing desecration of a national flag. 
Johnson, 491 U.S. at 499-400.
    Justice Stevens's eloquent dissent, which called for 
retaining the traditional constitutional balance that had been 
controlling for decades, stated:

        The Court is * * * quite wrong in blandly asserting 
        that respondent ``was prosecuted for his expression of 
        dissatisfaction with the policies of this country, 
        expression situated at the core of our First Amendment 
        values.'' Respondent was prosecuted because of the 
        method he chose to express his dissatisfaction with 
        those policies. Had he chosen to spray-paint--or 
        perhaps convey with a motion picture projector--his 
        message of dissatisfaction on the facade of the Lincoln 
        Memorial, there would be no question about the power of 
        the Government to prohibit his means of expression. The 
        prohibition would be supported by the legitimate 
        interest in preserving the quality of an important 
        national asset. Though the asset at stake in this case 
        is intangible, given its unique value, the same 
        interest supports a prohibition on the desecration of 
        the American flag.

Johnson, 491 U.S. at 436-39 (Stevens, J., dissenting).
    As Chief Justice Rehnquist, for himself and Justices White 
and O'Connor, stated in dissent: ``For more than 200 years, the 
American flag has occupied a unique position as the symbol of 
our Nation, a uniqueness that justifies a governmental 
prohibition against flag burning in the way respondent Johnson 
did here.'' Johnson, 491 U.S. at 422 (Rehnquist, C.J., 
dissenting). Chief Justice Rehnquist continued later in his 

         The uniquely deep awe and respect for our flag felt by 
        virtually all of us are bundled off under the rubric of 
        ``designated symbols,'' that the First Amendment 
        prohibits the government from ``establishing.'' But the 
        government has not ``established'' this feeling; 200 
        years of history have done that. The government is 
        simply recognizing as a fact the profound regard for 
        the American flag created by that history when it 
        enacts statutes prohibiting the disrespectful public 
        burning of the flag.

Id. at 434.
    In response to this final step in a dramatic change in 
First Amendment jurisprudence, there was a thoughtful debate 
over whether a so-called facially content neutral flag 
protection statute would survive the Supreme Court's scrutiny. 
Legal scholars and many commentators were divided over this 
question. A number of Members of Congress did not believe any 
such statute could survive the majority's analysis in Johnson, 
even aside from whether a facially content neutral flag 
protection statute is desirable as a matter of sound public 
policy. The Johnson majority declared that the government's 
asserted interest in preserving the flag as a national symbol 
was insufficient to overcome the actor's newly minted, so-
called right to burn or otherwise physically mistreat the flag 
as part of expressive conduct. Johnson, 491 U.S. at 413-19. 
Nevertheless, it cannot be denied that the principal, if not 
the only purpose, in enacting a facially content neutral 
statute is to protect the symbolic value of the flag. Indeed, 
one underlying purpose of any statutory effort to respond to 
Johnson would be to prohibit ``expressive'' conduct that 
physically desecrates the flag. Further, a facially neutral 
statute which did not permit an exception for disposal of a 
worn or soiled American flag by burning--which is the preferred 
way of doing so--would lead to highly undesirable results. Yet 
such an exception necessarily undermines the purported 
neutrality of such a statute--indeed, the Court said so in 
    Nonetheless, Congress did enact a facially neutral statute 
in 1989 (the Flag Protection Act of 1989) with an exception for 
the disposal of worn or soiled flags, as a response to the 
Johnson decision. Based on the new rule announced in Johnson, 
however, the Supreme Court promptly struck down the statute, by 
a 5-to-4 vote, in United States v. Eichman, 496 U.S. 400, 405-
06 (1990).
    Further, in R.A.V. v. City of St. Paul, 505 U.S. 377, 385 
(1992), the Supreme Court made clear that its newly created, 
absolute protection for destructive conduct toward the flag is 
not affected by the ``fighting words'' doctrine where a statute 
specificallytargets the destructive conduct toward the flag. 
Accordingly, with respect to the particular medium of the American 
flag, the Supreme Court will no longer balance society's interest in 
protecting the flag against the actor's interest in choosing to convey 
a message through the means of physically destroying the flag instead 
of through the traditional means of oral or written speech.

D. The need for a constitutional amendment

    Amending the Constitution is a matter of extreme 
significance that should be avoided unless necessary. A federal 
statute would have been a preferable means of attaining 
protection for the flag. However, the Supreme Court has 
indicated definitively that a flag protection statute cannot be 
fashioned that would pass constitutional muster.
    In the 1989 case, Texas v. Johnson, and in the 1990 case, 
United States v. Eichman, the Court concluded that burning or 
desecrating the flag is an act of speech, and that any 
legislative measure designed to protect the flag from 
desecration would be viewed as incompatible with the First 
Amendment. Although many scholars agree with the four Justices 
dissenting in Johnson and Eichman (Chief Justice William 
Rehnquist as well as Justices Stevens, White and O'Connor) who 
found statutory flag protection compatible with First Amendment 
freedoms, Supreme Court precedent and the current make-up of 
the Court strongly indicate that any statute designed to 
protect the flag is destined to fail. According to some, a so-
called ``fighting words'' statute would avoid the Johnson and 
Eichman holdings by prohibiting flag desecration in the context 
of certain activities that are not ``protected speech,'' such 
as incitement of violence. However, the Supreme Court said in 
Johnson and Eichman that the flag embodies certain determinate 
ideas and messages that will be suppressed by any statutory 
attempt to prohibit flag desecration.
    Moreover, federal courts have construed the ``fighting 
words'' doctrine so narrowly and have so often distinguished 
and refused to apply it, even in the most incendiary 
circumstances, as to render the doctrine nearly meaningless. In 
the Eichman case, for instance, the Supreme Court expressly 
excluded from the category of ``fighting words'' flag 
desecration in the context of a face-to-face confrontation 
during a political protest. 496 U.S. at 315. And the Supreme 
Court in the Johnson case refused to apply the ``fighting 
words'' doctrine, finding that public flag desecration at issue 
was ``unlikely to result in a direct personal insult or an 
invitation to exchange fisticuffs.'' 491 U.S. at 409. The 
Johnson Court also emphasized that a federal ``fighting words'' 
statute is unnecessary because state statutes already on the 
books adequately cover disorderly conduct and breach of the 
peace in a manner sufficient to maintain public order. Id. at 
410. Thus, if the government attempts to enforce a federal 
``fighting words'' flag protection statute--assuming it were to 
become law--and the statute were challenged in court, the 
Supreme Court likely would find it invalid.
    A ``fighting words'' bill or statute has several other 
weaknesses. First, it would reach only a tiny percentage of 
situations in which individuals desecrate the flag. In most 
cases, flag desecration does not involve face-to-face 
incitement or a challenge to specific persons. To illustrate 
this point, in one case, a Wisconsin youth, in the dead of 
night with no one around to detect him, defecated on the 
American flag and left it in a public place.
    In response, in a June 1998 decision, the Wisconsin Supreme 
Court indicated that it was compelled by the Johnson and 
Eichman decisions to rule that such conduct is protected free 
speech and that the Wisconsin flag protection statute is 
unconstitutional. Indeed, in the several cases involving 
challenges to state flag protection statutes decided since the 
1990 Eichman decision, state courts have ruled consistently 
with the Wisconsin Supreme Court.
    Another concern is that the proscriptions in a ``fighting 
words'' bill would have the effect of promoting violence. This 
is so because actual violence would be a necessary precursor to 
successfully prosecuting a flag desecrator under the ``fighting 
words'' proposal. In other words, persons seeking to protect 
the flag would be compelled to violence or to breaching the 
peace in order to trigger the prohibitions and penalties in the 
bill. For all of these reasons, the Senate, during the 104th 
Congress and again during the 106th Congress, overwhelmingly 
defeated a ``fighting words'' bill.
    Many, if not all, of the senators who support S.J. Res. 4 
would prefer prohibiting flag desecration by statute if that 
were possible. But there is no conceivable way to enact a 
statute that would survive the analysis used in the Johnson and 
Eichman decisions. S.J. Res. 4 is the only means of returning 
to the Congress the authority to enact a flag protection 
statute and thereby returning the First Amendment to what it 
meant for nearly two centuries prior to the Johnson and Eichman 

                V. The Proposed Constitutional Amendment

A. What it says and what it means

    The proposed constitutional amendment contained in S.J. 
Res. 4 is simple and straightforward. It reads: ``Congress 
shall have the power to prohibit the physical desecration of 
the flag of the United States.'' These 17 words would not make 
anything illegal. Rather, if approved by the Senate and 
ratified by three-fourths of the states (the House of 
Representatives has already passed it), this amendment would 
simply restore the ability of Congress to fashion an 
appropriate statute, which would of course need to be passed by 
both houses and signed by the president.
    Our free speech is not at issue. The proposed amendment 
would not affect anyone's ability to express any opinion 
whatsoever about the flag, the country, the government's 
policies or anything else. Americans will continue to have the 
right to express their views in public, in private, in 
newspapers, on the Internet, and through broadcast media. There 
will be no effect on anyone's ability to express himself; Acts 
of disrespect to the flag, such as burning it and urinating on 
it, add nothing whatsoever to any debate about our nation's 
polices, priorities or direction.

B. Several constitutional amendments were spurred by Supreme Court 

    The flag amendment is certainly not the first time that 
Congress has attempted to overturn Supreme Court decisions. As 
a matter of fact, nearly a third of the amendments (five out of 
17) that have been adopted since the passage of the Bill of 
Rights were in response to specific Supreme Court decisions.
    The first time Congress overturned a Supreme Court decision 
with a constitutional amendment was in response to the Court's 
first major decision, Chisholm v. Georgia (1793). The Court 
ruled in favor of a British subject in a suit against the state 
of Georgia. Congress, responding to the ensuing public outcry, 
introduced an amendment that deprived the federal courts of 
jurisdiction in lawsuits brought against a state by a foreigner 
or a citizen of another state. The resulting Eleventh amendment 
was passed in 1798. Next came the Dred Scott decision in 1857. 
Its holding that blacks were not citizens nor could ever be 
considered citizens was explicitly overruled by the Fourteenth 
Amendment after the end of the Civil War. Later, the Supreme 
Court ruled that Congress did not have the power to levy income 
taxes in Pollack v. Farmers' Loan and Trust (1885). 
Immediately, an amendment giving Congress the power to levy 
income taxes was introduced. Although that measure was defeated 
at first, it was later passed by Congress in 1909, and ratified 
four years later as the 16th Amendment. Next, Congress passed 
the Nineteenth Amendment, giving women the right to vote. This 
Amendment overturned the Supreme Court's decision in Minor v. 
Happersett (1874). Finally, Congress passed the 24th Amendment, 
outlawing poll taxes, after the Supreme Court had ruled in 
Breedlove v. Suttles (1937) that the poll taxes were 
Constitutional and not an abridgment of rights under the 
Fourteenth, Fifteenth, and Nineteenth Amendments. It was 
ratified in 1964.
    This history makes clear that, far from being an unusual 
legislative tactic, S.J. Res. 4 reflects a perfectly legitimate 
mechanism under our system of government. Sending this 
amendment to the states is perfectly consistent with 
Congressional action in the past in responding to Supreme Court 
decisions. As Richard D. Parker of Harvard Law School 

          [I]t is the responsibility of the Congress under the 
        separation of powers to prove a check to the Court, and 
        the Article V process is an effect, and indeed the most 
        effective way for the Congress to check this new 
        assertion of judicial power. It has been done before, 
        most recently with the 18-year-old-vote. It is 
        especially appropriate when an amendment has the 
        support of a substantial majority, sustained over time, 
        when that amendment defends an established meaning of 
        the Constitution, changed by the Justices, and when all 
        the amendment does is empower the Congress to pass 
    \21\ Hearing Transcript, p. 91.

C. What the proposed amendment is not

    Some critics of S.J. Res. 4 argue that the measure would 
amend the First Amendment to curtail important liberties, would 
disrespect the Constitution, and would somehow facilitate the 
adoption of measures that would abridge other constitutional 
rights. While such assertions might make for good speeches, 
they have no basis in fact.
            1. No reduction in First Amendment rights
    S.J. Res. 4 would allow the American people, through their 
state legislatures, to decide whether to ratify an amendment 
that grants Congress the power to prohibit physical desecration 
of the flag only. If adopted, the effect would be to overturn 
two Supreme Court decisions which have misconstrued the First 
Amendment with respect to flag desecration. S.J. Res. 4 would 
not amend or alter any other interpretation of the First 
Amendment. This is true for at least two reasons.
    First, physical acts of desecration are conduct, not 
speech. The revolution in this area happened in 1989 when the 
Supreme Court struck down a state flag protection statute when 
48 states and the District of Columbia had similar statutes. 
Flag protection statutes had been on the books for nearly a 
century when the Court decided to protect this despicable 
conduct under the First Amendment.
    Congressional Research Service has published a report that 
compiles federal and state laws on the desecration and misuse 
of the flag of the United States. The District of Columbia and 
the states of Alaska and Wyoming are the only ones without 
statutes prohibiting flag desecration. In fact, before the 
Johnson and Eichman decisions, many of these state statutes 
were upheld by various state courts. One such example is Monroe 
v. State Court of Fulton County (571 F. Supp. 1023; DCND 
Georgia, 1983).
    On writ for habeas corpus, the conviction of the defendant, 
Diane Monroe, under a Georgia anti-desecration statute, was 
upheld. The defendant was convicted for having burned the 
American flag during a demonstration against U.S. ``involvement 
in Iranian affairs'' which occurred outside the federal 
courthouse in Atlanta. The U.S. District Court refused to grant 
the writ of habeas corpus by applying the standard set out in 
the U.S. Supreme Court's test in the Spence case. The court 
determined that, under the circumstances under which the 
statute was enforced, the interests which the State of Georgia 
sought to further were not unrelated to the suppression of free 
expression but that the defendant's burning of the flag at the 
demonstration did not convey any information or ideas, nor did 
it identify the subject of her concern. Thus, there was deemed 
to have been an insufficient restriction of the defendant's 
freedom of expression to warrant invalidating her conviction.
    Second, the First Amendment's guarantee of freedom of 
speech has never been deemed absolute. Libel is not protected 
under the First Amendment. Obscenity is not protected under the 
First Amendment. A person cannot blare out his or her political 
views at two o'clock in the morning in a residential 
neighborhood and claim First Amendment protection. Fighting 
words which provoke violence or breaches of the peace are not 
protected under the First Amendment. We can prohibit the 
physical desecration of the flag without circumscribing robust 
political debate.
    In fact, the First Amendment has been amended a number of 
times by Congress, but much more often by the Supreme Court. 
Much like the Constitution itself, the First Amendment and the 
Bill of Rights is constantly being reviewed and applied to 
novel and modern situations. The meaning of the First Amendment 
changes according to the wishes of the Supreme Court--nine 
distinguished but un-elected jurists who have lifetime 
appointments. Over time, the Court has found restrictions on 
several types of speech to be consistent with the First 
    For example, the Court has refused to privilege speech that 
is likely to incite an immediate, violent response, such as 
face-to-face fighting words likely to cause a breach of the 
peace. Chaplinsky v. New Hampshire, 3l5 U.S. 568 (l942). The 
court has refused to privilege speech that threatens certain 
tangible, diffuse harm, such as obscenity, which pollutes the 
moral environment. Miller v. California, 4l3 U.S. l5 (l973). 
The Court hasalso refused to privilege speech that criticizes 
official conduct, i.e., libel of a public official when the criticism 
is known to be false and damages the official's reputation. New York 
Times v. Sullivan, 367 U.S. 254 (l964). In that case, the Court held 
that such speech should be regulated since it is at odds with the 
premises of democratic government.
    In each of these instances, the cry could have gone up that 
the Court was amending the First Amendment. However, time has 
shown that the constitutional order and freedom of speech have 
thrived in this country not in spite of, but because of, the 
laws regulating libel, slander, and pornography.
    Likewise, the First Amendment will harmonize very well with 
the flag protection amendment. Legal protections for the flag 
and the First Amendment co-existed for nearly 200 years of our 
history. In fact, our dynamic, ``ever-changing'' First 
Amendment, throughout our history, has been remarkably constant 
where protecting our nation's flag is concerned. As this great 
amendment accommodated flag protection for nearly two centuries 
prior to 1989, so it can and should continue to accommodate 
such safeguards in the future.
    Some people who think physical acts of flag desecration are 
``speech'' nevertheless support legal protections. Some think 
that, even though such a restriction would indeed be a 
limitation of rights, it is an insignificant one because an 
extraordinarily small number of Americans exercises or even 
values that right. In other words, it is a right that Americans 
overwhelmingly do not care to have. As John Andretti told the 

          I once heard a man say that the flag represents the 
        freedom to burn it. I would disagree, and I think most 
        Americans would, too. The flag is a symbol that 
        represents all that our Nation is [and] can be. It 
        symbolizes what the people say it symbolizes, and the 
        great majority certainly don't believe that includes 
        the freedom to desecrate it.

