29–010

Calendar No. 646

108TH CONGRESS REPORT " SENATE ! 2d Session 108–334

CONSTITUTIONAL AMENDMENT TO PROHIBIT PHYSICAL 

DESECRATION OF U.S. FLAG 

AUGUST 25, 2004.—Ordered to be printed

Filed, under authority of the order of the Senate of July 22, 2004

Mr. HATCH, from the Committee on the Judiciary, 

submitted the following 

R E P O R T 

together with 

MINORITY AND SUPPLEMENTAL VIEWS 

[To accompany S.J. Res. 4] 

The Committee on the Judiciary, to which was referred the joint 

resolution (S.J. Res. 4) to propose an amendment to the Constitution so that ‘‘Congress shall have power to prohibit the physical 

desecration of the flag of the United States,’’ having considered the 

same, reports favorably thereon, and recommends that the joint 

resolution do pass.

CONTENTS 

I. Summary ........................................................................................................ 2

II. Legislative History ......................................................................................... 3

III. Discussion ....................................................................................................... 7

A. The Flag in Our Culture ................................................................. 7

1. The Flag and the September 11, 2001 Attacks ....................... 7

2. A Powerful Reminder of Sacrifice ............................................ 8

3. The Flag as a Symbol in a Culture of Symbols ....................... 8

IV. The Flag in American Law ........................................................................... 10

A. The Constitution’s Framers ............................................................. 10

1. James Madison .......................................................................... 11

2. Thomas Jefferson ....................................................................... 12

B. Statutory Protection for the Flag .................................................... 12

1. Promotion of respect for the flag .............................................. 13

2. Protection for the flag: striking the balance ............................ 13

2

3. Judicial application of flag protection statutes: respecting 

the balance ............................................................................... 15

C. Judicial Amendment of the Constitution: Restriking the Balance .................................................................................................. 16

D. The Need for a Constitutional Amendment ................................... 19

V. The Proposed Constitutional Amendment ................................................... 21

A. What it says and means .................................................................. 21

B. Several constitutional amendments were spurred by Supreme 

Court decisions ............................................................................... 21

C. What the Proposed Amendment is not ........................................... 22

1. No Reduction in First Amendment rights ............................... 22

2. No Disrespect in Amending the Constitution ......................... 24

3. No Slippery Slope ...................................................................... 24

D. Let the People Decide ...................................................................... 25

E. The Ratification Debate ................................................................... 26

VI. Vote of the Committee ................................................................................... 27

VII. Text of S.J. Res. 4 .......................................................................................... 27

VIII. Cost Estimate ................................................................................................. 27

IX. Regulatory Impact Statement ....................................................................... 28

X. Minority Views ............................................................................................... 29

XI. Supplemental Views ...................................................................................... 67

Appendix A ..................................................................................................... 69

Appendix B ..................................................................................................... 72

I. SUMMARY

The Flag of the United States is both a legally described symbol 

of our Federal Government and its sovereignty, and an important 

wellspring of culture, loyalty, pride, unity and resolve. The dual 

roles in government and culture explain why the flag is a national 

resource and treasure worthy of protection. 

The flag protection amendment is simple and narrow. It reads: 

‘‘Congress shall have the power to prohibit the physical desecration 

of the flag of the United States.’’ It does not make anything illegal. 

If it is enacted, the amendment would simply authorize—but not 

require—Congress to pass a law protecting the American flag. Such 

laws existed for 200 years prior to two Supreme Court decisions in 

1989 and 1990, and those laws had been enforced by five other Supreme Court rulings and numerous state court cases. James Madison and Thomas Jefferson supported legal protections for the flag, 

and so did Supreme Court Justice Hugo Black, who was perhaps 

the leading exponent of First Amendment freedoms ever to sit on 

the Supreme Court. 

All fifty states have passed resolutions calling on Congress to 

pass a flag amendment. The U.S. House of Representatives has 

passed the amendment in each of the last four consecutive sessions 

of Congress, including this one. President Bush supports it as well. 

Only the Senate—indeed only a handful of Senators—stands between S.J. Res. 4 and the state-by-state debate on ratification. 

Some critics say that the flag amendment would offend the right 

to free speech as guaranteed by the First Amendment. But the proposed amendment would not affect anyone’s ability to express any 

opinion whatsoever about the flag, the country, the government’s 

actions or anything else. Americans will continue to have the right 

to express their views in public, in private, in newspapers, on the 

Internet, and through broadcast media. The fact is, acts of disrespect to the flag such as burning it and urinating on it add nothing whatsoever to any debate about our nation’s polices, priorities, 

or direction. Desecrating the flag is not a right that Americans 

value. Throughout the Committee’s consideration of S.J. Res. 4, no 

3

1Transcript of Proceedings, Committee on the Judiciary, ‘‘Letting the People Decide: The Constitutional Amendment Authorizing Congress to Prohibit the Physical Desecration of the Flag 

of the United States,’’ March 10, 2004 (hereinafter, ‘‘Hearing Transcript’’), pp. 14, 21, 27. 

one has stated that flag desecration is acceptable behavior. In fact, 

a number of Senators who voted against the measure made a point 

of labeling flag desecration reprehensible conduct.1

Moreover, the flag amendment is about much more than speech. 

Its passage and ratification would be an important demonstration 

that the American people still run the government, and not the 

other way around. The most basic question about the structure of 

our Federal Government is the balance of power among the three 

branches: executive, legislative, and judicial. For almost 200 years, 

the legislative branch had the power to make laws concerning 

physical desecration of the flag. That changed in 1989 and 1990 

when the Supreme Court ruled that flag burning is ‘‘speech.’’ The 

effect of that decision was a reallocation of power from Congress to 

the Supreme Court—which is now the only branch of government 

that can decide whether a flag desecration law can exist. An overwhelming number of Americans disagree with that result. By giving the discretion back to Congress, the flag amendment would restore the power of the people to determine flag desecration policy 

through their elected representatives. 

If the Senate passes the flag amendment this year, the nationwide debate over state ratification will be one of the greatest public 

discussions in American history. It will encourage a deeper study 

of our nation’s history and values. It will inspire our young people 

to understand and appreciate the heroic selflessness displayed during previous generations. And it will cause many Americans to 

renew their faith in—and commitment to—the ideals and values of 

America that are greater than anyone’s personal self interest. 

II. LEGISLATIVE HISTORY

On June 21, 1989, the United States Supreme Court issued its 

decision in Texas v. Johnson, 491 U.S. 397 (1989). In that case, 

Gregory Johnson had been convicted of violating a Texas statute 

for knowingly desecrating an American flag. Johnson burned a flag 

at a political demonstration outside the Dallas, Texas City Hall 

during the 1984 Republican National Convention. The Texas Court 

of Criminal Appeals reversed his conviction. Johnson v. State, 755 

S.W.2d 92 (1988). In a 5–4 decision, the United States Supreme 

Court affirmed the reversal, holding that Johnson’s burning of the 

flag was expressive conduct, a form of symbolic speech protected by 

the First Amendment. 

On July 18, 1989, following the Supreme Court’s decision in 

Johnson, Senators Robert Dole, Alan Dixon, Strom Thurmond, and 

Howell Heflin, as principal cosponsors, introduced Senate Joint 

Resolution 180, a proposed amendment to the U.S. Constitution, 

which would have given Congress and the States power to prohibit 

the physical desecration of the American flag. On July 18, 1989, 

Senators Joseph Biden, William Roth, and William Cohen, as principal cosponsors, introduced S. 1338 (The Biden-Roth-Cohen Flag 

Protection Act of 1989), which proposed to amend the federal flag 

desecration statute, 18 U.S. Code Section 700(a). The Judiciary 

Committee held hearings on August 1, August 14, September 13, 

4

and September 14 of 1989 on the proposed legislation and constitutional amendment. Approximately 20 hours of testimony were received from 26 witnesses, including a broad range of constitutional 

scholars, historians, representatives of veterans’ organizations, 

members of the Senate, and attorneys from the Department of Justice. On September 21, 1989, the Judiciary Committee approved S. 

1338 and ordered the bill favorably reported. 

On September 12, 1989, the House of Representatives passed 

H.R. 2978 (The Flag Protection Act of 1989), in order to protect the 

physical integrity of the flag of the United States. H.R. 2978 was 

similar to S. 1338, and also sought to amend 18 U.S. Code Section 

700(a). 

On October 5, 1989, the Senate passed H.R. 2978, which was enacted October 28, 1989. Under this statute, codified at U.S. Code 

Title 18, Section 700(a), ‘‘(W)hoever knowingly mutilates, defaces, 

physically defiles, burns, maintains on the floor or ground or tramples upon any flag of the United States shall be fined under this 

Title or imprisoned for not more than one year, or both.’’ An exception was made for ‘‘conduct consisting of the disposal of a flag when 

it has become worn or soiled.’’ 

In the wake of the Flag Protection Act’s passage, on October 19, 

1989, S.J. Res. 180, the proposed constitutional amendment, failed 

to obtain the necessary two-thirds vote of the full Senate, by vote 

of 51 to 48. At the time, it was generally believed that the recently 

passed statute would survive constitutional scrutiny and an 

amendment was thus unnecessary. 

On June 11, 1990, the Supreme Court struck down the Flag Protection Act in United States v. Eichman, 495 U.S. 928 (1990), holding that the 1989 Act, like the Texas statute in Texas v. Johnson,

violated the First Amendment. Eichman involved individuals who 

knowingly set fire to several American flags on the steps of the 

United States Capitol while protesting American foreign policy, 

and other individuals who knowingly burned a United States flag 

in Seattle while protesting passage of the 1989 Flag Protection Act. 

According to the Court, the First Amendment protected the physical acts engaged in by those individuals. 

Shortly after the Supreme Court’s decision, the Senate Judiciary 

Committee held a hearing to consider what measures might be 

taken to protect the American flag. The Committee heard from 

eight witnesses, including representatives from the Justice Department. 

As a result of those hearings, an amendment to the U.S. Constitution was introduced that would have given Congress and the 

States the power to prohibit the physical desecration of the flag 

(Senate Joint Resolution 332). On June 26, 1990, however, the proposed amendment failed to receive the necessary two-thirds vote of 

the full Senate, by a vote of 58 to 42. 

On March 21, 1995, Senators Hatch and Howell Heflin (D–AL), 

as principal cosponsors, along with a bipartisan group of 53 additional cosponsors, introduced Senate Joint Resolution 31, another 

proposed amendment to the U.S. Constitution identical to that introduced in both 1989 and 1990. 

On June 6, 1995, a hearing on S.J. Res. 31 was held by the Subcommittee on the Constitution, Federalism and Property Rights of 

the Judiciary Committee. 

5

On July 20, 1995, the Judiciary Committee voted 12 to 6 to report favorably S.J. Res. 31. The House of Representatives voted 312 

to 120 in favor of an identical resolution, H.J. Res. 79, on June 28, 

1995. On December 12, 1995, however, S.J. Res. 31 failed to obtain 

the necessary two-thirds vote of the full Senate, by a vote of 63 to 

36.

Efforts to protect the flag did not end there. On February 4, 

1998, Senator Hatch, along with Senator Max Cleland (D–GA), introduced S.J. Res. 40. The two senators were joined by an additional 53 original cosponsors in this effort, among those the Majority Leader, Senator Trent Lott, who explained that by introducing 

S.J. Res. 40 the Senate was beginning ‘‘the process of restoration 

* * * and renewal. * * * We examine the events of recent years 

in the context of history in an effort to restore and renew our faith 

in this place we call America. The lynchpin of this process will be 

our restoration of what our flag—our American flag, the flag of 

these United States, the flag of what our founders referred to as 

‘We, the people’—means to us as a people, as citizens, as people 

united in the common cause of Freedom.’’ 

On February 13, 1997, a similar resolution, H.J. Res. 54, was introduced in the House of Representatives by Congressmen Gerald 

B. Solomon (R–NY) and William O. Lipinski (D–IL) and 283 other 

original cosponsors. 

On March 25, 1998, the Subcommittee on the Constitution, Federalism, and Property Rights held a hearing on S.J. Res. 40. The 

subcommittee heard testimony from Alan G. Lance, Attorney General, State of Idaho; Bruce Fein, Esquire; Roger Breske, Member, 

Wisconsin State Senate; Professor Stephen B. Presser, Northwestern University School of Law, Chicago, Illinois; Professor Robert Justin Goldstein, Oakland University, Rochester, Michigan; 

Adrian Cronauer, Esquire, Burch and Cronauer, Washington, D.C.; 

Stan Tiner, Alabama Register, Mobile, Alabama; Patrick Brady, 

Chairman, Citizen’s Flag Alliance, Sumner, Washington; Rose E. 

Lee, Former National President, Gold Star Wives of America, Arlington, Virginia; Mary Frost, President, Selective Learning Network, Kansas City, Missouri; Keith A. Kreul, Fennimore, Wisconsin; Francis J. Sweeney, Secretary/Treasurer, Steamfitters Local 

Union 449, Pittsburgh, Pennsylvania. 

On June 17, 1998, the resolution was polled out of the subcommittee by a vote of 5 to 3, and referred to the full Judiciary 

Committee. The Committee took up the legislation on June 24, 

1998, and voted 11 to 7 to report favorably S.J. Res. 40. 

Following the full Committee vote, the Committee held a hearing 

on July 8, 1998. The Committee heard testimony from Gary G. 

Wetzel, Oak Creek, Wisconsin; Sean C. Stephenson, LaGrange, Illinois; John Schneider, Westlake, California; Tommy Lasorda, Los 

Angeles, California; Marvin Virgil Stenhammar, Ashville, North 

Carolina; Professor Richard D. Parker, Harvard University Law 

School; Clint Bolick, Esquire, Vice President and Director of Litigation, Institute for Justice, Washington, D.C. 

The House Committee on the Judiciary addressed a similar resolution, H.J. Res. 54, the prior year and favorably reported H.J. Res. 

54 out on May 14, 1997, by a vote of 20 to 9. On June 12, 1997, 

the House of Representatives voted 310 to 114 in favor of H.J. Res. 

54. 

6

At the beginning of the 106th Congress, on March 17, 1999, Senators Hatch and Cleland introduced S.J. Res. 14, a constitutional 

amendment to permit Congress to enact legislation prohibiting the 

physical desecration of the American flag identical to S.J. Res. 40 

from the previous Congress. Senators Hatch and Cleland were 

joined by an additional 55 original cosponsors in that effort. 

On February 24, 1999, a resolution proposing an amendment 

identical to that proposed in S.J. Res. 14 was introduced in the 

House of Representatives as H.J. Res. 33 by Congressmen Randy 

Cunningham (R–CA) and John P. Murtha (D–PA) and 260 additional original cosponsors. H.J. Res. 33 was approved by the House 

of Representatives on June 24, 1999, by a vote of 305 to 124. 

On April 20, 1999, the Senate Judiciary Committee held a hearing on S.J. Res. 14. The Committee heard testimony from retired 

Maj. Gen. Patrick Brady, chairman of the Citizens Flag Alliance, 

Sumner, WA; Maribeth Seely, fifth grade teacher, Branchville, NJ; 

Prof. Gary May, University of Southern Indiana, Newburgh, IN; 

Rev. Nathan Wilson, West Virginia Council of Churches, Charleston, WV; retired Lt. General Edward Baca, former chief, National 

Guard Bureau, Albuquerque, NM; and Professor Richard Parker, 

Williams Professor of Law, Harvard Law School, Cambridge, MA. 

On April 21, 1999, the resolution was polled out of the subcommittee by a vote of 5 to 3, and referred to the full Judiciary 

Committee. 

On April 28, 1999, the Judiciary Committee held a second hearing on S.J. Res. 14. The Committee heard testimony from Senator 

John Chafee of Rhode Island; Senator John McCain of Arizona; 

Senator Bob Kerrey of Nebraska; Senator Max Cleland of Georgia; 

Senator Chuck Hagel of Nebraska; former Senator John Glenn of 

Ohio; and Randolf Moss, Acting Assistant Attorney General of the 

Office of Legal Counsel, Department of Justice, Washington, DC. 

The Committee took up the legislation on April 29, 1999, and 

voted 11 to 7 to report S.J. Res. 14 to the full Senate with a favorable recommendation. On March 29, 2000, cloture was invoked by 

a vote of 100 to 0, and then the measure failed to pass by a vote 

of 63 to 37. 

During the 107th Congress, Senators Hatch and Cleland introduced S.J. Res. 7 on March 13, 2001. The measure, which was 

identical to the previous S.J. Res. 40, was referred to the Committee on the Judiciary. S.J. Res. 7 was referred to the Subcommittee on the Constitution on July 15, 2002. No action was 

taken on S.J. Res. 7. 

At the beginning of the 108th Congress, on January 16, 2003, 

Senators Hatch and Diane Feinstein (D–CA) introduced S.J. Res. 

4, a resolution identical to S.J. Res. 7 and the other most recent 

resolutions. On March 10, 2004, the Committee held a hearing on 

the measure. The Committee heard testimony from the Honorable 

Daniel J. Bryant, Assistant Attorney General for the Office of Legal 

Policy, Department of Justice; retired Major General Patrick 

Brady, Chairman of the Citizens Flag Alliance; Lawrence J. Korb, 

Senior Fellow at the Center for American Progress, Adjunct Senior 

Fellow at the Council on Foreign Relations, and Senior Adviser to 

the Center for Defense Information; John Andretti, a native of 

Bethlehem, Pennsylvania and a respected NASCAR Nextel Cup Series driver for Dale Earnhardt, Inc.; Gary E. May, Associate ProVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00006 Fmt 6659 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
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2 Associated Press, September 13, 2001, Chuck Bartels. 

3 Associated Press, September 21, 2001, Anne D’innocenzio. 

fessor of Social Work at the University of Southern Indiana in 

Evansville; and Professor Richard D. Parker, the Paul W. Williams 

Professor of Criminal Justice at Harvard Law School. 

S.J. Res. 4 was referred to the Subcommittee on the Constitution, 

Civil Rights and Property Rights, and the subcommittee approved 

the measure by a vote of 5 to 4 on June 2, 2004. On July 20, 2004, 

the full Committee voted to send S.J. Res. 4 to the floor with a favorable recommendation by a vote of 11 to 7. 

III. DISCUSSION

A. The flag in our culture 

The American flag has a profound meaning to American culture 

that far exceeds its nominal significance as the item described by 

law as the symbol of our Federal government. It would be a Herculean task to list all of the published songs, poems, essays, stories, 

paintings and other creative works that reflect Americans’ love of 

the flag, and it would be impossible to catalog all of the privately 

created objects, from quilts to mailboxes to letters and photographs, 

that display the private thoughts and emotions evoked by Old 

Glory. 

1. The flag and the September 11, 2001 attacks 

The horrible terrorist attacks of September 11, 2001 proved within hours that the American people—along with their friends 

around the globe—see the American flag as a signal of strength 

and purpose and freedom. By the close of business that day, the 

nation’s largest retailer had sold 88,000 American flags, compared 

to 6,000 on that date in 2000.2 Within two days, it sold out of its 

stock of 500,000 flags.3 People around the world flew the American 

flag on September 11, 2001, and the days immediately thereafter. 

The tattered flag found amid the ruins of the World Trade Center 

became an icon of proud survival, not unlike the flag Francis Scott 

Key famously observed ‘‘was still there’’ in the morning after a 

night of shelling by British forces during the War of 1812. And the 

brilliant red, white and blue hanging over the blackened, charred 

wing of the Pentagon inspired many people around the globe by 

showing the United States would not surrender to the forces that 

tried to inflict great harm on our country. Americans, together with 

citizens of other countries who wished to express their sympathy 

and support for our country, turned to the flag as the unifying 

image of endurance and resolve. The killing of innocents did not 

create these feelings for the flag; it tapped them and brought them 

to the surface. The realization that our country was under attack 

stoked an emotional flame for the colors, design, history and meaning of the United States flag, demonstrating again that it is a national treasure worthy of protection. 

One of the most moving tributes to the victims of the September 

11 attacks was a display of over 3,000 flags—one for each victim—

in Sandy, Utah in September 2002. Organized by Paul Swenson, 

the silent tribute was not only a fitting remembrance of the fallen, 

but also a wonderful demonstration of the power of the American 

flag. Each flag represented a human life. Together, they moved the 

8

emotions of many. When a request was made for volunteers to help 

set up the flags, over 500 showed up, eager to work. There is simply no other item or object or symbol that can serve as a tribute, 

rally a community, and inspire the best in people as the American 

flag. 

2. A powerful reminder of sacrifice 

Untold millions of Americans have sacrificed in profound ways to 

build the United States into the world’s beacon of hope and freedom of thought and opportunity. They have put their lives on the 

line and their plans on hold as they served in the armed forces; 

they have dedicated their creative energies to solving America’s difficulties; they have paid taxes to enable America’s defense and general welfare; they have foregone personal glory or riches in the 

name of community. All such sacrifices have strengthened our 

country and added to the cause of liberty, for which it was founded. 

Many Americans reflect upon their sacrifices, and those of others, 

when they see the American flag. 

No transaction in America is more solemn than the moment in 

a military funeral when a folded flag is handed to a widow, or a 

mother, or a father, whose family member has fallen in the line of 

duty to our country. In return for the life of a loved one, too many 

Americans have received a flag, folded at a funeral, as a token of 

the selfless and total sacrifice that person, and that family, and 

those loved ones, have made in order to further America’s well 

being. It is common for such folded flags to be displayed in a prominent place such as on a mantle above a fireplace or on a bookshelf. 

When Americans look at such flags, they feel the loss of the person 

it represents, and they feel the solace—often too little—that the 

person they miss died in an honorable way. The emotions woven 

into the fabric of such flags is far too profound to fade or unravel. 

People who have such flags in their living rooms or family rooms 

certainly are excused if they find it difficult to look the other way 

at acts of flag desecration. An item that evokes so strongly the 

memory of a beloved individual should be treated with respect. 

Someone for whom the flag brings immediate memories of a departed loved one should not have to see a flag purposely humiliated 

by being torn, or burned, or urinated upon. The country that can 

require a person to give his or her life in furtherance of its interests overseas should not render itself powerless to protect its flag 

and those who are hurt by its abuse and humiliation here at home. 

Indeed, it is painfully ironic to most Americans that, although the 

government can fine a person for urinating on a public street, the 

Supreme Court has determined that the government cannot increase that fine by even a dollar if the act takes place on the cherished symbol of our country rather than the bare pavement. 

3. The flag as a symbol in a culture of symbols 

Perhaps one reason that some people see the flag as a mere symbol, unworthy of protection, is that American society is awash in 

symbols. Nearly every company, organization, group or club has a 

logo, design or other icon. Many of those are displayed on flags. 

