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Week Ending June 24, 2005
House Joint Resolution 10 proposing an amendment to the Constitution of the United States authorizing the Congress to prohibit the physical desecration of the flag of the United States.
BRIEF
The bill would allow Congress to establish laws in regard to treatment of the US flag. Passage would be the first step to further legislation that would actually define what desecration of the flag means and what punishment would be appropriate. As a symbol the flag could be desecrated by words as well as actions. But there is time to consider definitions and punishments because three quarters of the States must ratify the resolution within the next seven years for it to change the Constitution.
The report accompanying the bill noted a Supreme Court decision in 1989 (Texas v. Johnson) that held flag burning is expressive conduct protected by the First Amendment but that 48 States outlawed the act before the Supreme Court decision. Now, all fifty States have passed resolutions calling on Congress to approve a Constitutional amendment to protect the flag.
Although few if any would support desecrating the flag, opposition took into consideration that no matter how you look at it the resolution would restrict a form of expression protected by the Constitution and could possibly lead to future restrictions of free speech.
Sponsor: Representative Randy Duke Cunningham (R-CA-50th)
Vote: The Resolution passed the House 286 to 130 (RC 296). A substitute bill failed 129 to 279 (RC 293) (June 22, 2005)
Cost to the taxpayers: Before this bill could cost any more than the time and resources spent to create it must pass favorably through the legislatures of three quarters of the States. Then, it was noted by the CBO there might be a recognizable increase in the cost of enforcing the law. Still, the CBO see no significant cost to the taxpayers
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MORE INFORMATION
BACKGROUND AND NEED FOR THE LEGISLATION
The flag of the United States of America is the most recognized symbol of freedom and democracy in the world today. It serves a unique role as the symbol of our country's values and the embodiment of the rights guaranteed to all Americans under the Constitution. It has led the way into battle, has been planted on the moon, and has draped the coffins of Americans who have sacrificed their lives for our country. The flag was raised by rescue workers at the World Trade Center and unfurled on the Pentagon following the tragic attacks of September 11, 2001. The United States flag is more than just a piece of cloth--it is a uniquely unifying symbol that epitomizes this great Nation and all for which it stands. Despite this, since 1994, over 119 incidents involving flag desecration were reported in the States, the District of Columbia, and Puerto Rico.
The movement to pass legislation prohibiting the desecration of the American flag began in the late 1800's, with all of the States having flag desecration laws on the books by 1932. 3
[Footnote] In 1968, the Federal Government passed its statute prohibiting such conduct. 4
[Footnote] By 1989, every State in the Union except Alaska and Wyoming outlawed such conduct. However, on June 21, 1989, the United States Supreme Court proscribed these laws in Texas v. Johnson, 5
[Footnote] holding in a 5-4 decision that the burning of an American flag as part of a political demonstration was expressive conduct protected by the First Amendment to the United States Constitution.
[Footnote 3: Desecrating the American Flag: Key Documents of the Controversy From the Civil War to 1995 at xix (Robert Justin Goldstein ed., 1996).]
[Footnote 4: Pub. L. No. 90-381, 82 Stat. 291 (codified as amended at 18 U.S.C. Sec. 700 (2003)).]
[Footnote 5: 491 U.S. 397 (1989).]
In Johnson, Gregory Johnson was convicted of violating a Texas law prohibiting the desecration of a `venerated object' after he publicly burned a stolen American flag in a protest outside of the 1984 Republican National Convention in Dallas, Texas. The Texas law prohibited the intentional desecration of a national flag in a manner in which `the actor knows will seriously offend one or more persons likely to observe or discover his action.' 6
[Footnote] His conviction was upheld by the Court of Appeals for the Fifth District of Texas but reversed by the Texas Court of Criminal Appeals. The United States Supreme Court subsequently affirmed the holding of the Texas Court of Criminal Appeals, finding that the act of burning an American flag during a protest rally was expressive conduct entitled to protection under the First Amendment.