Hearing Transcript, pp. 60-61. Still others say that the small 
sacrifice of rights is part of being a responsible citizen and 
member of the community. As it says on the Korean War Veterans 
Memorial in Washington, D.C., ``freedom is not free.'' The 
American people have paid a very high price in lives and 
treasure to establish and protect a government that safeguards 
liberty. The small (indeed, negligible to most) sacrifice of 
giving up the right to perform vile acts to the American flag 
is, in comparison, a very small price to pay in return for the 
comfort so many Americans would take in knowing that our 
society finds desecration of the American flag at least as 
unacceptable as parking at an expired parking meter.
            2. No disrespect in amending the Constitution
    The Constitution itself establishes the process for its own 
amendment. The best use of Article V of the Constitution, which 
authorizes Constitutional amendments upon approval of two 
thirds of the Congress and ratification by three-fourths of the 
States, is to employ that process only when a great majority of 
citizens determines that its government--or one of its three 
branches--is not governing according to its will. The framers 
themselves realized that the Constitution was a living document 
and that the people, after proper reflection and deliberation, 
should have the power to amend the basic law of the land. The 
amendment process, far from subverting the Constitution, was an 
essential part of the Constitution from the beginning. Indeed, 
there would not be a First Amendment without Article V and the 
amendment process.
    Some have asserted that Congress has considered too many 
possible amendments to the Constitution, as if thoughtful 
consideration were an affront to the document. Imagine if the 
``too many'' argument had carried the day when the first 10 
amendments were proposed--is 10 too many amendments in a two-
year period?
    It is interesting to note that those who decry the proposed 
amendment as a change to the Constitution do not say the same 
about the real change to the document: the Supreme Court's 
decisions in Johnson and Eichman, which overturned 200 years of 
legal principles. In comparison to such judicial fiat, the 
employment of the Constitution's Article V process is more 
respectful to the Framers' intent.
            3. No slippery slope
    Some opponents of the flag amendment complain that it sets 
us on a slippery slope to foreclosing our constitutional 
freedoms. But there is no ``slippery slope'' here. The flag 
protection amendment is limited to authorizing the Federal 
Government to prohibit physical desecration of only the 
American flag. It does not serve as precedent for any other 
legislation or constitutional amendment on any other subject or 
mode of conduct, precisely because the flag is unique. 
Moreover, the difficulty in amending the Constitution serves as 
a powerful check on any effort to reach other conduct, let 
alone speech, which the Supreme Court has determined is 
protected by the First Amendment. No speech, and no conduct 
other than physical desecration of the American flag, can be 
regulated under legislation authorized by the amendment.
    Some critics of the amendment ask, is our flag so fragile 
as to require legal protection? The better question is--is our 
freedom of expression so fragile in this country as to be 
unable to withstand the withdrawal of the flag from physical 
desecration? Of course not.
    The flag protection amendment does not authorize 
legislation which prohibits displaying or carrying the flag at 
meetings or marches of any group--be they Nazis, Marxists, or 
anyone else. The amendment does not authorize legislation 
prohibiting derogatory comments about the flag or cursing the 
flag, nor does it authorize a prohibition on shaking one's fist 
at the flag or making obscene gestures at the flag, whether or 
not such gestures are accompanied by words. The amendment does 
not authorize legislation penalizing carrying or displaying the 
flag upside down as a signal of distress or flying it at half 
staff on days other than on officially designated occasions. 
There is no way to construe the flag amendment to do anything 
other than allow the Congress to enact a statute authorizing 
punishment for acts of physical desecration to the flag of the 
United States.

D. Let the people decide

    One purpose of Article V of the Constitution is to ensure 
that the American people offer their own voice in any 
amendments to that document. Although the Framers trusted 
representatives of the people--Congress and the president--with 
ordinarylegislation, they designed Article V in a way that 
involves the American people much more directly with changes to the 
Constitution. It is therefore appropriate for senators to see their 
role not as final arbiters of the underlying merits of S.J. Res. 4, but 
rather as gatekeepers who are deciding whether to give the American 
people, through their state legislatures, the opportunity to consider 
and debate the flag amendment. There can be no doubt that the American 
people want that opportunity. All fifty states have passed resolutions 
calling on Congress to pass a flag amendment. The House of 
Representatives has passed the amendment in each of the last four 
consecutive sessions of Congress, including this one.
    Senate passage of S.J. Res. 4 would give ``We the People'' 
their proper role in our democracy, and would restore our 
historical legal order. The most basic question about the 
structure of our federal government is the balance of power 
among the three branches: executive, legislative and judicial. 
For almost 200 years, the legislative branch had and exercised 
the power to make laws concerning flag desecration. That 
changed in 1989 and 1990 when the Supreme Court ruled that acts 
of physical flag desecration are ``speech.'' The effect of 
those decisions was a reallocation of power from Congress to 
the Supreme Court, which is now the only branch of government 
that can decide whether a flag desecration law can exist. An 
overwhelming number of Americans disagree with that result. By 
giving the people the opportunity, through State ratification, 
to restore Congress's authority in this area, the flag 
amendment would empower the people to determine flag 
desecration policy through their elected representatives. The 
Senate should give the people that power.

E. The ratification debate

    If the Senate passes the flag amendment this year, the 
nationwide debate over state ratification will be one of the 
greatest public discussions in American history. It will 
encourage a deeper study of our nation's history and values. It 
will inspire our young people to understand and appreciate the 
heroic selflessness displayed during previous generations. And 
it will cause many Americans to renew their faith in--and 
commitment to--the ideals and values of America that are 
greater than anyone's personal self interest.
    Americans' understanding of their government, or lack 
thereof, has become a popular object of ridicule. It is 
difficult not to share that sentiment when reading the results 
of surveys aimed at testing such knowledge. For example, a 
recent survey\22\ of fourth graders asked, ``Which part of the 
government is responsible for passing laws?'' Nearly three-
quarters of the respondents got the wrong answer from the 
following list: ``(A) The President; (B) The Supreme Court; (C) 
the Congress; (D) The State Department.'' On another survey, 
only 2 percent of eighth graders wrote an appropriate response 
to the question, ``Explain why the framers of the Constitution 
established a system of checks and balances among the three 
branches of government.''\23\ That study also showed that fewer 
than one-third of fourth graders could identify the ``document 
that contains the basic rules used to run the United States 
government'' from this list: ``(A) the Declaration of 
Independence; (B) Magna Carta; (C) the Mayflower Compact; (D) 
the Constitution.'' Such results demonstrate a serious lack of 
understanding about the fundamental workings of the United 
States government. A full public discussion about the flag 
amendment would necessarily raise awareness and encourage 
understanding of the different branches of government, the 
importance of checks and balances, and the meaning of the 
    \22\ National Center for Education Statistics, Institute of 
Education Sciences, U.S. Dept. of Education, 2001.
    \23\ National Center for Education Statistics, Institute of 
Education Sciences, U.S. Dept. of Education, 1994.
    American children are also surprisingly unaware of the 
enormous sacrifices that brave Americans have made for them on 
the battlefield. Washington Post writer Jay Matthews pointed 
this out in an article printed just before the World War II 
Memorial was dedicated on May 29, 2004.\24\ Based on interviews 
with 76 Washington-area high school students, Matthews found 
that only one-third of them could name even one World War II 
general, and only about half could name a World War II battle. 
In contrast, two-thirds of the students correctly stated what 
happened to Japanese Americans during the war, reflecting the 
fact that the internment camps are ``a standard part of every 
area history curriculum.'' It is clear that America's young 
people would benefit from a greater focus on the nature of our 
freedom, its origin and meaning, and the tremendous price 
Americans have paid to obtain it. A nationwide debate over the 
flag amendment would provoke just that sort of discussion in 
the nation's classrooms, kitchens, workplaces, dormitories and 
legislatures. Everyone in the country would benefit from that 
    \24\ Washington Post, May 28, 2004, B1.

                       VI. Vote of the Committee

    On July 20, 2004, with a quorum present, by rollcall vote, 
the Committee on the Judiciary voted on a motion to report 
favorably S.J. Res. 4. The motion was adopted by a vote of 11 
yeas and 7 nays, as follows:
    Yeas: Senator Hatch, Senator Grassley, Senator Specter, 
Senator Kyl, Senator DeWine, Senator Sessions, Senator Graham, 
Senator Craig, Senator Chambliss, Senator Cornyn, Senator 
    Nays: Senator Leahy, Senator Kennedy, Senator Kohl, Senator 
Feingold, Senator Schumer, Senator Durbin, and Senator Edwards.

                        VII. Text of S.J. Res. 4

                            JOINT RESOLUTION

    Proposing an amendment to the Constitution of the United 
States to grant Congress and the States the power to prohibit 
the physical desecration of the flag of the United States.
    Resolved by the Senate and House of Representatives of the 
United States of America in Congress assembled (two-thirds of 
each House concurring therein), That the following article is 
proposed as an amendment to the Constitution of the United 
States, which shall be valid to all intents and purposes as 
part of the Constitution when ratified by the legislatures of 
three-fourths of the several States within seven years from the 
date of its submission by the Congress:


    ``The Congress shall have power to prohibit the physical 
desecration of the flag of the United States.''

                          VIII. Cost Estimate

    The Congressional Budget Office has supplied the Committee 
with the following report estimating the proposed amendment's 
potential costs:

          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. S.J. Res. 4 would not affect direct 
        spending or revenues.
          S.J. Res. 4 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 
        Congress. However, no state would be required to take 
        action on the resolution, either to reject it or 
        approve it.

Congressional Budget Office, Cost Estimate, S.J. Res. 4, letter 
dated July 23, 2004.

                    IX. Regulatory Impact Statement

    Pursuant to paragraph 11(b), rule XXVI of the Standing 
Rules of the Senate, the committee, after due consideration, 
concludes that Senate Joint Resolution 4 will not have direct 
regulatory impact.

                           X. MINORITY VIEWS


    A. Introduction: To Honor Our Veterans and Our Nation's 
History, We Must Protect the Constitution
    B. There Is No ``Great And Extraordinary Occasion'' 
Justifying the Proposed Amendment
          1. The Constitution should be amended only under very 
        compelling circumstances.
          2. There is no epidemic of flag burnings crippling 
        the country.
          3. Outlawing flag desecration could increase rather 
        than decrease such conduct.
          4. Existing legal and social sanctions are adequate 
        to deter and punish flag desecration.
          5. Existing constitutional limitations on free 
        expression are applicable to acts of flag desecration.
    C. The Proposed Amendment Would Diminish the Rights We 
Currently Enjoy Under the First Amendment.
          1. The proposed amendment would restrict free 
          2. The First Amendment protects above all the right 
        to speak the unpopular and objectionable.
          3. The American people can and do answer unpopular 
        speech with tolerance, creativity and strength.
          4. The proposed amendment would set a dangerous 
        precedent for future amendments to the Bill of Rights.
    D. The Johnson Decision Was Consistent With Generations of 
Constitutional Doctrine
          1. The Supreme Court has never accepted limitations 
        on the First Amendment for peaceful protests involving 
        flag burning.
          2. The Supreme Court protected unpopular speech 
        connected to the flag long before Johnson.
    E. The Proposed Amendment Is Vague and Its Effect on Civil 
Liberties Uncertain
          1. There is no consensus or clarity on the definition 
        of ``flag''.
          2. There is no consensus or clarity on the definition 
        of ``desecration''.
          3. Use of the word ``desecration'' in S.J. Res. 4 
        undermines the First Amendment religion clauses.
          4. There is no consensus or clarity on the issue of 
          5. The difficulties that attend a statutory approach 
        to flag burning would remain even following a 
        constitutional amendment.
    F. Conclusion.

  A. Introduction: To Honor Our Veterans and Our Nation's History, We 
                     Must Protect the Constitution

    Flag burning is a despicable and reprehensible act. The 
issue before us, however, is not whether we agree with that 
truism--we do. Instead, the issue is whether we should amend 
the Constitution of the United States, with all the risks that 
entails, and narrow the precious freedoms ensured by the First 
Amendment for the first time in our history, so that the 
Federal government can prosecute the tiny handful of 
individuals who show contempt for the flag.
    In voting on this proposed amendment, the Senate's role 
should reflect a sense of priorities appropriate to the gravity 
of our time. This amendment has already been defeated in the 
Senate four times in the last 15 years. No significant problem 
existed at the outset, and no new one has appeared since then. 
The real issues of our current situation--such extraordinary 
problems as war and terrorism, trade imbalance and domestic 
jobs and deficits--are far more pressing. It reflects a strange 
set of priorities to think our national interest is best served 
by rolling back the Bill of Rights.
    The Senate last considered, and rejected, the proposed 
amendment in the year 2000, another presidential election year. 
Since that time, we have not seen an explosion of incidents of 
flag burning, a decrease in patriotic displays, or a marked 
reduction among young people in willingness to serve in the 
armed forces. To the contrary, the majority report itself 
describes how, in the wake of the terrorist attacks of 
September 11, 2001, the American people and their friends 
around the world flew the American flag as a unifying image of 
strength and purpose and freedom. The spontaneous rally around 
the American flag that followed the attacks makes it even more 
clear now than it was in 2000 that the monumental step of 
amending the Constitution to increase legal protections for the 
flag is unnecessary and ill-advised.
    Proponents of this amendment rely heavily on the views of 
distinguished American veterans and war heroes who have 
expressed to this Committee their love of the flag and support 
for the amendment. Those who fought and sacrificed for our 
country deserve our respect. They appreciate the costs as well 
as the joys of freedom and democracy. But while proponents 
would like to portray the views of veterans as monolithic, many 
outstanding veterans oppose the amendment. They do so for a 
number of reasons.
    Above all, they believe they fought for the freedoms and 
principles that make this country great, not just the symbols 
of those freedoms. To weaken the nation's freedoms in order to 
protect a particular symbol would trivialize and minimize their 
    General Colin L. Powell (USA, Ret.), Chairman of the Joint 
Chiefs of Staff during the 1991 Persian Gulf War and currently 
the Secretary of State, wrote to Senator Leahy on May 18, 1999, 
in opposition to the proposed flag protection amendment.\1\ He 

    \1\ General Powell was not serving in the military or in the 
Executive Branch when he wrote the letter, the full text of which is 
reproduced as Appendix A to these views.
          We are rightfully outraged when anyone attacks or 
        desecrates our flag. Few Americans do such things and 
        when they do they are subject to the rightful 
        condemnation of their fellow citizens. They may be 
        destroying a piece of cloth, but they do no damage to 
        our system of freedom which tolerates such desecration. 
        * * *
          I would not amend that great shield of democracy to 
        hammer a few miscreants. The flag will still be flying 
        proudly long after they have slunk away.

    Former Senator John Glenn, who served this nation with 
special distinction in war and in peace, as well as in the far 
reaches of space, stated in a written submission to the 
Committee for its hearing on March 10, 2004:

          [I]t would be a hollow victory indeed if we preserved 
        the symbol of our freedoms by chipping away at those 
        fundamental freedoms themselves. Let the flag fully 
        represent all the freedoms spelled out in the Bill of 
        Rights, not a partial, watered-down version that alters 
        its protections.
          The flag is the Nation's most powerful and emotional 
        symbol. It is our most sacred symbol. And it is our 
        most revered symbol. But it is a symbol. It symbolizes 
        the freedoms that we have in this country, but it is 
        not the freedoms themselves. That is why this debate is 
        not between those who love the flag on the one hand and 
        those who do not on the other. No matter how often some 
        try to indicate otherwise, everyone on both sides of 
        this debate loves and respects the flag. The question 
        is how best to honor it and without taking the chance 
        of defiling what it represents.
          Those who have made the ultimate sacrifice and died 
        following that banner did not give up their lives for a 
        red, white and blue piece of cloth. They died because 
        they went into harm's way representing this country and 
        because of their allegiance to the values, the rights, 
        and principles represented by that flag.

    Keith Kreul, an Army veteran and former National Commander 
of the American Legion, expressed a similar opinion in a 
statement he submitted to the Committee for its March 2004 
hearing. He disputes the majority's view that the proposed 
amendment honors the flag:

          American veterans who have protected our banner in 
        battle have not done so to protect a ``golden calf.'' 
        Instead, they carried the banner forward with reverence 
        for what it represents--our beliefs and freedom for 
        all. Therein lies the beauty of the flag.

    Another veteran who expressed a similar view was Professor 
Gary May, who lost both his legs in combat while serving his 
country in Vietnam. Professor May testified at the March 2004 

          Freedom is what makes the United States of America 
        strong and great, and freedom, including the right to 
        dissent, is what has kept our democracy going for more 
        than 200 years. And it is freedom that will continue to 
        keep it strong for my children and the children of all 
        the people like my father, late father in law, 
        grandfather, brother, me, and others like us who served 
        honorably and proudly for freedom.
          The pride and honor we feel is not in the flag per 
        se. It's in the principles for which it stands and the 
        people who have defended them. My pride and admiration 
        is in our country, its people and its fundamental 
        principles. I am grateful for the many heroes of our 
        country--and especially those in my family. All the 
        sacrifices of those who went before me would be for 
        naught, if an amendment were added to the Constitution 
        that cut back on our First Amendment rights for the 
        first time in the history of our great nation.
          I love this country, its people and what it stands 
        for. The last thing I want to give the future 
        generations are fewer rights than I was privileged to 
        have. My family and I served and fought for others to 
        have such freedoms and I am opposed to any actions 
        which would restrict my children and their children 
        from having the same freedoms I enjoy.

    Included in Professor May's prepared testimony was another 
statement to the same effect by World War II veteran Frances W. 
Lovett of Waverly, Ohio, who served with the Tenth Mountain 
Division and received the Bronze Star. Mr. Lovett wrote:

          The voice of dissent is a voice we need to hear--not 
        stifle. Those who favor the proposed amendment say they 
        do so in honor of the flag, but in proposing to unravel 
        the First Amendment, they desecrate what the flag 
        represents and what so many of my comrades died to 
    \2\ Professor May, who chairs a group called Veterans Defending the 
Bill of Rights, included similar statements by other veterans opposed 
to S.J. Res. 4 in a letter to the Committee dated March 10, 2004. The 
letter is reproduced as Appendix B to these views.

