Flag Desecration Amendment--Continued

FLAG DESECRATION AMENDMENT--Continued -- (Senate - June 27, 2006)

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, I have listened to this debate today and yesterday. I have heard the heartfelt sentiments of my colleagues on both sides of the aisle about this flag. I think everyone following this debate has the same strong feelings about this flag and what it symbolizes.

Today, Senator DAN INOUYE, my colleague from the State of Hawaii, spoke. There probably is no one better qualified to come to the Senate floor and speak to this issue. Senator DAN INOUYE, a veteran of World War II, lost his arm in combat and was decorated with the Congressional Medal of Honor for the bravery and valor he showed in that conflict. He went on to serve his Nation again in the U.S. Congress and came to the floor today to speak from the heart about what that flag means to him. One would think that a man like Senator Inouye, more than any other who serves in the Senate, would understand the importance of that flag to our men and women in uniform and to all of us who, from the moment we were old enough, learned the Pledge of Allegiance and stood up in front of our classrooms and said that flag means something special.

Today before us is an opportunity to do something for that flag, and I believe we should seize that opportunity. But I think what has been proposed by the other side, the idea of amending our Constitution, is not necessary.

Stop and reflect for a moment. Since 1791, when James Madison, Thomas Jefferson, and the Founding Fathers crafted the words of our Bill of Rights, they have stood as a sacred document in this country. They have guided us through good times and bad. They have given us our moral compass as a nation. They have inspired others to follow that wording so carefully crafted in building their own constitutions and their own nations. It is, indeed, a sacred document.

Some have come to the Senate floor in the last several days and suggested it is time to change the Bill of Rights. It is time for the first time in the history of the United States of America to change the words crafted by our Founding Fathers.

I have said it before and I will repeat it now, when it comes to changing this Constitution, I approach that task with great humility. I like to think I have some skills, perhaps at writing or speaking, but if you are asking me to write words to put in that Constitution, words that would change what Madison, Jefferson, and the Founding Fathers intended to be our basic rights as Americans, I come to that task with great humility.

But some of my colleagues do not. In fact, over the last 15 years we have had 1,000 amendments proposed to the Constitution. There was a time in the Senate Judiciary Committee not long ago when the chairman scheduled two constitutional amendments to be considered on the same day. I took exception to that. I objected to one of them and I argued then, and I still believe, that for all that is holy in America, we should not amend the Constitution more than once a day.

Today we are facing the second constitutional amendment this month proposed by the Republican side of the aisle. I think it is unfortunate. I wish my colleagues approached this with the same sense of humility which I think most Americans would if facing this challenge. The obvious question is this: If we love this flag, if we respect this flag, if it is a symbol for our Nation, how should we show that respect? We do it in so many ways, from the Pledge of Allegiance to our national anthem, saluting it as it passes in parade or putting your hand over your heart. We do it in ways large and small.

But what about those who desecrate that flag? What about those who engage in hateful conduct toward that flag to protest some action by the United States or for whatever reason? What should we do with those people? According to those supporting a constitutional amendment, we should show our hatred for their conduct by amending the Bill of Rights for the first time in the history of the United States of America. I disagree. I disagree. I believe there is a way to protect that flag without defiling our Constitution. There is a way to show our love of that symbol of our great Nation, not at the expense of that sacred document which has guided us from the beginning. What I am proposing at the end of my statement today is an amendment. It is an amendment that is being offered on a bipartisan basis. It is an amendment that will make it unnecessary to amend the Constitution of the United States. It is an amendment which establishes that it will be a crime to desecrate that flag. We spell out the circumstances that would make it a crime.

The Supreme Court has not said that you have to amend the Constitution to protect that flag--just the opposite.

In the United States v. Eichman case in 1990, the Supreme Court expressly recognized that while citizens have a free speech right to express their political dissent by burning the flag, the Government may punish flag-burning under certain circumstances.