Americans are accustomed to seeing corporate flags flying side-byside with Old Glory, whether in front of buildings, in stores, or in 

car sales lots. Perhaps some Americans therefore think that the noVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00008 Fmt 6659 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
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4 15 USCS § 1052(b) (2004). 

5 15 USCS § 1117(b) (2004). 

6 15 USCS § 1117(a) (2004). 

7 Hearing Transcript, pp. 59–64. 

tion of legal protections for the American flag is as absurd as the 

idea of federal law protecting commercial trademarked designs. 

Our country’s founders did not experience an overload of logos. 

The only flags they saw flying on poles were their country’s, their 

state’s, or a military banner. The flag on a ship meant sovereignty, 

and its removal was an act of war. A banner captured in war 

meant victory over the fighters who gave it up. 

Today, a chief executive officer of a company with a flag would 

not tolerate seeing the logo desecrated. In fact, companies spend 

untold tens of millions of dollars per year protecting their 

trademarked logos and designs. If an employee were to desecrate 

a company flag, the employee would almost certainly face some sort 

of reprimand. No sensible director, officer or employee would put 

a company flag in the hands of someone who intended to desecrate 

it, and no such company official would defend the purposeful destruction of its symbol as an important means of communicating 

dissenting views about company policies or priorities.

Of course, it is not possible to trademark the American flag4, and 

it would not be productive to do so. But it is useful to compare the 

kinds of protections that our senators, if they were CEOs of companies, would give to corporate logos, in contrast to the complete lack 

of protection that approximately one-third of our senators are willing to provide for the American flag. The civil law allows remedies 

against people who damage corporate symbols and logos. A company whose trademarked flag is misappropriated can recover ‘‘(1) 

defendant’s profits, (2) any damages sustained by the plaintiff, and 

(3) the costs of the action.’’ 5 And the damages award can be up to 

three times the amount of actual loss.6 This law is meant to be a 

powerful economic deterrent to anyone who would despoil a corporate trademark. 

The overwhelming majority of American people understand and 

honor the difference between Old Glory and privately owned trademarks used in commerce. For example, as John Andretti testified 

before the Committee,7 fans of NASCAR racing are accustomed to 

seeing many brightly colored corporate logos and several signal 

flags, each with a particular meaning. Even amid the excited confusion of a crowded stadium, however, fans display a reverence and 

solemnity toward the one banner that stands for our country’s common values: the American flag. Such people have not allowed our 

modern commercial culture to make Old Glory appear to be just 

another emblem, or just another brand that a person may or may 

not prefer over a competing product. The American flag is different. 

It stands above all others as a cultural and governmental treasure. 

If the CEOs of our republic—its citizens—decide that the American 

flag should be protected by federal law, then the senators they 

elected should let them do it. A vote for S.J. Res. 4 is a vote for 

letting the American people decide, through their state legislatures, 

whether or not such legal protections should be restored. 

10

IV. THE FLAG IN AMERICAN LAW

A. The Constitution’s Framers 

When the Constitution’s Framers adopted the flag as the fledgling nation’s symbol in 1777, they understood the long history of 

law surrounding the flag as an emblem of national sovereignty. 

The Framers inherited from England a legal tradition of protecting 

flags as practical instruments affecting title to areas of land and 

water, rights of trade and citizenship, causes of war citable in 

international law, and similar matters of the utmost weight. Thus, 

the original intent and understanding regarding the flag’s protection consisted of sovereignty concerns. The Framers understood 

that the flag they adopted and sought to protect, apart from being 

merely a patriotic or other type of symbol, as an incident of sovereignty. By recognizing the sovereignty interest in the flag, which 

historically meant responding to violations of its physical integrity, 

the Framers sought treatment for the United States, at home and 

abroad, as a sovereign nation. 

By pronouncements in the earliest years of the Republic, the 

Framers made clear that the flag, and its physical requirements, 

related to the existence and sovereignty of the nation and in no 

way interfered with the rights established by the First Amendment. The sovereignty interest in the flag’s adoption was tied to 

concrete legal and historical factors which distinguished it sharply 

from any asserted ideology, patriotism, or viewpoint. The Framers, 

through their words and actions, demonstrated the historic core of 

consistency between flag protection and the First Amendment. As 

the Supreme Court has explained: ‘‘from the earliest periods in the 

history of the human race, banners, standards and ensigns have 

been adopted. It is not then remarkable that the American people 

* * * early in their history, prescribed a flag as symbolical of the 

existence and sovereignty of the Nation.’’ Halter v. Nebraska, 205 

U.S. 34, 41 (1907). 

In America, the tradition that ‘‘insults to the flag * * * and indignities put upon it * * * [are] sometimes punished * * *’’ id., 

started with one of the earliest prosecutions in American history: 

Endecott’s case. In the 1600s, just as England had proceeded 

against those who failed to treat properly the flag, so Massachusetts colonists prosecuted, tried, and convicted a domestic defacer 

of the flag in 1634. The trial court concluded that defacing the flag 

was an act of rebellion. 

Endecott’s case establishes a key historic point: from the earliest 

days of the legal system in America, the law deemed an individual 

to be engaging in a punishable act for defacing a flag, even domestically and in peacetime. Defacing the flag invaded a sovereign government interest, even when undertaken for reasons of protest. At 

the time, the colonists saw the need to punish the act in clear sovereignty terms: defacing the flag would be taken as an act of rebellion, even when unaccompanied by danger of violence or general revolt. 

The original intent of the nation’s Founders clearly indicates the 

importance of protecting the flag as an incident of American sovereignty. 

11

1. James Madison 

James Madison, as an original draftsman of the First Amendment, was an authoritative source on sovereignty matters. In this 

regard, Madison consistently emphasized the legal significance of 

infractions on the physical integrity of the flag. On three different 

occasions, Madison recognized and sustained the legitimacy of the 

sovereignty interest in protecting the flag. 

His earliest pronouncements concerned an incident in October 

1800, when the Algerian ship Dey of Algiers forced a United States 

man-of-war—the George Washington—to haul down its flag and replace it with that of Algiers. As Secretary of State under President 

Thomas Jefferson, Madison pronounced such a situation as a matter of international law, a dire invasion of sovereignty, which ‘‘on 

a fit occasion’’ might be ‘‘revived.’’ Brief for the Speaker and Leadership Group of the U.S. House of Representatives, Amicus Curiae, at 33 United States v. Eichman, 496 U.S. 310 (1990) (No. 89–1433) 

[hereinafter, Brief], citing II American State Papers 348 (Lowrie 

and Clarke ed. 1982). 

Madison continued his defense of the integrity of the flag when 

he pronounced an act of flag defacement in the streets of an American city to be a violation of law. Specifically, Mr. Madison pronounced a flag defacement in Philadelphia as actionable in court. 

As Judge Robert Bork described this historic pronouncement: ‘‘The 

tearing down in Philadelphia in 1802 of the flag of the Spanish 

Minister ‘with the most aggravating insults,’ was considered actionable in the Pennsylvania courts as a violation of the law of nations.’’ Brief at 34, citing 4 J. Moore, Digest of International Law 

627 (1906) (quoting letter from Secretary of State Madison to Governor McKean (May 11, 1802)). 

And, on June 22, 1807, when the British ship Leopard fired upon 

and ordered the lowering of an American frigate’s (The Chesapeake) 

flag, Madison told the British Ambassador ‘‘that the attack on the 

Chesapeake was a detached, flagrant insult to the flag and sovereignty of the United States.’’ Brief at 34, citing I. Brandt, James 

Madison: Secretary of State 1800–1809 413 (1953) (quoting British 

dispatch). A letter by Madison to Monroe stated Mr. Madison’s 

view that ‘‘the indignity offered to the sovereignty and flag of the 

nation demands * * * an honorable reparation * * * [such as] an 

entire abolition of impressments from vessels under the flag of the 

United States * * *’’ Brief at 35, citing Letter from James Madison 

to James Monroe (July 6, 1807). Madison’s statement suggests his 

belief that protecting the physical integrity of the flag ensured the 

protection of the nation’s sovereignty. 

Madison did not conclude—as some defenders of the right to deface the flag contend—that the First Amendment protected Americans’ rights to tear down a flag, or that defacing the flag was a 

form of expression protected by the First Amendment. On the contrary, it would appear that Madison had an intimate familiarity 

with the significance of protecting the physical integrity of the flag, 

especially as such protection related to the First Amendment, 

which he helped draft and move through the First Congress. He 

knew there had been no intent to withdraw the traditional physical 

protection from the flag. 

Madison’s pronouncements consistently emphasized that ‘‘insults’’ to the physical integrity of the flag continued to have the 

12

8 As it did in the time of Thomas Jefferson and James Madison, the flag continues to serve 

important sovereignty interests on the high seas. During the Persian Gulf War, for instance, 

foreign tankers in the Gulf flew the American flag, so that an act of aggression against the tankers would be the equivalent of an attack against the United States and its sovereign interest 

in protecting allied vessels in wartime. 

same legal significance in a variety of different contexts, abroad, at 

sea, and at home. To Madison, sovereignty entailed a relationship 

not only between nations and foreign entities, but between nations 

and domestic persons in wartime and peacetime. 

2. Thomas Jefferson 

Like Madison, Thomas Jefferson sought to protect the sovereignty interest in the flag. Jefferson recognized its complete consistency with the Bill of Rights, and deemed abuse of that interest 

a serious matter of state, not the suppression of some form of protected expression. Thus, for Jefferson, the flag as an incident of 

sovereignty involved a concrete legal status with very practical advantages for the nation and citizens, who obtained those advantages through protecting a flag from usurpation or indignities. 

During the period of foreign war and blockades in the 1790s, the 

American flag was a neutral flag, and the law of trade made foreign ships desire to fly it.8 As George Washington’s Secretary of 

State, Jefferson instructed American consuls to punish ‘‘usurpation 

of our flag.’’ Brief at 35, citing 9 Writing of Thomas Jefferson 49 

(mem. ed. 1903). Jefferson stated ‘‘you will be pleased * * * to give 

no countenance to the usurpation of our flag * * * but rather to 

aid in detecting it * * *’’ Id. 

To prevent invasion of the sovereignty interest in the flag, Jefferson did not consider the First Amendment an impediment to a 

‘‘systematic and severe’’ course of punishment for persons who violated the flag. Id. Jefferson recognized the sovereignty interest in 

the flag, considered protecting it and punishing its abusers highly 

important, even after adoption of the Bill of Rights. 

Madison and Jefferson intended for the government to be able to 

protect the flag consistent with the Bill of Rights. This was based 

upon their belief that obtaining sovereign treatment was distinct 

from an interest in protecting against the suppression of expression. Madison and Jefferson consistently demonstrated that they 

sought commerce, citizenship, and neutrality rights through the 

protection of the flag. They did not seek to suppress the expression 

of alternative ‘‘ideas,’’ ‘‘messages,’’ ‘‘views,’’ or ‘‘meanings;’’ Madison 

and Jefferson would therefore have found such an interest anathema. 

Thus, from the time of the Endecott case to the present, protection of the flag has continued to serve the Framers’ original intent, 

as an instrument and embodiment of this nation’s sovereignty. 

Those who both framed the First Amendment and adopted the flag 

had an original purpose for the flag quite unrelated to control of 

expression. The Founders considered the protection of the flag as 

an incident of sovereignty, not a suppression of expression. 

B. Statutory protection for the flag 

Over the years, Congress and the States have recognized the devotion our diverse people have for the flag. They have enacted statVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00012 Fmt 6659 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
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9 In Rushtrat v. People, 57 N.E. 41, 46 (Ill. 1900), and People ex rel. McPike v. Van De Carr,

86 N.Y.S. 644, 91 A.D. 20 (App. Div. 1904), the courts of Illinois and New York struck down 

statutes prohibiting the certain commercial or advertising uses of the national flag, but permitting other commercial uses. The courts held the statutes were unenforceable based on the implied constitutional right to choose and to carry on one’s occupation without governmental interference and based on economic classifications made by the statutes. Rushtrat, 57 N.E. at 46; 

McPike, 86 N.Y.S. at 649–50. 

This brand of conservative judicial activism, which was used to strike down pro-labor and 

other economic legislation, came to its fruition in Lochner v. New York, 198 U.S. 45 (1905). Since 

Lochner, however, the Supreme Court and the overwhelming majority of the state courts have 

since abandoned the activist judicial review of economic legislation. See, e.g., West Coast Hotel 

Co. v. Parrish, 300 U.S. 379 (1937). 10 In McPike, 86 N.Y.S. at 648, the Supreme Court of New York, specifically upheld the portion of the statute that prohibited desecration or casting contempt upon the flag, in a noncommercial context, as a means of preventing breaches of the peace. 

utes that both promote respect for the flag and protect the flag 

from desecration. 

1. Promotion of respect for the flag 

In 1940, Congress declared the Star Spangled Banner to be our 

national anthem. And in 1949, Congress established June 14 as 

Flag Day—a day expressly set aside to remember and dwell upon 

the significance of the flag. Congress has also established ‘‘The 

Pledge of Allegiance to the Flag’’ and the manner of its recitation. 

The pledge states: ‘‘I pledge allegiance to the flag, of the United 

States of America, and to the Republic for which it stands. One nation, under God, indivisible, with liberty and justice for all.’’ 4 

U.S.C. 4. The pledge demonstrates the universal understanding 

that the flag represents the Nation and the ideals of its citizens. 

It is thus a transcendent symbol of unity and nationhood. 

In 1987, Congress chose to honor the flag by designating John 

Philip Sousa’s ‘‘The Stars and Stripes Forever’’ as the national 

march (36 U.S.C. 304). Further, Congress has not only established 

the design of the flag (4 U.S.C. 1 and 2), but also the manner of 

its proper display in the Flag Code (36 U.S.C 173–179). The Flag 

Code is merely hortatory, however, and is not legally enforceable. 

2. Protection for the flag: striking the balance 

After a rash of flag desecrations arising from the presidential 

campaign of 1896, States began to prosecute the commercial use of 

the American flag, which was deemed disrespectful, as well as 

verbal and physical desecration of the flag.9 While some of these 

older statutes were struck down by activist courts under the nowdefunct Lochner rationale, dealing with substantive due process 

and economic legislation, the courts perceived no First Amendment 

problem with the statutes.10

The Supreme Court of the United States, at least with respect 

to the American flag, eschewed the Lochner rationale, and upheld 

a state flag protection statute in Halter v. Nebraska, 205 U.S. 34 

(1907). The Nebraska statute viewed both commercial use of the 

flag and physical mutilation of the flag as equally repugnant forms 

of desecration. Chief Justice Harlan wrote for the Court:

It is not, then, remarkable that the American people, 

acting through the legislative branch of the Government, 

early in their history, prescribed a flag as symbolical of the 

existence and sovereignty of the Nation. 

* * * [L]ove both of the common country and of the 

state will diminish in proportion as respect for the flag is 

14

11Section 3 of the Uniform Flag Act provided: ‘‘No person shall publicly mutilate, deface, defile, defy, trample upon, or by word or act cast contempt upon any such flag, standard, color, 

ensign or shield.’’ 12 By 1951, these statutes were found in the various state laws as follows: Arizona, A.C.A. 

43.2401 (1939); Louisiana, R.S. 14:116, 14:117 (1950); Maine, R.S. c. 128 (1944); Maryland, Code 

Supp. 2159 (1947); Michigan, Comp. Laws 750.244–750.247, 750.566 (1948); Mississippi, Code 

2159 (1942); New York, McKinney’s Penal Law, 1425, subdi. 16; Pennsylvania, 18 P.S. 4211; 

Rhode Island, Gen. Laws c. 612, 38, 39 (1938); South Dakota, SDC 65.0601 to 65.0606; Tennessee, Williams’ Code 102–107; Vermont, V.S. 8590–8605; Virginia, Code 18–354 to 18–360 

(1950); Washington, Rem. Rev. Stat. 2675–1 to 2675–7; Wisconsin, St. 348.479–348.484 (1947). 

weakened. Therefore a state will be wanting in care for the 

well-being of its people if it ignores the fact that they regard the flag as a symbol of their country’s power and 

prestige, and will be impatient if any disrespect is shown 

towards it.

Halter, 205 U.S. at 41, 42. 

That the Court viewed commercial use of the flag as demeaning 

the integrity of the Nation’s preeminent symbol is made clear by 

its statement, ‘‘Such [commercial] use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the 

object of maintaining it as an emblem of national power and national honor.’’ Id. at 42. Recognizing the importance of the flag to 

the Nation, the Supreme Court upheld Nebraska’s statute that 

punished commercial and noncommercial desecration of the flag.

Holdings such as Halter precipitated the National Conference of 

Commissioners on Uniform State Laws to approve the Uniform 

Flag Act in 1917 which was similar to the statute approved in 

Halter.11 Although the opinion dealt directly only with the commercial desecration portion of the statute, the Commissioners were of 

the opinion that Halter affirmed in all respects the validity of a 

statute that prohibited all disrespect for the flag, whether by commercial use or by casting contempt on the flag by word or act. Accordingly, the Commissioners drafted a similar model statute. A 

number of States soon adopted all or part of the Uniform Flag Act 

as their flag protection statute or as a supplement to previously existing statutes. These States included Arizona, Louisiana, Maine, 

Maryland, Michigan, Mississippi, New York, Pennsylvania, Rhode 

Island, South Dakota, Tennessee, Vermont, Virginia, Washington, 

and Wisconsin.12

In 1968, in response to the Vietnam War protests, Congress 

added Federal protection to the long-established State flag protection statutes by enacting 18 U.S.C. 700(a). To avoid infringing upon 

freedom of speech, Congress limited the 1968 flag statute to acts 

of physical desecration. The language contained in the 1917 law applicable to the District of Columbia that made it a crime to ‘‘ ‘defy’ 

or ‘cast contempt * * * by word or act’ ’’ upon the American flag 

was omitted (emphasis supplied). The 1968 statute provided for a 

fine of not more than $1,000 or imprisonment for not more than 

one year, for anyone who ‘‘knowingly casts contempt upon any flag 

of the United States by publicly mutilating, defacing, defiling, 

burning or trampling upon it * * *.’’ 

Indeed, prior to 1989, Congress, along with 48 States and the 

District of Columbia, had regulated physical misuse of the American flag. These statutes recognized the vital Government interest 

at stake in preserving the preeminent symbol of our Nation’s history and people and reflected a balancing of this interest against 

the interest of the actor in conveying a message through the parVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00014 Fmt 6659 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
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13The four-part test announced in O’Brien was: 

[A] government regulation is sufficiently justified [1] if it is within the constitutional 

power of the Government; [2] if it furthers an important or substantial governmental 

interest; [3] if the governmental interest is unrelated to the suppression of free expression; and [4] if the incidental restriction on alleged First Amendment freedoms is no 

greater than is essential to the furtherance of that interest.

391 U.S. at 377. 14 In Stromberg v. California, 283 U.S. 359 (1931), and West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the Supreme Court had recognized, respectively, that a flag 

has communicative value and that school children could not be compelled to salute the flag in 

violation of their religious beliefs. These cases did not hold, however, that the Government’s interest in preserving the preeminent symbol of our history and our people could not be balanced 

against an actor’s interest in conveying a message through the particular means of physically 

destroying the flag instead of the traditional means of oral or written speech. 

ticular means of physically destroying the flag instead of through 

the traditional means of oral or written speech. On balance, these 

legislatures determined that the Government’s interest prevailed. 

3. Judicial application of flag protection statutes: respecting 

the balance 

Even after the Supreme Court held that the First Amendment’s 

free speech clause applied to the States, Gitlow v. New York, 268 

U.S. 652 (1925), flag desecrations were punished. For example, in 

1941, in State v. Schlueter, 23 A.2d 249 (N.J. 1941), the Supreme 

Court of New Jersey affirmed a conviction for physical desecration 

of the American flag. Likewise, in 1942, in Johnson v. State, 163 

S.W.2d 153 (Ark. 1942), the Supreme Court of Arkansas affirmed 

a conviction for publicly exhibiting contempt for the flag. Of special 

significance, is the Arkansas court’s refusal to accept the dissent’s 

argument that free speech protections prevented prosecution of the 

defendant’s desecration of the flag. Id. at 155–59 (Smith, C.J., dissenting). In People v. Picking, 42 N.E.2d 741 (N.Y.), cert. denied, 

317 U.S. 632 (1942), the Supreme Court of New York affirmed a 

conviction for flag desecration and the Supreme Court of the 

United States denied certiorari review, allowing the conviction to 

stand. The results of these cases reflected the generally accepted 

legal tradition that punishment of flag desecration represented a 

balance of society’s interest in protecting the flag and the actor’s 

interest in choosing physical desecration as a means to convey a 

message instead of the traditional means of oral and written 

speech. The legislatures had struck the balance in favor of protecting society’s interest, and the courts respected this balance.

In 1968, in United States v. O’Brien, 391 U.S. 367 (1968), the Supreme Court upheld a conviction for burning a draft card, even 

though the conduct was intended to convey a political message. The 

Court stated: ‘‘We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person 

engaging in the conduct intends thereby to express an idea.’’ Id. at 

376. The Court balanced society’s interest in maintaining an effective draft system against the draft card burner’s interest in conveying a message through the particular means of physically destroying a draft card instead of through the traditional means of 

oral or written speech.13 On balance, the Court determined that 

the government’s interest prevailed.14 In 1969, in Street v. New 

York, 394 U.S. 576 (1969), the Court overturned a conviction of a 

defendant who burned a flag while speaking against the flag. The 

Court overturned the conviction on the narrow ground that the 

16

15 Chief Justice Warren, and Justices Black, White, and Fortas all dissented. Chief Justice 

Warren took the majority to task for avoiding the question of whether the conviction could be 

premised on the physical desecration of the flag and stated: ‘‘I believe that the States and the 

Federal Government do have the power to protect the flag from acts of desecration and disgrace.’’ Street v. New York, 394 U.S. 576, 605 (1969) (Warren, C.J., dissenting). Justice Fortas 

agreed with Chief Justice Warren. Id. at 615 (Fortas, J., dissenting). Justice Black, a wellknown absolutist on Bill of Rights freedoms, observed in Street that: ‘‘It passes my belief that 

anything in the Federal Constitution bars * * * making the deliberate burning of the American 

flag an offense.’’ Id. at 610 (Black, J., dissenting). Justice White also opined that the majority 

erred in avoiding the physical-desecration issue and stated that he would sustain a conviction 

for flag burning. Id. at 615 (White, J., dissenting). 16 Justice White concurred in the judgment, but added ‘‘I would not question those statutes 

which proscribe mutilation, defacement, or burning of the flag or which otherwise protect its 

physical integrity, without regard to whether such conduct might provoke violence.’ Smith v. 