    This is a radical suggestion--that our country's soldiers 
fight to protect the rights of the minority to do or say things 
that displease or even offend us. But America was founded on 
just such radical ideas.
    General Powell observed in his May 1999 letter to Senator 
Leahy that ``The First Amendment exists to insure that freedom 
of speech and expression applies not just to that with which we 
agree or disagree, but also that which we find outrageous.'' 
John Glenn echoed this observation in his March 2004 submission 
when he wrote that the First Amendment protects ``[t]he liberty 
to worship, tothink, to express ourselves freely, openly and 
completely, no matter how out of step those views may be with the 
opinions of the majority.'' Former Senator Bob Kerrey, a recipient of 
the Congressional Medal of Honor, also reminded the Committee, in 
written testimony submitted at this year's hearing, that ``it is the 
right to speak the unpopular and objectionable that needs the most 
protecting by our government.'' Referring specifically to acts of flag 
burning, he added: ``Patriotism calls upon us to be brave enough to 
endure and withstand such acts.''
    James Warner, a decorated Marine flyer who was a prisoner 
of the North Vietnamese from 1967 to 1973, made the same point 
in graphic terms in a Washington Post article dated July 11, 

          I remember one interrogation where I was shown a 
        photograph of some Americans protesting the war by 
        burning a flag. ``There,'' the officer said. ``People 
        in your country protest against your cause. That proves 
        that you are wrong.''
          ``No.'' I said, ``that proves that I am right. In my 
        country we are not afraid of freedom, even if it means 
        that people disagree with us.'' The officer was on his 
        feet in an instant, his face purple with rage. He 
        smashed his fist onto the table and screamed at me to 
        shut up. While he was ranting I was astonished to see 
        pain, compounded by fear, in his eyes. I have never 
        forgotten that look, nor have I forgotten the 
        satisfaction I felt at using his tool, the picture of 
        the burning flag, against him. * * *
          We don't need to amend the Constitution in order to 
        punish those who burn our flag. They burn the flag 
        because they hate America and they are afraid of 
        freedom. What better way to hurt them than with the 
        subversive idea of freedom? * * * Don't be afraid of 
        freedom, it is the best weapon we have.

    Proponents of this amendment have argued that it will 
promote patriotism. Major General Patrick Brady (USA, Ret.), 
who heads a coalition of organizations that support the 
amendment called the Citizens Flag Alliance, has gone so far as 
to say, in his testimony this year before the Committee: ``It 
should be obvious that demanding--indeed, forcing--patriotism 
is the bedrock of our freedom.'' But many veterans object to 
this attempt to, in effect, legislate patriotism, speaking in 
eloquent terms about the importance of respect and love for 
country coming from within a citizen or a soldier, not being 
imposed from without by the government.
    Former Senator Bob Kerrey stated this view succinctly in 
his March 2004 submission: ``[R]eal patriotism cannot be 
coerced. It must be a voluntary, unselfish, brave act to 
sacrifice for others.'' Keith Kreul also made the point in his 
March 2004 statement: ``A patriot cannot be created by 
legislation. Patriotism must be nurtured in the family and 
educational process. It must come from the heartfelt emotion of 
true beliefs, credos and tenets.''
    Similarly, the late John Chafee, a distinguished member of 
this body and a highly decorated veteran of World War II and 
Korea, pointed out at our hearing on April 28, 1999, that just 
as forced patriotism is far less significant than voluntary 
patriotism, a symbol of that patriotism that is protected by 
law will be not more, but less worthy of respect and love: ``We 
cannot mandate respect and pride in the flag. In fact, in my 
view taking steps to require citizens to respect the flag, 
sullies its symbolism and significance.''
    Veterans disagree about the proposed amendment, but they 
agree that Congress must do more for those who have served this 
country in uniform. Professor May, who has worked as a social 
worker in Veterans Administration hospitals and outpatient 
clinics, reminded the Committee in March 2004 of America's 
broken promises: ``If we are truly serious about honoring the 
sacrifices of our military veterans, our efforts and attention 
would be better spent in understanding the full impact of 
military service and extending services to the survivors and 
their families.'' Answering a follow-up written question from 
Senator Leahy, Professor May elaborated:

          There are numerous substantive needs of veterans and 
        families that are going unmet or are being inadequately 
        met. Funding for Department of Veterans Affairs medical 
        care needs to be increased. * * * Compensation and 
        benefits for service women/men need to be increased. * 
        * * There are countless tangible things we can--and 
        should--do if we wish to convey a sincere, credible 
        message of caring about veterans and their sacrifices. 
        Amending the Constitution is not among them.

    Lieutenant General Robert G. Gard, Jr. (USA, Ret.) struck a 
similar note in a letter to the Chairman and Ranking Member of 
the Committee dated March 8, 2004. He wrote:

          [I]n an era of global conflict and threat, is [flag 
        desecration] really the issue that should be taking up 
        the valuable time of Congress? * * * On the home front, 
        our military is receiving rhetorical laurels for its 
        splendid achievements in Iraq, but our veterans are 
        still fighting for richly deserved access to medical 
        care, mental health services, adequate housing, 
        disability assistance and other essential services. * * 
        * But instead of addressing these issues, Congress is 
        spending its time debating flag burning. For lawmakers 
        unwilling to actually face the tough issues, this may 
        provide an appealing smoke screen [that] allows 
        politicians to be in favor of an empty patriotic 
        gesture without doing anything substantive to assist 

    A 23-year Navy and Vietnam War veteran and Pentagon 
official in the Reagan Administration, Lawrence Korb, testified 
at the March 2004 hearing. He echoed General Gard's concerns 
and offered a number of steps Congress should take to address 
the very pressing needs of veterans:

          I would suggest that the Congress could help 
        [veterans] much more by resisting the draconian 
        measures advocated by the Bush administration that 
        adversely impact our current and future veterans. * * *
          First, since coming into office the Bush 
        administration has increased the out of pocket costs 
        for veterans using VA's medical facilities by nearly 
        500%. * * *
          Second, the administration has fought tooth and nail 
        to prevent disabled veterans who are also military 
        retirees from getting ``concurrent receipts'' of both 
        their retired and disability pays. * * *
          Third, the Bush Administration actively sought to 
        reduce hostile fire pay and family separation pay while 
        our troops were fighting wars in two countries. * * *
          Fourth, in what the Army Times has called an act of 
        betrayal, the Department of Defense is considering 
        closing commissaries and schools on military bases 
        throughout our country.
          Fifth, the administration refuses to endorse 
        Congressional proposals to allow Guard and reserve 
        members to participate fully in the military's Tricare 
        Health System. * * *
          Finally, in spite of the unprecedented strain being 
        placed on the active duty Army and its reserve 
        component, the administration continues to resist 
        permanently adding 40,000 people to the active Army.

    Even Major General Brady, a leading supporter of this 
amendment, frankly admitted, in response to a question from 
Senator Leahy following the Committee's April 1999 hearing, 
that ``the most pressing issues facing our veterans'' were not 
flag burnings, but rather ``broken promises, especially health 
    It is time to honor our veterans with substance not 
symbolism. If the amount of time, effort, and money devoted to 
this amendment over the past 15 years had been directed toward 
improving services for veterans, those deserving Americans 
would be much better off.
    We on the Judiciary Committee who oppose the flag amendment 
deplore any act of flag desecration and hold the flag in high 
regard. But we believe that this cherished emblem is best 
honored by preserving the freedoms for which it stands. We 
understand that the political pressure for this amendment is 
strong, but hope that the Senate will in the end heed the words 
of our former colleague, John Glenn, when he urged us to reject 
the amendment:

        [T]here is only one way to weaken the fabric of our 
        Nation, a unique country that stands as a beacon before 
        other Nations around this world. The way to weaken our 
        Nation would be to erode the freedom that we all share. 
        * * * We must not let those who revile our way of life 
        trick us into diminishing our great gift, or even take 
        a chance of diminishing our freedoms.

  B. There Is No ``Great and Extraordinary Occasion'' Justifying the 
                           Proposed Amendmemt

1. The Constitution should be amended only under very compelling 

    James Madison, widely regarded as the Father of the 
Constitution, told posterity that constitutional amendments 
should be limited to ``certain great and extraordinary 
occasions.'' It is distressing to find his advice so unheeded 
that there are now more than 70 proposed amendments pending 
before the 108th Congress. But it is reassuring to recall that 
since Madison spoke, although more than 11,000 amendments have 
been offered, only 27 have been adopted, and only 17 since the 
first ten amendments comprising the Bill of Rights were 
ratified in 1791. If we disregard the Eighteenth and Twenty-
First Amendments, marking the beginning and end of Prohibition, 
we are left with only 15 amendments in over 200 years.
    The proposed resolution is offered in direct response to 
the Supreme Court's decisions in Texas v. Johnson, 491 U.S. 397 
(1989), and United States v. Eichman, 496 U.S. 310 (1990). In 
our system of carefully balanced powers, it is most unusual to 
overturn decisions of the nation's highest court. On at most 
five occasions in the history of this country has a 
constitutional amendment been adopted in response to a decision 
of the Supreme Court.\3\ Significantly, these amendments either 
expanded the rights of Americans or involved the mechanics of 
government. The proposed amendment would be the first amendment 
to the Constitution that would infringe on the rights enjoyed 
by Americans under the Bill of Rights, defying the long-
established principle that the Constitution is a limitation on 
government, not on individuals.
    \3\ The majority report claims (in Part V.B) that the Eleventh, 
Fourteenth, Sixteenth, Nineteenth, and Twenty-Fourth Amendments were 
passed in response to specific Supreme Court decisions. But the notion 
that Congress adopted the Nineteenth Amendment, giving women the right 
to vote, in response to the nearly 50-year old Supreme Court decision 
in Minor v. Happersett, 88 U.S. 162 (1874) (upholding state law 
confining right of suffrage to men) is a stretch; this change is 
properly credited to the work of the women's suffrage movement. 
Moreover, while the Fourteenth Amendment arguably was adopted in 
response to the Dred Scott decision, Scott v. Sandford, 60 U.S. (19 
How.) 393 (1857), the introduction of the Black Codes following the 
Civil War likely was the true catalyst.
    Worse, the infringement would fall on the First Amendment, 
the cornerstone and foundation of all of our rights, of which 
we must be especially protective. As Senator Leahy stated at a 
Committee markup on June 24, 1998:

          All of our freedoms, all of our liberties rest on the 
        First Amendment. It is the granite of democracy. It is 
        our bedrock. Without the right to speak out, all our 
        other rights are only so much paper. Without the right 
        to assemble and petition, you literally cannot fight 
        city hall, let alone the State legislature or the 
        Congress or the IRS or anybody else. You are stuck. 
        Without the freedom to worship or not, unmolested, 
        there is a gaping void at the very core of our life. * 
        * *
          If some disaster were to sweep away all the monuments 
        of this country, the Republic would survive just as 
        strong as ever. But if some disaster * * * some failure 
        of our souls were to sweep away the ideals of 
        Washington and Jefferson and Lincoln, then not all the 
        stone, not all the marble, not all the flags in the 
        world would restore our greatness. Instead, they would 
        be mocking reminders of what we had lost.

    In Federalist No. 43, James Madison wrote that the 
Constitution establishes a balanced system for amendment, 
guarding ``equally against that extreme facility, which would 
render the Constitution too mutable, and that extreme 
difficulty, which might perpetuate its discovered faults.'' The 
concern of the Framers that amendments would come too 
frequently is profoundly conservative, in the best sense of 
that word, as expressed in Federalist No. 49:

          [A]s every appeal to the people would carry an 
        implication of some defect in government, frequent 
        appeals would, in great measure, deprive the government 
        of that veneration which time bestows on everything and 
        without which perhaps the wisest and freest governments 
        would not possess the requisite stability.

Federalist No. 49 also warns against using the amendment 
process when ``[t]he passions [and] not the reason, of the 
public, would sit in judgment.''
    The horror with which the Framers might regard the more 
than 11,000 amendments offered in our history, or the more than 
70 offered in the 108th Congress alone, no doubt is offset by 
the wisdom of the nation's elected representatives in adopting 
so few amendments since the Bill of Rights. An amendment to the 
Constitution to outlaw flag burning would be precisely the sort 
of act against which the Framers warned.
    Common sense alone tells us that this is not a ``great and 
extraordinary'' occasion that justifies invoking the awesome 
power of amending our fundamental charter. Constitutional 
amendments are for resolving the profound and structural issues 
of government. The proposed amendment would be the first 
amendment ever passed to vindicate purely symbolic interests. 
Former Assistant Attorney General Walter Dellinger wrote the 
Committee on March 10, 2004:

          The unprecedented amendment before you would create 
        legislative power of uncertain dimension to override 
        the First Amendment and other constitutional 
        guarantees. More fundamentally, it would run counter to 
        our traditional resistance, dating back to the time of 
        the Founders, to resorting to the amendment process. 
        For these reasons, the proposed amendment--and any 
        other proposal to amend the Constitution in order to 
        punish a few isolated acts of flag burning--should be 
        rejected by this Congress.

    Rather than face the solemn responsibility of justifying an 
amendment to the Constitution, the majority report repeatedly 
suggests that Senators should abdicate their established role 
in voting on proposed constitutional amendments and instead 
view themselves simply as ``gatekeepers,'' whose job is to 
determine whether there is enough popular support for an 
amendment to pass it on to the state legislatures. This 
argument is totally contrary to the conservative conception of 
amendment that our Constitution establishes. However many state 
legislatures may have expressed support for a flag amendment at 
one time or another, the Constitution intentionally makes it 
difficult to pass amendments because they are to be permanent 
and fundamental. Supermajorities are required in both houses of 
Congress as well as among the ratifying states. No amendment 
should pass unless every one of these levels of government 
overwhelmingly supports it.
    Our system is undermined if each institution of government 
does not independently exercise its responsibilities with the 
utmost care. The purpose of the painstaking and difficult 
process of amending the Constitution is to be conservative, 
securing a series of responsible, considered judgments along 
the way. If the institutions of government that are responsible 
for amending the Constitution start to defer to one another 
instead of acting independently--allowing themselves to be led 
by ``[t]he passions [and] not the reason, of the public''--
amendments will start coming quickly, easily, and impulsively. 
While the majority report denies that passage of this amendment 
will create a ``slippery slope'' for future thoughtless 
amendments, that is precisely what they invite by such an 
abdication of responsibility. In any event, the proponents' 
suggestion is an abdication of responsibility of our clear, 
established responsibility on this occasion--and that is 

2. There is no epidemic of flag burnings crippling the country

    Flag burning is rare. That simple fact--undisputed in the 
majority report--has been proven consistently in the course of 
hearings and debates over the various proposals offered over 
the years to prohibit the practice. There is no crisis to which 
we should respond with an amendment to our fundamental law.
    Professor Robert Justin Goldstein, who has written several 
books on flag desecration,\4\ testified before the Constitution 
subcommittee on March 25, 1998. He then reported that there had 
been only about 200 documented incidents of flag burning in the 
entire history of the country, representing less than one per 
    \4\ See Flag Burning and Free Speech: The Case of Texas v. Johnson 
(2000); Burning the Flag: The Great 1989-1990 American Flag Desecration 
Controversy (1996); Saving ``Old Glory'': The History of the American 
Flag Desecration Controversy (1995).
    The incidence of flag burning has increased a bit over the 
past decade, precipitated at least in part by efforts to 
overturn the Johnson ruling by constitutional amendment. See 
infra Part X.B.3. But even the leading lobbying group in 
support of S.J. Res. 4, the Citizens Flag Alliance, can 
document only a relatively small number of ``flag desecration 
acts'' since 1994, generally amounting to less than ten a year, 
nationwide. And as we discuss below (in Part X.B.4), most of 
these incidents were punishable even without S.J. Res. 4.
    In light of these figures, proponents of this amendment 
have been driven to declare that it is appropriate regardless 
of the number of flag desecrations. While we agree that even 
one incident of flag burning merits condemnation and scorn, it 
just as certainly does not create a reason to amend our 
Constitution. It does not call on this Congress to be the first 
Congress in the history of the United States to restrict the 
liberties of Americans with a narrowing amendment to the Bill 
of Rights.
    Even if there were a problem of flag desecration in this 
country, amending the Constitution would still be a totally 
disproportionate response. To propose an amendment when, in 
fact, there is no problem betrays a woeful and unworthy loss of 
perspective. As John Glenn observed at our hearing on April 28, 
1999, the proposed amendment is ``a solution looking for a 
    Senator Glenn's observation finds unintended support from 
some of the principal proponents of S.J. Res. 4. Asked at our 
hearing on April 28, 1999, what the penalty should be for 
burning an American flag, Citizens Flag Alliance Chairman 
Patrick Brady responded:

          I would handle it like a traffic ticket. The 
        individual who received the ticket for burning the flag 
        * * * could pay the fine or he could * * * go to 
        school. * * * I would send them to a class, and I would 
        tell them this is what the flag means to the people of 
        America, this is what it means to veterans, and that 
        would be it.

At the same hearing, Lieutenant General Edward Baca (USA, Ret.) 
agreed that flag burning should be a misdemeanor offense, and a 
third pro-amendment witness, Professor Richard Parker, opined 
that ``a jail term is probably not reasonable.''
    The notion that we should amend the Constitution of the 
United States and carve out an exception to the fundamental 
freedom of the First Amendment in order to issue a ticket and 
send someone to a class on ``respect'' takes one's breath away. 
As stated at the time by Keith Kreul, past National Commander 
of the American Legion, ``It is a radical approach to a near 
nonexistent dilemma akin to atom bombing a sleeping city 
because a felon may be in the vicinity.''
    The approach is all the more radical given its admitted 
limitations. The majority report acknowledges (in Part V.C.1) 
that the proposed amendment ``does not authorize legislation 
prohibiting derogatory comments about the flag or cursing the 
flag, nor does it authorize a prohibition on shaking one's fist 
at the flag or making obscene gestures at the flag.'' Yet such 
acts may be as offensive, and as deserving public censure, as 
some of the acts of ``physical desecration'' that may be 
covered by the proposed amendment.

