Statements by Senate and House Members in Support of an Amendment Authorizing Congress to Enact a Statute Prohibiting Desecration of the Flag


Senator Max Baucus (D-MT)

"I disagree with the Court's decision in United States vs Eichman. I simply do not believe that the First Amendment protects flag burning...It now appears tht only a constitutional amendment will protect the flag....and I support such a constitutional amendment.

Our flag is a unique national symbol, above politics, which represents our common values, our common aspirations, and the sacrifices millions of Americans have made to preserve our way of life. I agree with Justice Steven's dissent in Eichman, that the flag possesses 'uniqueness that justifies a governmental prohibition against flag burning.' Certainly the Montana Legislature's long-standing decision to prohibit flag burning has not inhibited robust political debate in our State. I regret, Mr. President, that these Supreme Court decisions compel a constitutional amendment. But we must protect the flag."

136 Cong. Rec. S7912 (daily ed. June 13, 1990).

Senator Pete Domenici (R-NM)

Senator Domenici was an original cosponsor of the flag protection amendment proposal in both the 101st and 104th Congresses. His position on the amendment is reflected in the following statement:

"I disagree with the Supreme Court's analysis of flag burning. The Supreme Court erred in equating free speech with the desecration of the American flag. The act of desecrating the American flag goes beyond merely expressing a point of view - it is a violent act against the symbol of our Nation. It is not an act of free speech. Every American is free to denounce our Nation and ideals for which the flag stands. Frankly, I think it would be terribly misguided, but if that is what they want to say, they have the right to say it. There is a vast difference, however, between speaking one's mind and desecrating the symbol of our Nation.

I understand the difficulty, and the significance, of seeking to overturn a Supreme Court decision (by amending the constitution). Frankly, I have come to the conclusion that the flag and all it represents deserves the protection of our laws, and that we can protect the flag without undermining the principles of the First Amendment."

136 Cong. Rec. S7693 (daily ed. June 11, 1990)

Senator Dianne Feinstein (D-CA)

"I support a constitutional amendment to restore protection top our national flag. I do so not in deference to political expediency, but because I believe it is the right thing to do. Our national flag has come to hold a unique position in our society as the most important and universally recognized symbol that unites us as a nation. No other symbol crosses the political, cultural and ideological patchwork that makes up this great Nation and binds us as a whole. The evolution of the American flag as the preeminent symbol of our national consciousness is as old and as rich as the evolution of our country itself.

Why then, should it be permissible conduct to urinate on, defecate on, or to burn the flag? That is not my definition of speech. I do not take amending the Constitution lightly. However, when the Supreme Court issued the Johnson decision and then the Eichman decision, those who wanted to protect the flag were forced to find an alternative path.

The right to free speech is not unrestricted. For example, the Government can prohibit speech that threatens to cause imminent tangible harm, including face-to-face "fighting words, incitement to violation of the law, or shouting 'fire' in a crowded theater. Obscenity and false advertising are not protected under the First Amendment, and indecency over the broadcast media can be limited to certain times of the day....Requiring certain individuals to refrain from defacing or burning the flag, I believe, is a small price to pay on behalf of millions of Americans for whom the flag has deep personal significance. Just 5 years ago, when 48 states had laws against flag burning, the First Amendment continued to thrive. I believe that this legislation will protect the integrity of the flag while keeping our First Amendment jurisprudence intact."

141 Cong. Rec. S18339 (daily ed. Dec 11, 1995)

Senator Wendell Ford (D-KY)

"There are many good reasons for protecting the unique symbol of the American flag, from the basic liberties it represents to the promise of a better future it holds out. but, some of the greatest reasons for protecting the flag lie in its ability to bind one generation to the next in their love and respect for this country, so that even as the memories of yesterday's battles begin to fade, the importance of what they secured continues to hold fast in our hearts.

The Supreme Court's action in Eichman made it clear that a constitution amendment is necessary for enactment of any binding protection of the flag. Clearly, no legitimate act of political protest should be suppressed. Nor should we ever discourage debate and discussion about the federal government. The narrowly written amendment gives Congress the 'power to prohibit the physical desecration of the Flag of the United States,' without jeopardizing these rights of free speech."