[Footnote 6: Tex. Penal Code Ann. Sec. 42.09 (1989), `Desecration of Venerated Object,' provided as follows:]
Ì(a) A person commits an offense if he intentionally or knowingly desecrates:
(1) a public monument;
(2) a place of worship or burial; or
(3) a state or national flag.
Ì(b) For purposes of this section, `desecrate' means deface, damage, or otherwise physically mistreat in a way that the actor knows will seriously offend one or more persons likely to observe or discover his action.
Ì(c) An offense under this section is a Class A misdemeanor.
Chief Justice Rehnquist filed a dissenting opinion in which Justices O'Connor and White joined. 7
[Footnote] Chief Justice Rehnquist noted the unique history of the American flag:
[Footnote 7: Justice Stevens filed a separate dissenting opinion.]
The American flag, then, throughout more than 200 years of our history, has come to be the visible symbol embodying our Nation. It does not represent the views of any particular political party, and it does not represent any particular political philosophy. The flag is not simply another `idea' or `point of view' competing for recognition in the marketplace of ideas. Millions and millions of Americans regard it with an almost mystical reverence regardless of what sort of social, political, or philosophical beliefs they may have. I cannot agree that the First Amendment invalidates the Act of Congress, and the laws of 48 of the 50 States, which make criminal the public burning of the flag. 8
[Footnote]
[Footnote 8: Johnson, 491 U.S. at 429.]
Chief Justice Rehnquist also found persuasive the opinions of former Chief Justice Earl Warren and former Justices Hugo Black and Abe Fortas, which had noted that the states and the Federal Government had the power to protect the flag from desecration and disgrace. 9
[Footnote]
[Footnote 9: In Street v. New York, 394 U.S. 576 (1969), these three Justices set forth their views on the government's regulation of acts of flag desecration. Former Chief Justice Earl Warren stated, `I believe that the States and the Federal Government do have power to protect the flag from acts of desecration and disgrace.' Id. at 605 (Warren, C.J., dissenting). In a similar tone, former Justice Hugo Black noted in discussing New York's flag burning statute, `It passes my belief that anything in the Federal Constitution bars a State from making the deliberate burning of the American flag an offense.' Id. at 610 (Black, J., dissenting). Finally, former Justice Abe Fortas remarked that `the States and the Federal Government have the power to protect the flag from acts of desecration in public. . . . [T]he flag is a special kind of personality. Its use is traditionally and universally subject to special rules and regulations. . . .' Id. at 615-17 (Fortas, J., dissenting).]
In response to the Johnson decision, Congress approved the `Flag Protection Act of 1989' 10
[Footnote] in September 1989 by a vote of a 371-43 in the House and 91-9 in the Senate. The Act amended the Federal flag statute, 18 U.S.C. Sec. 700, in an attempt to make it `content-neutral' so that it would pass constitutional muster. As stated in the House Judiciary Committee report, `the amended statute focuses exclusively on the conduct of the actor, irrespective of any expressive message he or she might be intending to convey.' 11
[Footnote]
[Footnote 10: Pub. L. No. 101-131, 103 Stat. 777.]
[Footnote 11: `Flag Protection Act of 1989' H. Rep. No. 101-231, 101st Cong., 1st Sess. 2 (1989). The Act became law without the President's signature on October 28, 1989.]
On June 11, 1990, in United States v. Eichman, 12
[Footnote] the United States Supreme Court, in another 5-4 decision, struck down the recently-enacted `Flag Protection Act of 1989,' ruling that the Act infringed on expressive conduct protected by the First Amendment. Although the Federal Government conceded that flag burning constituted expressive conduct, it claimed that flag burning, like obscenity or `fighting words,' was not fully protected by the First Amendment. The Federal Government also argued the Flag Protection Act was constitutional because, unlike the Texas statute struck down in Johnson, the Act was `content-neutral' and simply sought to protect the physical integrity of the flag rather than to suppress disagreeable communication.
