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FUG DESECRATION AMENDMENT TO THE
CONSTITUTION



Y 4. J 89/1:104/96

Flag Desecration Anendnent to the C... [NG



BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIAKY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

ON

H.J. Res. 79

PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES AUTHORIZING THE CONGRESS AND THE STATES
TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE

UNITED STATES



MAY 24, 1995



Serial No. 96




^^3 / p ,...



Printed for the use of the Committee on the Judiciary






U.S. GOVERNMENT PRINTING OFFICE
35-274 CC WASHINGTON : 1995



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053859-9



FLAG DESECRATION AMENDMENT TO THE
CONSTITUTION



Y 4. J 89/1:104/96



Flag Pesecration Anendnent to the C... [NG

BEFORE THE

SUBCOMMITTEE ON THE CONSTITUTION

OF THE

COMMITTEE ON THE JUDICIAKY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION
ON

H. J. Res. 79

PROPOSING AN AMENDMENT TO THE CONSTITUTION OF THE
UNITED STATES AUTHORIZING THE CONGRESS AND THE STATES
TO PROHIBIT THE PHYSICAL DESECRATION OF THE FLAG OF THE

UNITED STATES



MAY 24, 1995



Serial No. 96



U ■'.■■■ -

Printed for the use of the Committee on the Judiciary




U.S. GOVERNMENT PRINTING OFFICE
35-274 CC WASHINGTON : 1995

For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
ISBN 0-16-053859-9



COMMITTEE ON THE JUDICIARY



HENRY J. HYDE, Illinois, Chairman



CARLOS J. MOORHEAD, California
F. JAMES SENSENBRENNER, Jr.,

Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR S. SMITH, Texas
STEVEN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY. Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
MARTIN R. HOKE, Ohio
SONNY BONO, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR. Georgia



JOHN CONYERS, JR., Michigan
PATRICIA SCHROEDER, Colorado
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California
JOSE E. SERRANO, New York
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas



Alan F. Coffey, Jr., General Counsel /Staff Director
JUUAN Epstein, Minority staff Director



Subcommittee on the Constitution



CHARLES T. CANADY, Florida, Chairman



HENRY J. HYDE, Illinois
BOB INGLIS, South Carolina
MICHAEL PATRICK FLANAGAN, Illinois
F. JAMES SENSENBRENNER, JR.,

Wisconsin
MARTIN R. HOKE, Ohio
LAMAR S. SMITH, Texas
BOB GOODLATTE, Virginia



BARNEY FRANK, Massachusetts
MELVIN L. WATT, North Carolina
JOSE E. SERRANO, New York
JOHN CONYERS, Jr., Michigan
PATRICIA SCHROEDER, Colorado



KatHRYN a. HazEEM, Chief Counsel

WlLUAM L. McGRATH, Counsel

Keri D. Harrison, Assistant Counsel

John H. Ladd, Assistant Counsel

Robert RabEN, Minority Counsel



(II)



CONTENTS



HEARING DATE



Page

May 24, 1995 1

TEXT OF BILL
H.J. Res. 79 2

OPENING STATEMENT

Canady, Hon. Charles T., a Representative in Congress from the State of
Florida, and chairman, Subcommittee on the Constitution 1

WITNESSES

Bolick, Clint, vice president and litigation director, Institute for Justice 34

Cronauer, Adrian, senior associate, Maloney & Burch 58

Detweiler, William, national commander, the American Legion 39

Fein, Bruce, attorney and colunrmist 61

Lee, Rose E., past national president. Gold Star Wives of America 37

Montgomery, Hon. G.V. (Sonny), a Representative in Congress from the State

of Mississippi 11

Nagel, Robert F., IRA Rothgerber Professor of Constitutional Law, University

01 Colorado 63

Presser, Stephen B., Raoul Berger Professor of Legal History, Northwestern

University of School of Law 29

Solomon, Hon. Gerald B.H., a Representative in Congress from the State

of New York 6

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Bolick, Clint, vice president and litigation director, Institute for Justice: Pre-
pared statement 32

Cronauer, Adrian, senior associate, Maloney & Burch: Prepared statement 60

Detweiler, William, national commander, the American Legion: Prepared
statement 41