141 Cong. Rec. S18275 (daily ed. Dec 11, 1995)

Senator Orrin Hatch (R-UT)

"This amendment, granting Congress power to prohibit physical desecration of the flag, does not amend the First Amendment. The flag amendment overturns two Supreme Court decisions which have misconstrued the first amendment. 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 2 o'clock in the morning in a residential neighborhood and claim first amendment protection. Fighting words which provide violence or breaches of the peace are not protected under the first amendment. The view that the first amendment does not disable Congress from prohibiting physical desecration of the flag has been shared by ardent supporters of the first amendment and freedom of expression."

141 Cong. Rec. S18337 (daily ed. Dec 11, 1997).

Senator Ernest F. Hollings (D-SC)

"I continue to support the proposed constitutional amendment as the optimum long-term solution, its protection would be ironclad and unchallengeable. There is no question, Mr. President, that our flag needs and deserves protection.

Never in our Nation's history have Americans tolerated wanton desecration of our most cherished and sacred symbol, the flag. Those who characterize (flag desecration) as speech protected by the First Amendment are dead wrong. The First Amendment is not - as was not intended to be - absolute. We have always allowed for commonsense exceptions. The Justices (in Johnson) have confused destruction with freedom, and in the process they have misconstrued the First Amendment. I support reaffirming freedom of speech, and distinguishing it from desecration and destruction."

135 Cong. Rec. S12610 (daily ed. Oct 4, 1989)

Senator Dirk Kempthorne (R-ID)

Senator Kempthorne, an original consponsor of the flag protection amendment proposal in the 104th Congress, stated in Senate floor debate on the proposal:

"Some have claimed the passage of this resolution will weaken the sanctity of the First Amendment. To these people I would ask, was the First Amendment weak during the first 198 years after it's ratification? Until the Supreme Court ruled flag desecration to be protected free speech in 1989, 48 States and the Federal Government had statutes which penalized an individual for desecrating the flag. I do not believe the time in our Nation's history prior to 1989 may realistically be viewed as a dark period in which Americans were denied their constitutional rights. The truth is, protecting the flag of the United States has long been a proud part of our national history. What we are attempting to preserve that history.

I do not believe any of us here today wants to limit or restrict the right of Americans to speak out in an appropriate manner. In fact, numerous Members of this body on both sides of the aisle have taken advantage of this right to speak out against Government policies, and undoubtedly, will continue to do so whether or not they are members of the Senate. I simply believe the physical mutilation of the flag falls outside the range of speech which should be protected. I also believe the citizens of the United States should have the opportunity to decide for themselves, whether they also feel the flag deserves special protection."

141 Cong. Rec. S18385 (daily ed. Dec 12, 1995)

Senator Harry Reid (D-NV)

"As our national symbol, the U.S. flag deserves to be honored and protected. Freedom of speech is one of the most cherished and defended rights of the American people; however, desecration of our flag goes beyond the premise of free speech."

141 Cong. Rec. S9820 (daily ed. July 12, 1995)

Senator Reid went on to quote from an article written by Mike O"Callaghan, former two-term Governor of Nevada and executive editor of the Las Vegas Sun, which read in part:

"I'm more than a little insulted by the....argument that such constitutional change will be an infringement on our right of free speech. That argument, made by many who oppose an amendment to protect the flag, has little or nothing to do with damaging the First Amendment. A person can write and talk all day long and into the night about the shortcomings of our city, state and nation. That same person, if angry enough, can renounce his or her citizenship without being worried about being jailed. Millions of Americans believe public desecration of our nation's symbol is taking it one step beyond acceptable behavior and is an act beyond the bounds of free speech."

Other Senators who support a constitutional amendment to protect the flag, include:

-Senator Tim Johnson (D-SD)

"America is the dream of unity and everlasting respect. When then, are there demonstrations burning the very flag in which we should gratefully salute, burning the very idea of our forefathers worked, fought and died for. The authors of the Constitution did not attempt to establish a government and a symbol for all to honor so that one day their descendants could flagrantly burn and degrade their accomplishments."

