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. NADLER. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, today we are enduring the Republican rite of spring: A proposed amendment to the Bill of Rights to restrict what it calls flag desecration. Why spring? Because Members need to send out a press release extolling the need to protect the flag, as if the flag somehow needed Congress to protect it. It is easier than answering questions about the failure of this House to provide proper health care to our veterans, proper armor to save the lives of our troops, or proper support for their survivors.

Mr. Speaker, I have heard a number of speakers invoke the rescuers and heroes and first responders at Ground Zero on September 11 and the few weeks after.

Mr. Speaker, that is my district. I was there in the days after 9/11. I have seen the heroism and the self-sacrifice of the first responders. I have watched their betrayal by the Government of the United States, by the Federal and State and local governments which are not providing for their health care, which are not providing workers' comp when they cannot do their jobs because of World Trade Center health syndrome, which denies that they were present in the workers' comp proceedings after they get medals for rescuing people. That is the betrayal we should talk about. What they care about is being made whole, is having their health care taken care of and their lives restored, not this.

The flag is a symbol of our great Nation and the fundamental freedoms that have made this Nation great. If the flag needs protection at all, it needs protection from Members of Congress who value the symbol more than they value the freedoms the flag represents. Quite frankly, the crass political use of the flag to question the patriotism of those who value fundamental freedoms is a greater insult to those who died in the service of our Nation than is the burning of the flag.

I am certain we will hear speeches invoking the sacrifice of our troops in the field as a pretext for carving up the first amendment. We already have. That is a shameful exploitation of the patriotism and courage of these fine and courageous young people. It is the civic equivalent of violating the commandment against taking the Lord's name in vain.

If Members want to honor the sacrifice of our troops, protect the rights they fight for. Protect our civil liberties, and protect the rights of veterans. Playing games with the Constitution does not honor them.

People have rights in this country that supersede public opinion, even strongly held public opinion. That is why we have a Bill of Rights to protect minorities from the majority. If we do not preserve those rights, then the flag will have been desecrated far beyond the capability of any idiot with a cigarette lighter.

Let there be no doubt that this amendment is aimed directly at ideas. Current Federal laws say that the preferred way to dispose of a tattered flag is to burn it, but there are those who would criminalize the same act of burning the flag if it was done to express political dissent.

Mr. Speaker, the fact of the matter is I have seen motion pictures, I have seen movies reflecting the War of 1812 in which the British burned our capital. I saw in those movies, actors playing British soldiers burning the flag. Did we send in the police to arrest the actors for this flag desecration? Of course not. We do not mind that because we know they do not mean it. That is to say, they are not burning the flag as an expression of disdain for our values, as an expression of their opinions on political issues of their disagreement with the administration or with the government in power. No, they are doing it as part of a play, play-acting; so the physical act does not mean anything, so we do not care.

But under this amendment, if someone were to do the same thing, burn the flag at the same time as he says, I disagree with the policy of whatever it is, that would be a criminal act. So what is really being made criminal? Not the act of burning the flag. What is really being made criminal is the act of burning the flag combined with the expression of a dissident, unpopular political opinion.

The act of burning the flag to dispose of it is a praiseworthy act. The act of burning the flag as part of a movie or part of a play, that is okay. I do not think anybody contemplates arresting the actors. Really, what we are getting at here is the core expression of first amendment protected ideas. We will arrest people who as part of expressing their opinion about something burn the flag. But if they burn the flag without expressing an opinion contrary to the government as part of a play or for some other reason, that will be okay. That should tell us what this amendment is about. That is why the Supreme Court said that the law was unconstitutional, because it does violate the first amendment.

The distinguished ranking member is quite correct. If we carve out this exception for the first amendment, if we make this the first time that we will limit rights protected by the Bill of Rights, it will be easier to do it in the future. Then the next amendment will come along and say that, well, if you say things that we think, that somebody at the moment thinks endangers American troops, you say the war, whatever war it is at the moment, is wrong, our President shouldn't have done it, whoever the President may be at that moment, our troops shouldn't be in wherever they are, that is endangering our troops, we will make that illegal. That will be easier to do. That is why this amendment is so dangerous.

How many Members of Congress, used car dealers, fast-food restaurants, and other seemingly legitimate individuals and enterprises have engaged in the act of using the flag or parts of the flag for advertising, an act which our unconstitutional law defines as flag desecration? This amendment would presumably make that law constitutional once more. If ratified, I think there are more than a few people who will have to redesign their campaign materials to stay out of jail, except, of course, that probably no one will arrest them for that violation of the law because they will not be seen to be using it for dissident political speech, unless they are running on an unpopular platform, then maybe they will be. Again, that is the danger of this amendment.

As if this assault on the Bill of Rights is not enough, the Judiciary Committee once again did not even bother holding a hearing on this very significant constitutional amendment. The Subcommittee on the Constitution did not bother to consider it, to debate it, or to vote on it. Now, I know that they will say, We've held hearings in previous Congresses. Yeah, and we have rejected this amendment in previous Congresses. And this is a new Congress. There are new Members. There is no excuse for doing something or attempting to do something so significant to start tearing up the Bill of Rights without even a hearing to hear opinions on it just because prior Congresses may have held hearings.