Fein, Bruce, attorney and colunmist: Prepared statement 62

Flanagan, Hon. Michael Patrick, a Representative in Congress from the State

of Illinois 28

Lee, Rose E., past national president. Gold Star Wives of America: Prepared
statement 38

Montgomery, Hon. G.V. (Sonny), a Representative in Congress from the State

of Mississippi: Prepared statement 12

Nagel, Robert F., IRA Rothgerber Professor of Constitutional Law, University

of Colorado: Prepared statement 65

Presser, Stephen B., Raoul Berger Professor of Legal History, Northwestern

University of School of Law: Prepared statement 30

Solomon, Hon. Gerald B.H., a Representative in Congress from the State
of New York:

Flag Code 14

Prepared statement 10

APPENDIX

Material submitted for the hearing 79

(III)



FLAG DESECRATION AMENDMENT TO THE
CONSTITUTION



WEDNESDAY, MAY 24, 1995

House of Representatives,
Subcommittee on the Constitution,

Committee on the Judiciary,

Washington, DC.

The subcommittee met, pursuant to notice, at 10 a.m., in room
2141, Rayburn House Office Building, Hon. Charles Canady (chair-
man of the subcommittee) presiding.

Present: Representatives Charles T. Canady, Henry J. Hyde, Bob
Inglis, Michael Patrick Flanagan, F. James Sensenbrenner, Jr.,
Martin R. Hoke, Barney Frank, Melvin L. Watt, Jose E. Serrano,
and John Conyers, Jr.

Also present: Kathryn A. Hazeem, chief counsel; Jacquelene
McKee, paralegal; and Robert Raben, minority counsel.

OPENING STATEMENT OF CHAIRMAN CANADY

Mr. Canady. The subcommittee will come to order.

This morning we will hear from several witnesses on the need for
a constitutional amendment to allow Congress and the States to
protect the flag of the United States from desecration. Forty-nine
States have passed resolutions calling upon the Congress to pass
a flag amendment and send it back to the States for ratification.
In 1989, in Texas v. Johnson, the Supreme Court of the United
States by a narrow 5-to-4 margin invalidated the laws of 48 States
and an act of Congress and thus deprived the people of their right
to protect the most profound and revered symbol of our national
identity. H.J. Res. 79 proposes to amend the Constitution to restore
the authority of Congress and the States which was taken away by
the Supreme Court to pass legislation to protect the flag.

[The bill, H.J. Res. 79, follows:]

(1)



lA



104th congress
1st Session



H. J. RES. 79



Proposing an amendment to the Constitution of the United States authorizing
the Congress and the States to prohibit the physical desecration of
the flag of the United States.