Goguen, 415 U.S. 566, 587 (White, J., concurring the judgment). Then Associate Justice 

Rehnquist, joined by Chief Justice Burger, dissented, stating that he believed that the statute 

at issue passed constitutional muster under the O’Brien test and noting that the statute punished flag abuse regardless of whether a communicative intent existed and was thus unrelated 

to the suppression of free speech. Id. at 599 (Rehnquist, J., dissenting). Justice Blackmun also 

dissented, stating that the first amendment would not bar the defendant’s conviction. Id. at 591 

(Blackmun, J., dissenting). 17 Chief Justice Burger dissented, stating:

If the constitutional role of this Court were to strike down unwise laws or restrict unwise application of some laws, I could agree with the result reached by the Court. That 

is not our function, however, and it should be left to each State and ultimately to the 

common sense of its people to decide how the flag, as a symbol of national unity, should 

be protected.

Spence v. Washington, 418 U.S. 405, 416 (1974) (Burger, C.J., dissenting). Then Associate Justice Rehnquist, joined by Chief Justice Burger and Justice White, also dissented, stating:

first amendment protected the defendant’s verbal expression, but 

did not address the conduct of burning the flag. Id. at 579.15 However, in 1971, in Radich v. New York, 401 U.S. 531 (1971), the Supreme Court affirmed, by an equally divided vote, a conviction 

based solely on an act of physical desecration of the flag under a 

New York statute that punished both words and acts of desecration. In so doing, the Supreme Court upheld the traditional balance 

between society’s interest in protecting the flag and the actor’s interest in choosing to convey a message by destructive means instead of by readily available oral or written means. 

C. Judicial amendment of the Constitution: Restriking the balance

In 1974, in two decisions, the Supreme Court began to weaken 

the O’Brien decision with respect to the physical desecration of the 

American flag and to shift the balance away from the Government’s interest in preserving the flag and toward the actor’s interest in choosing destruction of the flag as a means to convey a message. In Smith v. Goguen, 415 U.S. 566, 581–82 (1974), the Court 

overturned a flag-desecration conviction, stating that the Massachusetts flag-desecration statute, which punished words and acts of 

desecration, was void for vagueness, but adding ‘‘[c]ertainly nothing 

prevents a legislature from defining with substantial specificity 

what constitutes forbidden treatment of United States flags.’’16 The 

Court pointed to the Federal flag protection statute, which punished only acts of desecration, not words, as an example of a constitutional flag protection statute. Id. at 582 n.30. In Spence v. 

Washington, 418 U.S. 405 (1974), the Court broke with O’Brien by 

considering the communicative intent of the actor in desecrating 

his privately owned flag on private property, and issued a narrow, 

limited holding that the flag misuse statute, as applied to the particular defendant under the particular facts of the case, violated 

the First Amendment.17 The Court, however, was unwilling to 

17

The statute under which appellant was convicted is no stranger to this Court, a virtually identical statute having been before the Court in Halter v. Nebraska, 205 U.S. 

34 * * * (1907). In that case the Court held that the State of Nebraska could enforce 

its statute to prevent use of a flag representation on beer bottles, stating flatly that 

‘‘a State will be wanting in care for the well-being of its people if it ignores the fact 

that they regard the flag as a symbol of their country’s power and prestige * * *.’’ The 

Court then continued: ‘‘Such use tends to degrade and cheapen the flag in the estimation of the people, as well as to defeat the object of maintaining it as an emblem 

of national power and national honor.’’ 18 A few lower courts, however, had begun to anticipate the trend in the Supreme Court’s 

weakening of the traditional balance and had begun to strike down their State’s flag desecration 

statutes. See, e.g., People v. Vaughn, 514 P.2d 1318 (Colo. 1973). 19 After issuing its opinions in Smith v. Gougen and Spence v. Washington, the Supreme Court 

affirmed, without an opinion, a lower court’s judgment that used the vagueness and overbreadth 

doctrines to strike down a portion of a New York statute that would have broadly prohibited 

use of representations of the flag as campaign buttons or posters. Cahn v. Long Island Vietnam 

Moratorium Comm., 418 U.S. 906 (1974), aff’g 437 F.2d 344 (2d Cir. 1970). Prior to Gougen and 

Spence, the New York Court of Appeals had refused to apply the Second Circuit’s holding in 

Cahn to strike down the desecration portion of the New York statute, holding instead, that photographs of a nude draped with a flag did not fall within the proscription of the flag desecration 

provision. People v. Keough, 290 N.E.2d 819 (N.Y. 1972). 

state that there was no Government interest that outweighed the 

actor’s interest in conveying a message through the particular 

means of physically destroying the flag instead of through the traditional means of oral or written speech.18

Nonetheless, there was a dramatic change in Supreme Court jurisprudence. This change was clearly illustrated by the Radich

case, in which, during a 3-year time span, the Federal courts first 

affirmed and then overturned the exact same conviction, based on 

the intervening changes in Supreme Court jurisprudence. In 1971, 

the Supreme Court affirmed, by an equally divided Court, Radich’s 

flag-desecration conviction under a statute that punished both 

words and acts of desecration. Radich, 401 U.S. 531. However, by 

1974, after the Supreme Court handed down Smith v. Goguen, 415 

U.S. 566, and Spence v. Washington, 418 U.S. 405, the district 

court overturned Radich’s conviction in a habeas proceeding, citing 

Goguen and Spence.19 United States ex rel. Radich v. Criminal 

Court of the City of New York, 385 F. Supp. 165 (S.D.N.Y. 1974). 

As late as 1982, however, the Supreme Court denied certiorari 

review of a case involving a conviction for the physical desecration 

of a flag under the Federal statute that punished only acts, not 

words, of desecration. Kime v. United States, 459 U.S. 949 (1982). 

The certiorari denial, which allowed the flag desecration conviction 

to stand, came in spite of a strenuous dissent by Justice Brennan 

to provide absolute protection to the destructive conduct. Id. (Brennan, J., dissenting). The majority of the Supreme Court still refused to abandon completely the traditional balance of society’s interest in protecting the flag and the individual’s interest in conveying an idea through physically destructive means. 

By 1989, however, the Court was prepared to completely abandon Halter, O’Brien, and Radich and to restrike the constitutional 

balance against the Government’s interest and in favor of the flag 

desecrator’s interest. In Texas v. Johnson, 491 U.S. 397 (1989), by 

a 5-to-4 vote, the Supreme Court overturned a conviction for the 

physical desecration of an American flag on the broad grounds that 

the government’s interest in preserving the Nation’s preeminent 

symbol did not outweigh the interest of the flag desecrator in 

choosing to convey a message through the particular means of 

physically destroying the flag instead of through the traditional 

means of oral or written speech. The Court effectively created for 

18

20 Johnson participated in a political demonstration at the 1984 Republican National Convention, protesting policies of the Reagan Administration and certain Dallas-based corporations. 

Johnson was given an American flag from a fellow protestor, who had taken it from a flagpole. 

At Dallas City Hall, Johnson unfurled the American flag, poured kerosene on it, and burned 

it. While the flag burned, protestors chanted: ‘‘America, the red, white, and blue, we spit on 

you.’’ Johnson was convicted of desecration of a venerated object in violation of sec. 42.09 (a)(3) 

of the Texas Penal Code which, among other things, made illegal the intentional or knowing 

desecration of a national flag. Johnson, 491 U.S. at 499–400. 

Gregory Lee Johnson an absolute First Amendment right to burn 

and spit on the American flag.20

Justice Stevens’s eloquent dissent, which called for retaining the 

traditional constitutional balance that had been controlling for decades, stated:

The Court is * * * quite wrong in blandly asserting that 

respondent ‘‘was prosecuted for his expression of dissatisfaction with the policies of this country, expression 

situated at the core of our First Amendment values.’’ Respondent was prosecuted because of the method he chose 

to express his dissatisfaction with those policies. Had he 

chosen to spray-paint—or perhaps convey with a motion 

picture projector—his message of dissatisfaction on the facade of the Lincoln Memorial, there would be no question 

about the power of the Government to prohibit his means 

of expression. The prohibition would be supported by the 

legitimate interest in preserving the quality of an important national asset. Though the asset at stake in this case 

is intangible, given its unique value, the same interest 

supports a prohibition on the desecration of the American 

flag.

Johnson, 491 U.S. at 436–39 (Stevens, J., dissenting). 

As Chief Justice Rehnquist, for himself and Justices White and 

O’Connor, stated in dissent: ‘‘For more than 200 years, the American flag has occupied a unique position as the symbol of our Nation, a uniqueness that justifies a governmental prohibition against 

flag burning in the way respondent Johnson did here.’’ Johnson,

491 U.S. at 422 (Rehnquist, C.J., dissenting). Chief Justice 

Rehnquist continued later in his dissent:

The uniquely deep awe and respect for our flag felt by 

virtually all of us are bundled off under the rubric of ‘‘designated symbols,’’ that the First Amendment prohibits the 

government from ‘‘establishing.’’ But the government has 

not ‘‘established’’ this feeling; 200 years of history have 

done that. The government is simply recognizing as a fact 

the profound regard for the American flag created by that 

history when it enacts statutes prohibiting the disrespectful public burning of the flag.

Id. at 434. 

In response to this final step in a dramatic change in First 

Amendment jurisprudence, there was a thoughtful debate over 

whether a so-called facially content neutral flag protection statute 

would survive the Supreme Court’s scrutiny. Legal scholars and 

many commentators were divided over this question. A number of 

Members of Congress did not believe any such statute could survive the majority’s analysis in Johnson, even aside from whether 

a facially content neutral flag protection statute is desirable as a 

19

matter of sound public policy. The Johnson majority declared that 

the government’s asserted interest in preserving the flag as a national symbol was insufficient to overcome the actor’s newly minted, so-called right to burn or otherwise physically mistreat the flag 

as part of expressive conduct. Johnson, 491 U.S. at 413–19. Nevertheless, it cannot be denied that the principal, if not the only purpose, in enacting a facially content neutral statute is to protect the 

symbolic value of the flag. Indeed, one underlying purpose of any 

statutory effort to respond to Johnson would be to prohibit ‘‘expressive’’ conduct that physically desecrates the flag. Further, a facially 

neutral statute which did not permit an exception for disposal of 

a worn or soiled American flag by burning—which is the preferred 

way of doing so—would lead to highly undesirable results. Yet such 

an exception necessarily undermines the purported neutrality of 

such a statute—indeed, the Court said so in Johnson.

Nonetheless, Congress did enact a facially neutral statute in 

1989 (the Flag Protection Act of 1989) with an exception for the 

disposal of worn or soiled flags, as a response to the Johnson decision. Based on the new rule announced in Johnson, however, the 

Supreme Court promptly struck down the statute, by a 5-to-4 vote, 

in United States v. Eichman, 496 U.S. 400, 405–06 (1990). 

Further, in R.A.V. v. City of St. Paul, 505 U.S. 377, 385 (1992), 

the Supreme Court made clear that its newly created, absolute protection for destructive conduct toward the flag is not affected by the 

‘‘fighting words’’ doctrine where a statute specifically targets the 

destructive conduct toward the flag. Accordingly, with respect to 

the particular medium of the American flag, the Supreme Court 

will no longer balance society’s interest in protecting the flag 

against the actor’s interest in choosing to convey a message 

through the means of physically destroying the flag instead of 

through the traditional means of oral or written speech. 

D. The need for a constitutional amendment 

Amending the Constitution is a matter of extreme significance 

that should be avoided unless necessary. A federal statute would 

have been a preferable means of attaining protection for the flag. 

However, the Supreme Court has indicated definitively that a flag 

protection statute cannot be fashioned that would pass constitutional muster. 

In the 1989 case, Texas v. Johnson, and in the 1990 case, United 

States v. Eichman, the Court concluded that burning or desecrating 

the flag is an act of speech, and that any legislative measure designed to protect the flag from desecration would be viewed as incompatible with the First Amendment. Although many scholars 

agree with the four Justices dissenting in Johnson and Eichman

(Chief Justice William Rehnquist as well as Justices Stevens, 

White and O’Connor) who found statutory flag protection compatible with First Amendment freedoms, Supreme Court precedent 

and the current make-up of the Court strongly indicate that any 

statute designed to protect the flag is destined to fail. According to 

some, a so-called ‘‘fighting words’’ statute would avoid the Johnson 

and Eichman holdings by prohibiting flag desecration in the context of certain activities that are not ‘‘protected speech,’’ such as incitement of violence. However, the Supreme Court said in Johnson 

and Eichman that the flag embodies certain determinate ideas and 

20

messages that will be suppressed by any statutory attempt to prohibit flag desecration. 

Moreover, federal courts have construed the ‘‘fighting words’’ doctrine so narrowly and have so often distinguished and refused to 

apply it, even in the most incendiary circumstances, as to render 

the doctrine nearly meaningless. In the Eichman case, for instance, 

the Supreme Court expressly excluded from the category of ‘‘fighting words’’ flag desecration in the context of a face-to-face confrontation during a political protest. 496 U.S. at 315. And the Supreme Court in the Johnson case refused to apply the ‘‘fighting 

words’’ doctrine, finding that public flag desecration at issue was 

‘‘unlikely to result in a direct personal insult or an invitation to exchange fisticuffs.’’ 491 U.S. at 409. The Johnson Court also emphasized that a federal ‘‘fighting words’’ statute is unnecessary because 

state statutes already on the books adequately cover disorderly conduct and breach of the peace in a manner sufficient to maintain 

public order. Id. at 410. Thus, if the government attempts to enforce a federal ‘‘fighting words’’ flag protection statute—assuming 

it were to become law—and the statute were challenged in court, 

the Supreme Court likely would find it invalid. 

A ‘‘fighting words’’ bill or statute has several other weaknesses. 

First, it would reach only a tiny percentage of situations in which 

individuals desecrate the flag. In most cases, flag desecration does 

not involve face-to-face incitement or a challenge to specific persons. To illustrate this point, in one case, a Wisconsin youth, in the 

dead of night with no one around to detect him, defecated on the 

American flag and left it in a public place. 

In response, in a June 1998 decision, the Wisconsin Supreme 

Court indicated that it was compelled by the Johnson and Eichman 

decisions to rule that such conduct is protected free speech and 

that the Wisconsin flag protection statute is unconstitutional. Indeed, in the several cases involving challenges to state flag protection statutes decided since the 1990 Eichman decision, state courts 

have ruled consistently with the Wisconsin Supreme Court. 

Another concern is that the proscriptions in a ‘‘fighting words’’ 

bill would have the effect of promoting violence. This is so because 

actual violence would be a necessary precursor to successfully prosecuting a flag desecrator under the ‘‘fighting words’’ proposal. In 

other words, persons seeking to protect the flag would be compelled 

to violence or to breaching the peace in order to trigger the prohibitions and penalties in the bill. For all of these reasons, the Senate, 

during the 104th Congress and again during the 106th Congress, 

overwhelmingly defeated a ‘‘fighting words’’ bill. 

Many, if not all, of the senators who support S.J. Res. 4 would 

prefer prohibiting flag desecration by statute if that were possible. 

But there is no conceivable way to enact a statute that would survive the analysis used in the Johnson and Eichman decisions. S.J. 

Res. 4 is the only means of returning to the Congress the authority 

to enact a flag protection statute and thereby returning the First 

Amendment to what it meant for nearly two centuries prior to the 

Johnson and Eichman decisions. 

21

V. THE PROPOSED CONSTITUTIONAL AMENDMENT

A. What it says and what it means 

The proposed constitutional amendment contained in S.J. Res. 4 

is simple and straightforward. It reads: ‘‘Congress shall have the 

power to prohibit the physical desecration of the flag of the United 

States.’’ These 17 words would not make anything illegal. Rather, 

if approved by the Senate and ratified by three-fourths of the states 

(the House of Representatives has already passed it), this amendment would simply restore the ability of Congress to fashion an appropriate statute, which would of course need to be passed by both 

houses and signed by the president. 

Our free speech is not at issue. The proposed amendment would 

not affect anyone’s ability to express any opinion whatsoever about 

the flag, the country, the government’s policies or anything else. 

Americans will continue to have the right to express their views in 

public, in private, in newspapers, on the Internet, and through 

broadcast media. There will be no effect on anyone’s ability to express himself; Acts of disrespect to the flag, such as burning it and 

urinating on it, add nothing whatsoever to any debate about our 

nation’s polices, priorities or direction. 

B. Several constitutional amendments were spurred by Supreme 

Court decisions 

The flag amendment is certainly not the first time that Congress 

has attempted to overturn Supreme Court decisions. As a matter 

of fact, nearly a third of the amendments (five out of 17) that have 

been adopted since the passage of the Bill of Rights were in response to specific Supreme Court decisions.

The first time Congress overturned a Supreme Court decision 

with a constitutional amendment was in response to the Court’s 

first major decision, Chisholm v. Georgia (1793). The Court ruled 

in favor of a British subject in a suit against the state of Georgia. 

Congress, responding to the ensuing public outcry, introduced an 

amendment that deprived the federal courts of jurisdiction in lawsuits brought against a state by a foreigner or a citizen of another 

state. The resulting Eleventh amendment was passed in 1798. 

Next came the Dred Scott decision in 1857. Its holding that blacks 

were not citizens nor could ever be considered citizens was explicitly overruled by the Fourteenth Amendment after the end of the 

Civil War. Later, the Supreme Court ruled that Congress did not 

have the power to levy income taxes in Pollack v. Farmers’ Loan 

and Trust (1885). Immediately, an amendment giving Congress the 

power to levy income taxes was introduced. Although that measure 

was defeated at first, it was later passed by Congress in 1909, and 

ratified four years later as the 16th Amendment. Next, Congress 

passed the Nineteenth Amendment, giving women the right to 

vote. This Amendment overturned the Supreme Court’s decision in 

Minor v. Happersett (1874). Finally, Congress passed the 24th 

Amendment, outlawing poll taxes, after the Supreme Court had 

ruled in Breedlove v. Suttles (1937) that the poll taxes were Constitutional and not an abridgment of rights under the Fourteenth, 

Fifteenth, and Nineteenth Amendments. It was ratified in 1964. 

This history makes clear that, far from being an unusual legislative tactic, S.J. Res. 4 reflects a perfectly legitimate mechanism 

22

21 Hearing Transcript, p. 91. 

under our system of government. Sending this amendment to the 

states is perfectly consistent with Congressional action in the past 

in responding to Supreme Court decisions. As Richard D. Parker of 

Harvard Law School explained:

[I]t is the responsibility of the Congress under the separation of powers to prove a check to the Court, and the Article V process is an effect, and indeed the most effective 

way for the Congress to check this new assertion of judicial power. It has been done before, most recently with the 

18-year-old-vote. It is especially appropriate when an 

amendment has the support of a substantial majority, sustained over time, when that amendment defends an established meaning of the Constitution, changed by the Justices, and when all the amendment does is empower the 

Congress to pass legislation.21

C. What the proposed amendment is not 

Some critics of S.J. Res. 4 argue that the measure would amend 

the First Amendment to curtail important liberties, would disrespect the Constitution, and would somehow facilitate the adoption of measures that would abridge other constitutional rights. 

While such assertions might make for good speeches, they have no 

basis in fact. 

1. No reduction in First Amendment rights 

S.J. Res. 4 would allow the American people, through their state 

legislatures, to decide whether to ratify an amendment that grants 

Congress the power to prohibit physical desecration of the flag 

only. If adopted, the effect would be to overturn two Supreme Court 

decisions which have misconstrued the First Amendment with respect to flag desecration. S.J. Res. 4 would not amend or alter any 

other interpretation of the First Amendment. This is true for at 

least two reasons. 

First, physical acts of desecration are conduct, not speech. The 

revolution in this area happened in 1989 when the Supreme Court 

struck down a state flag protection statute when 48 states and the 

District of Columbia had similar statutes. Flag protection statutes 

had been on the books for nearly a century when the Court decided 

to protect this despicable conduct under the First Amendment. 

Congressional Research Service has published a report that compiles federal and state laws on the desecration and misuse of the 

flag of the United States. The District of Columbia and the states 

of Alaska and Wyoming are the only ones without statutes prohibiting flag desecration. In fact, before the Johnson and Eichman decisions, many of these state statutes were upheld by various state 

courts. One such example is Monroe v. State Court of Fulton County (571 F. Supp. 1023; DCND Georgia, 1983). 

On writ for habeas corpus, the conviction of the defendant, Diane 

Monroe, under a Georgia anti-desecration statute, was upheld. The 

defendant was convicted for having burned the American flag during a demonstration against U.S. ‘‘involvement in Iranian affairs’’ 

which occurred outside the federal courthouse in Atlanta. The U.S. 

District Court refused to grant the writ of habeas corpus by applyVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00022 Fmt 6659 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
23

ing the standard set out in the U.S. Supreme Court’s test in the 

Spence case. The court determined that, under the circumstances 

under which the statute was enforced, the interests which the 

State of Georgia sought to further were not unrelated to the suppression of free expression but that the defendant’s burning of the 

flag at the demonstration did not convey any information or ideas, 

nor did it identify the subject of her concern. Thus, there was 

deemed to have been an insufficient restriction of the defendant’s 

freedom of expression to warrant invalidating her conviction. 

Second, 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 two o’clock in the morning in a residential neighborhood and 

claim First Amendment protection. Fighting words which provoke 

violence or breaches of the peace are not protected under the First 

Amendment. We can prohibit the physical desecration of the flag 

without circumscribing robust political debate. 

In fact, the First Amendment has been amended a number of 

times by Congress, but much more often by the Supreme Court. 

Much like the Constitution itself, the First Amendment and the 

Bill of Rights is constantly being reviewed and applied to novel and 

modern situations. The meaning of the First Amendment changes 

according to the wishes of the Supreme Court—nine distinguished 

but un-elected jurists who have lifetime appointments. Over time, 

the Court has found restrictions on several types of speech to be 

consistent with the First Amendment. 

For example, the Court has refused to privilege speech that is 

likely to incite an immediate, violent response, such as face-to-face 

fighting words likely to cause a breach of the peace. Chaplinsky v. 

New Hampshire, 3l5 U.S. 568 (l942). The court has refused to privilege speech that threatens certain tangible, diffuse harm, such as 

obscenity, which pollutes the moral environment. Miller v. California, 4l3 U.S. l5 (l973). The Court has also refused to privilege 

speech that criticizes official conduct, i.e., libel of a public official 

when the criticism is known to be false and damages the official’s 

reputation. New York Times v. Sullivan, 367 U.S. 254 (l964). In 

that case, the Court held that such speech should be regulated 

since it is at odds with the premises of democratic government. 