In a unanimous decision in 1992--in R.A.V. v. the City of St. Paul--the Court explained that although a law prohibiting individuals from dishonoring the flag is not content neutral, the Government may punish flag-burning in a content neutral manner.

Stripping away the constitutional language, what the Court has said is this Congress has within its power to write a criminal statute that would punish someone who desecrates that flag. This amendment that I offer will do that expressly. It would prohibit a person from destroying a flag with the intent of inciting imminent violence. It would prohibit people from threatening someone by burning a flag. It would prohibit damaging a flag owned by the United States. And it would prohibit damaging a stolen flag on Federal land.

Each of those elements in this amendment has been carefully thought out and tested against constitutional standards that have been handed down by the Court.

You may recall, if you follow the Supreme Court decisions, that not long ago there was a historic decision in Virginia v. Black. The year was 2003. The Court in that decision held that the Government may prohibit people from burning crosses with the intent to intimidate.

You know what the symbol of burning a cross is. It is a symbol of hatred and bigotry and prejudice. It is especially a hateful symbol to African Americans who recall our bitter past of slavery, before the dawn of the civil rights movement. And the Supreme Court made it clear. It said, the Government may prohibit intimidation by the use of burning crosses.

We use the same logic and the same argument of the Court and apply it to the flag.

For those who have come to the floor--and many have--and said how much they respect the flag, we offer them a reasonable alternative: an alternative that protects the flag without infringing our Bill of Rights.

I think that is the way we should move. We have learned long ago that when it comes to amending the Constitution, it shouldn't be the first thing we do. It should be the last resort. That sacred document deserves to be honored and only changed when absolutely necessary for America.

There is a criminal statute that I am going to propose as an alternative way to protect that flag, to show respect for that flag, and to still show respect for our Bill of Rights.

Let me tell you about another issue which we address in this amendment. You have read about it. If you read it, as I have recently, it makes you sick. What I am referring to is a group nominally calling themselves Christians that is now picketing and protesting at the funerals of our fallen soldiers. There is a man by the name of Phelps. He calls himself a minister. But his gospel seems to begin and end with hatred--hatred for gays and lesbians, and obviously hatred and insensitivity for the poor families of our fallen veterans.

About 15 years ago, this man Phelps and his so-called church followers started showing up at the funerals of men and women who died of HIV/AIDS. They have reportedly picketed over 22,000 funerals and other events across America. When their vile acts of incivility stopped generating the publicity they sought, Mr. Phelps found a new target.

I am reluctant to show these photos because I don't want to encourage this man. But I have to tell you that it puts in context what we are talking about today. Imagine if you had someone who calls themselves God-fearing and goes to the funeral of fallen soldiers with signs like these, ``Thank God for 9/11'' and ``You are going to hell.''

Here is another one of those followers holding a sign at a veteran's funeral, ``God hates you.'' Here he is. ``AIDS is God's curse.''

I received a letter recently from the wife of one of our fallen heroes in Iraq. Mr. Phelps and his group showed up at her husband's funeral.

Can you imagine the heartbreak that family must have felt, losing a father, a husband, a brother, coming for that sad moment of parting and then to have these protesters standing around saying that God hates you.

In the past year, these hate-mongers have protested at more than 100 military funerals in America. They claim that the deaths of America's Armed Forces are God's punishment for America's tolerance for those with different sexual orientation. This is such an affront to the families, to everyone in uniform, and to our Nation.

I think there will be a special place in the next life for these people, but there is no place for their brand of hatred at veterans' funerals in this life.

Last month, we passed a bill which the President signed into law that made it clear that Mr. Phelps and his faithful followers could not engage in this sort of demonstration at our 121 national cemeteries.

The amendment which I will be offering includes a section which not only protects our flag by making it a crime to defile or desecrate under the circumstances I mentioned, it goes further. It expands the bill that we passed earlier. It applies the same standards as would apply to national cemeteries to the funerals of all veterans, whether they are buried in a national cemetery or in their own church cemetery or somewhere else.