IN THE HOUSE OF REPRESENTATIVES

March 21, 1995
Mr. Solomon (for himself, Mr. Montgomery, Mr. Allard, Mr. Andrews,
Mr. Archer, Mr. Armey, Mr. Bachus, Mr. Baesler, Mr. Baker of
Louisiana, Mr. Baldacci, Mr. Ballenger, Mr. Barcia, Mr. Barr, Mr.
Barrett of Nebraska, Mr. Bartlett of Maryland, Mr. BARTON of
Texas, Mr. Bass, Mr. Bateman, Mr. Bereuter, Mr. Bevill, Mr.
BiLBRAY, Mr. Bilirakis, Mr. Bishop, Mr. Bliley, Mr. Blute, Mr.
BoEHLERT, Mr. Boehner, Mr. Bono, Mr. Brewster, Mr. Browder,
Mr. Brownback, Mr. Bryant of Tennessee, Mr. BUNN of Oregon, Mr.
Bunning of Kentucky, Mr. BURR, Mr. BURTON of Indiana, Mr. BUYER,
Mr. Callahan, Mr. Calvert, Mr. Camp, Mr. Canady of Florida, Mr.
Chabot, Mr. Chambuss, Mrs. Chenoweth, Mr. Christensen, Mr.
Chrysler, Mrs. Clayton, Mr. Clement, Mr. Coble, Mr. Coburn,
Mr. Collins of Georgia, Mr. Combest, Mr. Cooley, Mr. Costello.
Mr. Cox of California, Mr. CRAMER, Mr. Crane, Mr. Crapo, Mr.
Cremeans, Mrs. CuBiN, Mr. Cunningham, Ms. Banner, Mr. Davis,
Mr. DE LA Garza, Mr. Deal of Georgia, Mr. DeLay, Mr. Diaz-Balart,
Mr. Dickey, Mr. Doouttle, Mr. Dornan, Mr. Doyle, Mr. Dreier.
Mr. Duncan, Ms. Dunn of Washington, Mr. Ehrlich, Mr. EMERSON.
Mr. English of Pennsylvania, Mr. ENSIGN, Mr. Everett, Mr. Fawell.
Mr. Fields of Texas, Mr. Flanagan, Mr. Foley, Mr. Forbes, Mrs.
Fowler, Mr. Fox of Pennsylvania, Mr. Franks of Connecticut, Mr.
Franks of New Jersey, Mr. Freunghuysen, Mr. Frisa, Mr.
Funderburk, Mr. Gallegly, Mr. G>\ske, Mr. Pete Geren of Texas.
Mr. GiLMAN, Mr. GooDLATTE, Mr. G(;odling, Mr. Goss, Mr. Graham.
Mr. Gene Green of Texas, Mr. Gunderson, Mr. Gutknecht, Mr.
IIall of Texas, Mr. Hancock, Mr. Hansen, Mr. Hastert, Mr. Hast-
ings of Wasliington, Mr. Hayworth, Mr. Hefley, Mr. HEFNER, Mr.
Heineman, Mr. Herger, Mr. Hilleary, Mr. Hobson, Mr. Holden.
Mr. Horn, Mr. Hostettler, Mr. Hunter, Mr. Hutchinson, Mr.
H\t>e, Mr. IsTooK, Mr. Jacobs, Mr. Jefferson, Mr. Johnson of
South Dakota, Mr. Sam Johnson of Texas, Mr. Jones, Mr. Kasich,
Mrs. Kelly, Mr. King, Mr. Kingston, Mr. Knollenberg, Mr.



LaHood, Mr. Largent, Mr. Latham, Mr. LaTourette, Mr.
Laughlin, Mr. Lazio of New York, Mr. Lewis of Kentucky, Mr.
LiGHTFOOT, Mr. LiNDER, Mr. LlPlNSKl, Mr. LmNGSTON, Mr.
LoBiONDO, Mr. LONGLEY, Mr. Lucas, Mr. Manton, Mr. Manzullo,
Mr. ALuiTiNEZ, Mr. Martini, Mr. Mascara, Mr. McCollum, Mr.
McCrery, Mr. McDade, Mr. McHuGH, Mr. McInnis, Mr. McLvtosh,
Mr. McKeon, Mr. McNULTY, Mr. Menendez, Mr. Metcvlf, Mrs.
Meyers of Kansas, Mr. MiCA, Ms. Mounari, Mr. MOORHEAD, Mr.
MtTRTHA, Mr. Myers of Indiana, Mrs. Myrick, Mr. Nethercutt, Mr.
Neumann, Mr. Ney, Mr. Norwood, Mr. Nussle, Mr. Ortiz. Mr.
Oxley, Mr. Packard, Mr. Pallone, Mr. Parker, Mr. Paxon. Mr.
Payne of Virginia, Mr. PETERSON of Minnesota, Mr. F*ICKETT, Mr.
POMBO, Mr. POMEROY, Mr. QUILLEN, Mr. QUINX, Mr. Radanomch,
Mr. Rahall, Mr. Ramstad, Mr. RiGGS, Mr. ROBERTS, Mr. Rogers, Mr.
Rose, Mr. Roth, Mrs. Roukema, Mr. Royce, Mr. Saljion, Mr.
Saxton, Mr. Scarborough, Mr. Schaefer, Mrs. Seastrand, Mr.
Sensenbrenner, Mr. Schiff, Mr. Shtster, Mr. Sisisky, Mr. Skeen,
Mr. Skelton, Mr. SMITH of New Jersey, Mrs. SMITH of Washington,
Mr. SouDER, Mr. Spence, Mr. STEARNS, Mr. STOCKMAN, Mr. Stump,
Mr. Stupak, Mr. Talent, Mr. Tate, Mr. Tauzin, Mr. Ta^xor of Mis-
sissippi, Mr. Taylor of North Carolina, Mr. Tejeda, Mr. THOMAS, Mr.
Thornberry, Mrs. Thurman, Mr. Tiahrt, Mr. Torkildsen, Mr.
Towns, Mr. Traficant, Mr. Tucker, Mr. Upton, Mr. Volkmer, Mrs.
Vucanomch, Mrs. Waldholtz, Mr. Walsh, Mr. Wamp, Mr. Watts of
Oklahoma, Mr. Weldon of Florida, Mr. Weldon of Pennsylvania, Mr.
Weller, Mr. Whitfield, Mr. Wicker, Mr. Wilson, Mr. Wise, Mr.
Wolf, Mr. Young of Alaska, Mr. Young of Florida, Mr. Zeliff, and
Mr. Zimmer) introduced the following joint resolution; which was referred
to Committee on the Judiciary