In each of these instances, the cry could have gone up that the 

Court was amending the First Amendment. However, time has 

shown that the constitutional order and freedom of speech have 

thrived in this country not in spite of, but because of, the laws regulating libel, slander, and pornography. 

Likewise, the First Amendment will harmonize very well with 

the flag protection amendment. Legal protections for the flag and 

the First Amendment co-existed for nearly 200 years of our history. 

In fact, our dynamic, ‘‘ever-changing’’ First Amendment, throughout our history, has been remarkably constant where protecting our 

nation’s flag is concerned. As this great amendment accommodated 

flag protection for nearly two centuries prior to 1989, so it can and 

should continue to accommodate such safeguards in the future. 

Some people who think physical acts of flag desecration are 

‘‘speech’’ nevertheless support legal protections. Some think that, 

even though such a restriction would indeed be a limitation of 

24

rights, it is an insignificant one because an extraordinarily small 

number of Americans exercises or even values that right. In other 

words, it is a right that Americans overwhelmingly do not care to 

have. As John Andretti told the Committee:

I once heard a man say that the flag represents the freedom to burn it. I would disagree, and I think most Americans would, too. The flag is a symbol that represents all 

that our Nation is [and] can be. It symbolizes what the 

people say it symbolizes, and the great majority certainly 

don’t believe that includes the freedom to desecrate it.

Hearing Transcript, pp. 60–61. Still others say that the small sacrifice of rights is part of being a responsible citizen and member 

of the community. As it says on the Korean War Veterans Memorial in Washington, D.C., ‘‘freedom is not free.’’ The American people have paid a very high price in lives and treasure to establish 

and protect a government that safeguards liberty. The small (indeed, negligible to most) sacrifice of giving up the right to perform 

vile acts to the American flag is, in comparison, a very small price 

to pay in return for the comfort so many Americans would take in 

knowing that our society finds desecration of the American flag at 

least as unacceptable as parking at an expired parking meter. 

2. No disrespect in amending the Constitution 

The Constitution itself establishes the process for its own amendment. The best use of Article V of the Constitution, which authorizes Constitutional amendments upon approval of two thirds of the 

Congress and ratification by three-fourths of the States, is to employ that process only when a great majority of citizens determines 

that its government—or one of its three branches—is not governing 

according to its will. The framers themselves realized that the Constitution was a living document and that the people, after proper 

reflection and deliberation, should have the power to amend the 

basic law of the land. The amendment process, far from subverting 

the Constitution, was an essential part of the Constitution from the 

beginning. Indeed, there would not be a First Amendment without 

Article V and the amendment process. 

Some have asserted that Congress has considered too many possible amendments to the Constitution, as if thoughtful consideration were an affront to the document. Imagine if the ‘‘too many’’ 

argument had carried the day when the first 10 amendments were 

proposed—is 10 too many amendments in a two-year period? 

It is interesting to note that those who decry the proposed 

amendment as a change to the Constitution do not say the same 

about the real change to the document: the Supreme Court’s decisions in Johnson and Eichman, which overturned 200 years of legal 

principles. In comparison to such judicial fiat, the employment of 

the Constitution’s Article V process is more respectful to the Framers’ intent. 

3. No slippery slope 

Some opponents of the flag amendment complain that it sets us 

on a slippery slope to foreclosing our constitutional freedoms. But 

there is no ‘‘slippery slope’’ here. The flag protection amendment is 

limited to authorizing the Federal Government to prohibit physical 

25

desecration of only the American flag. It does not serve as precedent for any other legislation or constitutional amendment on any 

other subject or mode of conduct, precisely because the flag is 

unique. Moreover, the difficulty in amending the Constitution 

serves as a powerful check on any effort to reach other conduct, let 

alone speech, which the Supreme Court has determined is protected by the First Amendment. No speech, and no conduct other 

than physical desecration of the American flag, can be regulated 

under legislation authorized by the amendment. 

Some critics of the amendment ask, is our flag so fragile as to 

require legal protection? The better question is—is our freedom of 

expression so fragile in this country as to be unable to withstand 

the withdrawal of the flag from physical desecration? Of course not. 

The flag protection amendment does not authorize legislation 

which prohibits displaying or carrying the flag at meetings or 

marches of any group—be they Nazis, Marxists, or anyone else. 

The amendment does not authorize legislation prohibiting derogatory comments about the flag or cursing the flag, nor does it authorize a prohibition on shaking one’s fist at the flag or making obscene gestures at the flag, whether or not such gestures are accompanied by words. The amendment does not authorize legislation penalizing carrying or displaying the flag upside down as a signal of 

distress or flying it at half staff on days other than on officially 

designated occasions. There is no way to construe the flag amendment to do anything other than allow the Congress to enact a statute authorizing punishment for acts of physical desecration to the 

flag of the United States. 

D. Let the people decide 

One purpose of Article V of the Constitution is to ensure that the 

American people offer their own voice in any amendments to that 

document. Although the Framers trusted representatives of the 

people—Congress and the president—with ordinary legislation, 

they designed Article V in a way that involves the American people 

much more directly with changes to the Constitution. It is therefore 

appropriate for senators to see their role not as final arbiters of the 

underlying merits of S.J. Res. 4, but rather as gatekeepers who are 

deciding whether to give the American people, through their state 

legislatures, the opportunity to consider and debate the flag 

amendment. There can be no doubt that the American people want 

that opportunity. All fifty states have passed resolutions calling on 

Congress to pass a flag amendment. The House of Representatives 

has passed the amendment in each of the last four consecutive sessions of Congress, including this one. 

Senate passage of S.J. Res. 4 would give ‘‘We the People’’ their 

proper role in our democracy, and would restore our historical legal 

order. The most basic question about the structure of our federal 

government is the balance of power among the three branches: executive, legislative and judicial. For almost 200 years, the legislative branch had and exercised the power to make laws concerning 

flag desecration. That changed in 1989 and 1990 when the Supreme Court ruled that acts of physical flag desecration are 

‘‘speech.’’ The effect of those decisions was a reallocation of power 

from Congress to the Supreme Court, which is now the only branch 

of government that can decide whether a flag desecration law can 

26

22 National Center for Education Statistics, Institute of Education Sciences, U.S. Dept. of Education, 2001. 23 National Center for Education Statistics, Institute of Education Sciences, U.S. Dept. of Education, 1994. 24Washington Post, May 28, 2004, B1. 

exist. An overwhelming number of Americans disagree with that 

result. By giving the people the opportunity, through State ratification, to restore Congress’s authority in this area, the flag amendment would empower the people to determine flag desecration policy through their elected representatives. The Senate should give 

the people that power. 

E. The ratification debate 

If the Senate passes the flag amendment this year, the nationwide debate over state ratification will be one of the greatest public 

discussions in American history. It will encourage a deeper study 

of our nation’s history and values. It will inspire our young people 

to understand and appreciate the heroic selflessness displayed during previous generations. And it will cause many Americans to 

renew their faith in—and commitment to—the ideals and values of 

America that are greater than anyone’s personal self interest. 

Americans’ understanding of their government, or lack thereof, 

has become a popular object of ridicule. It is difficult not to share 

that sentiment when reading the results of surveys aimed at testing such knowledge. For example, a recent survey22 of fourth graders asked, ‘‘Which part of the government is responsible for passing 

laws?’’ Nearly three-quarters of the respondents got the wrong answer from the following list: ‘‘(A) The President; (B) The Supreme 

Court; (C) the Congress; (D) The State Department.’’ On another 

survey, only 2 percent of eighth graders wrote an appropriate response to the question, ‘‘Explain why the framers of the Constitution established a system of checks and balances among the three 

branches of government.’’23 That study also showed that fewer than 

one-third of fourth graders could identify the ‘‘document that contains the basic rules used to run the United States government’’ 

from this list: ‘‘(A) the Declaration of Independence; (B) Magna 

Carta; (C) the Mayflower Compact; (D) the Constitution.’’ Such results demonstrate a serious lack of understanding about the fundamental workings of the United States government. A full public 

discussion about the flag amendment would necessarily raise 

awareness and encourage understanding of the different branches 

of government, the importance of checks and balances, and the 

meaning of the Constitution. 

American children are also surprisingly unaware of the enormous sacrifices that brave Americans have made for them on the 

battlefield. Washington Post writer Jay Matthews pointed this out 

in an article printed just before the World War II Memorial was 

dedicated on May 29, 2004.24 Based on interviews with 76 Washington-area high school students, Matthews found that only onethird of them could name even one World War II general, and only 

about half could name a World War II battle. In contrast, twothirds of the students correctly stated what happened to Japanese 

Americans during the war, reflecting the fact that the internment 

camps are ‘‘a standard part of every area history curriculum.’’ It is 

clear that America’s young people would benefit from a greater 

27

focus on the nature of our freedom, its origin and meaning, and the 

tremendous price Americans have paid to obtain it. A nationwide 

debate over the flag amendment would provoke just that sort of 

discussion in the nation’s classrooms, kitchens, workplaces, dormitories and legislatures. Everyone in the country would benefit 

from that debate. 

VI. VOTE OF THE COMMITTEE

On July 20, 2004, with a quorum present, by rollcall vote, the 

Committee on the Judiciary voted on a motion to report favorably 

S.J. Res. 4. The motion was adopted by a vote of 11 yeas and 7 

nays, as follows: 

Yeas: Senator Hatch, Senator Grassley, Senator Specter, Senator 

Kyl, Senator DeWine, Senator Sessions, Senator Graham, Senator 

Craig, Senator Chambliss, Senator Cornyn, Senator Feinstein. 

Nays: Senator Leahy, Senator Kennedy, Senator Kohl, Senator 

Feingold, Senator Schumer, Senator Durbin, and Senator Edwards.

VII. TEXT OF S.J. RES. 4 

JOINT RESOLUTION

Proposing an amendment to the Constitution of the United 

States to grant Congress and the States the power to prohibit the 

physical desecration of the flag of the United States. 

Resolved by the Senate and House of Representatives of the 

United States of America in Congress assembled (two-thirds of each 

House concurring therein), That the following article is proposed as 

an amendment to the Constitution of the United States, which 

shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several 

States within seven years from the date of its submission by the 

Congress:

‘‘ARTICLE—

‘‘The Congress shall have power to prohibit the physical 

desecration of the flag of the United States.’’

VIII. COST ESTIMATE

The Congressional Budget Office has supplied the Committee 

with the following report estimating the proposed amendment’s potential costs: 

By itself, this resolution would have no impact on the 

federal budget. If the proposed amendment to the Constitution is approved by the states, then any future legislation prohibiting flag desecration could impose additional 

costs on U.S. law enforcement agencies and the court system to the extent that cases involving desecration of the 

flag are pursued and prosecuted. 

However, CBO does not expect any resulting costs to be 

significant. S.J. Res. 4 would not affect direct spending or 

revenues. 

S.J. Res. 4 contains no intergovernmental or private-sector mandates as defined in the Unfunded Mandates ReVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00027 Fmt 6659 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
28

form Act and would impose no costs on state, local, or tribal governments. In order for the amendment to become 

part of the Constitution, three-fourths of the state legislatures would have to ratify the resolution within seven 

years of its submission to the states by Congress. However, 

no state would be required to take action on the resolution, 

either to reject it or approve it. 

Congressional Budget Office, Cost Estimate, S.J. Res. 4, letter 

dated July 23, 2004. 

IX. REGULATORY IMPACT STATEMENT

Pursuant to paragraph 11(b), rule XXVI of the Standing Rules of 

the Senate, the committee, after due consideration, concludes that 

Senate Joint Resolution 4 will not have direct regulatory impact.

(29)

X. MINORITY VIEWS 

CONTENTS

A. Introduction: To Honor Our Veterans and Our Nation’s History, We Must Protect the Constitution 

B. There Is No ‘‘Great And Extraordinary Occasion’’ Justifying 

the Proposed Amendment 

1. The Constitution should be amended only under very compelling circumstances. 

2. There is no epidemic of flag burnings crippling the country. 

3. Outlawing flag desecration could increase rather than decrease such conduct. 

4. Existing legal and social sanctions are adequate to deter 

and punish flag desecration. 

5. Existing constitutional limitations on free expression are 

applicable to acts of flag desecration. 

C. The Proposed Amendment Would Diminish the Rights We 

Currently Enjoy Under the First Amendment. 

1. The proposed amendment would restrict free expression. 

2. The First Amendment protects above all the right to speak 

the unpopular and objectionable. 

3. The American people can and do answer unpopular speech 

with tolerance, creativity and strength. 

4. The proposed amendment would set a dangerous precedent for future amendments to the Bill of Rights. 

D. The Johnson Decision Was Consistent With Generations of 

Constitutional Doctrine 

1. The Supreme Court has never accepted limitations on the 

First Amendment for peaceful protests involving flag burning. 

2. The Supreme Court protected unpopular speech connected 

to the flag long before Johnson. 

E. The Proposed Amendment Is Vague and Its Effect on Civil 

Liberties Uncertain 

1. There is no consensus or clarity on the definition of ‘‘flag’’. 

2. There is no consensus or clarity on the definition of ‘‘desecration’’. 

3. Use of the word ‘‘desecration’’ in S.J. Res. 4 undermines 

the First Amendment religion clauses. 

4. There is no consensus or clarity on the issue of contentneutrality. 

5. The difficulties that attend a statutory approach to flag 

burning would remain even following a constitutional amendment. 

F. Conclusion. 

30

1General Powell was not serving in the military or in the Executive Branch when he wrote 

the letter, the full text of which is reproduced as Appendix A to these views.

A. INTRODUCTION: TO HONOR OUR VETERANS AND OUR NATION’S

HISTORY, WE MUST PROTECT THE CONSTITUTION

Flag burning is a despicable and reprehensible act. The issue before us, however, is not whether we agree with that truism—we do. 

Instead, the issue is whether we should amend the Constitution of 

the United States, with all the risks that entails, and narrow the 

precious freedoms ensured by the First Amendment for the first 

time in our history, so that the Federal government can prosecute 

the tiny handful of individuals who show contempt for the flag. 

In voting on this proposed amendment, the Senate’s role should 

reflect a sense of priorities appropriate to the gravity of our time. 

This amendment has already been defeated in the Senate four 

times in the last 15 years. No significant problem existed at the 

outset, and no new one has appeared since then. The real issues 

of our current situation—such extraordinary problems as war and 

terrorism, trade imbalance and domestic jobs and deficits—are far 

more pressing. It reflects a strange set of priorities to think our national interest is best served by rolling back the Bill of Rights. 

The Senate last considered, and rejected, the proposed amendment in the year 2000, another presidential election year. Since 

that time, we have not seen an explosion of incidents of flag burning, a decrease in patriotic displays, or a marked reduction among 

young people in willingness to serve in the armed forces. To the 

contrary, the majority report itself describes how, in the wake of 

the terrorist attacks of September 11, 2001, the American people 

and their friends around the world flew the American flag as a unifying image of strength and purpose and freedom. The spontaneous 

rally around the American flag that followed the attacks makes it 

even more clear now than it was in 2000 that the monumental step 

of amending the Constitution to increase legal protections for the 

flag is unnecessary and ill-advised. 

Proponents of this amendment rely heavily on the views of distinguished American veterans and war heroes who have expressed 

to this Committee their love of the flag and support for the amendment. Those who fought and sacrificed for our country deserve our 

respect. They appreciate the costs as well as the joys of freedom 

and democracy. But while proponents would like to portray the 

views of veterans as monolithic, many outstanding veterans oppose 

the amendment. They do so for a number of reasons. 

Above all, they believe they fought for the freedoms and principles that make this country great, not just the symbols of those 

freedoms. To weaken the nation’s freedoms in order to protect a 

particular symbol would trivialize and minimize their service. 

General Colin L. Powell (USA, Ret.), Chairman of the Joint 

Chiefs of Staff during the 1991 Persian Gulf War and currently the 

Secretary of State, wrote to Senator Leahy on May 18, 1999, in opposition to the proposed flag protection amendment.1 He wrote: 

We are rightfully outraged when anyone attacks or desecrates our flag. Few Americans do such things and when 

they do they are subject to the rightful condemnation of 

their fellow citizens. They may be destroying a piece of 

31

cloth, but they do no damage to our system of freedom 

which tolerates such desecration. * * *

I would not amend that great shield of democracy to 

hammer a few miscreants. The flag will still be flying 

proudly long after they have slunk away.

Former Senator John Glenn, who served this nation with special 

distinction in war and in peace, as well as in the far reaches of 

space, stated in a written submission to the Committee for its hearing on March 10, 2004:

[I]t would be a hollow victory indeed if we preserved the 

symbol of our freedoms by chipping away at those fundamental freedoms themselves. Let the flag fully represent 

all the freedoms spelled out in the Bill of Rights, not a partial, watered-down version that alters its protections. 

The flag is the Nation’s most powerful and emotional 

symbol. It is our most sacred symbol. And it is our most 

revered symbol. But it is a symbol. It symbolizes the freedoms that we have in this country, but it is not the freedoms themselves. That is why this debate is not between 

those who love the flag on the one hand and those who do 

not on the other. No matter how often some try to indicate 

otherwise, everyone on both sides of this debate loves and 

respects the flag. The question is how best to honor it and 

without taking the chance of defiling what it represents. 

Those who have made the ultimate sacrifice and died following that banner did not give up their lives for a red, 

white and blue piece of cloth. They died because they went 

into harm’s way representing this country and because of 

their allegiance to the values, the rights, and principles 

represented by that flag.

Keith Kreul, an Army veteran and former National Commander 

of the American Legion, expressed a similar opinion in a statement 

he submitted to the Committee for its March 2004 hearing. He disputes the majority’s view that the proposed amendment honors the 

flag:

American veterans who have protected our banner in 

battle have not done so to protect a ‘‘golden calf.’’ Instead, 

they carried the banner forward with reverence for what 

it represents—our beliefs and freedom for all. Therein lies 

the beauty of the flag.

Another veteran who expressed a similar view was Professor 

Gary May, who lost both his legs in combat while serving his country in Vietnam. Professor May testified at the March 2004 hearing:

Freedom is what makes the United States of America 

strong and great, and freedom, including the right to dissent, is what has kept our democracy going for more than 

200 years. And it is freedom that will continue to keep it 

strong for my children and the children of all the people 

like my father, late father in law, grandfather, brother, 

me, and others like us who served honorably and proudly 

for freedom. 

32

2Professor May, who chairs a group called Veterans Defending the Bill of Rights, included 

similar statements by other veterans opposed to S.J. Res. 4 in a letter to the Committee dated 

March 10, 2004. The letter is reproduced as Appendix B to these views.

The pride and honor we feel is not in the flag per se. It’s 

in the principles for which it stands and the people who 

have defended them. My pride and admiration is in our 

country, its people and its fundamental principles. I am 

grateful for the many heroes of our country—and especially those in my family. All the sacrifices of those who 

went before me would be for naught, if an amendment 

were added to the Constitution that cut back on our First 

Amendment rights for the first time in the history of our 

great nation. 

I love this country, its people and what it stands for. The 

last thing I want to give the future generations are fewer 

rights than I was privileged to have. My family and I 

served and fought for others to have such freedoms and I 

am opposed to any actions which would restrict my children and their children from having the same freedoms I 

enjoy.

Included in Professor May’s prepared testimony was another 

statement to the same effect by World War II veteran Frances W. 

Lovett of Waverly, Ohio, who served with the Tenth Mountain Division and received the Bronze Star. Mr. Lovett wrote:

The voice of dissent is a voice we need to hear—not stifle. Those who favor the proposed amendment say they do 

so in honor of the flag, but in proposing to unravel the 

First Amendment, they desecrate what the flag represents 

and what so many of my comrades died to defend.2

This is a radical suggestion—that our country’s soldiers fight to 

protect the rights of the minority to do or say things that displease 

or even offend us. But America was founded on just such radical 

ideas. 

General Powell observed in his May 1999 letter to Senator Leahy 

that ‘‘The First Amendment exists to insure that freedom of speech 

and expression applies not just to that with which we agree or disagree, but also that which we find outrageous.’’ John Glenn echoed 

this observation in his March 2004 submission when he wrote that 

the First Amendment protects ‘‘[t]he liberty to worship, to think, to 

express ourselves freely, openly and completely, no matter how out 

of step those views may be with the opinions of the majority.’’ 

Former Senator Bob Kerrey, a recipient of the Congressional Medal 

of Honor, also reminded the Committee, in written testimony submitted at this year’s hearing, that ‘‘it is the right to speak the unpopular and objectionable that needs the most protecting by our 

government.’’ Referring specifically to acts of flag burning, he 

added: ‘‘Patriotism calls upon us to be brave enough to endure and 

withstand such acts.’’ 

James Warner, a decorated Marine flyer who was a prisoner of 

the North Vietnamese from 1967 to 1973, made the same point in 

graphic terms in a Washington Post article dated July 11, 1989:

33

I remember one interrogation where I was shown a photograph of some Americans protesting the war by burning 

a flag. ‘‘There,’’ the officer said. ‘‘People in your country 

protest against your cause. That proves that you are 

wrong.’’ 

‘‘No.’’ I said, ‘‘that proves that 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 don’t need 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 the subversive 

idea of freedom? * * * Don’t be afraid of freedom, it is the 

best weapon we have.

Proponents of this amendment have argued that it will promote 

patriotism. Major General Patrick Brady (USA, Ret.), who heads a 

coalition of organizations that support the amendment called the 

Citizens Flag Alliance, has gone so far as to say, in his testimony 

this year before the Committee: ‘‘It should be obvious that demanding—indeed, forcing—patriotism is the bedrock of our freedom.’’ 

But many veterans object to this attempt to, in effect, legislate patriotism, speaking in eloquent terms about the importance of respect and love for country coming from within a citizen or a soldier, 

not being imposed from without by the government. 

Former Senator Bob Kerrey stated this view succinctly in his 

March 2004 submission: ‘‘[R]eal patriotism cannot be coerced. It 

must be a voluntary, unselfish, brave act to sacrifice for others.’’ 

Keith Kreul also made the point in his March 2004 statement: ‘‘A 

patriot cannot be created by legislation. Patriotism must be nurtured in the family and educational process. It must come from the 

heartfelt emotion of true beliefs, credos and tenets.’’ 