3. Outlawing flag desecration could increase rather than decrease such 

    One of the principal incitements to flag burning appears, 
from all of the evidence, to be the very efforts to make it 
illegal. That is because outlawing flag burning in a highly 
publicized way, or attempting to do so, tends to assure flag 
burners of the very attention they crave, lending national 
visibility to their crackpot causes and offensive behavior. The 
majority asserts (in Part V.E) that passage of the amendment 
would result in ``one of the greatest public discussions in 
American history'' and offer a sort of nationwide civics lesson 
for America's youth. Quite apart from the improbability of this 
vision--if the post-9/11 challenges to American freedom and the 
war in Iraq are not enough to get young people thinking, even 
the most lively debate among state legislators is unlikely to 
do that--history tells us that the most likely result of 
passing this amendment would be a marked increase in flag 
    According to Professor Goldstein, there were more than 
twice as many flag burning incidents between 1989--when the 
Supreme Court's ruling in Johnson made flag burning a front-
page issue--and March 1998--when he testified--than in the 
entire history of the American republic to that point. 
Professor Goldstein established that the number of incidents 
peaked between June 1989 and June 1990, when the first attempts 
were made to overturn Johnson by amending the Constitution. The 
only comparable period was in 1968, after Congress--responding 
to numerous public flag burnings protesting the war in 
Vietnam--passed the first Federal flag protection act.
    Based on past experience, then, focusing attention on flag 
burning with a highly publicized election-year debate on the 
proposed constitutional amendment will likely lead to another 
spike in the number of flags-burning incidents. Actually 
passing S.J. Res. 4 would likely spur an unprecedented wave of 
incidents, as well as increase the variety of distasteful acts 
involving the flag which no doubt would be committed to test 
the vague and uncertain boundaries of any new law.
    If we want to stop people from burning the flag, the most 
effective way would be to stop daring them to do it. Passage of 
the proposed amendment--and the ensuing ratification debates--
would do just the opposite.

4. Existing legal and social sanctions are adequate to deter and punish 
        flag desecration

    There is a huge misunderstanding underlying the push for a 
flag protection amendment. On April 29, 1999, Senator Feingold 
explained during a Committee markup on the amendment:

          The American people have been * * * bamboozled into 
        believing that you can walk across the street, grab an 
        American flag off of somebody's building and burn it, 
        and that is protected. That is not the case.

    The states and the Federal Government can prohibit and 
punish most acts of physical destruction of a flag, and do so 
with more than a citation or a compulsory class on respect. No 
one has the right to steal a flag or to defile a flag belonging 
to another. Burning a flag, even one's own flag, will not 
shield a violent or disorderly protester from arrest. The First 
Amendment protects speech, expressive conduct, and peaceful 
demonstration. It is not a sanctuary for thieves, vandals, or 
    The Citizens Flag Alliance () has been 
tracking ``flag desecration acts'' since 1994, presumably to 
demonstrate that a constitutional amendment is needed. In fact, 
however, CFA's list demonstrates just the opposite--that most 
instances of flag desecration are linked to other behavior that 
violates existing laws--including laws relating to theft, 
vandalism, destruction of property, breach of the peace, and 
arson--and are therefore punishable regardless of any message 
that the flag desecrator might be trying to send.
    For example, CFA's only entry to date for the year 2004 
involves serial flag burnings occurring during a three-week 
period in Montpelier, Vermont:

          June 19-July 7, 2004, Montpelier, VT: Police reported 
        at least five American flags were found burned in 
        public places and several residents reported their 
        flags missing. Two mutilated flags were wrapped around 
        an Ethan Allen statue at the Statehouse. A flag was 
        found placed on a church's Virgin Mary statue and set 
        on fire. A flag was also found in the rosebushes of 
        another church. A flag with the stars burned out and 
        the phrase ``Stop the Corruption'' was found draped on 
        a building. A nursing home reported its American flag 
        had been burned on its pole.

As Senator Leahy noted at the Committee markup on July 20, 
2004, these were outrageous acts, intended to outrage, but 
there is no reason to believe that acts like these cannot or 
will not be prosecuted under Vermont and other states' laws 
prohibiting unlawful mischief, theft, and destruction of 
property. In this instance, officials have also indicated that 
it may be possible to prosecute the perpetrators under 
Vermont's hate crimes law. See ``Vandals strike a Montpelier 
shrine,'' Channel 3 News, WCAX-TV Burlington, Vermont, June 30, 
    CFA's list includes other incidents in which flag 
desecrators can or have been prosecuted.\5\ For example:

    \5\ CFA's list also suggests that a large percentage of flag 
desecration acts are perpetrated by misguided teenagers.

          April 12, 2003, Ashland, OR: Ashland police arrested 
        two men who burned an American flag at a peace rally, 
        saying the fire posed a danger to other protesters and 
        people nearby. The men were charged with disorderly 
        conduct and reckless endangerment. (``Burning flag a 
        safety risk, police say,'' Associated Press, April 13, 
          March 31, 2003, Maytown, PA: A former U.S. marine 
        called police after learning that his American flag was 
        burning. Two months later, the police arrested a 
        juvenile and charged her with criminal mischief. 
        (``Confusing the issue,'' Intelligencer Journal, June 
        6, 2003.)
          September 16, 2002, Bellefontaine, OH: A 
        Bellefontaine man was observed removing courthouse 
        flags from their holders and throwing them to the 
        ground. He fled when police arrived, but was located 
        several blocks away from the courthouse and arrested on 
        charges that included criminal mischief. (Bellefontaine 
        Examiner, September 16, 2002.)
          September 11, 2002, Ann Arbor, MI: Two boys, ages 15 
        and 16, were arrested for allegedly setting a flag on 
        fire at the University of Michigan. The boys ran away 
        but were arrested when they returned to the scene. They 
        were charged with setting a fire on campus. (``Teens 
        arrested after lighting American flag on fire,'' 
        Associated Press, September 11, 2002)
          October 30, 2001, Langley, VA: An 18-year old college 
        student allegedly set off a brush fire by burning an 
        American flag. The blaze spread over four acres of 
        woodland in northern Virginia. The student was arrested 
        on charges that included setting a fire capable of 
        spreading, a felony that carries a maximum sentence of 
        five years in prison. (``Flag-burning complicates Va. 
        arson case,'' Washington Post, November 2, 2001.)
          September 10, 1998, Boulder, CO: A city flag was set 
        on fire while atop a very tall flagpole. The Boulder 
        police had no doubt they could arrest the arsonist, 
        because ``burning someone's else's flag--in this case 
        the city's--is definitely against the law.'' (``Flag 
        arsonist sought,'' Denver Post, September 11, 1998.)
          August 7, 1998, Minersville, PA: Two cemeteries were 
        vandalized; the vandalism included the burning of 
        American flags on veterans' graves. A 19-year old was 
        arrested, along with four juveniles, and charged with 
        institutional vandalism, criminal mischief, attempted 
        burglary, trespassing, criminal conspiracy, and 
        corruption of minors. (``Man jailed in vandalism 
        spree,'' The Harrisburg Patriot, August 20, 1998.)
          July 4, 1997, Springfield, IL: A man celebrated the 
        Fourth of July by cutting the rope on the Federal 
        Building flag pole and hauling down the flag. The man 
        was arrested and jailed on charges of theft and 
        criminal damage to government property. (``One man 
        celebrates by stealing,'' The State Journal-Register 
        (Springfield, IL), July 9, 1997.)
          May 26-June 9, 1997, Wallingford, CT: Flags hanging 
        from downtown homes and porches were set on fire at 
        night, endangering residents and damaging property. 
        Several teenagers were arrested in connection with 
        these incidents, charged with reckless burning, 
        conspiracy to commit reckless burning, and criminal 
        attempt to commit reckless burning. (``Second teen 
        accused in Wallingford flag burnings,'' The Hartford 
        Courant, September 4, 1997.)
          April 1, 1997, Buffalo, NY: The starting goalie for 
        the Buffalo Bandits, having just won a playoff-
        clinching game, climbed over a fence at the naval park 
        and tore down the American flag, breaking the flagpole. 
        Charged with criminal trespass and criminal mischief, 
        the man eventually pled guilty and paid a fine. 
        (``Bandits goalie pleads guilty in naval park case,'' 
        Buffalo News, October 24, 1997.)

No constitutional amendment was needed to protect the people of 
Ashland, Maytown, Bellefontaine, Ann Arbor, Langley, Boulder, 
Minersville, Springfield, Wallingford, or Buffalo. Their state 
laws performed that function quite well.
    Similarly, no constitutional amendment was necessary to 
punish Gregory Lee Johnson, the defendant in the Supreme 
Court's 1989 case. Johnson accepted stolen private property (a 
flag) and destroyed it by setting it on fire in a busy public 
place. The State of Texas could have prosecuted Johnson for 
possession of stolen property, destruction of private property, 
and other crimes which the State routinely punishes without 
regard to speech; instead, the only criminal offense with which 
Johnson was charged was ``desecration of a venerated object.'' 
The Supreme Court, while holding that Johnson's conviction for 
that offense could not stand, emphasized that its opinion 
``should [not] be taken to suggest that one is free to steal a 
flag so long as one later uses it to communicate an idea.'' 491 
U.S. at 412 n.8.
    In earlier debates over the amendment, much was made of a 
Wisconsin youth, Matthew Janssen, then 18, who stole a number 
of flags and defecated on one, and whose conviction for flag 
desecration under an old, pre-Johnson statute, was eventually 
overturned. See Wisconsin v. Janssen, 219 Wis.2d 362 (1998). 
That does not mean, however, that Janssen went unpunished for 
his despicable act. In fact, he was prosecuted successfully for 
the message-neutral crimes he committed, and sentenced to nine 
months in jail and 350 hours of community service. Perhaps more 
important, he was ostracized, and had to face his community 
with the shame of his act before him at all times. No fine, no 
class on respect, and no martyrdom at the hands of the central 
government could equal the punishment Janssen received.
    Senator Feingold raised the question with Wisconsin State 
Senator Roger Breske at the subcommittee hearing on March 25, 

          Isn't this the ideal case to demonstrate that there 
        is no need to amend the First Amendment? This young man 
        was punished both by the State and by his community 
        through harsh social sanctions, as well as criminal 
        sanctions. This punishment was so severe that the young 
        man publicly apologized and admitted that his actions 
        were abominable. * * * If this is the case, what else 
        can be gained by amending the Bill of Rights?

Senator Breske responded, ``He probably should have got a 
little more.'' But ``a little more'' is no reason to amend the 
United States Constitution.

5. Existing constitutional limitations on free expression are 
        applicable to acts of flag desecration

    The decision of the Supreme Court in Johnson did not give 
carte blanche to protesters to burn flags however, whenever, 
and wherever they please, even for expressive purposes. The 
First Amendment leaves room for Congress and the states to 
regulate in this area, just as it permits reasonable 
restrictions on other forms of expression on a content-neutral 
    For example, expression that is directed to inciting or 
producing ``imminent lawless action'' may be limited under 
Brandenburg v. Ohio, 395 U.S. 444, 447 (1969), and limits also 
can be placed on ``fighting words,'' those likely to provoke 
the average person to whom they are addressed to retaliation. 
Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). The fact 
that these circumstances were not present in Johnson--it 
appears that those most likely to be incited by the conduct 
wisely had ignored the demonstration altogether, as did most 
other people--does not limit the government's authority to 
respond to imminent violence. As the Supreme Court noted in 

          The State need not worry that our holding will 
        disable it from preserving the peace. We do not suggest 
        that the First Amendment forbids a State to prevent 
        ``imminent lawless action.''

491 U.S. at 410. States remain free to prevent acts of 
violence. What a state cannot do is apply prior restraint on 
certain views by assuming that, because the speech is so 
offensive to some, it will provoke ordinary citizens to 
    Established principles of First Amendment jurisprudence 
also provide room, albeit limited, for Congress to enact 
legislation protecting the flag, so long as that legislation is 
sufficiently specific to avoid the problem of vagueness and 
satisfy the Fifth Amendment Due Process Clause, and so long as 
it is sufficiently content-neutral to satisfy the First 
Amendment. We do not suggest that this is an easy task. The 
same problems may plague legislative drafters if this amendment 
is adopted, however (see infra Part X.E), and the American 
people would be far better served if the proponents of S.J. 
Res. 4 addressed this difficult task squarely and honestly at 
the outset by proposing a carefully crafted statute rather than 
toying with the Constitution.
    On March 30, 2004, Senator Byron Dorgan and others 
introduced the Flag Protection Act of 2004, S. 2259, to provide 
for the maximum protection against the use of the flag to 
promote violence, while respecting the liberties that it 
symbolizes. This bill would ensure that incidents of 
deliberately confrontational flag burning are punished with 
stiff fines and even jail time. Experts at the Congressional 
Research Service and several constitutional scholars have 
opined that S.2259 respects the First Amendment and would be 
upheld by the courts. See Congressional Record, March 30, 2004, 
at S3368-S3369. We believe that Congress should consider this 
statutory alternative, and that the Court should address it, 
before we again take up a constitutional amendment on this 

C. The Proposed Amendment Would Diminish the Rights We Currently Enjoy 
                       Under the First Amendment

1. The proposed amendment would restrict free expression

    The proposed amendment unquestionably would restrict rights 
currently enjoyed by Americans under the First Amendment. 
Indeed, that is its purpose. The majority report's claim (in 
Part V.C.1) that the proposed amendment would not reduce First 
Amendment rights--that it would, in fact, ``harmonize very well 
with'' the First Amendment--does not bear scrutiny.
    The majority report's lead argument for why the proposed 
amendment is consistent with the First Amendment is that 
``physical acts of desecration are conduct, not speech'' (Part 
V.C.1). In support of this argument, the majority cites one 21-
year old district court decision that was patently out of line 
with the mainstream and--unmentioned by the majority--promptly 
reversed. See Monroe v. State Court of Fulton County, 739 F.2d 
568 (11th Cir. 1984), reversing 571 F. Supp. 1023 (N. Ga. 
1983). As discussed further below (in Part X.D.2), the would-be 
distinction between conduct and speech has been repeatedly 
rejected--including in cases involving the flag--because it is 
so obviously unrealistic and unworkable.
    Bruce Fein, former Justice Department Deputy Attorney 
General during the Reagan Administration, remarked in a June 7, 
2004 letter opposing S.J. Res. 4: ``[T]o deny that flag burning 
constitutes speech--such as burning the flag of Communist China 
to protest the Tiananmen Square massacre--is to deny the 
undeniable.'' Would the majority claim that peaceful picketing 
is not speech within the First Amendment, or that a silent 
vigil is not speech, or the familiar politician's thumbs-up? 
The examples are truly endless. Expressive conduct is speech, 
and because the flag serves as a symbol, use of the flag 
symbolically is expressive. Indeed, the State of Texas conceded 
this point when arguing the Johnson case before the Supreme 
Court, see 491 U.S. at 405, as did the United States the 
following year when arguing Eichman, see 496 U.S. at 315.
    Professor Goldstein explained the expressive aspect of flag 
desecration in his 1995 book, Saving ``Old Glory'':

          [A]ll forms of communication, including oral and 
        written speech, are ultimately ``symbolic'' (since 
        letters and words have no meaning, by themselves, but 
        only represent other things) and they all involve 
        conduct--opening one's mouth, printing and circulating 
        a book, and so on. Unless flag desecration results in 
        burning down a building or blocking a public street, it 
        is, in practice, just as ``purely'' symbolic and purely 
        expressive as are other forms of communication and 
        therefore deserves equal protection. If the argument 
        that only ``pure'' speech and writing are protected by 
        the principles of constitutional democracy was 
        accepted, then people who use sign language would have 
        no rights, and neither would actors, dancers, 
        musicians, painters, movie producers, or anyone else 
        who communicated in any other way.