JOINT RESOLUTION

Proposing an amendment to the Constitution of the United
States authorizing the Congress and the States to pro-
hibit the physical desecration of the flag of the United
States.

1 Resolved by the Senate and House of Representatives

2 of the United States of America in Congress assembled,

3 (two-thirds of each House concurring therein), That the

4 following article is proposed as an amendment to the Con-

HJ 79 IHIS



3

1 stitution of the United States, which shall be valid to all

2 intents and purposes as part of the Constitution when

3 ratified by the legislatures of three-fourths of the several

4 States within seven years after the date of its submission

5 for ratification:

6 "Article —

7 "The Congress and the States shall have power to

8 prohibit the physical desecration of the flag of the United

9 States.".



HJ 79 IHIS



Mr. Canady. After the Supreme Court's decision in Johnson, the
House passed the Flag Protection Act of 1989 with overwhelming
support by a vote of 380 to 38. The statute which became law in
October 1989 was specifically crafted to respond to concerns raised
by the Supreme Court in Johnson. Unfortunately, this statute was
struck down by the Supreme Court, in U.S. v. Eichman in June
1990.

I believe, as do many of my colleagues, that both Johnson and
Eichman were improperly decided. There are Members, however,
who are of the opinion that these cases were correctly decided. We
seek their support for this amendment as well.

Our flag is not a reputation or symbol of the crown or a monarch
or an absolute sovereign. It represents We, the People, in the most
successful exercise in self-government in the history of the world.
Just as it is well established that the Supreme Court interprets the
Constitution, so it is also well established that the people through
their elected representatives, have the power and the right to
amend the Constitution through article V. If Members want to pro-
tect the flag, they need to support this constitutional amendment.
There is no other way to show your support for protecting the flag.
That is why this subcommittee will be moving forward with a con-
stitutional amendment to protect the flag from desecration pursu-
ant to the procedures set forth by the Framers in article V of our
Constitution.

This morning we will have three panels of witnesses. Our first
panel consists of two distinguished Members of Congress. Rep-
resentative Gerald Solomon, the chairman of the Rules Committee,
is in his ninth term representing the 22d District of New York.
Representative G.V. (Sonny) Montgomery represents the Third Dis-
trict of Mississippi; he currently serves on the Committee on Veter-
ans' Affairs.

Gentlemen, we welcome both of you and, without objection, your
full statements will be included in the hearing record. I want to
thank both of you for your outstanding leadership on this very im-
portant issue.

Before we begin with the testimony of Mr. Solomon, I would like
to ask if Mr. Hyde would like to make a statement.

Mr. Hyde. I thank the chairman very much for holding these
hearings and giving me the opportunity to speak and welcome two
of the most distinguished Members. That word is used sometimes
cavalierly, but Mr. Solomon and Mr. Montgomery have long records
of exemplary service to their people and to the people of America.
It is a delight to be with them.

This issue is not a simple issue. Free speech is one of our most
cherished liberties in this country, and it is liberty that we are
about. And free speech means nothing if it doesn't mean freedom
of speech to the speech you hate.

Listen to somebody say something that just rubs you the wrong
way, that grates, that you oppose; that is real freedom of speech.
Freedom of speech just doesn't mean saying things that you agree
with or that you are neutral about.