Similarly, the late John Chafee, a distinguished member of this 

body and a highly decorated veteran of World War II and Korea, 

pointed out at our hearing on April 28, 1999, that just as forced 

patriotism is far less significant than voluntary patriotism, a symbol of that patriotism that is protected by law will be not more, but 

less worthy of respect and love: ‘‘We cannot mandate respect and 

pride in the flag. In fact, in my view taking steps to require citizens to respect the flag, sullies its symbolism and significance.’’ 

Veterans disagree about the proposed amendment, but they 

agree that Congress must do more for those who have served this 

country in uniform. Professor May, who has worked as a social 

worker in Veterans Administration hospitals and outpatient clinics, 

reminded the Committee in March 2004 of America’s broken promises: ‘‘If we are truly serious about honoring the sacrifices of our 

military veterans, our efforts and attention would be better spent 

in understanding the full impact of military service and extending 

34

services to the survivors and their families.’’ Answering a follow-up 

written question from Senator Leahy, Professor May elaborated:

There are numerous substantive needs of veterans and 

families that are going unmet or are being inadequately 

met. Funding for Department of Veterans Affairs medical 

care needs to be increased. * * * Compensation and benefits for service women/men need to be increased. * * * 

There are countless tangible things we can—and should—

do if we wish to convey a sincere, credible message of caring about veterans and their sacrifices. Amending the Constitution is not among them.

Lieutenant General Robert G. Gard, Jr. (USA, Ret.) struck a 

similar note in a letter to the Chairman and Ranking Member of 

the Committee dated March 8, 2004. He wrote:

[I]n an era of global conflict and threat, is [flag desecration] really the issue that should be taking up the valuable 

time of Congress? * * * On the home front, our military 

is receiving rhetorical laurels for its splendid achievements 

in Iraq, but our veterans are still fighting for richly deserved access to medical care, mental health services, adequate housing, disability assistance and other essential 

services. * * * But instead of addressing these issues, 

Congress is spending its time debating flag burning. For 

lawmakers unwilling to actually face the tough issues, this 

may provide an appealing smoke screen [that] allows politicians to be in favor of an empty patriotic gesture without 

doing anything substantive to assist veterans.

A 23-year Navy and Vietnam War veteran and Pentagon official 

in the Reagan Administration, Lawrence Korb, testified at the 

March 2004 hearing. He echoed General Gard’s concerns and offered a number of steps Congress should take to address the very 

pressing needs of veterans:

I would suggest that the Congress could help [veterans] 

much more by resisting the draconian measures advocated 

by the Bush administration that adversely impact our current and future veterans. * * * 

First, since coming into office the Bush administration 

has increased the out of pocket costs for veterans using 

VA’s medical facilities by nearly 500%. * * * 

Second, the administration has fought tooth and nail to 

prevent disabled veterans who are also military retirees 

from getting ‘‘concurrent receipts’’ of both their retired and 

disability pays. * * * 

Third, the Bush Administration actively sought to reduce hostile fire pay and family separation pay while our 

troops were fighting wars in two countries. * * * 

Fourth, in what the Army Times has called an act of betrayal, the Department of Defense is considering closing 

commissaries and schools on military bases throughout our 

country. 

Fifth, the administration refuses to endorse Congressional proposals to allow Guard and reserve members to 

35

participate fully in the military’s Tricare Health System. 

* * * 

Finally, in spite of the unprecedented strain being 

placed on the active duty Army and its reserve component, 

the administration continues to resist permanently adding 

40,000 people to the active Army.

Even Major General Brady, a leading supporter of this amendment, frankly admitted, in response to a question from Senator 

Leahy following the Committee’s April 1999 hearing, that ‘‘the 

most pressing issues facing our veterans’’ were not flag burnings, 

but rather ‘‘broken promises, especially health care.’’ 

It is time to honor our veterans with substance not symbolism. 

If the amount of time, effort, and money devoted to this amendment over the past 15 years had been directed toward improving 

services for veterans, those deserving Americans would be much 

better off. 

We on the Judiciary Committee who oppose the flag amendment 

deplore any act of flag desecration and hold the flag in high regard. 

But we believe that this cherished emblem is best honored by preserving the freedoms for which it stands. We understand that the 

political pressure for this amendment is strong, but hope that the 

Senate will in the end heed the words of our former colleague, John 

Glenn, when he urged us to reject the amendment:

[T]here is only one way to weaken the fabric of our Nation, 

a unique country that stands as a beacon before other Nations around this world. The way to weaken our Nation 

would be to erode the freedom that we all share. * * * We 

must not let those who revile our way of life trick us into 

diminishing our great gift, or even take a chance of diminishing our freedoms.

B. THERE IS NO ‘‘GREAT AND EXTRAORDINARY OCCASION’’ 

JUSTIFYING THE PROPOSED AMENDMEMT

1. The Constitution should be amended only under very compelling 

circumstances 

James Madison, widely regarded as the Father of the Constitution, told posterity that constitutional amendments should be limited to ‘‘certain great and extraordinary occasions.’’ It is distressing 

to find his advice so unheeded that there are now more than 70 

proposed amendments pending before the 108th Congress. But it is 

reassuring to recall that since Madison spoke, although more than 

11,000 amendments have been offered, only 27 have been adopted, 

and only 17 since the first ten amendments comprising the Bill of 

Rights were ratified in 1791. If we disregard the Eighteenth and 

Twenty-First Amendments, marking the beginning and end of Prohibition, we are left with only 15 amendments in over 200 years. 

The proposed resolution is offered in direct response to the Supreme Court’s decisions in Texas v. Johnson, 491 U.S. 397 (1989), 

and United States v. Eichman, 496 U.S. 310 (1990). In our system 

of carefully balanced powers, it is most unusual to overturn decisions of the nation’s highest court. On at most five occasions in the 

history of this country has a constitutional amendment been adoptVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00035 Fmt 6604 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
36

3The majority report claims (in Part V.B) that the Eleventh, Fourteenth, Sixteenth, Nineteenth, and Twenty-Fourth Amendments were passed in response to specific Supreme Court decisions. But the notion that Congress adopted the Nineteenth Amendment, giving women the 

right to vote, in response to the nearly 50-year old Supreme Court decision in Minor v. 

Happersett, 88 U.S. 162 (1874) (upholding state law confining right of suffrage to men) is a 

stretch; this change is properly credited to the work of the women’s suffrage movement. Moreover, while the Fourteenth Amendment arguably was adopted in response to the Dred Scott decision, Scott v. Sandford, 60 U.S. (19 How.) 393 (1857), the introduction of the Black Codes following the Civil War likely was the true catalyst. 

ed in response to a decision of the Supreme Court.3 Significantly, 

these amendments either expanded the rights of Americans or involved the mechanics of government. The proposed amendment 

would be the first amendment to the Constitution that would infringe on the rights enjoyed by Americans under the Bill of Rights, 

defying the long-established principle that the Constitution is a 

limitation on government, not on individuals. 

Worse, the infringement would fall on the First Amendment, the 

cornerstone and foundation of all of our rights, of which we must 

be especially protective. As Senator Leahy stated at a Committee 

markup on June 24, 1998:

All of our freedoms, all of our liberties rest on the First 

Amendment. It is the granite of democracy. It is our bedrock. Without the right to speak out, all our other rights 

are only so much paper. Without the right to assemble and 

petition, you literally cannot fight city hall, let alone the 

State legislature or the Congress or the IRS or anybody 

else. You are stuck. Without the freedom to worship or not, 

unmolested, there is a gaping void at the very core of our 

life. * * * 

If some disaster were to sweep away all the monuments 

of this country, the Republic would survive just as strong 

as ever. But if some disaster * * * some failure of our 

souls were to sweep away the ideals of Washington and 

Jefferson and Lincoln, then not all the stone, not all the 

marble, not all the flags in the world would restore our 

greatness. Instead, they would be mocking reminders of 

what we had lost.

In Federalist No. 43, James Madison wrote that the Constitution 

establishes a balanced system for amendment, guarding ‘‘equally 

against that extreme facility, which would render the Constitution 

too mutable, and that extreme difficulty, which might perpetuate 

its discovered faults.’’ The concern of the Framers that amendments would come too frequently is profoundly conservative, in the 

best sense of that word, as expressed in Federalist No. 49:

[A]s every appeal to the people would carry an implication of some defect in government, frequent appeals would, 

in great measure, deprive the government of that veneration which time bestows on everything and without which 

perhaps the wisest and freest governments would not possess the requisite stability.

Federalist No. 49 also warns against using the amendment process 

when ‘‘[t]he passions [and] not the reason, of the public, would sit 

in judgment.’’ 

37

The horror with which the Framers might regard the more than 

11,000 amendments offered in our history, or the more than 70 offered in the 108th Congress alone, no doubt is offset by the wisdom 

of the nation’s elected representatives in adopting so few amendments since the Bill of Rights. An amendment to the Constitution 

to outlaw flag burning would be precisely the sort of act against 

which the Framers warned. 

Common sense alone tells us that this is not a ‘‘great and extraordinary’’ occasion that justifies invoking the awesome power of 

amending our fundamental charter. Constitutional amendments 

are for resolving the profound and structural issues of government. 

The proposed amendment would be the first amendment ever 

passed to vindicate purely symbolic interests. Former Assistant Attorney General Walter Dellinger wrote the Committee on March 

10, 2004:

The unprecedented amendment before you would create 

legislative power of uncertain dimension to override the 

First Amendment and other constitutional guarantees. 

More fundamentally, it would run counter to our traditional resistance, dating back to the time of the Founders, 

to resorting to the amendment process. For these reasons, 

the proposed amendment—and any other proposal to 

amend the Constitution in order to punish a few isolated 

acts of flag burning—should be rejected by this Congress.

Rather than face the solemn responsibility of justifying an 

amendment to the Constitution, the majority report repeatedly suggests that Senators should abdicate their established role in voting 

on proposed constitutional amendments and instead view themselves simply as ‘‘gatekeepers,’’ whose job is to determine whether 

there is enough popular support for an amendment to pass it on 

to the state legislatures. This argument is totally contrary to the 

conservative conception of amendment that our Constitution establishes. However many state legislatures may have expressed support for a flag amendment at one time or another, the Constitution 

intentionally makes it difficult to pass amendments because they 

are to be permanent and fundamental. Supermajorities are required in both houses of Congress as well as among the ratifying 

states. No amendment should pass unless every one of these levels 

of government overwhelmingly supports it. 

Our system is undermined if each institution of government does 

not independently exercise its responsibilities with the utmost care. 

The purpose of the painstaking and difficult process of amending 

the Constitution is to be conservative, securing a series of responsible, considered judgments along the way. If the institutions of 

government that are responsible for amending the Constitution 

start to defer to one another instead of acting independently—allowing themselves to be led by ‘‘[t]he passions [and] not the reason, 

of the public’’—amendments will start coming quickly, easily, and 

impulsively. While the majority report denies that passage of this 

amendment will create a ‘‘slippery slope’’ for future thoughtless 

amendments, that is precisely what they invite by such an abdication of responsibility. In any event, the proponents’ suggestion is an 

38

4See Flag Burning and Free Speech: The Case of Texas v. Johnson (2000); Burning the Flag: 

The Great 1989–1990 American Flag Desecration Controversy (1996); Saving ‘‘Old Glory’’: The 

History of the American Flag Desecration Controversy (1995). 

abdication of responsibility of our clear, established responsibility 

on this occasion—and that is enough. 

2. There is no epidemic of flag burnings crippling the country 

Flag burning is rare. That simple fact—undisputed in the majority report—has been proven consistently in the course of hearings 

and debates over the various proposals offered over the years to 

prohibit the practice. There is no crisis to which we should respond 

with an amendment to our fundamental law. 

Professor Robert Justin Goldstein, who has written several books 

on flag desecration,4 testified before the Constitution subcommittee 

on March 25, 1998. He then reported that there had been only 

about 200 documented incidents of flag burning in the entire history of the country, representing less than one per year. 

The incidence of flag burning has increased a bit over the past 

decade, precipitated at least in part by efforts to overturn the 

Johnson ruling by constitutional amendment. See infra Part X.B.3. 

But even the leading lobbying group in support of S.J. Res. 4, the 

Citizens Flag Alliance, can document only a relatively small number of ‘‘flag desecration acts’’ since 1994, generally amounting to 

less than ten a year, nationwide. And as we discuss below (in Part 

X.B.4), most of these incidents were punishable even without S.J. 

Res. 4. 

In light of these figures, proponents of this amendment have 

been driven to declare that it is appropriate regardless of the number of flag desecrations. While we agree that even one incident of 

flag burning merits condemnation and scorn, it just as certainly 

does not create a reason to amend our Constitution. It does not call 

on this Congress to be the first Congress in the history of the 

United States to restrict the liberties of Americans with a narrowing amendment to the Bill of Rights. 

Even if there were a problem of flag desecration in this country, 

amending the Constitution would still be a totally disproportionate 

response. To propose an amendment when, in fact, there is no 

problem betrays a woeful and unworthy loss of perspective. As 

John Glenn observed at our hearing on April 28, 1999, the proposed amendment is ‘‘a solution looking for a problem.’’ 

Senator Glenn’s observation finds unintended support from some 

of the principal proponents of S.J. Res. 4. Asked at our hearing on 

April 28, 1999, what the penalty should be for burning an American flag, Citizens Flag Alliance Chairman Patrick Brady responded:

I would handle it like a traffic ticket. The individual who 

received the ticket for burning the flag * * * could pay the 

fine or he could * * * go to school. * * * I would send 

them to a class, and I would tell them this is what the flag 

means to the people of America, this is what it means to 

veterans, and that would be it.

At the same hearing, Lieutenant General Edward Baca (USA, Ret.) 

agreed that flag burning should be a misdemeanor offense, and a 

39

third pro-amendment witness, Professor Richard Parker, opined 

that ‘‘a jail term is probably not reasonable.’’ 

The notion that we should amend the Constitution of the United 

States and carve out an exception to the fundamental freedom of 

the First Amendment in order to issue a ticket and send someone 

to a class on ‘‘respect’’ takes one’s breath away. As stated at the 

time by Keith Kreul, past National Commander of the American 

Legion, ‘‘It is a radical approach to a near nonexistent dilemma 

akin to atom bombing a sleeping city because a felon may be in the 

vicinity.’’ 

The approach is all the more radical given its admitted limitations. The majority report acknowledges (in Part V.C.1) that the 

proposed amendment ‘‘does not authorize legislation prohibiting derogatory comments about the flag or cursing the flag, nor does it 

authorize a prohibition on shaking one’s fist at the flag or making 

obscene gestures at the flag.’’ Yet such acts may be as offensive, 

and as deserving public censure, as some of the acts of ‘‘physical 

desecration’’ that may be covered by the proposed amendment.

3. Outlawing flag desecration could increase rather than decrease 

such conduct 

One of the principal incitements to flag burning appears, from all 

of the evidence, to be the very efforts to make it illegal. That is because outlawing flag burning in a highly publicized way, or attempting to do so, tends to assure flag burners of the very attention they crave, lending national visibility to their crackpot causes 

and offensive behavior. The majority asserts (in Part V.E) that passage of the amendment would result in ‘‘one of the greatest public 

discussions in American history’’ and offer a sort of nationwide 

civics lesson for America’s youth. Quite apart from the improbability of this vision—if the post-9/11 challenges to American freedom and the war in Iraq are not enough to get young people thinking, even the most lively debate among state legislators is unlikely 

to do that—history tells us that the most likely result of passing 

this amendment would be a marked increase in flag desecrations. 

According to Professor Goldstein, there were more than twice as 

many flag burning incidents between 1989—when the Supreme 

Court’s ruling in Johnson made flag burning a front-page issue—

and March 1998—when he testified—than in the entire history of 

the American republic to that point. Professor Goldstein established that the number of incidents peaked between June 1989 and 

June 1990, when the first attempts were made to overturn Johnson

by amending the Constitution. The only comparable period was in 

1968, after Congress—responding to numerous public flag burnings 

protesting the war in Vietnam—passed the first Federal flag protection act. 

Based on past experience, then, focusing attention on flag burning with a highly publicized election-year debate on the proposed 

constitutional amendment will likely lead to another spike in the 

number of flags-burning incidents. Actually passing S.J. Res. 4 

would likely spur an unprecedented wave of incidents, as well as 

increase the variety of distasteful acts involving the flag which no 

doubt would be committed to test the vague and uncertain boundaries of any new law. 

40

If we want to stop people from burning the flag, the most effective way would be to stop daring them to do it. Passage of the proposed amendment—and the ensuing ratification debates—would do 

just the opposite. 

4. Existing legal and social sanctions are adequate to deter and 

punish flag desecration 

There is a huge misunderstanding underlying the push for a flag 

protection amendment. On April 29, 1999, Senator Feingold explained during a Committee markup on the amendment:

The American people have been * * * bamboozled into 

believing that you can walk across the street, grab an 

American flag off of somebody’s building and burn it, and 

that is protected. That is not the case.

The states and the Federal Government can prohibit and punish 

most acts of physical destruction of a flag, and do so with more 

than a citation or a compulsory class on respect. No one has the 

right to steal a flag or to defile a flag belonging to another. Burning 

a flag, even one’s own flag, will not shield a violent or disorderly 

protester from arrest. The First Amendment protects speech, expressive conduct, and peaceful demonstration. It is not a sanctuary 

for thieves, vandals, or hooligans. 

The Citizens Flag Alliance (<www.cfa-inc.org>) has been tracking 

‘‘flag desecration acts’’ since 1994, presumably to demonstrate that 

a constitutional amendment is needed. In fact, however, CFA’s list 

demonstrates just the opposite—that most instances of flag desecration are linked to other behavior that violates existing laws—including laws relating to theft, vandalism, destruction of property, 

breach of the peace, and arson—and are therefore punishable regardless of any message that the flag desecrator might be trying 

to send. 

For example, CFA’s only entry to date for the year 2004 involves 

serial flag burnings occurring during a three-week period in Montpelier, Vermont:

June 19–July 7, 2004, Montpelier, VT: Police reported at 

least five American flags were found burned in public 

places and several residents reported their flags missing. 

Two mutilated flags were wrapped around an Ethan Allen 

statue at the Statehouse. A flag was found placed on a 

church’s Virgin Mary statue and set on fire. A flag was 

also found in the rosebushes of another church. A flag with 

the stars burned out and the phrase ‘‘Stop the Corruption’’ 

was found draped on a building. A nursing home reported 

its American flag had been burned on its pole.

As Senator Leahy noted at the Committee markup on July 20, 

2004, these were outrageous acts, intended to outrage, but there is 

no reason to believe that acts like these cannot or will not be prosecuted under Vermont and other states’ laws prohibiting unlawful 

mischief, theft, and destruction of property. In this instance, officials have also indicated that it may be possible to prosecute the 

perpetrators under Vermont’s hate crimes law. See ‘‘Vandals strike 

41

5 CFA’s list also suggests that a large percentage of flag desecration acts are perpetrated by 

misguided teenagers.

a Montpelier shrine,’’ Channel 3 News, WCAX–TV Burlington, 

Vermont, June 30, 2004. 

CFA’s list includes other incidents in which flag desecrators can 

or have been prosecuted.5 For example:

April 12, 2003, Ashland, OR: Ashland police arrested 

two men who burned an American flag at a peace rally, 

saying the fire posed a danger to other protesters and people nearby. The men were charged with disorderly conduct 

and reckless endangerment. (‘‘Burning flag a safety risk, 

police say,’’ Associated Press, April 13, 2003.) 

March 31, 2003, Maytown, PA: A former U.S. marine 

called police after learning that his American flag was 

burning. Two months later, the police arrested a juvenile 

and charged her with criminal mischief. (‘‘Confusing the 

issue,’’ Intelligencer Journal, June 6, 2003.)

September 16, 2002, Bellefontaine, OH: A Bellefontaine 

man was observed removing courthouse flags from their 

holders and throwing them to the ground. He fled when 

police arrived, but was located several blocks away from 

the courthouse and arrested on charges that included 

criminal mischief. (Bellefontaine Examiner, September 16, 

2002.) 

September 11, 2002, Ann Arbor, MI: Two boys, ages 15 

and 16, were arrested for allegedly setting a flag on fire at 

the University of Michigan. The boys ran away but were 

arrested when they returned to the scene. They were 

charged with setting a fire on campus. (‘‘Teens arrested 

after lighting American flag on fire,’’ Associated Press, 

September 11, 2002) 

October 30, 2001, Langley, VA: An 18-year old college 

student allegedly set off a brush fire by burning an American flag. The blaze spread over four acres of woodland in 

northern Virginia. The student was arrested on charges 

that included setting a fire capable of spreading, a felony 

that carries a maximum sentence of five years in prison. 

(‘‘Flag-burning complicates Va. arson case,’’ Washington 

Post, November 2, 2001.) 

September 10, 1998, Boulder, CO: A city flag was set on 

fire while atop a very tall flagpole. The Boulder police had 

no doubt they could arrest the arsonist, because ‘‘burning 

someone’s else’s flag—in this case the city’s—is definitely 

against the law.’’ (‘‘Flag arsonist sought,’’ Denver Post, 

September 11, 1998.) 

August 7, 1998, Minersville, PA: Two cemeteries were 

vandalized; the vandalism included the burning of American flags on veterans’ graves. A 19-year old was arrested, 

along with four juveniles, and charged with institutional 

vandalism, criminal mischief, attempted burglary, trespassing, criminal conspiracy, and corruption of minors. 

(‘‘Man jailed in vandalism spree,’’ The Harrisburg Patriot, 

August 20, 1998.) 

42

July 4, 1997, Springfield, IL: A man celebrated the 

Fourth of July by cutting the rope on the Federal Building 

flag pole and hauling down the flag. The man was arrested 

and jailed on charges of theft and criminal damage to government property. (‘‘One man celebrates by stealing,’’ The 

State Journal-Register (Springfield, IL), July 9, 1997.) 

May 26–June 9, 1997, Wallingford, CT: Flags hanging 

from downtown homes and porches were set on fire at 

night, endangering residents and damaging property. Several teenagers were arrested in connection with these incidents, charged with reckless burning, conspiracy to commit 

reckless burning, and criminal attempt to commit reckless 

burning. (‘‘Second teen accused in Wallingford flag burnings,’’ The Hartford Courant, September 4, 1997.) 

April 1, 1997, Buffalo, NY: The starting goalie for the 

Buffalo Bandits, having just won a playoff-clinching game, 

climbed over a fence at the naval park and tore down the 

American flag, breaking the flagpole. Charged with criminal trespass and criminal mischief, the man eventually 

pled guilty and paid a fine. (‘‘Bandits goalie pleads guilty 

in naval park case,’’ Buffalo News, October 24, 1997.)