Goldstein, Saving ``Old Glory,'' at xii-xiii.
    As Professor Goldstein notes, the conduct/expression 
distinction is meaningful under the First Amendment only in the 
sense that the behavior in question can cause harm to real 
interests that the government can protect. For instance, 
burning a flag causes harm to the owner's property interest in 
that flag: people label that which causes this real, tangible 
harm as the ``conduct'' element in the behavior. It is 
precisely such harm-causing, ``conduct'' elements of flag 
desecration that can already be prohibited, and that routinely 
and effectively are in fact punished by the courts. The 
argument that desecration is ``conduct'' does not support the 
amendment at all--quite the contrary. To the extent that 
desecration is ``conduct,'' it can already be regulated. The 
whole point of the amendment is to regulate ``expression'' (or, 
the ``expressive'' element in the behavior) when it does not 
cause real, tangible harm, but is only offensive. Invoking 
illusory distinctions like conduct-versus-expression does not 
change that reality.
    The majority report next attempts to salvage the system of 
censorship that the amendment would inevitably establish by 
noting that ``the First Amendment's guarantee of freedom of 
speech has never been deemed absolute'' (Part V.C.1). But the 
majority report's examples--``fighting words,'' libel, and 
obscenity--are not exceptions to the First Amendment that 
somehow invite another exception. Indeed, the logic of ``we 
already have some exceptions, so why not one more?'' highlights 
one of the central dangers posed by this amendment. As 
discussed further below (in Part X.C.4), if we have a flag 
desecration amendment for the Stars and Stripes, why not one 
for state flags, or the presidential seal, or the Constitution 
itself? The majority concedes that unless it is treated as 
utterly unique, the proposed flag desecration amendment leads 
down a slippery slope of censorship. But the majority's misuse 
of analogies to the very narrow categories of unprotected 
speech that have been recognized, and even to corporate 
symbols,\6\ undermine the very uniqueness on which its case 
    \6\ The majority report appears to argue (in Part III.A.3) that 
those who support the protection of corporate symbols that are provided 
by federal trademark law should also support the proposed amendment. In 
doing so, the majority ignores the fact that trademark law is limited 
by the First Amendment right of free speech. Courts have consistently 
held that trademark and related laws do not prohibit parodies and other 
forms of social commentary, regardless of whether they cause offense. 
See, e.g., Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 
806-807 (9th Cir. 2003) (parodic use of Barbie trademark non-infringing 
fair use).
    The real lesson of ``non-absolutism'' is just the opposite 
of what the majority argues. ``Fighting words,'' libel, and 
obscenity are time-honed, carefully-crafted applications of the 
First Amendment. Far from supporting a flag exception to the 
First Amendment, they teach us that speech is to be free except 
in the most extraordinary circumstances and subject to the most 
extraordinary legal protections. Punishment of speech is 
limited to only those specific occasions when it is proved to 
be immediately harmful to concrete, important interests or 
rights far beyondsymbolism and offensiveness.\7\ The 
``disrespect'' or ``contempt'' for the flag that supposedly would 
justify the proposed amendment does not remotely meet any of the 
traditional safeguarding requirements.
    \7\ ``Fighting words'' are punishable only if the court determines 
that on the facts of the particular case, there was what used to be 
called a ``clear and present danger'' of violence. The whole concept is 
actually and intentionally calculated to protect as much speech as 
possible by requiring, for each instance of speech, a judicial finding 
of immediate threat to the important government interest in avoiding 
violence. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 235-236 
(1963). The law of libel of a public official is intentionally designed 
to maximize speech by imposing stringent limits on when it can be 
punished. It requires not only that the speech in fact damage the 
official's reputation and not only that the statements be false, but 
also (which the majority report crucially omits) that the statements be 
made with ``actual malice,'' that is, with the specific intent to harm 
the victim's reputation through a knowingly or recklessly false 
statement. That the speaker has actual malice must be found on the 
particular facts of each case of speech. See New York Times v. 
Sullivan, 376 U.S. 254, 279-288 (1964). Even obscenity, which appears 
to be a category that is not ``speech'' within the First Amendment, 
requires the application of similar case-by-case stringent safeguards 
to insure that only actually obscene speech is punished and that speech 
with social value is kept within the protection of the First Amendment. 
See Miller v. California, 413 U.S. 15, 24 (1973).
    Finally, the majority report tries to minimize the proposed 
amendment's corrosive effect on the First Amendment by arguing 
(in Part V.C.3) that there are other ways, besides flag 
burning, for disaffected Americans to express their views. But 
in a free enterprise society and under the First Amendment, 
people must have the right to decide just how they are going to 
promote their views. As the American Bar Association wrote in a 
statement it submitted for this year's hearing, opposing S.J. 
Res. 4: ``[T]he First Amendment jealously guards the right to 
express our views about our government or laws in the manner of 
our choice, so long as that choice is through peaceful words or 
    In sum, the proposed amendment would create a regime of 
discrimination and suppression of speech of all kinds that 
would be utterly at odds with the First Amendment and American 

2. The First Amendment protects above all the right to speak the 
        unpopular and objectionable

    Ultimately, the debate over S.J. Res. 4 and the earlier 
attempts to amend the Constitution to ban flag desecration 
turns on the scope we think proper to give to speech that 
deeply offends us. But for Congress to limit expression because 
of its offensive content is to strike at the heart of the First 
Amendment. ``If there is a bedrock principle underlying the 
First Amendment, it is that the government may not prohibit the 
expression of an idea simply because society finds the idea 
itself offensive or disagreeable.'' Johnson, 491 U.S. at 414. 
Indeed, it is the right to speak the offensive and disagreeable 
that needs the most protecting.
    Justice Holmes wrote that the most imperative principle of 
our Constitution was that it protects not just freedom for the 
thought and expression we agree with, but ``freedom for the 
thought that we hate.'' United States v. Schwimmer, 279 U.S. 
644, 654 (1929). ``[W]e should be eternally vigilant,'' he 
taught us, ``against attempts to check the expression of 
opinions that we loathe. * * *'' Abrams v. United States, 250 
U.S. 616, 630 (1919). Justice Robert Jackson echoed this 
thought in West Virginia Bd. of Educ. v. Barnette, 319 U.S. 
624, 642 (1943), a flag salute case: ``[F]reedom to differ is 
not limited to things that do not matter much. That would be a 
mere shadow of freedom. The test of its substance is the right 
to differ as to things that touch the heart of the existing 
    At the subcommittee hearing on March 25, 1998, conservative 
constitutional scholar Bruce Fein cited President Thomas 
Jefferson's first inaugural address, when the nation was 
bitterly divided. That giant among the Founders lectured on the 
prudence of tolerating even the most extreme forms of political 

          If there be any among us who would dissolve the Union 
        or * * * change its republican form, let them stand 
        undisturbed as monuments of the safety with which error 
        of opinion may be tolerated where reason is left to 
        combat it.

Mr. Fein also cited, as an example of the Enlightenment spirit 
that undergirds the First Amendment, Voltaire's famous 
statement, ``I disapprove of what you say, but I will defend to 
death your right to say it.''
    John Glenn stated the argument in more colloquial terms in 
a written submission to the Committee dated March 10, 2004:

          To say that we should restrict the type of speech or 
        expression that would outrage a majority of listeners 
        or move them to violence is to say that we will 
        tolerate only those kinds of expression that the 
        majority agrees with, or at least does not disagree 
        with too much. That would do nothing less than gut the 
        first amendment.

    To restrict speech and political expression to only those 
areas that Congress approves is to limit, as China now does, 
the freedom of worship to only those churches of which that 
government approves. That is not freedom at all. As free speech 
philosopher Alexander Meiklejohn cautioned, ``To be afraid of 
ideas, any ideas, is to be unfit for self-government.'' 
Alexander Meiklejohn, Freedom of Speech and Its Relation to 
Self-Government 27 (1948).
    The nation's faith in free speech is grounded ultimately in 
a confidence that the truth will prevail over falsehood, a 
faith that has sustained our thought since Milton wrote his 
Areopagitica in 1644.

          [T]hough all the winds of doctrine were let loose to 
        play upon the earth, so truth be in the field, we do 
        injuriously, by licensing and prohibiting, to misdoubt 
        her strength. Let her and falsehood grapple, whoever 
        knew the truth put to the worse in a free and open 

John Milton, Areopagitica, A Speech for the Liberty of 
Unlicensed Printing to the Parliament of England (1644).

3. The American people can and do answer unpopular speech with 
        tolerance, creativity and strength

    The lesson of Milton is practiced every day in America. 
Flag burning is not the only form of expression that is utterly 
abhorrent to the large majority of Americans. The instinctive 
answer of the American people, however, is not trying to ban 
speech that we find offensive. That is the response of 
weakness. Justice Louis Brandeis observed, ``Those who won our 
independence * * * eschewed silence coerced by law--the 
argument of force in its worst form.'' Whitney v. California, 
274 U.S. 357, 375-376 (1927) (Brandeis, J., concurring).
    The American people respond with strength. Americans have 
always understood that, for the greater good, they can ignore 
offensive views, tolerate them, or respond to them with more 
speech. In a confident, mature citizenry, that, not outlawing 
them, is the American way.
    Proponents of this amendment contend that requiring respect 
for the flag will enhance national unity, but the rare 
occasions of flag desecration have not, and cannot, subvert our 
sense of unity. Our institutions are not threatened by the 
exercise of First Amendment freedoms.
    More fundamentally, respect cannot be coerced. It can only 
be given voluntarily. Some may find it more comfortable to 
silence dissenting voices, but coerced silence can only create 
resentment, disrespect and disunity. As Justice Jackson wrote 
in Barnette, 319 U.S. at 640-642:

          Struggles to coerce uniformity of sentiment in 
        support of some end thought essential to their time and 
        country have been waged by many good as well as by evil 
        men. * * * Those who begin coercive elimination of 
        dissent soon find themselves exterminating dissenters. 
        Compulsory unification of opinion achieves only the 
        unanimity of the graveyard. * * *
          If there is any fixed star in our constitutional 
        constellation, it is that no official, high or petty, 
        can prescribe what shall be orthodox in politics, 
        nationalism, religion, or other matters of opinion or 
        force citizens to confess by word or act their faith 

    What unifies our country is the voluntary sharing of ideals 
and commitments. We can do our share toward that end not by 
enforcing conformity but by responding with responsible actions 
that will justify respect and allegiance, freely given.
    Immediately following September 11, 2001, Americans all 
around the country began to fly flags outside their homes and 
businesses, to wear flag pins on their lapels, and to place 
flag stickers on their automobiles. This surge in patriotism 
made American flags such a hot commodity that several major 
flag manufacturers could not keep flags stocked on store 
shelves. Within days of the attacks, the nation's largest 
retailer had sold 450,000 flags, compared with 26,000 during 
the same period in 2000. ``Oh, say can you see any flags on the 
shelves?'' The San Francisco Chronicle, September 19, 2001. By 
late October 2001, the demand for flags was so great that 
manufacturers were back-ordered up to six weeks, according to 
the National Flag Foundation in Pittsburgh, Pennsylvania. 
``Demand outstrips supply,'' Albuquerque Journal, October 28, 
    This expression of national pride was spontaneous, and 
consisted of individual Americans taking conscious acts of 
patriotism. No one in the government decreed that Americans 
must purchase and fly flags. There was no official direction 
stating that Americans should wear clothing and accessories 
with flag designs, but these have been wildly popular as well.
    Expressions of patriotism after September 11 went well 
beyond the proud display of the flag. As Senator Feingold 
stated at the Committee markup on July 20, 2004:

          We didn't need a constitutional amendment to teach 
        Americans how to love their country. They showed us how 
        to do it by hurling themselves into burning buildings 
        to save their fellow citizens who were in danger, by 
        standing in line for hours to give blood, by driving 
        hundreds of miles to search through the rubble for 
        survivors and to help in cleanup efforts, by praying in 
        their houses of worship for the victims of the attacks 
        and their families.
          September 11th inspired our citizens to perform some 
        of the most selfless acts of bravery and patriotism we 
        have seen in our entire history. No constitutional 
        amendment could ever match those acts as a 
        demonstration of patriotism, or create them in the 

    Justice Brennan wrote in Johnson, ``We can imagine no more 
appropriate response to burning a flag than waving one's own.'' 
491 U.S. at 420. That is exactly how the American people 
respond. Justice Brennan described the aftermath of Gregory Lee 
Johnson's contemptible act in 1984, when he burned a flag at a 
political demonstration in Dallas, Texas, in front of City 
Hall. ``After the demonstrators dispersed, a witness to the 
flag burning collected the flag's remains and buried them in 
his backyard.'' Id. at 399.\8\
    \8\ We are pleased to identify and give full credit to Korean War 
veteran Daniel Walker for this quietly gallant act. See Goldstein, 
Burning the Flag, at 33.
    At the Committee's business meeting on June 24, 1998, 
Senator Feingold pointed to the example of Appleton, Wisconsin, 
where 18-year old Matthew Janssen committed a particularly 
repugnant act of flag desecration, and where each year, 20,000 
to 30,000 Americans join in the largest Flag Day parade in the 
nation. Similarly, Senator Durbin cited the example of the 
people of Springfield, Illinois, who faced the prospect of a Ku 
Klux Klan rally:

          For each minute that the Ku Klux Klan rally goes on, 
        each of us pledges a certain amount of money to be 
        given to B'nai B'rith and to the NAACP and other 
        organizations. So the longer they go, the more money is 
        being [raised] in defense of the values of America. I 
        think that is what America is all about.

    On July 18, 1998, in Coeur D'Alene, Idaho, white 
supremacists obtained a permit for a ``100-Man flag parade'' 
and marched carrying American flags and Nazi banners side by 
side. As in Springfield the local residents turned ``Lemons 
into Lemonade,'' and raised $1,001 for each minute of the white 
supremacists' march, money for donations to human rights 
organizations. A few citizens loudly spoke back to the 
marchers, but most simply stayed away. Steve Meyer, owner of 
The Bookseller, made it a point to keep his store open, 
observing that ``Nazis were burning books in the 1930s, and I 
don't want them closing stores in the '90s.''
    The same year, an African American was brutally tortured 
and murdered in Jasper, Texas, apparently on account of his 
race. The Ku Klux Klan decided to hold a rally in Jasper 
because of the murder. Even in all of their pain over the 
incident, the good citizens of Jasper, led by their African 
American mayor, let the Klan speak. They let them march, and 
they even let them wave American flags. The good citizens of 
Jasper quietly spurned the Klan, and the Klan slithered out of 
    The positive examples of the citizens of Wisconsin, 
Illinois, Idaho, and Texas show the America for which soldiers 
have fought and died. This is the strength and unity that no 
statute, no amendment can compel or embellish.
    A similar example of a powerful response to flag burning 
that protects the speech of everyone was given, ironically, by 
the proponents' star witness in the 105th Congress. The 
incident was the center of the July 8, 1998 testimony of Los 
Angeles Dodger General Manager Tommy Lasorda. In 1976, a father 
and son ran onto the field during a baseball game at Dodger 
Stadium and attempted to set fire to a flag. The attempt was 
unsuccessful (the flag was never burned) and the protestors 
appear to have been punished with stiff fines under the 
content-neutral laws against running onto playing fields. 
Significantly, the crowd was in no way demoralized by the 
attempt, nor was their love for the flag or for our country 
diminished in the least. Far from it. As Mr. Lasorda recounted:

          The fans immediately got on their feet * * * and 
        without any prompting that I can remember the whole 
        crowd stood and began to fill the stadium with an 
        impromptu rendition of ``God Bless America.''

That was an answer on which Congress cannot improve.\9\
    \9\ The Citizens Flag Alliance website describes other gallant 
responses by Americans to acts of flag desecration. In some instances, 
flag desecrators have been stopped in the act and even placed under 
citizen's arrest. CFA also documents several instances in which 
citizens have been moved to donate their own personal flags to replace 
those that were destroyed.
    It can be painful that the Klan and others try to associate 
themselves with the principles of our nation by displaying the 
flag. It can be painful to see the crudeness and poverty of 
understanding of those who try to burn the flag. Vietnam 
veteran Stan Tiner told the Constitution subcommittee on March 
25, 1998, of ``the political factions and sects that fly the 
American flag over their own various causes--the Communists, to 
the Birchers, to David Koresh and his followers--all seeking to 
imply that their particular brand of Americanism is the one 
righteous brand.'' He concluded:

          [I]n a curious way, they are right. America is all of 
        these things, or at least a haven for freedom, where 
        all kinds of thinking can occur and where people can 
        speak freely their minds without fear.

    Therein lies part of the greatness of America. All voices, 
however hateful and obnoxious, can be heard, but it is the 
quiet nobility of the ordinary citizens of Appleton, 
Springfield, Coeur D'Alene, and Jaspar, the spontaneous singing 
of ``God Bless America'' at a baseball game, and the 
overwhelming display of patriotism after September 11, 2001, 
that wins the debate. The First Amendment works.

4. The proposed amendment would set a dangerous precedent for future 
        amendments to the Bill of Rights

    Supporters of S.J. Res. 4 argue that the flag is a special 
case--that its adoption would not open the floodgates to other 
amendments. We are not so sure. Already, scores of 
constitutional amendments are proposed each year, many of which 
would alter the Bill of Rights. Some of these proposed 
amendments command significant support, including support from 
sponsors of the current proposal. Establishing a precedent that 
the First Amendment can be restricted by constitutional 
amendment would give supporters of other restrictive amendments 
ammunition and momentum, and weaken public respect and support 
for safeguarding the enduring principles in our Bill of Rights.
    Charles Fried, Solicitor General under President Reagan, 
cautioned us in June 1990 that it is dangerous to make 
exceptions in matters of principle:

          Principles are not things you can safely violate 
        ``just this once.'' Can we not just this once do an 
        injustice, just this once betray the spirit of liberty, 
        just this once break faith with the traditions of free 
        expression that have been the glory of this nation? Not 
        safely; not without endangering our immortal soul as a 
        nation. The man who says you can make an exception to a 
        principle, does not know what a principle is; just as 
        the man who says that only this once let's make 2+2=5 
        does not know what it is to count.

    The late Senator Chafee also took a dim view of the 
consequences of the proposed amendment when he asked the 
Committee, in April 1999, ``What will be next?'':

          Will we next see a constitutional amendment demanding 
        the standing to attention when the national anthem is 
        played? Will there be a list of worthy documents and 
        symbolic objects for which desecration is 
        constitutionally prohibited? Should there be a 
        Constitutional Amendment to protect the Bible? What 
        about other religious symbols such as the crucifix or 
        the Menorah; what about the Constitution, itself? 
        Surely, the Constitution embodies the same significance 
        as the flag!

    Even if we could draw the line after one restrictive 
amendment, the damage would be done. John Glenn stated in his 
March 2004 submission that ``The Bill of Rights * * * is what 
has made [the United States] a shining beacon of hope, liberty 
and inspiration to oppressed peoples around the world for over 
200 years. In short, it is what makes America, America.'' The 
proposed amendment would dim that beacon, as Lawrence Korb 
described in his March 2004 statement:

          During my years of military service and civilian 
        service during the Cold War, I believed I was working 
        to uphold democracy against the totalitarianism of 
        Soviet Communist expansionism. I did not believe then, 
        nor do I believe now, that I was defending just a piece 
        of geography, but a way of life. If this amendment 
        becomes part of the Constitution, this way of life will 
        be diminished. American will be less free and more like 
        the former Soviet Union, present-day China, Iraq under 
        Saddam Hussein, or Afghanistan under the Taliban.