[Footnote 12: 496 U.S. 310 (1990).]
Justice Brennan, writing for the majority, rejected the Federal Government's argument, noting that:
Although the Flag Protection Act contains no explicit content-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government's asserted interest is `related `to the suppression of free expression,' 491 U.S., at 410, 109 S.Ct., at 2543, and concerned with the content of such expression. . . . [T]he mere destruction or disfigurement of a particular physical manifestation of the symbol, without more, does not diminish or otherwise affect the symbol itself in any way. . . . Rather, the Government's desire to preserve the flag as a symbol for certain national ideals is implicated `only when a person's treatment of the flag communicates [a] message' to others that is inconsistent with those ideals. 13
[Footnote]
[Footnote 13: Id. at 315-16.]
Justice Stevens wrote a dissenting opinion in which Chief Justice Rehnquist, Justice White, and Justice O'Connor joined. He expressed agreement with the proposition expressed by the majority that `the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.' 14
[Footnote] He went on, however, to note that methods of expression may be prohibited under a number of circumstances and set forth the following standard:
[Footnote 14: Id. at 319.]
If (a) the prohibition is supported by a legitimate societal interest that is unrelated to suppression of the ideas the speaker desires to express; (b) the prohibition does not entail any interference with the speaker's freedom to express those ideas by other means; and (c) the interest in allowing the speaker complete freedom of choice among alternative methods of expression is less important than the societal interest supporting the prohibition. 15
[Footnote]
[Footnote 15: Id.]
Justice Stevens believed that the statute at issue in this case satisfied each of these concerns and thus should have been held constitutional.
As the Johnson and Eichman decisions illustrate, a statutory remedy is not sufficient to correct the problem of flag desecration. Therefore, the only avenue remaining by which Congress can successfully defend the American flag from acts of desecration is through a constitutional amendment. The Framers of the Constitution understood that there would be times in our nation's history necessitating a change in the Constitution and hence provided the people with an amendment process embodied in Article V of the Constitution. 16
[Footnote] While there have been over 11,000 constitutional amendments proposed since the ratification of the Bill of Rights, there have been only 17 amendments actually approved and ratified to be included in the Constitution. 17
[Footnote] It is this process that is absolutely vital to maintaining the democratic legitimacy of the Constitution and of judicial review itself.
[Footnote 16: See U.S. Const. art. V.]
[Footnote 17: See Flag Protection Amendment: Hearing Before the Subcomm. on the Constitution of the House Comm. on the Judiciary, 108th Cong. (statement of Professor Richard D. Parker, Harvard Law School).]
H.J. Res. 10 will effectuate the will of an overwhelming majority of the American public in a manner pursuant to the mechanisms of Article V of the Constitution and provide Congress with the power to prohibit the physical desecration of the flag. H.J. Res. 10 simply seeks to remove the physical flag as a mode of communication, without regard to the content of such speech or the particular viewpoint attempting to be expressed. As Justice Stevens noted in Eichman:
It is, moreover, equally clear that the prohibition does not entail any interference with the speaker's freedom to express his or her ideas by other means. It may well be true that other means of expression may be less effective in drawing attention to those ideas, but that is not itself a sufficient reason for immunizing flag burning. Presumably a gigantic fireworks display or a parade of nude models in a public park might draw even more attention to a controversial message, but such methods of expression are nevertheless subject to regulation. 18
[Footnote]
[Footnote 18: Eichman, 496 U.S. at 322.]
Alternative means of expressing ideas are available to political protestors who would have otherwise desecrated a flag in order to express their message. Implementing legislation adopted pursuant to a flag protection amendment prohibiting the physical desecration of the flag would deprive an individual of only `one rather inarticulate symbolic form of protest' and leave that person with `a full panoply of other symbols and every conceivable form of verbal expression' to express whatever it is that one desires to express. 19
[Footnote] Such was the status quo in 48 states prior to the Johnson ruling in 1989. During this long period when flag desecration statutes were in effect, wide open debate flourished, as it has throughout America's history.