No constitutional amendment was needed to protect the people of 

Ashland, Maytown, Bellefontaine, Ann Arbor, Langley, Boulder, 

Minersville, Springfield, Wallingford, or Buffalo. Their state laws 

performed that function quite well. 

Similarly, no constitutional amendment was necessary to punish 

Gregory Lee Johnson, the defendant in the Supreme Court’s 1989 

case. Johnson accepted stolen private property (a flag) and destroyed it by setting it on fire in a busy public place. The State of 

Texas could have prosecuted Johnson for possession of stolen property, destruction of private property, and other crimes which the 

State routinely punishes without regard to speech; instead, the 

only criminal offense with which Johnson was charged was ‘‘desecration of a venerated object.’’ The Supreme Court, while holding 

that Johnson’s conviction for that offense could not stand, emphasized that its opinion ‘‘should [not] be taken to suggest that one is 

free to steal a flag so long as one later uses it to communicate an 

idea.’’ 491 U.S. at 412 n.8. 

In earlier debates over the amendment, much was made of a 

Wisconsin youth, Matthew Janssen, then 18, who stole a number 

of flags and defecated on one, and whose conviction for flag desecration under an old, pre-Johnson statute, was eventually overturned. See Wisconsin v. Janssen, 219 Wis.2d 362 (1998). That does 

not mean, however, that Janssen went unpunished for his despicable act. In fact, he was prosecuted successfully for the messageneutral crimes he committed, and sentenced to nine months in jail 

and 350 hours of community service. Perhaps more important, he 

was ostracized, and had to face his community with the shame of 

his act before him at all times. No fine, no class on respect, and 

no martyrdom at the hands of the central government could equal 

the punishment Janssen received. 

Senator Feingold raised the question with Wisconsin State Senator Roger Breske at the subcommittee hearing on March 25, 1998:

43

Isn’t this the ideal case to demonstrate that there is no 

need to amend the First Amendment? This young man was 

punished both by the State and by his community through 

harsh social sanctions, as well as criminal sanctions. This 

punishment was so severe that the young man publicly 

apologized and admitted that his actions were abominable. 

* * * If this is the case, what else can be gained by 

amending the Bill of Rights?

Senator Breske responded, ‘‘He probably should have got a little 

more.’’ But ‘‘a little more’’ is no reason to amend the United States 

Constitution. 

5. Existing constitutional limitations on free expression are applicable to acts of flag desecration 

The decision of the Supreme Court in Johnson did not give carte 

blanche to protesters to burn flags however, whenever, and wherever they please, even for expressive purposes. The First Amendment leaves room for Congress and the states to regulate in this 

area, just as it permits reasonable restrictions on other forms of expression on a content-neutral basis. 

For example, expression that is directed to inciting or producing 

‘‘imminent lawless action’’ may be limited under Brandenburg v. 

Ohio, 395 U.S. 444, 447 (1969), and limits also can be placed on 

‘‘fighting words,’’ those likely to provoke the average person to 

whom they are addressed to retaliation. Chaplinsky v. New Hampshire, 315 U.S. 568, 574 (1942). The fact that these circumstances 

were not present in Johnson—it appears that those most likely to 

be incited by the conduct wisely had ignored the demonstration altogether, as did most other people—does not limit the government’s 

authority to respond to imminent violence. As the Supreme Court 

noted in Johnson:

The State need not worry that our holding will disable 

it from preserving the peace. We do not suggest that the 

First Amendment forbids a State to prevent ‘‘imminent 

lawless action.’’

491 U.S. at 410. States remain free to prevent acts of violence. 

What a state cannot do is apply prior restraint on certain views by 

assuming that, because the speech is so offensive to some, it will 

provoke ordinary citizens to violence. 

Established principles of First Amendment jurisprudence also 

provide room, albeit limited, for Congress to enact legislation protecting the flag, so long as that legislation is sufficiently specific to 

avoid the problem of vagueness and satisfy the Fifth Amendment 

Due Process Clause, and so long as it is sufficiently content-neutral 

to satisfy the First Amendment. We do not suggest that this is an 

easy task. The same problems may plague legislative drafters if 

this amendment is adopted, however (see infra Part X.E), and the 

American people would be far better served if the proponents of 

S.J. Res. 4 addressed this difficult task squarely and honestly at 

the outset by proposing a carefully crafted statute rather than toying with the Constitution. 

On March 30, 2004, Senator Byron Dorgan and others introduced 

the Flag Protection Act of 2004, S. 2259, to provide for the maxVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00043 Fmt 6604 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
44

imum protection against the use of the flag to promote violence, 

while respecting the liberties that it symbolizes. This bill would ensure that incidents of deliberately confrontational flag burning are 

punished with stiff fines and even jail time. Experts at the Congressional Research Service and several constitutional scholars 

have opined that S.2259 respects the First Amendment and would 

be upheld by the courts. See Congressional Record, March 30, 2004, 

at S3368–S3369. We believe that Congress should consider this 

statutory alternative, and that the Court should address it, before 

we again take up a constitutional amendment on this issue. 

C. THE PROPOSED AMENDMENT WOULD DIMINISH THE RIGHTS WE

CURRENTLY ENJOY UNDER THE FIRST AMENDMENT

1. The proposed amendment would restrict free expression 

The proposed amendment unquestionably would restrict rights 

currently enjoyed by Americans under the First Amendment. Indeed, that is its purpose. The majority report’s claim (in Part 

V.C.1) that the proposed amendment would not reduce First 

Amendment rights—that it would, in fact, ‘‘harmonize very well 

with’’ the First Amendment—does not bear scrutiny. 

The majority report’s lead argument for why the proposed 

amendment is consistent with the First Amendment is that ‘‘physical acts of desecration are conduct, not speech’’ (Part V.C.1). In 

support of this argument, the majority cites one 21-year old district 

court decision that was patently out of line with the mainstream 

and—unmentioned by the majority—promptly reversed. See Monroe v. State Court of Fulton County, 739 F.2d 568 (11th Cir. 1984), 

reversing 571 F. Supp. 1023 (N. Ga. 1983). As discussed further 

below (in Part X.D.2), the would-be distinction between conduct 

and speech has been repeatedly rejected—including in cases involving the flag—because it is so obviously unrealistic and unworkable. 

Bruce Fein, former Justice Department Deputy Attorney General 

during the Reagan Administration, remarked in a June 7, 2004 letter opposing S.J. Res. 4: ‘‘[T]o deny that flag burning constitutes 

speech—such as burning the flag of Communist China to protest 

the Tiananmen Square massacre—is to deny the undeniable.’’ 

Would the majority claim that peaceful picketing is not speech 

within the First Amendment, or that a silent vigil is not speech, 

or the familiar politician’s thumbs-up? The examples are truly endless. Expressive conduct is speech, and because the flag serves as 

a symbol, use of the flag symbolically is expressive. Indeed, the 

State of Texas conceded this point when arguing the Johnson case 

before the Supreme Court, see 491 U.S. at 405, as did the United 

States the following year when arguing Eichman, see 496 U.S. at 

315. 

Professor Goldstein explained the expressive aspect of flag desecration in his 1995 book, Saving ‘‘Old Glory’’:

[A]ll forms of communication, including oral and written 

speech, are ultimately ‘‘symbolic’’ (since letters and words 

have no meaning, by themselves, but only represent other 

things) and they all involve conduct—opening one’s mouth, 

printing and circulating a book, and so on. Unless flag 

desecration results in burning down a building or blocking 

45

6The majority report appears to argue (in Part III.A.3) that those who support the protection 

of corporate symbols that are provided by federal trademark law should also support the proposed amendment. In doing so, the majority ignores the fact that trademark law is limited by 

the First Amendment right of free speech. Courts have consistently held that trademark and 

related laws do not prohibit parodies and other forms of social commentary, regardless of whether they cause offense. See, e.g., Mattel, Inc. v. Walking Mountain Productions, 353 F.3d 792, 

806–807 (9th Cir. 2003) (parodic use of Barbie trademark non-infringing fair use). 

a public street, it is, in practice, just as ‘‘purely’’ symbolic 

and purely expressive as are other forms of communication 

and therefore deserves equal protection. If the argument 

that only ‘‘pure’’ speech and writing are protected by the 

principles of constitutional democracy was accepted, then 

people who use sign language would have no rights, and 

neither would actors, dancers, musicians, painters, movie 

producers, or anyone else who communicated in any other 

way.

Goldstein, Saving ‘‘Old Glory,’’ at xii-xiii. 

As Professor Goldstein notes, the conduct/expression distinction 

is meaningful under the First Amendment only in the sense that 

the behavior in question can cause harm to real interests that the 

government can protect. For instance, burning a flag causes harm 

to the owner’s property interest in that flag: people label that 

which causes this real, tangible harm as the ‘‘conduct’’ element in 

the behavior. It is precisely such harm-causing, ‘‘conduct’’ elements 

of flag desecration that can already be prohibited, and that routinely and effectively are in fact punished by the courts. The argument that desecration is ‘‘conduct’’ does not support the amendment at all—quite the contrary. To the extent that desecration is 

‘‘conduct,’’ it can already be regulated. The whole point of the 

amendment is to regulate ‘‘expression’’ (or, the ‘‘expressive’’ element in the behavior) when it does not cause real, tangible harm, 

but is only offensive. Invoking illusory distinctions like conductversus-expression does not change that reality. 

The majority report next attempts to salvage the system of censorship that the amendment would inevitably establish by noting 

that ‘‘the First Amendment’s guarantee of freedom of speech has 

never been deemed absolute’’ (Part V.C.1). But the majority report’s 

examples—‘‘fighting words,’’ libel, and obscenity—are not exceptions to the First Amendment that somehow invite another exception. Indeed, the logic of ‘‘we already have some exceptions, so why 

not one more?’’ highlights one of the central dangers posed by this 

amendment. As discussed further below (in Part X.C.4), if we have 

a flag desecration amendment for the Stars and Stripes, why not 

one for state flags, or the presidential seal, or the Constitution 

itself? The majority concedes that unless it is treated as utterly 

unique, the proposed flag desecration amendment leads down a 

slippery slope of censorship. But the majority’s misuse of analogies 

to the very narrow categories of unprotected speech that have been 

recognized, and even to corporate symbols,6 undermine the very 

uniqueness on which its case rests. 

The real lesson of ‘‘non-absolutism’’ is just the opposite of what 

the majority argues. ‘‘Fighting words,’’ libel, and obscenity are 

time-honed, carefully-crafted applications of the First Amendment. 

Far from supporting a flag exception to the First Amendment, they 

teach us that speech is to be free except in the most extraordinary 

46

7 ‘‘Fighting words’’ are punishable only if the court determines that on the facts of the particular case, there was what used to be called a ‘‘clear and present danger’’ of violence. The 

whole concept is actually and intentionally calculated to protect as much speech as possible by 

requiring, for each instance of speech, a judicial finding of immediate threat to the important 

government interest in avoiding violence. See, e.g., Edwards v. South Carolina, 372 U.S. 229, 

235–236 (1963). The law of libel of a public official is intentionally designed to maximize speech 

by imposing stringent limits on when it can be punished. It requires not only that the speech 

in fact damage the official’s reputation and not only that the statements be false, but also 

(which the majority report crucially omits) that the statements be made with ‘‘actual malice,’’ 

that is, with the specific intent to harm the victim’s reputation through a knowingly or recklessly false statement. That the speaker has actual malice must be found on the particular facts 

of each case of speech. See New York Times v. Sullivan, 376 U.S. 254, 279–288 (1964). Even 

obscenity, which appears to be a category that is not ‘‘speech’’ within the First Amendment, requires the application of similar case-by-case stringent safeguards to insure that only actually 

obscene speech is punished and that speech with social value is kept within the protection of 

the First Amendment. See Miller v. California, 413 U.S. 15, 24 (1973). 

circumstances and subject to the most extraordinary legal protections. Punishment of speech is limited to only those specific occasions when it is proved to be immediately harmful to concrete, important interests or rights far beyond symbolism and offensiveness.7 The ‘‘disrespect’’ or ‘‘contempt’’ for the flag that supposedly 

would justify the proposed amendment does not remotely meet any 

of the traditional safeguarding requirements. 

Finally, the majority report tries to minimize the proposed 

amendment’s corrosive effect on the First Amendment by arguing 

(in Part V.C.3) that there are other ways, besides flag burning, for 

disaffected Americans to express their views. But in a free enterprise society and under the First Amendment, people must have 

the right to decide just how they are going to promote their views. 

As the American Bar Association wrote in a statement it submitted 

for this year’s hearing, opposing S.J. Res. 4: ‘‘[T]he First Amendment jealously guards the right to express our views about our government or laws in the manner of our choice, so long as that choice 

is through peaceful words or conduct.’’ 

In sum, the proposed amendment would create a regime of discrimination and suppression of speech of all kinds that would be 

utterly at odds with the First Amendment and American tradition. 

2. The First Amendment protects above all the right to speak the unpopular and objectionable 

Ultimately, the debate over S.J. Res. 4 and the earlier attempts 

to amend the Constitution to ban flag desecration turns on the 

scope we think proper to give to speech that deeply offends us. But 

for Congress to limit expression because of its offensive content is 

to strike at the heart of the First Amendment. ‘‘If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because 

society finds the idea itself offensive or disagreeable.’’ Johnson, 491 

U.S. at 414. Indeed, it is the right to speak the offensive and disagreeable that needs the most protecting. 

Justice Holmes wrote that the most imperative principle of our 

Constitution was that it protects not just freedom for the thought 

and expression we agree with, but ‘‘freedom for the thought that 

we hate.’’ United States v. Schwimmer, 279 U.S. 644, 654 (1929). 

‘‘[W]e should be eternally vigilant,’’ he taught us, ‘‘against attempts 

to check the expression of opinions that we loathe. * * *’’ Abrams

v. United States, 250 U.S. 616, 630 (1919). Justice Robert Jackson 

echoed this thought in West Virginia Bd. of Educ. v. Barnette, 319 

47

U.S. 624, 642 (1943), a flag salute case: ‘‘[F]reedom to differ is not 

limited to things that do not matter much. That would be a mere 

shadow of freedom. The test of its substance is the right to differ 

as to things that touch the heart of the existing order.’’ 

At the subcommittee hearing on March 25, 1998, conservative 

constitutional scholar Bruce Fein cited President Thomas Jefferson’s first inaugural address, when the nation was bitterly divided. 

That giant among the Founders lectured on the prudence of tolerating even the most extreme forms of political dissent:

If there be any among us who would dissolve the Union 

or * * * change its republican form, let them stand undisturbed as monuments of the safety with which error of 

opinion may be tolerated where reason is left to combat it.

Mr. Fein also cited, as an example of the Enlightenment spirit that 

undergirds the First Amendment, Voltaire’s famous statement, ‘‘I 

disapprove of what you say, but I will defend to death your right 

to say it.’’ 

John Glenn stated the argument in more colloquial terms in a 

written submission to the Committee dated March 10, 2004:

To say that we should restrict the type of speech or expression that would outrage a majority of listeners or move 

them to violence is to say that we will tolerate only those 

kinds of expression that the majority agrees with, or at 

least does not disagree with too much. That would do nothing less than gut the first amendment.

To restrict speech and political expression to only those areas 

that Congress approves is to limit, as China now does, the freedom 

of worship to only those churches of which that government approves. That is not freedom at all. As free speech philosopher Alexander Meiklejohn cautioned, ‘‘To be afraid of ideas, any ideas, is to 

be unfit for self-government.’’ Alexander Meiklejohn, Freedom of 

Speech and Its Relation to Self-Government 27 (1948). 

The nation’s faith in free speech is grounded ultimately in a confidence that the truth will prevail over falsehood, a faith that has 

sustained our thought since Milton wrote his Areopagitica in 1644.

[T]hough all the winds of doctrine were let loose to play 

upon the earth, so truth be in the field, we do injuriously, 

by licensing and prohibiting, to misdoubt her strength. Let 

her and falsehood grapple, whoever knew the truth put to 

the worse in a free and open encounter.

John Milton, Areopagitica, A Speech for the Liberty of Unlicensed 

Printing to the Parliament of England (1644). 

3. The American people can and do answer unpopular speech with 

tolerance, creativity and strength 

The lesson of Milton is practiced every day in America. Flag 

burning is not the only form of expression that is utterly abhorrent 

to the large majority of Americans. The instinctive answer of the 

American people, however, is not trying to ban speech that we find 

offensive. That is the response of weakness. Justice Louis Brandeis 

observed, ‘‘Those who won our independence * * * eschewed silence coerced by law—the argument of force in its worst form.’’ 

48

Whitney v. California, 274 U.S. 357, 375–376 (1927) (Brandeis, J., 

concurring). 

The American people respond with strength. Americans have always understood that, for the greater good, they can ignore offensive views, tolerate them, or respond to them with more speech. In 

a confident, mature citizenry, that, not outlawing them, is the 

American way. 

Proponents of this amendment contend that requiring respect for 

the flag will enhance national unity, but the rare occasions of flag 

desecration have not, and cannot, subvert our sense of unity. Our 

institutions are not threatened by the exercise of First Amendment 

freedoms. 

More fundamentally, respect cannot be coerced. It can only be 

given voluntarily. Some may find it more comfortable to silence dissenting voices, but coerced silence can only create resentment, disrespect and disunity. As Justice Jackson wrote in Barnette, 319 

U.S. at 640–642:

Struggles to coerce uniformity of sentiment in support of 

some end thought essential to their time and country have 

been waged by many good as well as by evil men. * * * 

Those who begin coercive elimination of dissent soon find 

themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard. * * * 

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what 

shall be orthodox in politics, nationalism, religion, or other 

matters of opinion or force citizens to confess by word or 

act their faith therein.

What unifies our country is the voluntary sharing of ideals and 

commitments. We can do our share toward that end not by enforcing conformity but by responding with responsible actions that will 

justify respect and allegiance, freely given. 

Immediately following September 11, 2001, Americans all around 

the country began to fly flags outside their homes and businesses, 

to wear flag pins on their lapels, and to place flag stickers on their 

automobiles. This surge in patriotism made American flags such a 

hot commodity that several major flag manufacturers could not 

keep flags stocked on store shelves. Within days of the attacks, the 

nation’s largest retailer had sold 450,000 flags, compared with 

26,000 during the same period in 2000. ‘‘Oh, say can you see any 

flags on the shelves?’’ The San Francisco Chronicle, September 19, 

2001. By late October 2001, the demand for flags was so great that 

manufacturers were back-ordered up to six weeks, according to the 

National Flag Foundation in Pittsburgh, Pennsylvania. ‘‘Demand 

outstrips supply,’’ Albuquerque Journal, October 28, 2001. 

This expression of national pride was spontaneous, and consisted 

of individual Americans taking conscious acts of patriotism. No one 

in the government decreed that Americans must purchase and fly 

flags. There was no official direction stating that Americans should 

wear clothing and accessories with flag designs, but these have 

been wildly popular as well. 

49

8We are pleased to identify and give full credit to Korean War veteran Daniel Walker for this 

quietly gallant act. See Goldstein, Burning the Flag, at 33. 

Expressions of patriotism after September 11 went well beyond 

the proud display of the flag. As Senator Feingold stated at the 

Committee markup on July 20, 2004:

We didn’t need a constitutional amendment to teach 

Americans how to love their country. They showed us how 

to do it by hurling themselves into burning buildings to 

save their fellow citizens who were in danger, by standing 

in line for hours to give blood, by driving hundreds of 

miles to search through the rubble for survivors and to 

help in cleanup efforts, by praying in their houses of worship for the victims of the attacks and their families. 

September 11th inspired our citizens to perform some of 

the most selfless acts of bravery and patriotism we have 

seen in our entire history. No constitutional amendment 

could ever match those acts as a demonstration of patriotism, or create them in the future.

Justice Brennan wrote in Johnson, ‘‘We can imagine no more appropriate response to burning a flag than waving one’s own.’’ 491 

U.S. at 420. That is exactly how the American people respond. Justice Brennan described the aftermath of Gregory Lee Johnson’s 

contemptible act in 1984, when he burned a flag at a political demonstration in Dallas, Texas, in front of City Hall. ‘‘After the demonstrators dispersed, a witness to the flag burning collected the 

flag’s remains and buried them in his backyard.’’ Id. at 399.8

At the Committee’s business meeting on June 24, 1998, Senator 

Feingold pointed to the example of Appleton, Wisconsin, where 18–

year old Matthew Janssen committed a particularly repugnant act 

of flag desecration, and where each year, 20,000 to 30,000 Americans join in the largest Flag Day parade in the nation. Similarly, 

Senator Durbin cited the example of the people of Springfield, Illinois, who faced the prospect of a Ku Klux Klan rally:

For each minute that the Ku Klux Klan rally goes on, 

each of us pledges a certain amount of money to be given 

to B’nai B’rith and to the NAACP and other organizations. 

So the longer they go, the more money is being [raised] in 

defense of the values of America. I think that is what 

America is all about.

On July 18, 1998, in Coeur D’Alene, Idaho, white supremacists 

obtained a permit for a ‘‘100–Man flag parade’’ and marched carrying American flags and Nazi banners side by side. As in Springfield the local residents turned ‘‘Lemons into Lemonade,’’ and 

raised $1,001 for each minute of the white supremacists’ march, 

money for donations to human rights organizations. A few citizens 

loudly spoke back to the marchers, but most simply stayed away. 

Steve Meyer, owner of The Bookseller, made it a point to keep his 

store open, observing that ‘‘Nazis were burning books in the 1930s, 

and I don’t want them closing stores in the ’90s.’’ 

The same year, an African American was brutally tortured and 

murdered in Jasper, Texas, apparently on account of his race. The 

Ku Klux Klan decided to hold a rally in Jasper because of the murVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00049 Fmt 6604 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
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9The Citizens Flag Alliance website describes other gallant responses by Americans to acts 

of flag desecration. In some instances, flag desecrators have been stopped in the act and even 

placed under citizen’s arrest. CFA also documents several instances in which citizens have been 

moved to donate their own personal flags to replace those that were destroyed. 

der. Even in all of their pain over the incident, the good citizens 

of Jasper, led by their African American mayor, let the Klan speak. 

They let them march, and they even let them wave American flags. 

The good citizens of Jasper quietly spurned the Klan, and the Klan 

slithered out of town. 

The positive examples of the citizens of Wisconsin, Illinois, Idaho, 

and Texas show the America for which soldiers have fought and 

died. This is the strength and unity that no statute, no amendment 

can compel or embellish. 