    The First Amendment boldly proclaims that ``Congress shall 
make no law * * * abridging the freedom of speech.'' The 
proposed amendment would turn the ``no'' into an ``almost 
no''--a singular erosion of the principle for which the First 
Amendment stands. Perhaps that is why a substantial majority of 
Americans do not support the proposed constitutional amendment 
once they know of its unprecedented impact on the First 
    \10\ While proponents of S.J. Res. 4 purport to be responding to a 
groundswell of support by the American people for constitutional 
protection of their flag, recent polling data does not bear this out. A 
June 2004 survey by the First Amendment Center shows that a majority of 
Americans--53 percent--oppose amending the Constitution to prohibit 
burning or desecrating the American flag. Moreover, of the 45 percent 
of Americans who said they supported such an amendment, 16 percent 
reversed themselves and said that the Constitution should not be 
amended when informed that, if the amendment were approved, it would be 
the first time any of the freedoms in the First Amendment had been 
amended in over 200 years. See State of the First Amendment 2004 
survey, available at 

      D. The Johnson Decision Was Consistent With Generations of 
                        Constitutional Doctrine

1. The Supreme Court has never accepted limitations on the First 
        Amendment for peaceful protests involving flag desecration

    In beating the drum for the first amendment to the First 
Amendment, the majority report perpetuates another myth that 
has been fueling the flag protection movement since 1989, 
namely,that the Supreme Court's decision in Johnson broke with 
``generally accepted legal tradition'' (Part IV.B.3), worked a 
``dramatic change'' in First Amendment jurisprudence (Part IV.C), and 
``overturned 200 years of legal principles (Part V.C.2). There quite 
simply is no legal tradition of upholding bans on flag desecration 
against First Amendment challenges--just the opposite is true. The 
strained efforts of the majority to manufacture such a tradition 
underscore just how wrong it is in its characterization of American 
legal history.
            a. Endecott's Case
    The majority report begins (in Part IV.A) with Endecott's 
case, a 1634 action of the Massachusetts Bay Colony in which 
``a domestic defacer of the flag'' was prosecuted. In that 
case, John Endecott cut the cross of St. George from an English 
flag in apparent protest against the tyranny of Charles I and 
Bishop Laud. At the time, the Bay Colony offered no First 
Amendment rights. Freedom of speech was denied, as were freedom 
of assembly and freedom from the establishment of religion. 
Indeed, there were no written or even customary laws at this 
date: punishment was imposed by then-governor Winthrop and his 
allies in accordance with their view of morality and Scripture 
(``Thou shalt not suffer a witch to live.'') \11\ It is 
remarkable that the actions of the British colonial government 
repressing American patriots should be the model and precedent 
for what the Senate should do now. Yet that, amazingly, is the 
logic of the proposed amendment.
    \11\ This same regime presently banished Roger Williams (1635) for 
urging religious liberty, and Anne Hutchinson (1638) and Rev. Roger 
Wheelright (1637) over doctrinal differences. Hawke, The Colonial 
Experience, 143-146, 689 (1966).
    Endecott's case is, of course, properly seen as an example 
of the tyranny against which the Founders rightly rebelled, and 
Endecott's ``desecration'' as a very early step on the long 
movement toward independence from England. The case also is an 
early analog to a similar ``desecration'' of the English flag 
by George Washington to create the first flag of the 
Continental Army. On taking command of the army on July 3, 
1775, Washington took an English flag and, after removing both 
the cross of St. George and the cross of St. Andrew, sewed six 
white stripes onto the remaining red field. By this 
``desecration,'' George Washington created the 13 red and white 
stripes that remain to this day. Hart, The Story of the 
American Flag, 58 Am. L. Rev. 161, 167 (1924). We frankly are 
astonished that the majority report would cast aspersions on, 
in Patrick Henry's phrase, such gauntlets cast in the face of 
    \12\ The debate over Endecott's case was joined in earlier reports 
on the proposed amendment. See S. Rpt. 98, 106th Cong., 2d Sess., 15-16 
& n.2 (2000) (majority); id. at 55-56 (minority), and S. Rpt. 298, 
105th Cong., 2d Sess. 7, 9 (1998) (majority); id. at 56-57 (minority). 
While the majority revised its views in other respects, it failed to 
strike or justify its bizarre reliance on Endecott's case.
            b. James Madison and Thomas Jefferson
    The next examples cited by the majority report (in Part 
IV.A.1) are also completely irrelevant to freedom of speech and 
the First Amendment. The majority report cites as part of its 
``legal tradition'' a characterization by former Judge Robert 
Bork regarding James Madison's opinion that the tearing down of 
the flag of the Spanish minister in Philadelphia in 1802 was 
actionable. The characterization is misleading. The incident 
refers, of course, to assaults on property (a Spanish flag) 
within a foreign embassy, and to the view that such assaults as 
entering uninvited into the ambassadorial residence, 
destruction of a painting, or destruction of a flag are 
equivalent to attacks on the foreign minister. 4 Moore, Digest 
of International Law 627 (1906). The section cited deals with 
``Protection of Diplomatic Officers'' and has nothing to do 
either with peaceful protest, the flag of the United States or 
the decision in Johnson. Indeed, destruction of another's 
property, whether a flag or otherwise, remains a crime 
throughout the United States.
    The majority report misses the point again when it cites 
Madison for the unremarkable proposition that for a foreign 
ship to menace a ship of the United States, fire upon a ship of 
the United States, and force it to haul down the colors is a 
``dire invasion of sovereignty.'' The harm comes from firing 
upon a United States military vessel; the treatment of the 
flag, to the extent that it could be isolated from the grievous 
physical coercion of American sailors involved in lowering it, 
simply added insult to a great injury. If the British had 
simply shot at United States servicemen and left the flag 
alone, surely Madison would not have shrugged his shoulders and 
let the matter pass. Again, the example has nothing whatever to 
do with peaceful protest or the First Amendment. The United 
States can and does still strike back against those who attack 
Americans at home and abroad; Johnson had no effect on that 
    Equally unrelated is the majority's citation (in Part 
IV.A.2) of a letter from Thomas Jefferson dealing with the use 
of the U.S. flag by foreign ships to avoid English sanctions 
against trade with France during the 1790s. Jefferson was 
writing to our Consul in Canton, China, to urge him to 
cooperate with other nations to detect such smugglers flying 
under false colors. Lipscomb, ed., 9 Writings of Thomas 
Jefferson 49-50 (1903). This has nothing to do with peaceful 
protest, freedom of expression, or the First Amendment. The 
United States can and does still cooperate with other nations 
to limit the use of its flag; Johnson had no effect on that 
    The suggestion that our Founders viewed flag desecration as 
a heinous offense clearly worthy of severe penalties falls flat 
when we notice that the Constitution never mentions either the 
flag or flag desecration, and that Congress did not pass a 
federal flag desecration law until 1968.
            C. Statutory protection for the flag
    In its search for supportive ``legal tradition,'' the 
majority (in Part IV.B.2) leaps from 18th century foreign 
policy over a century to the adoption of the first flag 
protection legislation. As Professor Goldstein describes in his 
scholarly history of the flag protection movement, an extensive 
campaign engineered in the late 19th century by various 
veterans groups led to the adoption of flag desecration laws in 
every state, beginning in 1897. While the flag protection 
movement was successful in obtaining passage of the state flag 
protection laws, however, in early cases where those laws were 
challenged, they were overwhelmingly invalidated. See 
Goldstein, Saving ``Old Glory,'' ch. 1.
    Curiously, the majority report cites these early statutes 
and the decisions invalidating them as evidence of a centuries-
old tradition supporting flag protection. In fact, this history 
reveals that efforts to iconize and afford legal protection to 
the flag are quite recent, and that such efforts have always 
been controversial and often unsuccessful.
    The majority report relies heavily on Halter v. Nebraska, 
205 U.S. 34 (1907), in which the Supreme Court upheld a 
Nebraska statute forbidding the use of representations of the 
flag for purposes of advertisement. The citation is far off 
target. The defendants in Halter, who were convicted of using 
the flag as an advertisement on a bottle of beer, challenged 
the Nebraska statute on three grounds: (1) as infringing their 
personal liberty guaranteed by the Fourteenth Amendment; (2) as 
depriving them of privileges impliedly guaranteed by the 
Constitution to citizens of the United States; and (3) as 
unduly discriminating and partial in its character. Id. at 39. 
The defendants did not challenge the statute on free speech 
grounds, nor did the Court give any consideration to First 
Amendment issues. Indeed, Halter was decided nearly 20 years 
before the Supreme Court concluded that the First Amendment 
right of free speech applied to the states by virtue of the 
Fourteenth Amendment (Gitlow v. New York, 268 U.S. 652 (1925)), 
and nearly 70 years before the Court extended First Amendment 
protection to commercial speech, such as the beer advertisement 
at issue in Halter (Virginia State Bd. of Pharmacy v. Virginia 
Citizens Consumer Counsel, Inc., 425 U.S. 748 (1976)).
    Similarly inapposite is the majority's remark (in 
Part.IV.B.2) that the Lochner-era courts that struck down early 
state flag protection statutes around the turn of the 20th 
century ``perceived no First Amendment problem with the 
statutes.'' Like the Supreme Court in Halter, those courts did 
not consider the First Amendment implications of the statutes--
nor could they have--because the First Amendment was not held 
to apply against the states until the mid-1920s. Gitlow, 268 
U.S. at 666.
    The majority report rounds out its historical survey (in 
Part IV.B.3) by citing three state court cases, all decided 
shortly after the attack on Pearl Harbor, in which flag-related 
convictions were upheld. In two of those cases--State v. 
Schleuter, 23 A.2d 249 (N.J. 1941), and People v. Picking, 42 
N.E.2d 741 (N.Y. 1942)--the courts did not deal with the 
constitutional validity of the criminal statutes, as no 
constitutional contentions were advanced.\13\ Indeed, the New 
Jersey Supreme Court distinguished Schleuter on this very 
ground, when, 32 years later, it struck down New Jersey's flag 
protection statute as unconstitutional. See State v. Zimmelman, 
301 A.2d 129, 284 (N.J. 1973).
    \13\ Picking, like Halter, involved a commercial use of the flag--
it was painted on the sides of an automobile under four loudspeakers 
and the words ``Travel America''--and the commercial speech doctrine 
did not yet exist.
    The third case cited by the majority--Johnson v. State, 163 
S.W.2d 153 (Ark. 1942)--did not involve the physical 
desecration of a flag. Indeed, the flag at issue was never even 
touched. The defendant in Johnson went to the local Welfare 
Commissary to procure commodities for himself, his wife, and 
his eight children. The head of the Commissary, who testified 
that he was ``sworn not to give to anyone who wasn't a loyal 
American citizen'' (id. at 155) asked the defendant to salute 
the flag. The defendant, who had religious objections to 
saluting the flag (id. at 154), refused. According to two 
witnesses, the defendant also exhibited contempt for the flag 
by saying that it meant nothing to him and was only a ``rag.'' 
Based on this statement, which the defendant denied having 
made, the Arkansas Supreme Court affirmed the conviction. Id. 
at 154. The case provides no support for S.J. Res. 4, the 
purported purpose of which is to protect the physical integrity 
of the flag, while retaining full protections for oral and 
written speech.\14\
    \14\ Johnson was decided during the brief period between 
Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940)--in which the 
Supreme Court refused to enjoin enforcement of a compulsory flag salute 
law--and West Virginia Bd. of Educ. v. Barnett, 319 U.S. 624 (1943), 
which overruled Gobitis and enjoined such enforcement. These cases are 
discussed infra, in Part X.D.2.
    One additional state court conviction discussed later in 
the majority report (in Part V.C.1) is particularly off base. 
The majority report cites to the district court decision in 
Monroe v. State Court of Fulton County, 571 F. Supp. 1023 (N. 
Ga. 1983), in which a defendant who burned the American flag to 
protest U.S. involvement in Iranian affairs was denied habeas 
corpus. What the majority report neglects to mention is that 
this decision was promptly reversed on the ground that the 
defendant's conduct constituted speech and symbolic expression 
within the purview of the First Amendment. See 739 F.2d 568 
(11th Cir. 1984).
    The majority report also cites (in Part IV.C) two Supreme 
Court cases in which convictions for flag desecration were 
upheld against First Amendment challenges. The first citation 
is to the Supreme Court's denial of certiorari in Kime v. 
United States, 459 U.S. 949 (1982), which is of no precedential 
value. See Teague v. Lane, 489 U.S. 288, 296 (1989) (``The 
`variety of considerations [that] underlie denials of the 
writ,' counsels against according denials of certiorari any 
precedential value''; citation omitted). The second, involving 
an art dealer who sold ``constructions'' composed in part of 
U.S. flags, was a one-sentence per curiam opinion, affirming 
the judgment below by an equally divided Court. Radich v. New 
York, 401 U.S. 531 (1971). There was no actual adjudication of 
the constitutional claim, and the conviction eventually was set 
aside by a federal district courtapplying established 
principles of Supreme Court First Amendment jurisprudence. United 
States v. Radich, 385 F. Supp. 165 (S.D.N.Y. 1974).\15\
    \15\ A final Supreme Court decision cited by the majority, United 
States v. O'Brien, 391 U.S. 367 (1968), had nothing to do with flag 
desecration, but rather involved a conviction for burning a draft card. 
In upholding this conviction, the Court emphasized that the 
government's important interest in assuring the continuing availability 
of issued draft cards was unrelated to the suppression of free 
expression. Id. at 377. By contrast, the governmental interest in 
preserving the flag as a symbol of national unity is related to the 
suppression of expression. See Texas v. Johnson, 491 U.S. at 406-410.
    Disregarded or discounted in the majority report are the 
many decisions that go the other way. During the Vietnam era in 
particular, numerous courts were called upon to determine the 
relationship between statutes prohibiting acts of flag 
desecration and the First Amendment's guarantee of freedom of 
speech. In case after case, courts overturned flag desecration 
convictions on a variety of First Amendment and other grounds, 
rejecting the alleged state interest in protecting the symbolic 
integrity of the flag. See Goldstein, Saving ``Old Glory,'' at 
139-151.\16\ By 1974, flag desecration laws had been struck 
down as unconstitutional in whole or part in eight states. Id. 
at 148.
    \16\ Professor Goldstein discusses, for example, Long Island 
Vietnam Moratorium Comm. v. Cahn, 437 F.2d 344 (2d Cir. 1970) (flag 
emblem with peace symbol superimposed), aff'd, 418 U.S. 907 (1974); 
People v. Keough, 31 N.Y.2d 281 (1972) (photograph of nude draped with 
flag); People v. Vaughan, 183 Colo. 40 (Colo. 1973) (flag patch worn on 

2. The Supreme Court protected unpopular speech connected to the flag 
        long before Johnson

    Far more significant in the real legal tradition is the 
fact that, in the nearly 80 years that it has applied the First 
Amendment to the states, a majority of the Supreme Court has 
never upheld a conviction for anything amounting to flag 
desecration. Contrary to the majority report's claim, the roots 
of the Johnson decision lie deep in American jurisprudence. As 
former Solicitor General Charles Fried testified on June 21, 
1990, the year after Johnson was decided:

          The [Johnson] decision was not some aberration, some 
        momentary quirk of the Justices. Generations of 
        constitutional doctrine led naturally and directly to 
        the Supreme Court's decision in that case. * * * If you 
        want to unravel [our constitutional] jurisprudence so 
        as to keep it from covering flag-burning you would have 
        to unravel decades of doctrine, scores of cases.

    The Supreme Court squarely held as early as 1931 that laws 
forbidding the display of certain flags (here, the red flag) 
violated the First Amendment. Stromberg v. California, 283 U.S. 
359 (1931). The Stromberg decision made clear, as have many 
other decisions, that the First Amendment protects expressive 
conduct (waving a flag) as well as written or spoken speech. 
Although the Court briefly allowed the expulsion from American 
classrooms of young children who, as Jehovah's Witnesses, were 
forbidden by their faith from pledging allegiance to the flag, 
Minersville Sch. Dist. v. Gobitis, 310 U.S. 586 (1940), the 
Court quickly reconsidered and removed the stain that Gobitis 
had placed on the First Amendment with its decision in West 
Virginia Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).\17\ 
There, Justice Jackson wrote:
    \17\ The aftermath of the decision in Gobitis offers a sober 
warning to those who think government restrictions on unpopular speech 
strengthen the social fabric and ``unify'' the country:

      [The Gobitis] ruling, along with American entry into the 
      war in December 1941, helped to foster a new wave of 
      expulsions of child [Jehovah's] Witnesses [from public 
      schools] and a large and often extremely violent eruption 
      of harassment, beatings, and arrests of adult Witnesses, 
      with the refusal to salute the flag clearly the major, and 
      now seemingly officially endorsed, ``crime.'' The American 
      Civil Liberties Union reported that, between May and 
      October 1940, almost 1,500 Witnesses were the victims of 
      mob violence in 355 communities in 44 states, and that no 
      religious organization had suffered such persecution 
      ``since the days of the Mormons.''

Goldstein, Saving ``Old Glory,'' at 94.