My amendment will prohibit protests at cemeteries, funeral homes, houses of worship and other locations where deceased veterans are honored and buried.

We can honor our veterans and protect our loved ones from these hateful, barbaric intrusions on the grief of their families. We can do this without weakening or assaulting our Constitution. We can do this without diminishing the basic freedoms we revere in our Nation--freedoms that those veterans fought for.

I ask my colleagues to stop, pause, and think for a moment. If we can achieve this, if we can truly protect this flag and if we can protect the veterans and their families from these hateful demonstrations without amendment to our Constitution, let's do that. Let's join together on a bipartisan basis.

We often disagree in this Chamber. Debates go on and on. Can't we come together in agreement on this that we love this flag and can protect it without amending our Constitution, that we respect our veterans, soldiers and their families, and that now we include this provision as well to protect them?

The amendment I offer is very narrow. It doesn't ban all protest activities. It permits protests outside military funerals as long as protesters don't engage in loud activities. But it draws strict guidelines so that you can't disrupt that funeral home by putting demonstrators and pickets within certain distances consistent with our constitutional rights.

I hope that those who will consider this amendment will go back to the point I made earlier. We can stand for this flag and we can stand for our veterans. But first we must stand for our Constitution. We should address this Constitution with humility and with the understanding that the words that have inspired our Nation and people around the world for more than 200 years are words worth protecting. And that before we come to this floor for whatever motive to change those words, if we can find an alternative to create Federal crimes for the activities that we find so objectionable, so abhorrent, it is a much more reasonable path to follow.

I yield the floor.

BREAK IN TRANSCRIPT

AMENDMENT NO. 4543

Mr. DURBIN. I have an amendment at the desk. I call up amendment 4543.

The PRESIDING OFFICER. The clerk will report.

The assistant legislative clerk read as follows:

The Senator from Illinois [Mr. DURBIN], for himself, Mrs. Clinton, Mr. Bennett, and Mr. Bingaman, proposes an amendment numbered 4543.

Mr. DURBIN. I ask unanimous consent that the reading of the amendment be dispensed with.

The PRESIDING OFFICER. Without objection, it is so ordered.

The amendment is as follows:
(Purpose: To provide a complete substitute)

On page 2, line 2, strike ``(two'' and all that follows and insert the following:

SECTION 1. FLAG PROTECTION.

(a) Short Title.--This section may be cited as the ``Flag Protection Act of 2006''.

(b) Findings and Purpose.--

(1) FINDINGS.--Congress finds that--

(A) the flag of the United States is a unique symbol of national unity and represents the values of liberty, justice, and equality that make this Nation an example of freedom unmatched throughout the world;

(B) the Bill of Rights is a guarantee of those freedoms and should not be amended in a manner that could be interpreted to restrict freedom, a course that is regularly resorted to by authoritarian governments which fear freedom and not by free and democratic nations;

(C) abuse of the flag of the United States causes more than pain and distress to the overwhelming majority of the American people and may amount to fighting words or a direct threat to the physical and emotional well-being of individuals at whom the threat is targeted; and

(D) destruction of the flag of the United States can be intended to incite a violent response rather than make a political statement and such conduct is outside the protections afforded by the first amendment to the Constitution.

(2) PURPOSE.--The purpose of this section is to provide the maximum protection against the use of the flag of the United States to promote violence while respecting the liberties that it symbolizes.

(c) Protection of the Flag of the United States Against Use for Promoting Violence.--

(1) IN GENERAL.--Section 700 of title 18, United States Code, is amended to read as follows: ``§700. Incitement; damage or destruction of property involving the flag of the United States

``(a) Definition of Flag of the United States.--In this section, the term `flag of the United States' means any flag of the United States, or any part thereof, made of any substance, in any size, in a form that is commonly displayed as a flag and that would be taken to be a flag by the reasonable observer.