[Footnote 19: Johnson, 491 U.S. at 432 (Rehnquist, C.J., dissenting).]
The dissenting opinions in Johnson and Eichman collectively provide an instructive analysis of why Congressional action prohibiting flag desecration serves a legitimate interest. For example, Justice Stevens' dissent in Johnson extolled the significant and legitimate interest in preserving the flag:
[S]anctioning the public desecration of the flag will tarnish its value--both for those who cherish the ideas for which it waves and for those who desire to don the robes of martyrdom by burning it. That tarnish is not justified by the trivial burden on free expression occasioned by requiring that an available, alternative mode of expression--including uttering words critical of the flag, see Street v. New York, 394 U.S. 576, 89 S.Ct. 1354, 22 L.Ed.2d 572 (1969)--be employed. 20
[Footnote]
[Footnote 20: Id. at 437 (Stevens, J., dissenting).]
Former Chief Justice John Marshall Harlan echoed these sentiments over half a century earlier when he stated that `love 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.' 21
[Footnote] Just as the Federal Government has a legitimate interest in preserving the quality of an important national asset, such as the Lincoln Memorial, from desecration, so too does the government have just as important an interest in prohibiting the desecration of the American flag. 22
[Footnote]
[Footnote 21: Halter v. Nebraska, 205 U.S. 34, 41-42 (1907).]
[Footnote 22: Johnson, 491 U.S. at 438-39 (Stevens, J., dissenting).]
In Eichman, Justice Stevens, joined by Chief Justice Rehnquist, Justice White, and Justice O'Connor, began his dissent by noting the axiomatic First Amendment principle that `the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.' 23
[Footnote] However, Justice Stevens concluded that the Federal Government has a legitimate interest in protecting the intrinsic value of the American flag, because the flag, `in times of national crisis, inspires and motivates the average citizen to make personal sacrifices in order to achieve societal goals of overriding importance' and `at all times it serves as a reminder of the paramount importance of pursuing the ideas that characterize our society.' 24
[Footnote]
[Footnote 23: Eichman, 496 U.S. at 319.]
[Footnote 24: Id.]
H.J. Res. 10 would empower Congress to prohibit the physical desecration of the United States flag. The constitutional amendment itself does not prohibit flag desecration. Rather, it empowers Congress to enact legislation to prohibit the physical desecration of the American flag and establishes boundaries within which Congress may legislate to prosecute this conduct. Work on a statute will come at a later date, after three-fourths of the States ratify the amendment.
Though a proposed flag protection amendment failed to garner a two-thirds majority in the House in the 101st Congress, a flag protection amendment has passed the House in every Congress since the 104th. In the 105th, 106th, 107th, and 108th Congresses, language identical to H.J. Res. 10 passed the House by a two-thirds majority. In addition, all 50 States have passed resolutions calling on Congress to pass a flag protection amendment and send it to the States for ratification, 25
[Footnote] and dozens of surveys since 1989 evidence that 75--80 percent of Americans have consistently supported amending the Constitution to protect the flag. 26
[Footnote]
[Footnote 25: See, http://www.cfa-inc.org/about/flag amendl.htm.]
[Footnote 26: See, e.g., Public Opinion Poll by Market Strategies, Inc. (Mar. 13, 2002) at http://www.cfa-inc.org/issues/poll2.htm (finding seventy-five percent of Americans support such an amendment).]
SECTION BY SECTION ANALYSIS
The following discussion describes the bill as reported by the Committee. H.J. Res. 10 states: `The Congress shall have power to prohibit the physical desecration of the flag of the Unites States.' As interpreted by the Supreme Court, the First Amendment to the United States Constitution, which states that, `Congress shall make no law . . . abridging freedom of speech,' limits the power of Congress to prohibit the physical desecration of the flag. In light of the Supreme Court's interpretation, a constitutional amendment is the only alternative for proscribing the physical desecration of the flag. H.J. Res. 10 would empower Congress to pass legislation to prohibit the physical desecration of the flag of the United States.