A similar example of a powerful response to flag burning that 

protects the speech of everyone was given, ironically, by the proponents’ star witness in the 105th Congress. The incident was the 

center of the July 8, 1998 testimony of Los Angeles Dodger General 

Manager Tommy Lasorda. In 1976, a father and son ran onto the 

field during a baseball game at Dodger Stadium and attempted to 

set fire to a flag. The attempt was unsuccessful (the flag was never 

burned) and the protestors appear to have been punished with stiff 

fines under the content-neutral laws against running onto playing 

fields. Significantly, the crowd was in no way demoralized by the 

attempt, nor was their love for the flag or for our country diminished in the least. Far from it. As Mr. Lasorda recounted:

The fans immediately got on their feet * * * and without any prompting that I can remember the whole crowd 

stood and began to fill the stadium with an impromptu 

rendition of ‘‘God Bless America.’’

That was an answer on which Congress cannot improve.9

It can be painful that the Klan and others try to associate themselves with the principles of our nation by displaying the flag. It 

can be painful to see the crudeness and poverty of understanding 

of those who try to burn the flag. Vietnam veteran Stan Tiner told 

the Constitution subcommittee on March 25, 1998, of ‘‘the political 

factions and sects that fly the American flag over their own various 

causes—the Communists, to the Birchers, to David Koresh and his 

followers—all seeking to imply that their particular brand of Americanism is the one righteous brand.’’ He concluded:

[I]n a curious way, they are right. America is all of these 

things, or at least a haven for freedom, where all kinds of 

thinking can occur and where people can speak freely their 

minds without fear.

Therein lies part of the greatness of America. All voices, however 

hateful and obnoxious, can be heard, but it is the quiet nobility of 

the ordinary citizens of Appleton, Springfield, Coeur D’Alene, and 

Jaspar, the spontaneous singing of ‘‘God Bless America’’ at a baseball game, and the overwhelming display of patriotism after September 11, 2001, that wins the debate. The First Amendment 

works. 

51

4. The proposed amendment would set a dangerous precedent for future amendments to the Bill of Rights 

Supporters of S.J. Res. 4 argue that the flag is a special case—

that its adoption would not open the floodgates to other amendments. We are not so sure. Already, scores of constitutional amendments are proposed each year, many of which would alter the Bill 

of Rights. Some of these proposed amendments command significant support, including support from sponsors of the current proposal. Establishing a precedent that the First Amendment can be 

restricted by constitutional amendment would give supporters of 

other restrictive amendments ammunition and momentum, and 

weaken public respect and support for safeguarding the enduring 

principles in our Bill of Rights. 

Charles Fried, Solicitor General under President Reagan, cautioned us in June 1990 that it is dangerous to make exceptions in 

matters of principle:

Principles are not things you can safely violate ‘‘just this 

once.’’ Can we not just this once do an injustice, just this 

once betray the spirit of liberty, just this once break faith 

with the traditions of free expression that have been the 

glory of this nation? Not safely; not without endangering 

our immortal soul as a nation. The man who says you can 

make an exception to a principle, does not know what a 

principle is; just as the man who says that only this once 

let’s make 2+2=5 does not know what it is to count.

The late Senator Chafee also took a dim view of the consequences of the proposed amendment when he asked the Committee, in April 1999, ‘‘What will be next?’’:

Will we next see a constitutional amendment demanding 

the standing to attention when the national anthem is 

played? Will there be a list of worthy documents and symbolic objects for which desecration is constitutionally prohibited? Should there be a Constitutional Amendment to 

protect the Bible? What about other religious symbols such 

as the crucifix or the Menorah; what about the Constitution, itself? Surely, the Constitution embodies the same 

significance as the flag!

Even if we could draw the line after one restrictive amendment, 

the damage would be done. John Glenn stated in his March 2004 

submission that ‘‘The Bill of Rights * * * is what has made [the 

United States] a shining beacon of hope, liberty and inspiration to 

oppressed peoples around the world for over 200 years. In short, it 

is what makes America, America.’’ The proposed amendment would 

dim that beacon, as Lawrence Korb described in his March 2004 

statement:

During my years of military service and civilian service 

during the Cold War, I believed I was working to uphold 

democracy against the totalitarianism of Soviet Communist expansionism. I did not believe then, nor do I believe now, that I was defending just a piece of geography, 

but a way of life. If this amendment becomes part of the 

Constitution, this way of life will be diminished. American 

52

10While proponents of S.J. Res. 4 purport to be responding to a groundswell of support by 

the American people for constitutional protection of their flag, recent polling data does not bear 

this out. A June 2004 survey by the First Amendment Center shows that a majority of Americans—53 percent—oppose amending the Constitution to prohibit burning or desecrating the 

American flag. Moreover, of the 45 percent of Americans who said they supported such an 

amendment, 16 percent reversed themselves and said that the Constitution should not be 

amended when informed that, if the amendment were approved, it would be the first time any 

of the freedoms in the First Amendment had been amended in over 200 years. See State of the 

First Amendment 2004 survey, available at <http://www.firstamendmentcenter.org.> 11This same regime presently banished Roger Williams (1635) for urging religious liberty, and 

Anne Hutchinson (1638) and Rev. Roger Wheelright (1637) over doctrinal differences. Hawke, 

The Colonial Experience, 143–146, 689 (1966). 

will be less free and more like the former Soviet Union, 

present-day China, Iraq under Saddam Hussein, or Afghanistan under the Taliban.

The First Amendment boldly proclaims that ‘‘Congress shall 

make no law * * * abridging the freedom of speech.’’ The proposed 

amendment would turn the ‘‘no’’ into an ‘‘almost no’’—a singular 

erosion of the principle for which the First Amendment stands. 

Perhaps that is why a substantial majority of Americans do not 

support the proposed constitutional amendment once they know of 

its unprecedented impact on the First Amendment.10

D. THE JOHNSON DECISION WAS CONSISTENT WITH GENERATIONS

OF CONSTITUTIONAL DOCTRINE

1. The Supreme Court has never accepted limitations on the First 

Amendment for peaceful protests involving flag desecration 

In beating the drum for the first amendment to the First Amendment, the majority report perpetuates another myth that has been 

fueling the flag protection movement since 1989, namely, that the 

Supreme Court’s decision in Johnson broke with ‘‘generally accepted legal tradition’’ (Part IV.B.3), worked a ‘‘dramatic change’’ in 

First Amendment jurisprudence (Part IV.C), and ‘‘overturned 200 

years of legal principles (Part V.C.2). There quite simply is no legal 

tradition of upholding bans on flag desecration against First 

Amendment challenges—just the opposite is true. The strained efforts of the majority to manufacture such a tradition underscore 

just how wrong it is in its characterization of American legal history. 

a. Endecott’s Case 

The majority report begins (in Part IV.A) with Endecott’s case, a 

1634 action of the Massachusetts Bay Colony in which ‘‘a domestic 

defacer of the flag’’ was prosecuted. In that case, John Endecott cut 

the cross of St. George from an English flag in apparent protest 

against the tyranny of Charles I and Bishop Laud. At the time, the 

Bay Colony offered no First Amendment rights. Freedom of speech 

was denied, as were freedom of assembly and freedom from the establishment of religion. Indeed, there were no written or even customary laws at this date: punishment was imposed by then-governor Winthrop and his allies in accordance with their view of morality and Scripture (‘‘Thou shalt not suffer a witch to live.’’) 11 It 

is remarkable that the actions of the British colonial government 

repressing American patriots should be the model and precedent 

53

12The debate over Endecott’s case was joined in earlier reports on the proposed amendment. 

See S. Rpt. 98, 106th Cong., 2d Sess., 15–16 & n.2 (2000) (majority); id. at 55–56 (minority), 

and S. Rpt. 298, 105th Cong., 2d Sess. 7, 9 (1998) (majority); id. at 56–57 (minority). While the 

majority revised its views in other respects, it failed to strike or justify its bizarre reliance on 

Endecott’s case. 

for what the Senate should do now. Yet that, amazingly, is the 

logic of the proposed amendment. 

Endecott’s case is, of course, properly seen as an example of the 

tyranny against which the Founders rightly rebelled, and 

Endecott’s ‘‘desecration’’ as a very early step on the long movement 

toward independence from England. The case also is an early analog to a similar ‘‘desecration’’ of the English flag by George Washington to create the first flag of the Continental Army. On taking 

command of the army on July 3, 1775, Washington took an English 

flag and, after removing both the cross of St. George and the cross 

of St. Andrew, sewed six white stripes onto the remaining red field. 

By this ‘‘desecration,’’ George Washington created the 13 red and 

white stripes that remain to this day. Hart, The Story of the American Flag, 58 Am. L. Rev. 161, 167 (1924). We frankly are astonished that the majority report would cast aspersions on, in Patrick 

Henry’s phrase, such gauntlets cast in the face of tyranny.12

b. James Madison and Thomas Jefferson 

The next examples cited by the majority report (in Part IV.A.1) 

are also completely irrelevant to freedom of speech and the First 

Amendment. The majority report cites as part of its ‘‘legal tradition’’ a characterization by former Judge Robert Bork regarding 

James Madison’s opinion that the tearing down of the flag of the 

Spanish minister in Philadelphia in 1802 was actionable. The characterization is misleading. The incident refers, of course, to assaults on property (a Spanish flag) within a foreign embassy, and 

to the view that such assaults as entering uninvited into the ambassadorial residence, destruction of a painting, or destruction of a 

flag are equivalent to attacks on the foreign minister. 4 Moore, Digest of International Law 627 (1906). The section cited deals with 

‘‘Protection of Diplomatic Officers’’ and has nothing to do either 

with peaceful protest, the flag of the United States or the decision 

in Johnson. Indeed, destruction of another’s property, whether a 

flag or otherwise, remains a crime throughout the United States. 

The majority report misses the point again when it cites Madison 

for the unremarkable proposition that for a foreign ship to menace 

a ship of the United States, fire upon a ship of the United States, 

and force it to haul down the colors is a ‘‘dire invasion of sovereignty.’’ The harm comes from firing upon a United States military vessel; the treatment of the flag, to the extent that it could 

be isolated from the grievous physical coercion of American sailors 

involved in lowering it, simply added insult to a great injury. If the 

British had simply shot at United States servicemen and left the 

flag alone, surely Madison would not have shrugged his shoulders 

and let the matter pass. Again, the example has nothing whatever 

to do with peaceful protest or the First Amendment. The United 

States can and does still strike back against those who attack 

Americans at home and abroad; Johnson had no effect on that principle. 

54

Equally unrelated is the majority’s citation (in Part IV.A.2) of a 

letter from Thomas Jefferson dealing with the use of the U.S. flag 

by foreign ships to avoid English sanctions against trade with 

France during the 1790s. Jefferson was writing to our Consul in 

Canton, China, to urge him to cooperate with other nations to detect such smugglers flying under false colors. Lipscomb, ed., 9 

Writings of Thomas Jefferson 49–50 (1903). This has nothing to do 

with peaceful protest, freedom of expression, or the First Amendment. The United States can and does still cooperate with other 

nations to limit the use of its flag; Johnson had no effect on that 

principle.

The suggestion that our Founders viewed flag desecration as a 

heinous offense clearly worthy of severe penalties falls flat when 

we notice that the Constitution never mentions either the flag or 

flag desecration, and that Congress did not pass a federal flag desecration law until 1968. 

C. Statutory protection for the flag 

In its search for supportive ‘‘legal tradition,’’ the majority (in 

Part IV.B.2) leaps from 18th century foreign policy over a century 

to the adoption of the first flag protection legislation. As Professor 

Goldstein describes in his scholarly history of the flag protection 

movement, an extensive campaign engineered in the late 19th century by various veterans groups led to the adoption of flag desecration laws in every state, beginning in 1897. While the flag protection movement was successful in obtaining passage of the state flag 

protection laws, however, in early cases where those laws were 

challenged, they were overwhelmingly invalidated. See Goldstein, 

Saving ‘‘Old Glory,’’ ch. 1. 

Curiously, the majority report cites these early statutes and the 

decisions invalidating them as evidence of a centuries-old tradition 

supporting flag protection. In fact, this history reveals that efforts 

to iconize and afford legal protection to the flag are quite recent, 

and that such efforts have always been controversial and often unsuccessful. 

The majority report relies heavily on Halter v. Nebraska, 205 

U.S. 34 (1907), in which the Supreme Court upheld a Nebraska 

statute forbidding the use of representations of the flag for purposes of advertisement. The citation is far off target. The defendants in Halter, who were convicted of using the flag as an advertisement on a bottle of beer, challenged the Nebraska statute on 

three grounds: (1) as infringing their personal liberty guaranteed 

by the Fourteenth Amendment; (2) as depriving them of privileges 

impliedly guaranteed by the Constitution to citizens of the United 

States; and (3) as unduly discriminating and partial in its character. Id. at 39. The defendants did not challenge the statute on 

free speech grounds, nor did the Court give any consideration to 

First Amendment issues. Indeed, Halter was decided nearly 20 

years before the Supreme Court concluded that the First Amendment right of free speech applied to the states by virtue of the 

Fourteenth Amendment (Gitlow v. New York, 268 U.S. 652 (1925)), 

and nearly 70 years before the Court extended First Amendment 

protection to commercial speech, such as the beer advertisement at 

55

13Picking, like Halter, involved a commercial use of the flag—it was painted on the sides of 

an automobile under four loudspeakers and the words ‘‘Travel America’’—and the commercial 

speech doctrine did not yet exist. 14Johnson was decided during the brief period between Minersville Sch. Dist. v. Gobitis, 310 

U.S. 586 (1940)—in which the Supreme Court refused to enjoin enforcement of a compulsory 

flag salute law—and West Virginia Bd. of Educ. v. Barnett, 319 U.S. 624 (1943), which overruled 

Gobitis and enjoined such enforcement. These cases are discussed infra, in Part X.D.2. 

issue in Halter (Virginia State Bd. of Pharmacy v. Virginia Citizens 

Consumer Counsel, Inc., 425 U.S. 748 (1976)). 

Similarly inapposite is the majority’s remark (in Part.IV.B.2) 

that the Lochner-era courts that struck down early state flag protection statutes around the turn of the 20th century ‘‘perceived no 

First Amendment problem with the statutes.’’ Like the Supreme 

Court in Halter, those courts did not consider the First Amendment 

implications of the statutes—nor could they have—because the 

First Amendment was not held to apply against the states until the 

mid–1920s. Gitlow, 268 U.S. at 666. 

The majority report rounds out its historical survey (in Part 

IV.B.3) by citing three state court cases, all decided shortly after 

the attack on Pearl Harbor, in which flag-related convictions were 

upheld. In two of those cases—State v. Schleuter, 23 A.2d 249 (N.J. 

1941), and People v. Picking, 42 N.E.2d 741 (N.Y. 1942)—the courts 

did not deal with the constitutional validity of the criminal statutes, as no constitutional contentions were advanced.13 Indeed, the 

New Jersey Supreme Court distinguished Schleuter on this very 

ground, when, 32 years later, it struck down New Jersey’s flag protection statute as unconstitutional. See State v. Zimmelman, 301 

A.2d 129, 284 (N.J. 1973). 

The third case cited by the majority—Johnson v. State, 163 

S.W.2d 153 (Ark. 1942)—did not involve the physical desecration of 

a flag. Indeed, the flag at issue was never even touched. The defendant in Johnson went to the local Welfare Commissary to procure commodities for himself, his wife, and his eight children. The 

head of the Commissary, who testified that he was ‘‘sworn not to 

give to anyone who wasn’t a loyal American citizen’’ (id. at 155) 

asked the defendant to salute the flag. The defendant, who had religious objections to saluting the flag (id. at 154), refused. According to two witnesses, the defendant also exhibited contempt for the 

flag by saying that it meant nothing to him and was only a ‘‘rag.’’ 

Based on this statement, which the defendant denied having made, 

the Arkansas Supreme Court affirmed the conviction. Id. at 154. 

The case provides no support for S.J. Res. 4, the purported purpose 

of which is to protect the physical integrity of the flag, while retaining full protections for oral and written speech.14

One additional state court conviction discussed later in the majority report (in Part V.C.1) is particularly off base. The majority 

report cites to the district court decision in Monroe v. State Court 

of Fulton County, 571 F. Supp. 1023 (N. Ga. 1983), in which a defendant who burned the American flag to protest U.S. involvement 

in Iranian affairs was denied habeas corpus. What the majority report neglects to mention is that this decision was promptly reversed on the ground that the defendant’s conduct constituted 

speech and symbolic expression within the purview of the First 

Amendment. See 739 F.2d 568 (11th Cir. 1984). 

56

15 A final Supreme Court decision cited by the majority, United States v. O’Brien, 391 U.S. 

367 (1968), had nothing to do with flag desecration, but rather involved a conviction for burning 

a draft card. In upholding this conviction, the Court emphasized that the government’s important interest in assuring the continuing availability of issued draft cards was unrelated to the 

suppression of free expression. Id. at 377. By contrast, the governmental interest in preserving 

the flag as a symbol of national unity is related to the suppression of expression. See Texas v. 

Johnson, 491 U.S. at 406–410. 16Professor Goldstein discusses, for example, Long Island Vietnam Moratorium Comm. v. 

Cahn, 437 F.2d 344 (2d Cir. 1970) (flag emblem with peace symbol superimposed), aff’d, 418 

U.S. 907 (1974); People v. Keough, 31 N.Y.2d 281 (1972) (photograph of nude draped with flag); 

People v. Vaughan, 183 Colo. 40 (Colo. 1973) (flag patch worn on trousers). 

The majority report also cites (in Part IV.C) two Supreme Court 

cases in which convictions for flag desecration were upheld against 

First Amendment challenges. The first citation is to the Supreme 

Court’s denial of certiorari in Kime v. United States, 459 U.S. 949 

(1982), which is of no precedential value. See Teague v. Lane, 489 

U.S. 288, 296 (1989) (‘‘The ‘variety of considerations [that] underlie 

denials of the writ,’ counsels against according denials of certiorari 

any precedential value’’; citation omitted). The second, involving an 

art dealer who sold ‘‘constructions’’ composed in part of U.S. flags, 

was a one-sentence per curiam opinion, affirming the judgment 

below by an equally divided Court. Radich v. New York, 401 U.S. 

531 (1971). There was no actual adjudication of the constitutional 

claim, and the conviction eventually was set aside by a federal district court applying established principles of Supreme Court First 

Amendment jurisprudence. United States v. Radich, 385 F. Supp. 

165 (S.D.N.Y. 1974).15

Disregarded or discounted in the majority report are the many 

decisions that go the other way. During the Vietnam era in particular, numerous courts were called upon to determine the relationship between statutes prohibiting acts of flag desecration and 

the First Amendment’s guarantee of freedom of speech. In case 

after case, courts overturned flag desecration convictions on a variety of First Amendment and other grounds, rejecting the alleged 

state interest in protecting the symbolic integrity of the flag. See 

Goldstein, Saving ‘‘Old Glory,’’ at 139–151.16 By 1974, flag desecration laws had been struck down as unconstitutional in whole or 

part in eight states. Id. at 148. 

2. The Supreme Court protected unpopular speech connected to the 

flag long before Johnson 

Far more significant in the real legal tradition is the fact that, 

in the nearly 80 years that it has applied the First Amendment to 

the states, a majority of the Supreme Court has never upheld a 

conviction for anything amounting to flag desecration. Contrary to 

the majority report’s claim, the roots of the Johnson decision lie 

deep in American jurisprudence. As former Solicitor General 

Charles Fried testified on June 21, 1990, the year after Johnson

was decided:

The [Johnson] decision was not some aberration, some 

momentary quirk of the Justices. Generations of constitutional doctrine led naturally and directly to the Supreme 

Court’s decision in that case. * * * If you want to unravel 

[our constitutional] jurisprudence so as to keep it from covering flag-burning you would have to unravel decades of 

doctrine, scores of cases.

57

17The aftermath of the decision in Gobitis offers a sober warning to those who think government restrictions on unpopular speech strengthen the social fabric and ‘‘unify’’ the country:

[The Gobitis] ruling, along with American entry into the war in December 1941, helped 

to foster a new wave of expulsions of child [Jehovah’s] Witnesses [from public schools] 

and a large and often extremely violent eruption of harassment, beatings, and arrests 

of adult Witnesses, with the refusal to salute the flag clearly the major, and now seemingly officially endorsed, ‘‘crime.’’ The American Civil Liberties Union reported that, between May and October 1940, almost 1,500 Witnesses were the victims of mob violence 

in 355 communities in 44 states, and that no religious organization had suffered such 

persecution ‘‘since the days of the Mormons.’’

Goldstein, Saving ‘‘Old Glory,’’ at 94. 18The majority erroneously asserts (in Part IV.C) that the Court in Smith ‘‘pointed to the Federal flag protection statute * * * as an example of a constitutional flag protection statute.’’ In 

fact, the Court simply noted that the Federal statute ‘‘reflects a congressional purpose’’ to define 

with specificity what constitutes forbidden treatment of United States flags, in order to avoid 

invalidation on grounds of vagueness. 415 U.S. at 581–582 & n.30. 

The Supreme Court squarely held as early as 1931 that laws forbidding the display of certain flags (here, the red flag) violated the 

First Amendment. Stromberg v. California, 283 U.S. 359 (1931). 

The Stromberg decision made clear, as have many other decisions, 

that the First Amendment protects expressive conduct (waving a 

flag) as well as written or spoken speech. Although the Court briefly allowed the expulsion from American classrooms of young children who, as Jehovah’s Witnesses, were forbidden by their faith 

from pledging allegiance to the flag, Minersville Sch. Dist. v. 

Gobitis, 310 U.S. 586 (1940), the Court quickly reconsidered and removed the stain that Gobitis had placed on the First Amendment 

with its decision in West Virginia Bd. of Educ. v. Barnette, 319 U.S. 

624 (1943).17 There, Justice Jackson wrote: 

The case is made difficult not because the principles of 

its decision are obscure but because the flag involved is 

our own. Nevertheless, we apply the limitations of the 

Constitution with no fear that freedom to be intellectually 

and spiritually diverse or even contrary will disintegrate 

the social organization.

Id. at 641. The Barnette decision, like Stromberg, assured protection for expressive conduct (remaining seated during class flag salute) as well as written or spoken speech.

Following the decision in Barnette, the Supreme Court consistently overturned convictions under flag desecration statutes in 

Street v. New York, 394 U.S. 576 (1969) (flag burned to protest 

shooting of James Meredith), Spence v. Washington, 408 U.S. 404 

(1974) (peace symbol taped to flag), and Smith v. Goguen, 415 U.S. 