          The case is made difficult not because the principles 
        of its decision are obscure but because the flag 
        involved is our own. Nevertheless, we apply the 
        limitations of the Constitution with no fear that 
        freedom to be intellectually and spiritually diverse or 
        even contrary will disintegrate the social 

Id. at 641. The Barnette decision, like Stromberg, assured 
protection for expressive conduct (remaining seated during 
class flag salute) as well as written or spoken speech.
    Following the decision in Barnette, the Supreme Court 
consistently overturned convictions under flag desecration 
statutes in Street v. New York, 394 U.S. 576 (1969) (flag 
burned to protest shooting of James Meredith), Spence v. 
Washington, 408 U.S. 404 (1974) (peace symbol taped to flag), 
and Smith v. Goguen, 415 U.S. 566 (1974) (flag patch on pants 
seat).\18\ Certainly, each of these convictions was overturned 
with appropriate distaste for the conduct at issue, and the 
decisions were narrowly framed. Nonetheless, by the time 
Johnson was decided, the direction of the law was plain.
    \18\ The majority erroneously asserts (in Part IV.C) that the Court 
in Smith ``pointed to the Federal flag protection statute * * * as an 
example of a constitutional flag protection statute.'' In fact, the 
Court simply noted that the Federal statute ``reflects a congressional 
purpose'' to define with specificity what constitutes forbidden 
treatment of United States flags, in order to avoid invalidation on 
grounds of vagueness. 415 U.S. at 581-582 & n.30.
    The proposed amendment would overturn Johnson and its 
successor case, United States v. Eichman, but its effect on 
First Amendment jurisprudence would not end there. If 
effectively implemented, S.J. Res. 4 also would overturn Street 
v. New York, Smith v. Goguen and Spence v. Washington, each of 
which involved a physical act that could fall within a 
statutory definition of desecration. The amendment thus would 
overturn decades of consistent interpretation of the First 
Amendment, and certainly would cast a shadow over other flag-
related decisions, such as Barnett.
    In addition, the proposed amendment could work great 
mischief in areas far removed from flags. It could put pressure 
on the principle, fundamental to the First Amendment, that 
content-based regulations are presumptively invalid. See infra 
Part X.E.4. It could also be seized on as a basis for treating 
mere offensiveness as an interest that may justify government 
    In sum, by excepting certain unpopular speech from First 
Amendment protection, S.J. Res. 4 would have severe 
implications for free speech jurisprudence in general.

 E. The Proposed Amendment is Vague and Its Effect on Civil Liberties 

1. There is no consensus or clarity on the definition of ``flag''

    The proponents of S.J. Res. 4 have failed to offer a clear 
statement of just what conduct they propose to prohibit, or to 
advise the American people of the actions for which they may be 
imprisoned. Instead, they have asked that we trust to the 
wisdom of future Congresses.\19\ The American people deserve 
more from their Congress, this Congress, before they alter the 
Constitution of the United States.
    \19\ Unlike earlier proposals for a constitutional amendment 
prohibiting flag desecration, S.J. Res. 4 may be implemented by 
Congress only, not by the states.
    Testifying in support of an earlier but similar version of 
the proposed amendment on August 1, 1989, then-Assistant 
Attorney General William Barr acknowledged that its key term--
``flag''--is so elastic that it can be stretched to permit 
``any number of'' definitions. He noted three: first, the flag 
can be defined narrowly as a cloth or cloth-like banner with 
the characteristics of the official Flag of the United States 
as described by statute and Executive Order; second, it can be 
defined more broadly to cover ``anything that a reasonable 
person would perceive to be a Flag of the United States * * * 
whether or not it is precisely identical to the Flag''; and 
third, it can be defined expansively to include ``any Flag, 
portion of a Flag, or any picture or representation of a Flag * 
* * such as posters, murals, pictures, [and] buttons.''
    Far from offering any consensus, the proponents of this 
amendment have displayed a striking range of disagreement over 
what they intend to stop. During Committee consideration of the 
proposed amendment six years ago, on June 24, 1998, Senator 
Feinstein appeared to endorse a relatively narrow, objective 
definition of ``flag'':

          I know people have made undergarments out of flags. 
        They have made neckties out of flags. But once that 
        pattern is in the form of a flag and able to hang as a 
        representation of our nation, I really think it takes 
        on a whole different connotation.* * * [T]he flag is so 
        precise that if one were to change the colors, the 
        orientation of the stripes or the location of the field 
        of stars, it would actually no longer be an American 

By contrast, the 1997 House Report on a proposed flag amendment 
identical to S.J. Res. 4 offered a broader, subjective 
definition covering ``anything that a reasonable person would 
perceive to be a flag of the United States.'' H. Rpt. 121, 
105th Cong., 1st Sess. 8-9 (1997). The majority report leaves 
this critical issue unaddressed.
    Expansive definitions have been used regularly in statutes 
prohibiting flag burning. For example, the Uniform Flag Law of 
1917 defined ``flag'' to include ``any flag, standard, color, 
ensign or shield, or copy, picture or representation thereof, 
made of any substance or represented or produced thereon, and 
of any size, evidently purporting to be such flag * * * of the 
United States * * * or a copy, picture or representation 
thereof.'' National Conference of Commissioners on Uniform. 
State Laws, Proceedings of the Twenty-Seventh Annual Meeting, 
323-24 (1917). Similarly, the 1968 Federal Flag Desecration Law 
used this definition:

          [A]ny flag, standard, colors, ensign, or any picture 
        representation of either or of any part or parts of 
        either, made of any substance or represented on any 
        substance, of any size evidently purporting to be 
        either of said flag, standard, colors, or ensign of the 
        United States of America, or a picture or a 
        representation of either, upon which shall be shown the 
        colors, the stars and the stripes, in any number of 
        either thereof, or of any part or parts of either, by 
        which the average person seeing the same without 
        deliberation may believe the same to represent the 
        flag, standard, colors, or ensign of the United States 
        of America.

The proposed amendment could empower Congress to prohibit 
``desecration'' of any of these; and, indeed, a protester 
certainly could offend the sensibilities of all of us by an act 
of desecration of any of these.
    On the other hand, courts could interpret the amendment 
narrowly, permitting Congress to prohibit physical desecration 
only of the official ``Flag of the United States'' and not of 
items intended to be perceived as such or of mere depictions. 
In that case, the purpose and effectiveness of the amendment 
could be evaded without great effort, as for example by persons 
who burned a flag that varied slightly from the official design 
of the U.S. flag or who, upon being charged with flag burning, 
simply claimed that this is what they had done. The ability to 
raise the factual defense that it was not the U.S. flag that 
was burned but simply a piece of cloth that was meant to look 
like the flag would mean that successful prosecutions would 
depend, as now, on the applicability of other laws, including 
laws against theft, vandalism and public disturbance.
    Senator Feingold told the Committee in April 1999 about his 
own experience at a Capitol Hill restaurant, where the menu is 
a very large representation of the American flag. He was eating 
his dinner, when a big commotion erupted on the other side of 
the restaurant:

          We turned to see a woman frantically trying to put 
        out a fire that had started when her oversized American 
        flag menu had gotten too close to the small candle on 
        the table. It caught on fire. * * * This thing looks 
        exactly like an American flag, in size, in color, 
        representation. I hope she wasn't arguing about Kosovo 
        because somebody might want somebody to look at it.

    Are we to amend the Constitution and punish people who burn 
pictures of the flag? On the other hand, are we to leave 
unrestricted a wide range of activities that involve burning, 
or worse, of ``substitute'' flags--items with 51 stars, with 12 
or 14 stripes, or with a purple field, even under circumstances 
clearly intended to communicate the most bitter disrespect for 
this nation and for its flag? If a protestor, chanting the 
words that Gregory Lee Johnson spoke, ``Red white and blue, we 
spit on you,'' burned not a flag but an image of a flag, would 
anyone fail to be offended?
    The proposed amendment is only 17 words long. It is not too 
much to ask that the proponents explain what they mean by those 
words before, not after, the amendment is put to a vote, so 
that the public has a clear understanding as to what conduct 
they intend to criminalize.

2. There is no consensus or clarity on the definition of 

    Just as there is no clear definition of ``flag'', the 
definition of ``desecration'' will invite a literally infinite 
catalogue of possible disputes. The Uniform Flag Law, while 
separately banning ``mutilation'' of the flag, defined 
``desecration'' to include:
          (a) Place or cause to be placed any word, figure, 
        mark, picture, design, drawing or advertisement of any 
        nature upon any flag * * *;
          (b) Expose to public view any such flag * * * upon 
        which shall have been printed, painted or otherwise 
        produced, or to which shall have been attached * * * 
        any word, figure, mark, picture, design, drawing or 
        advertisement; or
          (c) Expose to public view for sale, * * * or sell, 
        give or have in possession for sale * * * an article of 
        merchandise * * * upon which shall have been produced 
        or attached any such flag * * * in order to advertise, 
        call attention to, decorate, mark or distinguish such 
        article or substance.
    We presume that the majority does not consider the Uniform 
Flag Law to be ``silly'' or an unreasonable guide. Each of its 
prohibited behaviors involves a physical act of desecration, 
and Congress likely could adopt such a statute under the 
proposed constitutional amendment. The scope of such a ban 
would affect significantly not only speech, but also American 
commerce and life.
    For example, it is not uncommon for Americans to celebrate 
the Fourth of July with a backyard barbecue, using paper cups 
and plates decorated with a flag motif. Such disposable 
``flags'' are certain, indeed designed, to be soiled with food 
and thrown into the trash--in other words, to be desecrated. 
Are we to amend the Constitution to prohibit such picnic 
    To take another example, after the terrorist atrocities of 
September 11, 2001, Americans wrote in indelible marker 
messages of grief and support all over flags. Among countless 
examples of this, a famous one was a huge flag that had flown 
at the World Trade Center; hundreds of people wrote messages on 
it and it was then sent to our troops in Afghanistan. See 
``Ground Zero flag being sent to Marine unit in Afghanistan,'' 
Associated Press, November 26, 2001; see also ``Writing on flag 
upsets veteran: Man says Ground Zero flag should be 
destroyed,'' Charleston Gazette, November 30, 2001. Similarly, 
President Bush himself has been photographed signing his 
autograph on American flags. See ``He signed what?'' The Fort 
Worth Star-Telegram, August 4, 2003. Senator Feingold pointed 
to another example during the 2000 floor debate on this 
amendment: On July 10, 1999, the day that the U.S. Women's 
Soccer team won a thrilling sudden death victory in the final 
of the Women's World Cup, an excited and patriotic group of 
fans unfurled a flag for the TV cameras with the words ``Thanks 
Girls!'' written on it with some type of chalk or marker. See 
Congressional Record, March 28, 2000, at S1797.
    These are unquestionably acts of physical desecration. The 
Uniform Flag Law prohibits placing any word or other marks on a 
flag, and supporters of the proposed amendment have regularly 
cited writing on flags as a desecration. Writing on the flag 
also runs afoul of the Federal Flag Code, which states that the 
flag ``should never have placed upon it, nor on any part of it, 
nor attached to it any mark, insignia, letter, word, figure, 
design, picture, or drawing of any nature.'' 4 U.S.C. Sec. 8.
    The fact is that the proposed amendment is not in the least 
limited to flag burning. It prohibits ``desecration,'' and the 
core idea of desecration will persist in any implementing 
statute: the diversion of a sacred object to a secular use. 
People wrap flags around themselves or around manikins and the 
like in political marches. It is a step from there to wearing a 
flag like a shawl. People pin flags up in storefront displays. 
People use flags in what they consider to be artistic 
presentations, make paintings of flags and use flag images. A 
venerable African-American quilt maker uses bits of flags in 
her work. Flags are used in movies and plays in all kinds of 
dramatic ways. Any of these uses may have political or cultural 
overtones that offend someone. All of them are nonconforming, 
nonceremonial uses of flags.
    Testifying before the Committee in opposition to the 
proposed amendment on April 28, 1999, the late Senator John 
Chafee gave two examples of the amendment's hidden pitfalls:

          In my State of Rhode Island, there is a highly-prized 
        work of art at the Rhode Island School of Design. It is 
        a hooked rug, carefully and conscientiously made by 
        patriotic American women some 100 plus years ago, and 
        its design is the American flag. These women made it as 
        a symbol of their national pride; yet it is a rug--
        which by definition is to be walked on! Is that 
        ``desecration?'' Should those patriotic craftswomen 
        have gone to jail?
          The handbook of the Boy Scouts of America, of which 
        more than 34 million copies have been printed since 
        1910, instructs young boys to ``Clean the flag if it 
        becomes soiled. Mend it if it is torn. When worn beyond 
        repair, destroy it in a dignified way, preferably by 
        burning.'' With the passage of this proposal, would we 
        put thousands of patriotic young Scouts in jail?

    Perhaps the most powerful example of the vagueness and 
mischief of this amendment came from Senator Durbin, who noted 
at the Committee markup on June 24, 1998, that many people 
would consider it desecration to sit on a flag. Certainly, each 
of us can imagine circumstances in which such conduct would be 
an outrage. Senator Durbin then pointed out that in one of our 
greatest and most moving monuments to freedom, the Lincoln 
Memorial, Abraham Lincoln sits--on the American flag.

3. Use of the word ``desecration'' in S.J. Res. 4 undermines the First 
        Amendment religion clauses

    Numerous religious leaders and people of faith have 
expressed concern with the proposed constitutional amendment. 
Reverend Nathan Wilson, head of the West Virginia Council of 
Churches, stated the problem quite plainly when he testified 
before the Committee on April 20, 1999: ``Desecration of an 
object is possible only if the object is recognized as 
sacred.'' In our constitutional system, the government should 
not be in the business of defining for its people what is 
    This is not simply a matter of semantics. It goes right to 
the heart of the significance of the government, under force of 
this amendment, giving an exalted status to an object, even an 
object as important and worthy of respect as the American flag. 
As over 140 religious leaders wrote to the Committee, in a 
letter dated April 29, 1999:

          Although we represent diverse faiths, it is unique to 
        religious traditions to teach what is sacred and what 
        is not. No government should arrogate to itself the 
        right to declare ``holy'' and capable of 
        ``desecration'' that which is not associated with the 
        divine. To do so is to mandate idolatry for people of 
        faith by government fiat. Our First Amendment has 
        guaranteed to people of faith or to those with no faith 
        that the government would not be arbiter of the sacred.

    In light of this criticism, the flag amendment threatens 
not only our freedom of political expression but also our 
freedom of religious expression. In this country, our private 
religiousinstitutions, not the government, determine what is 
sacred. That principle underlies both the Establishment and the Free 
Exercise Clauses of the First Amendment. The proposed amendment gives a 
sacred status to the flag. As much as we love the flag, that is not a 
power that our government was granted by the framers of the 
Constitution, nor should it ever have that power.
    Professor Cass Sunstein made this point in his subcommittee 
testimony on June 6, 1995:

          [The word ``desecration''] intermingles the flag with 
        the divine--an intermingling that is in serious tension 
        with the existing constitutional structure, in 
        particular with the religion clauses. Under our system, 
        the state is not identified with a religion. Under our 
        system, there is no such thing as blasphemy law. At 
        least for purposes of federal law, the nation is not 
        ``sacred.'' ``Desecration'' is therefore an 
        inappropriate word to apply to destruction of the flag.

    Another constitutional scholar, Professor Robert Cole, 
echoed this concern in a letter to the Committee dated April 
28, 1999:

          It is no accident that the proposed amendment 
        prohibits ``desecration,'' the core meaning of which is 
        to convert a sacred object to a secular use. But flags 
        are secular objects; they are political emblems to be 
        loved if one chooses but not to be sanctified. It is a 
        dangerous confusion of the political with the sacred to 
        think in terms of sanctifying our national flags, or 
        even subconsciously to do so.

Professor Cole concluded, ``For the sake of religious faith at 
least as much as for the neutrality of government, the sacred 
must be reserved for things having to do with the divine.''

4. There is no consensus or clarity on the issue of content-neutrality

    Censorship on the basis of beliefs--referred to in the case 
law as content or viewpoint discrimination--is a classic evil 
that the First Amendment is designed to prevent. ``[A]bove all 
else, the First Amendment means that government has no power to 
restrict expression because of its message, its ideas, its 
subject matter, or its content.'' Police Dept. of Chicago v. 
Mosley, 408 U.S. 92, 95 (1972). Even when the First Amendment 
permits regulation of an entire category of speech or 
expressive conduct, it does not necessarily permit the 
government to regulate a subcategory of the otherwise 
proscribable speech on the basis of its message. R.A.V. v. City 
of St. Paul, 505 U.S. 377 (1992).
    Proponents of S.J. Res. 4 have demonstrated an alarming 
ambivalence whether it would permit Congress to restrict flag-
related expression on the basis of its content. This year's 
majority report is silent on the question, although it clearly 
assumes that only beliefs and values that are disapproved of by 
the majority of Americans--it refers to them as ``disrespect'' 
or ``contempt'' for the flag--constitute desecration. Earlier 
majority reports took starkly inconsistent positions. The 
report in the 106th Congress insisted that the amendment ``is 
not intended to--and would not--discriminate against specific 
messages or points of view, and is thus `content neutral' to 
that extent.'' S. Rpt. 98, 106th Cong., 2d Sess. (2000). By 
contrast, the report in the 105th Congress included a full 
section entitled ``A `Content Neutral' Constitutional Amendment 
is Wholly Inappropriate,'' specifically attacking the notion, 
central to the First Amendment and fundamental to a free 
people, that the government should maintain neutrality as to 
the content or message of political speech. S. Rpt. 298, 105th 
Cong., 2d Sess. 39-42 (1998).
    At the Committee hearing on April 20, 1999, Senator Leahy 
asked the majority's principal academic witness, Professor 
Richard Parker, whether Congress could pass legislation under 
the proposed amendment that outlawed only those flag burnings 
intended as a protest against incumbent officeholders. 
Professor Parker replied, ``There is a clear answer there. That 
would be a violation of the First Amendment.'' But if a flag 
amendment is adopted, would basic First Amendment principles 
like the R.A.V. rule continue to apply to flag-related speech?
    The late Senator John Chafee discussed the dangers of 
content-based restrictions in his statement for the Committee's 
April 1999 hearings. He asked whether the amendment's 
proponents intended ``that when some bearded, untidy protestor 
burns an American flag outside a convention hall, he should go 
to jail--but three blocks away, a Boy Scout burns the flag in a 
dignified manner, he will go free?'' If so, he said, then we 
are getting into ``a messy area indeed.''
    We share Senator Chafee's concern that in real life, the 
amendment and its implementing statute--even if facially 
neutral and non-discriminatory--would be enforced on the basis 
of content. History tells us that police and prosecutors would 
select for punishment those flag desecrators whom they, or 
their constituents, found insufficiently respectful, patriotic, 
or conformist. See Goldstein, Flag Burning and Free Speech, at 
24-30 (describing how prosecutions under early flag desecration 
laws were invariably directed against perceived political 
dissidents, such as anti-war protestors). Physical desecration 
in the service of views that are approved by the authorities or 
the mainstream, like those following September 11 (see supra, 
Part X.E.2), would not be prosecuted.
    However enforced, content-neutral legislation prohibiting 
flag desecration would work another kind of mischief. Such 
legislation--if it survived vagueness and overbreadth 
challenges (assuming such challenges could be brought) \20\--
would inevitably inhibit or silence a great range of expressive 
behavior, much of which most people consider benign or even 
beneficial. In short, the amendment would create havoc for free 
expression for the purpose of solving no real problem.
    \20\ Acting Assistant Attorney General Randolf Moss, who testified 
for the Clinton Administration against the proposed amendment on April 
28, 1999, noted that it would be ``profoundly difficult'' to identify 
just how much constitutional doctrine the amendment would supersede. We 
do not know, for instance, whether the amendment is intended, or would 
be interpreted, to authorize implementing legislation that otherwise 
would violate the due process ``void for vagueness'' doctrine, or the 
First Amendment ``overbreadth'' doctrine.