This proposed constitutional amendment sets the parameters for future action by the Congress on this issue. After the amendment is ratified, the elected representatives of the people can decide whether to enact legislation prohibiting the physical desecration of the flag. Two key issues will need to be considered in enacting legislation to protect the flag from physical desecration. First, Congress must consider the meaning of `physical desecration.' The amendment itself requires physical contact with the flag. Under this amendment, Congress could not punish mere words or gestures directed at the flag, regardless of how offensive they were. Webster's Ninth New Collegiate Dictionary defines `desecrate' as follows: `1: to violate the sanctity of: PROFANE 2: to treat irreverently or contemptuously often in a way that provokes outrage on the part of others.' Black's Law Dictionary defines `desecrate' as `[t]o divest (a thing) of its sacred character; to defile or profane (a sacred thing)' and `flag desecration' as `the act of mutilating, defacing, burning, or flagrantly misusing a flag.' Congress, under this constitutional amendment, could clearly prohibit burning, shredding, and similar defilement of the flag.
In any event, the word `desecration' was selected because of its broad nature in encompassing many actions against the flag. Such broad terms are commonly used in constitutional amendments; for example, `free exercise' in the First Amendment; `unreasonable searches and seizures' and `probable cause' in the Fourth Amendment; `due process' and `equal protection' in the Fourteenth Amendment. The use of broad terms in constitutional amendments, such as the word `desecration,' are necessary to give Congress discretion when it moves to enact implementing legislation. Debate and discussion as to what forms of desecration should be outlawed, such as burning, will come at a later date in Congress. Otherwise, Congress would be restricted and unduly limited in achieving its objective and purpose in approving a constitutional amendment such as H.J. Res. 10.
Second, Congress will have to decide what representations of the flag of the United States are to be protected. As defined in the United States Code, `[t]he flag of the United States shall be thirteen horizontal stripes, alternate red and white; and the union of the flag shall be forty-eight stars, white in a blue field.' 29
[Footnote] The resolution does not affect this definition. In enacting a statute, Congress will need to decide which representations of the flag are to be protected from physical desecration. For instance, the flag of the United States may be defined in this future authorizing statute as only a cloth, or other material readily capable of being waved or flown, with the characteristics of the official flag of the United States as described in 4 U.S.C. Sec. 1. These details will be dealt with in implementing legislation subsequent to the adoption and ratification of H.J. Res. 10.
[Footnote 29: 4 U.S.C. Sec. 1. `On the admission of a new State into the Union one star shall be added to the union of the flag; and such addition shall take effect on the fourth day of July then next succeeding such admission.' 4 U.S.C. 2.]
Mr. CHABOT. Thank you, Mr. Chairman.
The flag of the United States is the most recognized and sacred symbol of freedom and democracy in the world. Whether in war atop the United States Capitol or sewn to the sleeves of our brave men and women sent into battle, the flag represents the values that all Americans hold dear. In the midst of the rubble and debris at Ground Zero, where the World Trade Center towers once stood, three New York City firefighters raised the flag to the top of the pole. The photographer who captured this shot said, `This was an important shot. It told of more than just death and destruction, it said something to me about the strength of the American people and of these firemen having to battle the unimaginable. It had drama, spirit, and courage in the face of disaster.'
It is this symbolism and resilience that has made the flag the most beloved and cherished symbol in our Nation's history. Despite this, 119 incidents of flag desecration have been reported since 1994. The movement to pass legislation prohibiting the desecration of the American flag began in the late 1800's, with every State having a flag desecration law on the books by 1932. In 1968, the Federal Government passed its statute prohibiting such conduct. By 1989, every State in the Union except Alaska and Wyoming outlawed such conduct.