This cavalier attitude toward the Bill of Rights is offensive and revealing. Why discuss it? Why look into it? It's only the Constitution. We're only talking about the rights of a few malcontents for whom even opponents of this amendment have contempt.

And we do have contempt for people who would burn the flag. None of us think that those people are doing something praiseworthy. We all think it is absurd and wrong, but we think their right to be wrong has to be protected. That is what America is all about. By the way, where is this epidemic of flag burning? I do not recall seeing anybody burning the flag in I do not know how many years. What is the danger we are legislating against? People have died for this great Nation and the rights which this flag so proudly represent. We are a shining beacon to the world because we allow dissent, even when that dissent is offensive or despicable. Let us not cease to be a shining beacon on the hill. Let us not diminish our liberty. Let us not destroy the way of life for which our troops have made the ultimate sacrifice.

Mr. Speaker, I reserve the balance of my time.

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Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.

So, in other words, if one desecrates a flag to make a nice point, that is a good context. If they desecrate it to make an unpopular point, that should be jailable. I thank the gentleman from Indiana (Mr. Sodrel) for making my point.

Mr. Speaker, I yield 5 minutes to the distinguished gentlewoman from California (Ms. Zoe Lofgren), member of the Committee on the Judiciary.

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Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, I want to begin by reading excerpts of an article written in the "Retired Officer," a veterans magazine, by a Major James Warner, who was a POW in Vietnam for 6 years. He writes as follows: "In March of 1973, when we were released from a prisoner-of-war camp in North Vietnam, we were flown to Clark Air 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 had received a Silver Star medal, and two Purple Hearts, they were nothing compared to the gratitude that 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 ½ years, it hurts me to see other Americans willfully desecrate it. It hurts to see the flag burned, but I part company with those who want to punish the flag burners. Let me explain myself."

He then goes on to talk about his experience in the POW camp. He says, "I remember one interrogation where I was shown a photograph of some Americans protesting the war by burning a flag. See, the officer said, people in your country protest against your cause. That proves you are wrong.

"No, I said, that proves 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 do not need," he continues, "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 a subversive idea of freedom? Do not be afraid of freedom, it is the best weapon we have."

This is, as I said, from Major James Warner, who was a POW in Vietnam for 6 years who understands freedom, and therefore opposes this amendment.

Mr. Speaker, I yield 2 minutes to the gentleman from Connecticut (Mr. Shays).

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Mr. NADLER. Mr. Speaker, I yield myself such time as I may consume.

Mr. Speaker, the fact of the matter is, there have been thousands of amendments introduced, thousands of proposed amendments introduced to the Constitution of the United States. Only 17 have been adopted since 1791 after the Bill of Rights.

Amendments were proposed after most unpopular Supreme Court decisions. After the one-man, one-vote decision in 1960, whatever it was, where they said you had to reapportion based on population, there were amendments introduced. Amendments have been introduced after every unpopular decision of the Supreme Court.

It is deliberately difficult to amend the Constitution because the framers of the Constitution were afraid of transient majorities. They were afraid of emotion, and they deliberately wanted it to be difficult to amend the Constitution so it would not be amended very often, and only under dire necessity. What is the dire necessity here?

What is the dire necessity, that in the last 20 years, I heard someone say 119 people have burned the flag. Well, a lot more than 119 people have burned the flag. Most, however, have burned the flag to dispose of it, which is the approved method of disposing of it.

I have heard the gentleman from Florida (Mr. Stearns) say, and others say, this has nothing to do with free speech. People can say anything they want. But it is burning the flag. But the fact is, it is very much free speech.

That is why the Supreme Court decided as it did, because burning the flag for a proper purpose, that is, to say an approved purpose, to destroy it, to destroy a tattered flag, is approved. But burning the flag to express an unpopular viewpoint, we do not agree with the administration in power about whatever, that would be made a crime.

So what is the real essence of the crime? Burning the flag in connection with unpopular speech. If you burn it in connection with popular speech, we respect the flag and we dispose of this, or this connection with popular speech because you are an actor playing the British burning Washington in 1814, that is okay. So this gets at the heart of free speech.

Now, it may not be all that important right now, and it is not. We do not see any epidemic of people burning flags. We have no great emotional issue at the moment that have people marching in the streets; but as the gentleman from Arkansas (Mr. Snyder) pointed out, at times in our history we have, and at times in our history people have been persecuted and free speech has been violated. We should not repeat that.

We should not make it easier at times of emotion in the future on issues we cannot now foresee for unpopular minorities to be bullied. We should not make it easier for unpopular minorities in the future to have their free speech trampled or to give weapons to a future government with which to trample free speech.

We all love the flag. No one is divided on that in this Chamber. But those of us who understand, I think, the meaning of liberty and the meaning of what this country stands for, perhaps in a way, I would want to say better than others, but that would be a little arrogant, but to understand that as we do, understand that the real meaning of this country is to permit free speech, to magnify free speech, to magnify free speech of those we do not agree with, of those we find obnoxious. And what this amendment does is to sacrifice that.

The cloth of the flag is not what we revere. What we revere is the idea of the flag and the Republic for which it stands. That idea is threatened by this amendment, not protected by it; and that is why it should not be approved.

Mr. Speaker, I yield back the balance of my time.

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