142 Cong. Rec. E592 (daily ed. Apr 19, 1996)

-Senators John Breaux (D-LA) and Richard Bryan (D-NV)

-Senator Bob Graham (D-FL), who initially opposed the constutional amendment proposal, but in 1990, switched his vote citing the "need to protect the flag as the nation's foremost unifying symbol."

-Senator John Rockefeller (D-WV), who cosponsored and voted for a flag protection constitutional amendment in 1990 and 1995, stated: "I'm very comfortable with my vote on that; I reject the purism that caused others to support the Supreme Court ruling that flag burning statutes violate the First Amendment. To me, flag burning is not a passive act, it's a.... destructive act."

David Broder, Rockefeller Must hone Presidential Message, St. Louis Post- Dispatch, July 14, 1991 at C3.


Rep. Bob Clement (D-TN)

Rep. Clement cosponsored and voted for the flag amendment in the 104th Congress and is an original cosponsor to H.J. Res 54, currently pending in the House. In House floor debate on the amendment during the 104th Congress, Rep. Clement stated:

"I believe in free speech. But I also believe that the flag embodies ideals that Americans have sacrificed their lives to protect for more than 200 years. Neither I, nor any of my colleagues in the House of Representatives would want to stifle anyone's right to freely speak their mind. A constitutional amendment would not restrict anyone from saying anything they want about any issue. I just believe that the ideas flag burners want to communicate can be expressed without burning our beautiful flag."

141 Cong. Rec. H6441 (daily ed. June 18, 1995)

Rep. Martin Frost (D-TX)

Like Rep. Barbara Kennelly (R-CT) (discussed below), Congressman Frost also changed his position on the constitutional amendment question. During the 101st Congress, Rep. Frost stated that opposing the amendment proposal "will best protect the freedoms and values that we hold dear."

136 Cong. Rec. H4015 (daily ed. June 21, 1990)

However, Rep. Frost cosponsored and voted for the flag protection amendment proposal during the 104th Congress and is an original cosponsor of the proposed amendment adopted by the house on June 12, 1997. Moreover, on April 30, 1997, Rep. Frost testified in a hearing before the Constitution Subcommittee of the House Judiciary Committee in favor of H.J. Res. 54, a constitutional amendment authorizing Congress to enact a statute to prohibit the physical desecration of the Flag of the United States. His prepared remarks are attached.

Rep. Henry Hyde (R-IL)

During the June 12, 1997 House consideration of the flag protection amendment, Rep. Hyde provided the following remarks:

"There are two questions in this dispute: First, is flag burning conduct "imbued with speech" and hence protected by the First Amendment? To burn an object in order to demonstrate one's contempt for it is not speech, it is the antithesis of speech. It is not a form of argument - it is an act of contempt for the very idea of reasoned argument. Flag burning is no more speech than a child's temper tantrum, and to suggest that the Founders and Framers intended to protect such public displays of childish pique - to suggest this is what the First Amendment free speech clause protects - is demeaning and degrading. Free speech has never been absolute, as our laws against libel, slander and copyright infringement prove....what our highest court has done, by a margin of one vote no less, is draw the line between speech and conduct at a point that maximizes expression, lest anyone's personal fulfillment be stifled. But America cannot long survive the selfishness of autonomous individuals as its highest value. There is another value - that with our rights come responsibilities - a value well expressed and embodied in our national symbol, the flag.

The second question ios why do we need this amendment now? Is there a rash of flag burning going on? No, happily, there is not, but I believe we live in a time of serious disunity - our society is pulled apart by the powerful centrifugal force of racism, ethnicity, language, culture, gender and religion. Diversity can be a source of strength, but disunity is a source of peril. We Americans share a moral unity, expressed profoundly in our country's birth certificate, the Declaration of Independence......and what is the symbol of our moral unity amidst racial, ethnic, and religions diversity? The flag....Old Glory...The Stars and Stripes. In seeking to provide constitutional protection for the flag, we are seeking to protect the moral unity that makes American democracy possible....the flag is the symbol - the embodiment - of the unity of the American people, a unity built on those "self-evident" truths on which the American experiment rests - the truths which our nation's claim to be a just society."

