Constitutional Amendment Authorizing Congress to Prohibit Physical Desecration of the Flag of the United States
CONSTITUTIONAL AMENDMENT AUTHORIZING CONGRESS TO PROHIBIT PHYSICAL DESECRATION OF THE FLAG OF THE UNITED STATES -- (House of Representatives - June 22, 2005)
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Mr. SCOTT of Virginia. Mr. Speaker, I thank the gentleman for yielding me this time. I think it is important to put this debate in context because it occurs to me that every time we consider this resolution, we end up cutting veterans health care. So let us just see what we are doing this year on the health care budget for veterans. The Republican budget cuts veterans health care programs by more than $13.5 billion over the next 5 years compared to what would be needed just to keep up with inflation. The President even proposed a $15 billion cut and copays for a significant number of our veterans.
When the sponsor challenges us to ask wounded veterans in VA hospitals what they want us to do, I suspect that they would not be asking us to cut veterans health care at the same time we debate this resolution.
Furthermore, Mr. Speaker, just before we went on Memorial Day break and gave speeches just a few weeks ago, colleagues voted down a measure that would have offered TRICARE health coverage to National Guard members and Reservists. Reserve components make up 50 percent of our forces in Iraq and studies show that 20 percent have no health insurance. For younger Reservists it is as high as 40 percent have no health insurance coverage. How can we ask these young men and women to serve on the front line and not even provide for them the basic necessity of health care?
And so, Mr. Speaker, 25 million American veterans deserve respect and dignity and they deserve more than the debate on this constitutional amendment. We should be providing health care for our veterans, not this resolution.
Mr. Speaker, everyone here respects the flag. The question before us is not whether we respect the flag, but whether or not we ought to use the criminal code to prevent those who disagree with us to express their views. The Supreme Court has frequently considered restrictions on speech that are permissible by our government. For example, under the first amendment with respect to speech, speech may be regulated by time, place and manner, but not regulated by content.
There are, of course, exceptions. Speech may be restricted if it creates an imminent threat of violence or threatens safety or expresses a patently offensive message that has no redeeming social value, but we cannot restrict by content otherwise. The distinction: you can restrict by time, place and manner but not content.
So you can restrict the particulars of a march or a demonstration by what time it is held or where it is held or how loud the demonstration can be, but you cannot restrict what people are marching or demonstrating about. You cannot ban a particular march or demonstration just because you disagree with the message unless you decide to ban all marches. You cannot allow one political party to have a demonstration, but not the other. You cannot have a pro-war demonstration and then try to restrict an anti-war demonstration.
Speech protected by the Constitution we have to recognize will always be unpopular. Popular speech does not need protection. It is only that speech that provokes the local sheriff into wanting to arrest you for what you said that needs protection. Of course, speech protected by the first amendment will always be unpopular.
Some have referred to the underlying resolution as the anti-flag burning amendment, and they speak about the necessity of keeping people from burning flags. In reality, the only place you ever see a flag burned is in compliance with the Federal code at flag ceremonies disposing of a worn-out flag. Ask any Boy Scout or American Legion member how to dispose of a worn-out flag and they will tell you that the procedure is to burn the flag at a respectful ceremony.
In fact, the only time I have seen a flag burned is at one of these ceremonies. So the proposed constitutional amendment is all about expression and all about prohibiting expression in violation of the first amendment principles. In fact, the amendment does not even use the term "burning." It uses the term "flag desecration." And by using the word "desecration," we are giving government officials the power to decide that one can burn the flag if they are saying something nice and respectful, but they are a criminal if they burn this flag while they are saying something offensive or insulting. This is an absurd distinction and is a direct contravention of the whole purpose of the first amendment, especially when the real impact of the legislation will be to have political protesters arrested because they disagree and express that disagreement of government policy.
Mr. Speaker, in addition to the violation of the spirit of the Bill of Rights, this amendment has practical problems. For example, what is a flag? Can one desecrate a picture of a flag? Can one desecrate a flag with the wrong number of stripes?
Mr. Speaker, during the Vietnam War, laws were passed prohibiting draft cards from being burned, and protesters with great flourish would say that they were burning their draft cards and offend everybody, but then nobody would know whether it was a draft card or just a piece of paper. And what happens if one desecrates their own flag in private? Are they subject to criminal prosecution if somebody finds out?
Mr. Speaker, I feel compelled to comment on suggestions that stealing and destroying somebody's personal property is protected if that property happens to be a flag. That is wrong. It is still theft and personal property. The other examples, there are other criminal codes that people can be prosecuted on. What this legislation is aimed at is criminalizing political speech, and we should not criminalize political speech just because we disagree with it, just because we have the votes.
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Mr. SCOTT of Virginia. Mr. Speaker, let me just begin by saying our flag does not need protection from an occasional protester, we call them miscreants I think, who cannot see how ridiculous it is to try to protest by destroying the symbol of his right to protest. If he cannot see how ridiculous that is, obviously we do not need much protection from him.
Contrary to what has been suggested on the floor, the underlying amendment does not regulate conduct. Without the Watt amendment, it clearly regulates message.
Now, as the gentleman from North Carolina, sponsor of the amendment, points out, the underlying amendment does not repeal the first amendment. Even if we adopt this constitutional amendment, the first amendment will still be there, and so the amendment is, in fact, redundant, but it makes it clear and reminds people that it is still there.
What he seeks to clarify is whether or not it is indeed the message that is being criminalized rather than the conduct, whether or not those who support government policy, for example, and burn a flag without offending anybody, apparently they will be okay. But if you are a war protester who burns a flag, you can be arrested, and if you are a veteran, so disgusted with veterans health care, and burn the flag in protest, are we making him a criminal? Or if you are a member of a fringe political organization who burns his own flag on his own property, in private, can they be arrested if somebody finds out?
The question is whether or not we are criminalizing the message or the conduct. So the Watt amendment makes it clear that we are still protecting freedom of speech. The message, that will be clear, that we if we do not support the Watt amendment we just ought to acknowledge it is indeed the message, not conduct, which is the target of the underlying amendment.
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