Now, that said, we get to this issue of whether this piece of cloth
with stripes and stars on it is somehow sacred in a secular way,
or somehow different, and that burning it is not simply an exercise



of symbolic free speech but something more than that. I come down
on the side of it is something more than that. It is not simply an
exercise of the — of free speech and the speech you hate.

This country is utterly unique of all countries in the world lack-
ing cultural ethnic homogeneity. We are Poles and Greeks and
Jews and Catholics and atheists and Mormons and Baptists and
Irish and Swiss and German and Hispanic and Mexican and Afri-
can-American. We are absolutely a people of many differing cul-
tures and ethnicities and religious persuasions.

But there are things that bind us. There are things that we
uniquely share in common, and one is a love of freedom, one is a
land of opportunity, and all those things that the Declaration of
Independence guaranteed us. And the flag symbolizes the things
we have in common and that bind us together.

Too many men have marched behind it, too many men have come
home with the flag on their coffin, too many parents and widows
and survivors have clutched a folded triangle of the flag to their
bosom to hold that the flag simply is an expression of symbolic
speech. It stands for everything precious and dear that people have
given their lives for through the history of this country, and it
ought to be treated specially.

So my sense of the broadness and the breadth of freedom of
speech is not violated by saying there are some things you can't do.
Some things you ought not to do.

We have lost the sense of the sacred in our society today, but I
think this flag, which stands for this history of this young, magnifi-
cent, unique experiment in ordered liberty deserves to be protected;
and so I — I certainly support Mr. Solomon, Mr. Montgomery, and
I think these hearings are going to be a big help in explicating the
nuances of this complex issue.

Thank you.

Mr. Canady. Thank you, Mr. Hyde.

Mr, Solomon.

STATEMENT OF HON. GERALD BM. SOLOMON, A REPRESENTA-
TIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. Solomon. Well, Mr. Chairman — Mr. Chairman Canady and,
certainly. Chairman Hyde, I can't tell you what a privilege it is to
sit here and see you two gentlemen in the positions that you pres-
ently have. We commend you for the outstanding efforts over the
past several months. Your committee has had its backs to the wall,
and you have just done yeoman work; and that is why we. Sonny
Montgomery and I, are deeply appreciative that you could fit this
into the schedule. We know there are other pressing issues that
come before you and we appreciate that.

I appreciate the opportunity to come and testify today with my
great friend from Mississippi, Sonny Montgomery, the former
chairman of the Veterans' Affairs Committee and now the ranking
minority member of that body. He is an outstanding American.

He and I are here today also representing two other outstanding
Americans. One is Senator Orrin Hatch, who is the chairman of
your counter-committee over in the Senate, the Judiciary Commit-
tee.



And another great American who will be leaving us in the not-
too-distant future because he is retiring, and that is Senator How-
ell Heflin. And he, as you all know, is a very famous jurist, a very
good Senator, even though he is on the other side of the aisle, as
is my good friend Sonny Montgomery. They are both great.

Let me just say that sometimes on issues like this I guess I have
been known to wax emotional. I am going to try and not do that
here today, because today we are here to ask you to mark up this
proposed constitutional amendment and we hope that you will do
so by leaving it in the exact wording that it is today. And that
wording, Mr. Chairman, is, "The Congress and the States shall
have power to prohibit the physical desecration of the flag of the
United States."

The reason that it is important to leave it as it is is this, Mr.
Chairman, This is given to me by the Citizens Flag Alliance. It con-
tains statements that have — from 49 of 50 States that have memo-
rialized this Congress to enact this constitutional amendment in its
exact form. And what that means, Mr. Chairman, is that if we do
that and we successfully pass it in both Houses and we pass it on
to the people of the United States of America, it means that, with-
out question, this will probably be the fastest constitutional amend-
ment ever ratified in the history of this Nation.

Now, before going any further, I would just ask your indulgence
to maybe introduce some Members that are in the audience here
today because they speak to the grassroots movement that is out
there. And I know it may be inappropriate perhaps to go through
a litany of names, but just to list some that are exemplary we have
Dan Wheeler, who is the president of the Citizens Alliance.