``(b) Actions Promoting Violence.--Any person who destroys or damages a flag of the United States with the primary purpose and intent to incite or produce imminent violence or a breach of the peace, and under circumstances in which the person knows that it is reasonably likely to produce imminent violence or a breach of the peace, shall be fined not more than $100,000, imprisoned not more than 1 year, or both.

``(c) Flag Burning.--Any person who shall intentionally threaten or intimidate any person or group of persons by burning, or causing to be burned, a flag of the United States shall be fined not more than $100,000, imprisoned for not more than 1 year, or both.

``(d) Damaging a Flag Belonging to the United States.--Any person who steals or knowingly converts to his or her use, or to the use of another, a flag of the United States belonging to the United States, and who intentionally destroys or damages that flag, shall be fined not more than $250,000, imprisoned not more than 2 years, or both.

``(e) Damaging a Flag of Another on Federal Land.--Any person who, within any lands reserved for the use of the United States, or under the exclusive or concurrent jurisdiction of the United States, steals or knowingly converts to his or her use, or to the use of another, a flag of the United States belonging to another person, and who intentionally destroys or damages that flag, shall be fined not more than $250,000, imprisoned not more than 2 years, or both.

``(f) Construction.--Nothing in this section shall be construed to indicate an intent on the part of Congress to deprive any State, territory, or possession of the United States, or the Commonwealth of Puerto Rico of jurisdiction over any offense over which it would have jurisdiction in the absence of this section.''.

(2) TECHNICAL AND CONFORMING AMENDMENT.--The chapter analysis for chapter 33 of title 18, United States Code, is amended by striking the item relating to section 700 and inserting the following:

``700..Incitement; damage or destruction of property involving the flag of the United States.''.

(d) Severability.--If any provision of this section, or the application of such a provision to any person or circumstance, is held to be unconstitutional, the remainder of the section, and the application of this section to any other person or circumstance, shall not be affected by such holding.

SEC. 2. RESPECT FOR THE FUNERALS OF FALLEN HEROES.

(a) Short Title.--This section may be cited as the ``Respect for the Funerals of Fallen Heroes Act of 2006''.

(b) In General.--Section 1387 of title 18, United States Code, is amended to read as follows: ``§1387. Prohibition on demonstrations at funerals of members or former members of the Armed Forces

``(a) In General.--It shall be unlawful for any person to engage in a demonstration during the period beginning 60 minutes before and ending 60 minutes after the funeral of a member or former member of the Armed Forces, any part of which demonstration--

``(1)(A) takes place within the boundaries of the location of such funeral and such location is not a cemetery under the control of the National Cemetery Administration or part of Arlington National Cemetery; or ``(B) takes place on the property of a cemetery under the control of the National Cemetery Administration or on the property of Arlington National Cemetery and the demonstration has not been approved by the cemetery superintendent or the director of the property on which the cemetery is located;

``(2)(A) takes place within 150 feet of the point of the intersection between--

``(i) the boundary of the location of such funeral; and

``(ii) a road, pathway, or other route of ingress to or egress from the location of such funeral; and

``(B) includes, as part of such demonstration, any individual willfully making or assisting in the making of any noise or diversion that disturbs or tends to disturb the peace or good order of the funeral of a member or former member of the Armed Forces; or

``(3) is within 300 feet of the boundary of the location of such funeral and impedes the access to or egress from such location.

``(b) Penalty.--Any person who violates subsection (a) shall be fined under this title, imprisoned for not more than 1 year, or both.

``(c) Definitions.--In this section:

``(1) The term `Armed Forces' has the meaning given the term in section 101 of title 10.

``(2) The term `funeral of a member or former member of the Armed Forces' means any ceremony, procession, or memorial service held in connection with the burial or cremation of a member or former member of the Armed Forces.