5. The difficulties that attend a statutory approach to flag burning 
        would remain even after a constitutional amendment

    Proponents of S.J. Res. 4 argue, unconvincingly, that no 
statutory alternative is available to address the issue of flag 
burning. As noted above (in Part X.B.5), one statutory 
alternative has already been proposed in this Congress. Beyond 
that, however, the same problems that complicate the drafting 
of such a statute, and specifically of affording Americans the 
specificity demanded by the Due Process Clause of the Fifth 
Amendment, also attend the proposed amendment.
    As the Supreme Court wrote in Smith v. Goguen, 415 U.S. 
566, 572-573 (1974), discussed in the majority report (in Part 
IV.C), the due process doctrine of vagueness incorporates 
notions of fair notice or warning:

          [I]t requires legislatures to set reasonably clear 
        guidelines for law enforcement officials and triers of 
        fact in order to prevent ``arbitrary and discriminatory 
        enforcement.'' Where a statute's literal scope, unaided 
        by a narrowing state court interpretation, is capable 
        of reaching expression sheltered by the First 
        Amendment, the doctrine demands a greater degree of 
        specificity than in other contexts.

Where vague statutory language permits selective law 
enforcement, there is a denial of due process.
    A statute enforcing this amendment either would be found 
unconstitutional for vagueness or else, as demonstrated above, 
silence or capture as criminals hundreds of well-meaning 
American citizens and businesses whose patriotism is beyond 
question. Proponents have argued that its language is at least 
as clear as other constitutional text such as ``unreasonable 
searches and seizures,'' ``probable cause,'' ``excessive 
bail,'' ``excessive fines,'' ``cruel and unusual punishment,'' 
``due process of law,'' and ``just compensation.'' Of course, 
these terms have required and continue to require literally 
thousands and thousands of cases for their interpretation.
    But more important, we tolerate and even embrace their 
generality because in each and every case the terms protect our 
liberty and limit the ability of government to search, seize, 
hold and punish American citizens; the question always is 
whether they extend additional protection to us. An open-ended 
criminal statute is another matter entirely. There is no 
suggestion that it would enlarge our freedoms; the question, 
rather, would be whether we dare to speak in pursuance of our 
rights. Vagueness is intolerable when it frightens people into 
silence and empowers government to search, seize, hold and 
punish American citizens.
    The impulse to punish ideas that permeates the majority 
report leads only to endless entanglement. Even with the large 
increase in the number of flag burnings that could be expected 
if this amendment were adopted, and even without the 
inventiveness in mistreatment of the flag and near-flags that 
could be predicted, there would be no end to the litigation 
under any statute. The amendment, the ensuing litigation, and 
the inevitable erratic pattern of results, would demean rather 
than protect the flag.
    Do we really want to open a constitutional can of worms, 
and invite a parade of hairsplitting court cases over whether 
burning a picture of the flag or putting the flag on the 
uniforms of our Olympic athletes or stepping on a lapel pin 
amounts to desecration? The biggest threat to the dignity of 
the flag may be such efforts to construct an impermeable legal 
barrier to protect it.

                             F. Conclusion

    There is no need to amend the Constitution. The flag has a 
secure place in our hearts. The occasional insult to the flag 
does nothing to diminish our respect for it; rather, it only 
reminds us of our love for the flag, for our country, and for 
our freedom to speak, think and worship as we please. The laws 
against everyday hooliganism allow ample scope for states to 
jail those who need to be jailed regardless of their message or 
cause, but the punishment meted out by the law is nothing 
compared to the condemnation and ostracization by their fellow 
citizens that flag burners face.
    Even more precious than the flag, however, are the freedoms 
that it represents. Our soldiers have fought not for a flag but 
for freedom, freedom for Americans and for others across the 
globe. It would be the cruelest irony if, in a misguided effort 
to honor the symbol of that freedom, we were to undermine the 
most precious of our freedoms, the freedoms of the First 
    This amendment is a wrong-headed response to a crisis that 
does not exist. It would be an unprecedented limitation on the 
freedom Americans enjoy under the First Amendment, and would do 
nothing to bolster respect for the flag. Respect for the flag 
flows from the freedoms we enjoy and from the sacrifices of 
those who have protected and spread that freedom. Freedom is 
what we should cherish. Freedom is what we should protect.
    We respectfully urge that S.J. Res. 4 not be approved by 
the Senate.

                                   Patrick Leahy.
                                   Ted Kennedy.
                                   Herb Kohl.
                                   Russell D. Feingold.
                                   Charles Schumer.
                                   Dick Durbin.


    Since the majority states, in Section IV. C. 1 of its 
views, that there would be ``no reduction in First Amendment 
rights,'' they should have no objection to an amendment to the 
resolution so stating, and I recommend consideration and 
addition of such an amendment before the resolution is 
considered on the Senate floor.
                                                       Ted Kennedy.
                               APPENDIX A


                        General Colin L. Powell, USA (Ret),
                                      Alexandria, VA, May 18, 1999.
Hon. Patrick Leahy,
U.S. Senate,
Washington, DC.
    Dear Senator Leahy: Thank you for your recent letter asking 
my views on the proposed flag protection amendment.
    I love our flag, our Constitution and our country with a 
love that has no bounds. I defended all three for 35 years as a 
soldier and was willing to give my life in their defense.
    Americans revere their flag as a symbol of the Nation. 
Indeed, it is because of that reverence that the amendment is 
under consideration. Few countries in the world would think of 
amending their Constitution for the purpose of protecting such 
a symbol.
    We are rightfully outraged when anyone attacks or 
desecrates our flag. Few Americans do such things and when they 
do they are subject to the rightful condemnation of their 
fellow citizens. They may be destroying a piece of cloth, but 
they do no damage to our system of freedom which tolerates such 
    If they are destroying a flag that belongs to someone else, 
that's a prosecutable crime. If it is a flag they own, I really 
don't want to amend the Constitution to prosecute someone for 
foolishly desecrating their own property. We should condemn 
them and pity them instead.
    I understand how strongly so many of my fellow veterans and 
citizens feel about the flag and I understand the powerful 
sentiment in state legislatures for such an amendment. I feel 
the same sense of outrage. But I step back from amending the 
Constitution to relieve that outrage. The First Amendment 
exists to insure that freedom of speech and expression applies 
not just to that with which we agree or disagree, but also that 
which we find outrageous.
    I would not amend that great shield of democracy to hammer 
a few miscreants. The flag will still be flying proudly long 
after they have slunk away.
    Finally, I shudder to think of the legal morass we will 
create trying to implement the body of law that will emerge 
from such an amendment.
    If I were a member of Congress, I would not vote for the 
proposed amendment and would fully understand and respect the 
views of those who would. For or against, we all love our flag 
with equal devotion.
                                                   Colin L. Powell.
    P.S. The attached 1989 article by a Vietnam POW gave me 
further inspiration for my position.

                  When They Burned the Flag Back Home

                          (By James H. Warner)

                        THOUGHTS OF A FORMER POW

    In March of 1973, when we were released from a prisoner of 
war camp in North Vietnam, we were flown to Clark Air Force 
base in the Philippines. As I stepped out of the aircraft I 
looked up and saw the flag. I caught my breath, then, as tears 
filled my eyes, I saluted it. I never loved my country more 
than at that moment. Although I have received the Silver Star 
Medal and two Purple Hearts, they were nothing compared with 
the gratitude I felt then for having been allowed to serve the 
cause of freedom.
    Because the mere sight of the flag meant so much to me when 
I saw it for the first time after 5\1/2\ years, it hurts me to 
see other Americans willfully desecrate it. But I have been in 
a Communist prison where I looked into the pit of hell. I 
cannot compromise on freedom. It hurts to see the flag burned, 
but I part company with those who want to punish the flag 
burners. Let me explain myself.
    Early in the imprisonment the Communists told us that we 
did not have to stay there. If we would only admit we were 
wrong, if we would only apologize, we could be released early. 
If we did not, we would be punished. A handful accepted, most 
did not. In our minds, early release under those conditions 
would amount to a betrayal, of our comrades of our country and 
of our flag.
    Because we would not say the words they wanted us to say, 
they made our lives wretched. Most of us were tortured, and 
some of my comrades died. I was tortured for most of the summer 
of 1969. I developed beriberi from malnutrition. I had long 
bouts of dysentery. I was infested with intestinal parasites. I 
spent 13 months in solitary confinement. Was our cause worth 
all of this? Yes, it was worth all this and more.
    Rose Wilder Lane, in her magnificent book ``The Discovery 
of Freedom,'' said there are two fundamental truths that men 
must know in order to be free. They must know that all men are 
brothers, and they must know that all men are born free. Once 
men accept these two ideas, they will never accept bondage. The 
power of these ideas explains why it was illegal to teach 
slaves to read.
    One can teach these ideas, even in a Communist prison camp. 
Marxists believe that ideas are merely the product of material 
conditions; change those material conditions, and one will 
change the ideas they produce. They tried to ``re-educate'' us. 
If we could show them that we would not abandon our belief in 
fundamental principles, then we could prove the falseness of 
their doctrine. We could subvert them by teaching them about 
freedom through our example. We could show them the power of 
    I did not appreciate this power before I was a prisoner of 
war. I remember one interrogation where I was shown a 
photograph of some Americans protesting the war by burning a 
flag. ``There,'' the officer said. ``People in your country 
protest against your cause. That proves that you are wrong.''
    ``No,'' I said, ``That proves that I am right. In my 
country we are not afraid of freedom, even if it means that 
people disagree with us.'' The officer was on his feet in an 
instant, his face purple with rage. He smashed his fist onto 
the table and screamed at me to shut up. While he was ranting I 
was astonished to see pain, compounded by fear, in his eyes. I 
have never forgotten that look, nor have I forgotten the 
satisfaction I felt at using his tool, the picture of the 
burning flag, against him.
    Aneurin Bevan, former official of the British Labor Party, 
was once asked by Nikita Khrushchev how the British definition 
of democracy differed from the Soviet view. Bevan responded, 
forcefully, that if Khrushchev really wanted to know the 
difference, he should read the funeral oration of Pericles.
    In that speech, recorded in the Second Book of Thucydides' 
``History of the Peloponnesian War,'' Pericles contrasted 
democratic Athens with totalitarian Sparta. Unlike the 
Spartans, he said, the Athenians did not fear freedom. Rather, 
they viewed freedom as the very source of their strength. As it 
was for Athens, so it is for America--our freedom is not to be 
feared, for our freedom is our strength.
    We don't need to amend the Constitution in order to punish 
those who burn our flag. They burn the flag because they hate 
America and they are afraid of freedom. What better way to hurt 
them than with the subversive idea of freedom? Spread freedom. 
The flag in Dallas was burned to protest the nomination of 
Ronald Reagan, and he told us how to spread the idea of freedom 
when he said that we should turn American into ``a city shining 
on a hill, a light to all nations.'' Don't be afraid of 
freedom, it is the best weapon we have.

                               APPENDIX B


                     Veterans Defending the Bill of Rights,
                                      Newburgh, IN, March 10, 2004.
Re oppose S.J. Res. 4, the Flag Desecration Constitutional Amendment.

    Dear Senator: My name is Gary May and I am writing to you 
today as the chair of a group called Veterans Defending the 
Bill of Rights to urge you to oppose S.J. Res. 4, the flag 
desecration constitutional amendment. I know you hear from many 
veterans who support this amendment, but you should also know 
that there are many veterans that have faithfully served our 
nation who strongly believe that amending the Constitution to 
ban flag desecration is the antithesis of what they fought to 
    I lost both of my legs in combat while serving in the U.S. 
Marine Corps in Vietnam. I challenge anyone to find someone who 
loves this country, its people and what it stands for more than 
I. It offends me when I see the flag burned or treated 
disrespectfully. But, as offensive and painful as this is, I 
still believe that those dissenting voices need to be heard.
    This country is unique and special because the minority, 
the unpopular, the dissident also have a voice. The freedom of 
expression, even when it hurts the most, is the truest test of 
our dedication to the principles that our flag represents.
    In addition to my military combat experience, I have been 
involved in veterans' affairs as a clinical social worker, 
program manager, board member of numerous veterans 
organizations, and advocated on their behalf since 1974. 
Through all of my work in veterans' affairs, I have yet to hear 
a veteran say that his or her service and sacrifice was in 
pursuit of protecting the flag.
    When confronted with the horrific demands of combat, the 
simple fact is that most of us fought to stay alive. The pride 
and honor we feel is not in the flag per se. It's in the 
principles that it stands for and the people who have defended 
    I am grateful for the many heroes of our country. All the 
sacrifices of those who went before us would be for naught, if 
an amendment were added to the Constitution that cut back on 
our First Amendment rights for the first time in the history of 
our great nation. I write to you today to attest to the fact 
that many veterans do not wish to exchange fought-for freedoms 
for protecting a tangible object.
    To illustrate my point, here is what some of the Veterans 
Defending the Bill of Rights have said about this amendment:
     * * * to undertake to carve out an area of free 
speech and say that this or that is unpatriotic because it is 
offensive is a movement that will unravel our liberties and do 
grave damage to our nation's freedom. The ability to say by 
speech or dramatic acts what we feel or think is to be 
cherished not demeaned as unpatriotic * * * I hope you will 
hear my pleas. Please do not tinker with the First Amendment.--
Reverend Edgar Lockwood, Falmouth, Massachusetts, served as a 
naval officer engaged in more than ten combat campaigns in 
     My military service was not about protecting the 
flag; it was about protecting the freedoms behind it. The flag 
amendment curtails free speech and expression in a way that 
should frighten us all.--Brady Bustany, West Hollywood, 
California, served in the Air Force during the Gulf War.
     The first amendment to our constitution is the 
simplest and clearest official guarantee of freedom ever made 
by a sovereign people to itself. The so-called `flag protection 
amendment' would be a bureaucratic hamstringing of a noble act. 
Let us reject in the name of liberty for which so many have 
sacrificed, the call to ban flag desecration. Let us, rather, 
allow the first amendment, untrammeled and unfettered by this 
proposed constitutional red tape, to continue to be the same 
guarantor of our liberty for the next two centuries (at least) 
that is has been for the last two.--State Delegate John Doyle, 
Hampshire County, West Virginia served as an infantry officer 
in Vietnam.
     As a twenty two year veteran, combat experience, 
shot up, shot down, hospitalized more than a year, Purple Heart 
recipient, with all the proper medals and badges I take very 
strong exception to anyone who says that burning the flag isn't 
a way of expressing yourself. In my mind this is clearly 
covered in Amendment I to the Constitution--and should not be 
``abridged''.--Mr. Bob Cordes, Maston, Texas was an Air Force 
fighter pilot show down in Vietnam. He served for 22 years from 
1956 to 1978.
     Service to our country, not flag waving, is the 
best way to demonstrate patriotism.--Mr. Jim Lubbock, St. 
Louis, Missouri, served with the Army in the Phillipines during 
WWII. His two sons fought in Vietnam, and members of his family 
have volunteered for every United States conflict from the 
American Revolution through Vietnam with the exception of 
Korea. His direct ancestor, Stephen Hopkins, signed the 
Declaration of Independence.
     The burning of our flag thoroughly disgusts me. 
But a law banning the burning of the flag pays right into the 
hands of the weirdoes who are doing the burning. * * * By 
banning the burning of the flag, we are empowering them by 
giving significance to their stupid act. Let them burn the flag 
and let us ignore them. Then their acts carries no 
significance.--Mr. William Ragsdale, Titusville, Florida, an 
engineer who worked in the space industry for over 30 years, 
retired from the US Naval Reserve in 1984 with the rank of 
Commander, having served in the Navy for over forty years 
including active duty in both WWII and the Korean War. He has 
two sons who served in Vietnam.
     I fought for freedom of expression not for a 
symbol. I fought for freedom of Speech. I did not fight for the 
flag, or motherhood, or apple pie. I fought so that my mortal 
enemy could declare at the top of his lungs that everything I 
held dear was utter drivel * * * I fought for unfettered 
expression of ideas. Mine and everybody else's.--Mr. John 
Kelley, East Concord, Vermont, lost his leg to a Viet Cong hand 
grenade while on Operation Sierra with the Fox Company 2nd 
Battalion 7th Marines in 1967.
    I hope you will join me and the Veterans Defending the Bill 
of Rights in opposing S.J. Res. 4, the flag desecration 
constitutional amendment.
                                                       Gary E. May.