The Citizens Alliance is a group of major veterans organizations,
every major veterans organization across this Nation of ours, men
and women who have served in the Armed Forces of the United
States of America. It is made up of not only those veterans organi-
zations but many other grassroots organizations as well that do not
necessarily represent those former members of the armed services.
There are organizations like the Elk's Lodge, which I belong to, the
National Elk's Lodge; there are organizations like the Masons,
which I also happen to belong to. There are religious organizations
like the Knights of Columbus; and I could go on and on and on
with all of these community-minded organizations that makeup the
grassroots movement that brings us here today.

Mr. Chairman, it is important for many reasons for us to pass
this amendment today, but the overwhelming reason, I think, is
that the American people want it; 80 percent of the people in this
country want this amendment. In Congress, it is supported by
Members from both sides of the aisle in both Chambers; as I said,
a stunning example is Sonny Montgomery sitting next to me today.

And I might just digress for a minute after mentioning Dan
Wheeler's name to also list the commander of an organization that
I belong to — I am a life member of it — and that is the American
Legion. I should say the national commander with us today is Com-
mander Bill Detweiler sitting directly behind and between Sonny
Montgomery and myself.

In addition to him, we also have someone who probably this
means more than perhaps anybody else in this room here today,



8

and that is the past national president of the Gold Star Wives,
Rose Lee, who sits directly behind me, as well.

So, Mr. Chairman, in the history of the Supreme Court, few
members guarded the first amendment so jealously and so zeal-
ously as Justice Hugo Black and Chief Justice Earl Warren. Think
about that for a minute. Both stated forcefully that there is no first
amendment problem with banning flag desecration. There is, in
other words, nothing that prevents individual States from enacting
laws that prohibit the physical desecration of the American flag;
and I can't make this distinction too forcefully, Mr. Chairman. We
seek not an amendment to ban flag desecration, but an amendment
to allow each of the 50 States to make that decision.

The Constitution is designed to curb the Federal Government,
not the States. Where the Constitution is silent, the States may
act. So, yes, you may all see this, if you would like, as part of the
movement to turn power back to the States; and I suppose it is
with one avenue of thought. You know, one vote, I repeat, one vote
in a 5-to-4 decision turned the courts back on the tradition of Jus-
tice Black and Chief Justice Warren, and all of a sudden flag-burn-
ing became expression protected by the first amendment.

But the very analysis of that slim majority did not support that
conclusion. They said that the Government cannot prohibit the ex-
pression of any idea just because society finds that idea offensive
or disagreeable. But the Texas law overturned in that 1989 deci-
sion did not suppress any idea at all.

Look at it this way. What idea does burning the flag really com-
municate? What thought does it express? Obviously none. Under
that Texas statute and others like it, no one was prevented from
speaking about the flag or even fi-om insulting it verbally. It only
said they couldn't bum it.

After all, Mr. Chairman, every one of us understands that no
right is absolute. We cannot yell "fire" in a crowded theater. We all
know that. We cannot holler obscenities on the comer of a residen-
tial neighborhood and not get arrested for disturbing the peace.
And if I don't like someone, I can say so, but I can't go out and
express my dislike by punching him in the nose. When my dislikes
go from thoughts or words to action, well, then I have crossed the
line that the Supreme Court itself has drawn in the sand over and
over and over again.

The finest constitutional minds in the country, including Judge
Robert Bork and legal scholars Stephen Presser and Richard
Parker, liberals and conservatives, tell us that it is not a first
amendment issue.

I would just cite, if I could, Judge Bork in an article, a bedrock
principle of free speech. And just to quote him, he says, "It has
been said that we should not amend the U.S. Constitution to pro-
tect the flag, but the fact is an amendment would restore the rights
of the people without harming freedom of speech." And I think that
says it all.

They will tell you that for any society to survive, these scholars
that are going to come after me today, that there has to be some
consensus of limitation. Every viable society has to be able to say,
this you shall not do; we, as a community, find this highly offen-


1 3 4 5 6 7 8 9 10 11 12

Online LibraryUnited States. Congress. House. Committee on the JFlag desecration amendment to the Constitution : hearing before the Subcommittee on the Constitution of the Committee on the Judiciary, One Hundred Fourth Congress, first session, on H.J. Res. 79 ... May 24, 1995 → online text (page 1 of 12)