However, in 1989, the United States Supreme Court, by the narrowest of margins, effectively invalidated all State and Federal laws that prohibited flag desecration. In a 5-4 opinion, the Court concluded that the burning of the American flag as part of a political demonstration was expressive conduct protected by the first amendment. Congress responded to the Supreme Court's decision almost instantaneously through bipartisan and overwhelming support, enacting the Flag Protection Act of 1989, which passed the House by a vote of 371 to 43 and the Senate by a vote of 91 to 9. However, in a 5-4 opinion the following year, the Supreme Court held the Flag Protection Act unconstitutional in United States v. Eichman. Because of these narrowly decided Supreme Court decisions, a constitutional amendment provides the only remaining option for the American public to restore protection to our Nation's most visible symbol. The Flag Protection Amendment would restore the authority of Congress to prohibit the physical desecration of the flag.
Some would argue that this proposed amendment would erode the first amendment protections that all Americans enjoy. I disagree with this assertion as do the majority of Americans. The Flag Protection Amendment is consistent with the first amendment while maintaining the flag as a national symbol and giving it the protection it deserves. The first amendment does not grant individuals unlimited rights to engage in any form of desired conduct under the cloak of free expression. For instance, burning a $10 bill and pushing over a tombstone are actions which can be utilized to express a particular political or social message, but are unquestionably illegal. In addition, the amendment proposed today does not contain any language that will prevent individuals from speaking out against the United States, its policies, its people, its flag, or anything that these things represent.
This amendment simply prohibits acts of physical desecration of the Nation's most enduring and revered symbol, nothing more. The House of Representatives has passed the Flag Protection Amendment by more than the two-thirds majority vote needed in five separate Congresses; in four of these Congresses language identical to H.J. Res. 10 that we are considering today passed the House.
Though a flag protection amendment received majority support in the Senate on two separate occasions, it failed both times to garner the two-thirds majority by four votes.
All 50 States have passed resolutions calling on Congress to pass and send a flag protection amendment to the States for ratification, and 75 to 80 percent of Americans have consistently supported amending the Constitution to protect the flag.
Such overwhelming support by the American people sends a clear message to Congress that we must adhere to the wishes of the people and adopt this proposed amendment to the Constitution.
Mr. CONYERS. Mr. Chairman, I rise in opposition to this measure before us. Because it's always tempting for Congress to show the Supreme Court in particular who's boss, and it has attempted to do so since 1989. We have two Supreme Court cases on this very same point. It was a concern about the tyranny of the majority that led the framers of the Constitution to create an independent judiciary free of political pressure to ensure the Legislative and Executive branches would honor the Bill of Rights. A constitutional amendment banning flag desecration really flies in the face of this very carefully balanced structure.
Now, the consideration of this measure today will show whether the Members of this Committee, the Judiciary Committee, have the strength to remain true to our forefathers' constitutional ideals and defend our citizens' right to express themselves even when we vehemently disagree with their method of expression. I deplore the desecration of the flag in any form. But I strongly oppose this resolution because it goes against the very ideals on which the country has been founded.
If we allow H.J. Res. 10 to go to the floor and be adopted, this will be the first time in the history of this country that the people's representatives voted to alter the Bill of Rights to limit freedom of speech. It's been said that the true test of any Nation's commitment to freedom of expression lies in its ability to protect unpopular expression, and that is the basis of my objection to this measure before us.
As Oliver Wendell Holmes said, `the Constitution protects not only freedom for the thought and expression we agree with, but freedom for the thought that we hate.' And so by limiting the scope of the first amendment's free speech protections, I see us setting a most dangerous precedent. If we open the door to criminalizing constitutionally protected expression related to the flag, I predict it will be difficult to limit further efforts to censure speech. And once we decide to limit freedom of speech, limitations on freedom of the press and freedom of religion, I fear, may not be far behind.
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