``(3) The term `demonstration' includes--

``(A) any picketing or similar conduct;

``(B) any oration, speech, use of sound amplification equipment or device, or similar conduct that is not part of a funeral, memorial service, or ceremony;

``(C) the display of any placard, banner, flag, or similar device, unless such a display is part of a funeral, memorial service, or ceremony; and

``(D) the distribution of any handbill, pamphlet, leaflet, or other written or printed matter other than a program distributed as part of a funeral, memorial service, or ceremony.

``(4) The term `boundary of the location', with respect to a funeral of a member or former member of the Armed Forces, means--

``(A) in the case of a funeral of a member or former member of the Armed Forces that is held at a cemetery, the property line of the cemetery;

``(B) in the case of a funeral of a member or former member of the Armed Forces that is held at a mortuary, the property line of the mortuary;

``(C) in the case of a funeral of a member or former member of the Armed Forces that is held at a house of worship, the property line of the house of worship; and

``(D) in the case of a funeral of a member or former member of the Armed Forces that is held at any other kind of location, the reasonable property line of that location.''.

(c) Clerical Amendment.--The table of sections at the beginning of chapter 67 of such title is amended by striking the item relating to section 1387 and inserting the following new item:

``1387..Prohibition on demonstrations at funerals of members or former members of the Armed Forces.''.

BREAK IN TRANSCRIPT

Mr. DURBIN. Mr. President, you have heard the debate for 2 days now. On one side of the aisle, those supporting this amendment have summarized their feelings in three words: Respect the flag. On the other side of the debate are those who say: Respect the Constitution. They understand that what we are being asked to do is historic. Senator Byrd has reminded us. This would be the first time in the history of the United States of America that we would amend the Bill of Rights.

It is a historic moment. And it takes some audacity and bravado for any sitting Member of the U.S. Senate to believe they have a better idea than James Madison, Thomas Jefferson, and our Founding Fathers had over 200 years ago. It takes a special circumstance for us to even consider changing that beloved first amendment, which has guided us for more than two centuries.

The incidents of flag burning are rare. They are disgusting. But there are ways we can deal with this without defiling this Constitution.

Senator Hatch's amendment says do not desecrate the flag. I believe we should not desecrate the Constitution. There is a way. The pending amendment points to the way: a Federal criminal statute carefully drawn to meet the Supreme Court test that would really deal with preserving and protecting the flag as we know it, as an important symbol of America, without invading our Bill of Rights. And the second part of my amendment which I am offering is one that you know about because you hear about it all the time.

There is this demented group--I will not even give the full name of this church from Topeka, KS, because I do not want to give them any publicity. But this demented group is appearing now at military funerals, the funerals of veterans and soldiers, demonstrating. Here they are issuing a press release that says: ``Thank God for IEDs (Improvised Explosive Devices),'' announcing they are coming to my home State of Illinois to picket the funeral of Army SPC Brian Romines, who was 20 years old, at the Anna Heights Baptist Church in Anna, IL. It is disgusting: this family, racked with grief, trying to get through the most difficult day of their lives, having to walk through the lines of demonstrators this demented person would bring to the funeral.

Well, the Senator from Idaho has said on the floor that I have gone too far with my amendment, I have gone too far in limiting these demonstrations at military funerals. I think he is wrong. These demonstrations are wrong not just in national cemeteries, they are wrong in all cemeteries. They are wrong at all churches. They are wrong at all funerals. And the Senate will have a chance, with my amendment, to vote and say that we will limit this kind of disgusting activity that disrespects the men and women who have fought and died for America.

That is the amendment before us, an amendment to protect our flag and to protect the memory of those who have fought and died for our country. I am proud to offer this bipartisan amendment. It is an amendment which, at the end of the day, we can point to with pride because we have done something important.

But I urge my colleagues, think long and hard about being the first to amend the Bill of Rights in the history of the United States of America. We have given our oath to uphold and defend that Constitution. Today we will be put to the test. Will we uphold and defend that Constitution from a change that is totally unnecessary?

Mr. President, I yield the floor.

http://thomas.loc.gov/