143 Cong. Rec. H3745 (daily ed. June 12, 1997)

Rep. Joseph Kennedy (D-MA)

"[R]ather than a process for limiting speech, this amendment is a democratic vehicle for the highest expression of free speech. The amendment is a way for people, through their elected representatives, to establish a baseline, a national standard for robust and wide open freedom of speech. Simply put, amending the Constitution is a way of protecting the first amendment as it now stands."

143 Cong. Rec. H3739 (daily ed. June 12, 1997)

Rep. Barbara Kennelly (D-CT)

Rep. Kennelly indicated her opposition to the constitutional amendment proposal during House floor debate on the issue in the 101st Congress.

During the 104th Congress, however, Rep. Kennelly changed her vote. Her reaons for doing so are as follows:

"[S]ome years ago, I voted against [the flag protection] amendment because I felt - and still do - that the Constitution should be amended only as a last recourse. I had hoped a statute prohibiting desecration of the flag would reach the same end. The statute passed but was overturned by the Supreme Court.

It is not that my views about the flag have changed, I have always felt that desecration should be against the law. And it is not that my views about the Constitution have altered; changes to this document must be kept to a strict minimum. But given the fact that a law will not stand, I believe a constitutional amendment is warranted...[and] do not believe we endanger our freedoms by protecting the flag.

To Americans, our flag is unique. This amendment recognizes this uniqueness in our Constitution in a special way. I have only once before supported a Constitutional amendment, believing that the Constitution was a near-perfect document. I now believe that the Constitution will be brought even closer to perfection by adding to it a special place for our flag."

141 Cong. Rec. H6418 (daily ed. June 28, 1995)

Rep. Jim Sensenbrenner (R-WI)

During House consideration of the flag protection amendment in the 101st Congress, Rep. Sensenbrenner provided the following remarks:

"Speaker after speaker on the other side has seemed to imply that this joint resolution denigrates the Constitution and the Bill of Rights of the United States. It does not do that, because the framers of the Constitution put in an article on how the Constitution could be amended. That is what is being utilized here, the amendment process set forth in Article V of the Constitution. What this amendment does is overturn two Supreme Court decisions with which many Americans disagree, and it is the only way that those Supreme Court decisions can be overturned, because the Court has been quite clear that they cannot be overturned through the passage of a statute.

Overturning Supreme Court decisions by constitutional amendment has been done three times in the history of our country: the 11th Amendment, which overturned Chisholm vs Georgia; the 13th Amendment which overturned the Dred Scott decision; and the 16th Amendment which overturned the decision that said that the income tax was unconstitutional....I submit that this is a serious enough issue to do it the fourth time."

136 Cong. Rec. H4078 (daily ed. June 21, 1990)

Rep. Charlie Stenholm (D-TX)

Rep. Stenholm is a cosponsor of H.J. Res 54, pending in the House of Representatives, and delivered the following statement in support of the proposal during the 104th Congress:

"In reviewing Chief Justice Rehnquist's dissenting opinion [in the Eichman case], I found myself in agreement with his perspective when he wrote:

The flag is not simply another 'idea' or 'point of view' competing for recognition in the marketplace of ideas. 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 the 48 out of 50 states, which make criminal public burning of the flag.

I always have believed that physical desecration of the flag should be prohibited. At the same time, I sincerely have hoped that we could protect our flag without amending our beloved Constitution. After much deliberation, a review of recent court history, and a deep concern about a growing, negative and disrespectful national attitude, I have come to the conclusion that the way to honor the flag is by amending the Constitution."

141 Cong. Rec. H6425 (daily ed. June 28, 1995

* * * *

On June 12, 1997, the House, by a vote of 310 to 114, adopted H.J. Res. 54, 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. In addition, Representatives Corrine Brown (D-FL) and Nick Smith (R-MI) who missed the vote, stated that they would have voted for the amendment had they been present, and Representative Clay Shaw (R-FL) stated that he mistakenly voted against H.J. Res. 54

143 Cong. Rec. H3756 (daily ed. June 12, 1997)

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