566 (1974) (flag patch on pants seat).18 Certainly, each of these 

convictions was overturned with appropriate distaste for the conduct at issue, and the decisions were narrowly framed. Nonetheless, by the time Johnson was decided, the direction of the law was 

plain. 

The proposed amendment would overturn Johnson and its successor case, United States v. Eichman, but its effect on First 

Amendment jurisprudence would not end there. If effectively implemented, S.J. Res. 4 also would overturn Street v. New York, Smith 

v. Goguen and Spence v. Washington, each of which involved a 

physical act that could fall within a statutory definition of desecration. The amendment thus would overturn decades of consistent inVerDate jul 14 2003 05:36 Aug 28, 2004 Jkt 029010 PO 00000 Frm 00057 Fmt 6604 Sfmt 6602 E:\HR\OC\SR334.XXX SR334
58

19 Unlike earlier proposals for a constitutional amendment prohibiting flag desecration, S.J. 

Res. 4 may be implemented by Congress only, not by the states. 

terpretation of the First Amendment, and certainly would cast a 

shadow over other flag-related decisions, such as Barnett. 

In addition, the proposed amendment could work great mischief 

in areas far removed from flags. It could put pressure on the principle, fundamental to the First Amendment, that content-based 

regulations are presumptively invalid. See infra Part X.E.4. It 

could also be seized on as a basis for treating mere offensiveness 

as an interest that may justify government censorship. 

In sum, by excepting certain unpopular speech from First 

Amendment protection, S.J. Res. 4 would have severe implications 

for free speech jurisprudence in general. 

E. THE PROPOSED AMENDMENT IS VAGUE AND ITS EFFECT ON CIVIL

LIBERTIES UNCERTAIN

1. There is no consensus or clarity on the definition of ‘‘flag’’ 

The proponents of S.J. Res. 4 have failed to offer a clear statement of just what conduct they propose to prohibit, or to advise the 

American people of the actions for which they may be imprisoned. 

Instead, they have asked that we trust to the wisdom of future 

Congresses.19 The American people deserve more from their Congress, this Congress, before they alter the Constitution of the 

United States. 

Testifying in support of an earlier but similar version of the proposed amendment on August 1, 1989, then-Assistant Attorney General William Barr acknowledged that its key term—‘‘flag’’—is so 

elastic that it can be stretched to permit ‘‘any number of’’ definitions. He noted three: first, the flag can be defined narrowly as a 

cloth or cloth-like banner with the characteristics of the official 

Flag of the United States as described by statute and Executive 

Order; second, it can be defined more broadly to cover ‘‘anything 

that a reasonable person would perceive to be a Flag of the United 

States * * * whether or not it is precisely identical to the Flag’’; 

and third, it can be defined expansively to include ‘‘any Flag, portion of a Flag, or any picture or representation of a Flag * * * such 

as posters, murals, pictures, [and] buttons.’’

Far from offering any consensus, the proponents of this amendment have displayed a striking range of disagreement over what 

they intend to stop. During Committee consideration of the proposed amendment six years ago, on June 24, 1998, Senator Feinstein appeared to endorse a relatively narrow, objective definition 

of ‘‘flag’’:

I know people have made undergarments out of flags. 

They have made neckties out of flags. But once that pattern is in the form of a flag and able to hang as a representation of our nation, I really think it takes on a whole 

different connotation.* * * [T]he flag is so precise that if 

one were to change the colors, the orientation of the 

stripes or the location of the field of stars, it would actually no longer be an American flag.

59

By contrast, the 1997 House Report on a proposed flag amendment 

identical to S.J. Res. 4 offered a broader, subjective definition covering ‘‘anything that a reasonable person would perceive to be a 

flag of the United States.’’ H. Rpt. 121, 105th Cong., 1st Sess. 8–

9 (1997). The majority report leaves this critical issue unaddressed. 

Expansive definitions have been used regularly in statutes prohibiting flag burning. For example, the Uniform Flag Law of 1917 

defined ‘‘flag’’ to include ‘‘any flag, standard, color, ensign or shield, 

or copy, picture or representation thereof, made of any substance 

or represented or produced thereon, and of any size, evidently purporting to be such flag * * * of the United States * * * or a copy, 

picture or representation thereof.’’ National Conference of Commissioners on Uniform. State Laws, Proceedings of the Twenty-Seventh Annual Meeting, 323–24 (1917). Similarly, the 1968 Federal 

Flag Desecration Law used this definition:

[A]ny flag, standard, colors, ensign, or any picture representation of either or of any part or parts of either, made 

of any substance or represented on any substance, of any 

size evidently purporting to be either of said flag, standard, colors, or ensign of the United States of America, or 

a picture or a representation of either, upon which shall be 

shown the colors, the stars and the stripes, in any number 

of either thereof, or of any part or parts of either, by which 

the average person seeing the same without deliberation 

may believe the same to represent the flag, standard, colors, or ensign of the United States of America.

The proposed amendment could empower Congress to prohibit 

‘‘desecration’’ of any of these; and, indeed, a protester certainly 

could offend the sensibilities of all of us by an act of desecration 

of any of these. 

On the other hand, courts could interpret the amendment narrowly, permitting Congress to prohibit physical desecration only of 

the official ‘‘Flag of the United States’’ and not of items intended 

to be perceived as such or of mere depictions. In that case, the purpose and effectiveness of the amendment could be evaded without 

great effort, as for example by persons who burned a flag that varied slightly from the official design of the U.S. flag or who, upon 

being charged with flag burning, simply claimed that this is what 

they had done. The ability to raise the factual defense that it was 

not the U.S. flag that was burned but simply a piece of cloth that 

was meant to look like the flag would mean that successful prosecutions would depend, as now, on the applicability of other laws, 

including laws against theft, vandalism and public disturbance. 

Senator Feingold told the Committee in April 1999 about his own 

experience at a Capitol Hill restaurant, where the menu is a very 

large representation of the American flag. He was eating his dinner, when a big commotion erupted on the other side of the restaurant:

We turned to see a woman frantically trying to put out 

a fire that had started when her oversized American flag 

menu had gotten too close to the small candle on the table. 

It caught on fire. * * * This thing looks exactly like an 

American flag, in size, in color, representation. I hope she 

60

wasn’t arguing about Kosovo because somebody might 

want somebody to look at it.

Are we to amend the Constitution and punish people who burn 

pictures of the flag? On the other hand, are we to leave unrestricted a wide range of activities that involve burning, or worse, 

of ‘‘substitute’’ flags—items with 51 stars, with 12 or 14 stripes, or 

with a purple field, even under circumstances clearly intended to 

communicate the most bitter disrespect for this nation and for its 

flag? If a protestor, chanting the words that Gregory Lee Johnson 

spoke, ‘‘Red white and blue, we spit on you,’’ burned not a flag but 

an image of a flag, would anyone fail to be offended? 

The proposed amendment is only 17 words long. It is not too 

much to ask that the proponents explain what they mean by those 

words before, not after, the amendment is put to a vote, so that the 

public has a clear understanding as to what conduct they intend 

to criminalize. 

2. There is no consensus or clarity on the definition of ‘‘desecration’’ 

Just as there is no clear definition of ‘‘flag’’, the definition of 

‘‘desecration’’ will invite a literally infinite catalogue of possible disputes. The Uniform Flag Law, while separately banning ‘‘mutilation’’ of the flag, defined ‘‘desecration’’ to include: 

(a) Place or cause to be placed any word, figure, mark, picture, design, drawing or advertisement of any nature upon any 

flag * * *; 

(b) Expose to public view any such flag * * * upon which 

shall have been printed, painted or otherwise produced, or to 

which shall have been attached * * * any word, figure, mark, 

picture, design, drawing or advertisement; or 

(c) Expose to public view for sale, * * * or sell, give or have 

in possession for sale * * * an article of merchandise * * * 

upon which shall have been produced or attached any such flag 

* * * in order to advertise, call attention to, decorate, mark or 

distinguish such article or substance.

We presume that the majority does not consider the Uniform 

Flag Law to be ‘‘silly’’ or an unreasonable guide. Each of its prohibited behaviors involves a physical act of desecration, and Congress 

likely could adopt such a statute under the proposed constitutional 

amendment. The scope of such a ban would affect significantly not 

only speech, but also American commerce and life. 

For example, it is not uncommon for Americans to celebrate the 

Fourth of July with a backyard barbecue, using paper cups and 

plates decorated with a flag motif. Such disposable ‘‘flags’’ are certain, indeed designed, to be soiled with food and thrown into the 

trash—in other words, to be desecrated. Are we to amend the Constitution to prohibit such picnic trivia? 

To take another example, after the terrorist atrocities of September 11, 2001, Americans wrote in indelible marker messages of 

grief and support all over flags. Among countless examples of this, 

a famous one was a huge flag that had flown at the World Trade 

Center; hundreds of people wrote messages on it and it was then 

sent to our troops in Afghanistan. See ‘‘Ground Zero flag being sent 

to Marine unit in Afghanistan,’’ Associated Press, November 26, 

2001; see also ‘‘Writing on flag upsets veteran: Man says Ground 

61

Zero flag should be destroyed,’’ Charleston Gazette, November 30, 

2001. Similarly, President Bush himself has been photographed 

signing his autograph on American flags. See ‘‘He signed what?’’ 

The Fort Worth Star-Telegram, August 4, 2003. Senator Feingold 

pointed to another example during the 2000 floor debate on this 

amendment: On July 10, 1999, the day that the U.S. Women’s Soccer team won a thrilling sudden death victory in the final of the 

Women’s World Cup, an excited and patriotic group of fans unfurled a flag for the TV cameras with the words ‘‘Thanks Girls!’’ 

written on it with some type of chalk or marker. See Congressional 

Record, March 28, 2000, at S1797. 

These are unquestionably acts of physical desecration. The Uniform Flag Law prohibits placing any word or other marks on a flag, 

and supporters of the proposed amendment have regularly cited 

writing on flags as a desecration. Writing on the flag also runs 

afoul of the Federal Flag Code, which states that the flag ‘‘should 

never have placed upon it, nor on any part of it, nor attached to 

it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.’’ 4 U.S.C. § 8. 

The fact is that the proposed amendment is not in the least limited to flag burning. It prohibits ‘‘desecration,’’ and the core idea of 

desecration will persist in any implementing statute: the diversion 

of a sacred object to a secular use. People wrap flags around themselves or around manikins and the like in political marches. It is 

a step from there to wearing a flag like a shawl. People pin flags 

up in storefront displays. People use flags in what they consider to 

be artistic presentations, make paintings of flags and use flag images. A venerable African-American quilt maker uses bits of flags 

in her work. Flags are used in movies and plays in all kinds of dramatic ways. Any of these uses may have political or cultural overtones that offend someone. All of them are nonconforming, nonceremonial uses of flags. 

Testifying before the Committee in opposition to the proposed 

amendment on April 28, 1999, the late Senator John Chafee gave 

two examples of the amendment’s hidden pitfalls:

In my State of Rhode Island, there is a highly-prized 

work of art at the Rhode Island School of Design. It is a 

hooked rug, carefully and conscientiously made by patriotic American women some 100 plus years ago, and its design is the American flag. These women made it as a symbol of their national pride; yet it is a rug—which by definition is to be walked on! Is that ‘‘desecration?’’ Should those 

patriotic craftswomen have gone to jail? 

The handbook of the Boy Scouts of America, of which 

more than 34 million copies have been printed since 1910, 

instructs young boys to ‘‘Clean the flag if it becomes soiled. 

Mend it if it is torn. When worn beyond repair, destroy it 

in a dignified way, preferably by burning.’’ With the passage of this proposal, would we put thousands of patriotic 

young Scouts in jail?

Perhaps the most powerful example of the vagueness and mischief of this amendment came from Senator Durbin, who noted at 

the Committee markup on June 24, 1998, that many people would 

62

consider it desecration to sit on a flag. Certainly, each of us can 

imagine circumstances in which such conduct would be an outrage. 

Senator Durbin then pointed out that in one of our greatest and 

most moving monuments to freedom, the Lincoln Memorial, Abraham Lincoln sits—on the American flag. 

3. Use of the word ‘‘desecration’’ in S.J. Res. 4 undermines the First 

Amendment religion clauses 

Numerous religious leaders and people of faith have expressed 

concern with the proposed constitutional amendment. Reverend 

Nathan Wilson, head of the West Virginia Council of Churches, 

stated the problem quite plainly when he testified before the Committee on April 20, 1999: ‘‘Desecration of an object is possible only 

if the object is recognized as sacred.’’ In our constitutional system, 

the government should not be in the business of defining for its 

people what is sacred. 

This is not simply a matter of semantics. It goes right to the 

heart of the significance of the government, under force of this 

amendment, giving an exalted status to an object, even an object 

as important and worthy of respect as the American flag. As over 

140 religious leaders wrote to the Committee, in a letter dated 

April 29, 1999:

Although we represent diverse faiths, it is unique to religious traditions to teach what is sacred and what is not. 

No government should arrogate to itself the right to declare ‘‘holy’’ and capable of ‘‘desecration’’ that which is not 

associated with the divine. To do so is to mandate idolatry 

for people of faith by government fiat. Our First Amendment has guaranteed to people of faith or to those with no 

faith that the government would not be arbiter of the sacred.

In light of this criticism, the flag amendment threatens not only 

our freedom of political expression but also our freedom of religious 

expression. In this country, our private religious institutions, not 

the government, determine what is sacred. That principle underlies 

both the Establishment and the Free Exercise Clauses of the First 

Amendment. The proposed amendment gives a sacred status to the 

flag. As much as we love the flag, that is not a power that our government was granted by the framers of the Constitution, nor 

should it ever have that power. 

Professor Cass Sunstein made this point in his subcommittee testimony on June 6, 1995:

[The word ‘‘desecration’’] intermingles the flag with the 

divine—an intermingling that is in serious tension with 

the existing constitutional structure, in particular with the 

religion clauses. Under our system, the state is not identified with a religion. Under our system, there is no such 

thing as blasphemy law. At least for purposes of federal 

law, the nation is not ‘‘sacred.’’ ‘‘Desecration’’ is therefore 

an inappropriate word to apply to destruction of the flag.

Another constitutional scholar, Professor Robert Cole, echoed this 

concern in a letter to the Committee dated April 28, 1999:

63

It is no accident that the proposed amendment prohibits 

‘‘desecration,’’ the core meaning of which is to convert a sacred object to a secular use. But flags are secular objects; 

they are political emblems to be loved if one chooses but 

not to be sanctified. It is a dangerous confusion of the political with the sacred to think in terms of sanctifying our 

national flags, or even subconsciously to do so.

Professor Cole concluded, ‘‘For the sake of religious faith at least 

as much as for the neutrality of government, the sacred must be 

reserved for things having to do with the divine.’’ 

4. There is no consensus or clarity on the issue of content-neutrality 

Censorship on the basis of beliefs—referred to in the case law as 

content or viewpoint discrimination—is a classic evil that the First 

Amendment is designed to prevent. ‘‘[A]bove all else, the First 

Amendment means that government has no power to restrict expression because of its message, its ideas, its subject matter, or its 

content.’’ Police Dept. of Chicago v. Mosley, 408 U.S. 92, 95 (1972). 

Even when the First Amendment permits regulation of an entire 

category of speech or expressive conduct, it does not necessarily 

permit the government to regulate a subcategory of the otherwise 

proscribable speech on the basis of its message. R.A.V. v. City of 

St. Paul, 505 U.S. 377 (1992). 

Proponents of S.J. Res. 4 have demonstrated an alarming ambivalence whether it would permit Congress to restrict flag-related expression on the basis of its content. This year’s majority report is 

silent on the question, although it clearly assumes that only beliefs 

and values that are disapproved of by the majority of Americans—

it refers to them as ‘‘disrespect’’ or ‘‘contempt’’ for the flag—constitute desecration. Earlier majority reports took starkly inconsistent positions. The report in the 106th Congress insisted that 

the amendment ‘‘is not intended to—and would not—discriminate 

against specific messages or points of view, and is thus ‘content 

neutral’ to that extent.’’ S. Rpt. 98, 106th Cong., 2d Sess. (2000). 

By contrast, the report in the 105th Congress included a full section entitled ‘‘A ‘Content Neutral’ Constitutional Amendment is 

Wholly Inappropriate,’’ specifically attacking the notion, central to 

the First Amendment and fundamental to a free people, that the 

government should maintain neutrality as to the content or message of political speech. S. Rpt. 298, 105th Cong., 2d Sess. 39–42 

(1998). 

At the Committee hearing on April 20, 1999, Senator Leahy 

asked the majority’s principal academic witness, Professor Richard 

Parker, whether Congress could pass legislation under the proposed amendment that outlawed only those flag burnings intended 

as a protest against incumbent officeholders. Professor Parker replied, ‘‘There is a clear answer there. That would be a violation of 

the First Amendment.’’ But if a flag amendment is adopted, would 

basic First Amendment principles like the R.A.V. rule continue to 

apply to flag-related speech? 

The late Senator John Chafee discussed the dangers of contentbased restrictions in his statement for the Committee’s April 1999 

hearings. He asked whether the amendment’s proponents intended 

‘‘that when some bearded, untidy protestor burns an American flag 

64

20 Acting Assistant Attorney General Randolf Moss, who testified for the Clinton Administration against the proposed amendment on April 28, 1999, noted that it would be ‘‘profoundly difficult’’ to identify just how much constitutional doctrine the amendment would supersede. We 

do not know, for instance, whether the amendment is intended, or would be interpreted, to authorize implementing legislation that otherwise would violate the due process ‘‘void for vagueness’’ doctrine, or the First Amendment ‘‘overbreadth’’ doctrine.

outside a convention hall, he should go to jail—but three blocks 

away, a Boy Scout burns the flag in a dignified manner, he will go 

free?’’ If so, he said, then we are getting into ‘‘a messy area indeed.’’ 

We share Senator Chafee’s concern that in real life, the amendment and its implementing statute—even if facially neutral and 

non-discriminatory—would be enforced on the basis of content. History tells us that police and prosecutors would select for punishment those flag desecrators whom they, or their constituents, found 

insufficiently respectful, patriotic, or conformist. See Goldstein, 

Flag Burning and Free Speech, at 24–30 (describing how prosecutions under early flag desecration laws were invariably directed 

against perceived political dissidents, such as anti-war protestors). 

Physical desecration in the service of views that are approved by 

the authorities or the mainstream, like those following September 

11 (see supra, Part X.E.2), would not be prosecuted. 

However enforced, content-neutral legislation prohibiting flag 

desecration would work another kind of mischief. Such legislation—if it survived vagueness and overbreadth challenges (assuming such challenges could be brought) 20—would inevitably inhibit 

or silence a great range of expressive behavior, much of which most 

people consider benign or even beneficial. In short, the amendment 

would create havoc for free expression for the purpose of solving no 

real problem. 

5. The difficulties that attend a statutory approach to flag burning 

would remain even after a constitutional amendment 

Proponents of S.J. Res. 4 argue, unconvincingly, that no statutory alternative is available to address the issue of flag burning. As 

noted above (in Part X.B.5), one statutory alternative has already 

been proposed in this Congress. Beyond that, however, the same 

problems that complicate the drafting of such a statute, and specifically of affording Americans the specificity demanded by the Due 

Process Clause of the Fifth Amendment, also attend the proposed 

amendment. 

As the Supreme Court wrote in Smith v. Goguen, 415 U.S. 566, 

572–573 (1974), discussed in the majority report (in Part IV.C), the 

due process doctrine of vagueness incorporates notions of fair notice 

or warning:

[I]t requires legislatures to set reasonably clear guidelines for law enforcement officials and triers of fact in 

order to prevent ‘‘arbitrary and discriminatory enforcement.’’ Where a statute’s literal scope, unaided by a narrowing state court interpretation, is capable of reaching 

expression sheltered by the First Amendment, the doctrine 

demands a greater degree of specificity than in other contexts.

65

Where vague statutory language permits selective law enforcement, 

there is a denial of due process. 

A statute enforcing this amendment either would be found unconstitutional for vagueness or else, as demonstrated above, silence 

or capture as criminals hundreds of well-meaning American citizens and businesses whose patriotism is beyond question. Proponents have argued that its language is at least as clear as other 

constitutional text such as ‘‘unreasonable searches and seizures,’’ 

‘‘probable cause,’’ ‘‘excessive bail,’’ ‘‘excessive fines,’’ ‘‘cruel and unusual punishment,’’ ‘‘due process of law,’’ and ‘‘just compensation.’’ 

Of course, these terms have required and continue to require literally thousands and thousands of cases for their interpretation. 

But more important, we tolerate and even embrace their generality because in each and every case the terms protect our liberty 

and limit the ability of government to search, seize, hold and punish American citizens; the question always is whether they extend 

additional protection to us. An open-ended criminal statute is another matter entirely. There is no suggestion that it would enlarge 

our freedoms; the question, rather, would be whether we dare to 

speak in pursuance of our rights. Vagueness is intolerable when it 

frightens people into silence and empowers government to search, 

seize, hold and punish American citizens. 

The impulse to punish ideas that permeates the majority report 

leads only to endless entanglement. Even with the large increase 

in the number of flag burnings that could be expected if this 

amendment were adopted, and even without the inventiveness in 

mistreatment of the flag and near-flags that could be predicted, 

there would be no end to the litigation under any statute. The 

amendment, the ensuing litigation, and the inevitable erratic pattern of results, would demean rather than protect the flag. 

Do we really want to open a constitutional can of worms, and invite a parade of hairsplitting court cases over whether burning a 

picture of the flag or putting the flag on the uniforms of our Olympic athletes or stepping on a lapel pin amounts to desecration? The 

biggest threat to the dignity of the flag may be such efforts to construct an impermeable legal barrier to protect it. 

F. CONCLUSION

There is no need to amend the Constitution. The flag has a secure place in our hearts. The occasional insult to the flag does 

nothing to diminish our respect for it; rather, it only reminds us 

of our love for the flag, for our country, and for our freedom to 

speak, think and worship as we please. The laws against everyday 

hooliganism allow ample scope for states to jail those who need to 

be jailed regardless of their message or cause, but the punishment 

meted out by the law is nothing compared to the condemnation and 

ostracization by their fellow citizens that flag burners face. 

Even more precious than the flag, however, are the freedoms 

that it represents. Our soldiers have fought not for a flag but for 

freedom, freedom for Americans and for others across the globe. It 

would be the cruelest irony if, in a misguided effort to honor the 

symbol of that freedom, we were to undermine the most precious 

of our freedoms, the freedoms of the First Amendment. 

66

This amendment is a wrong-headed response to a crisis that does 

not exist. It would be an unprecedented limitation on the freedom 

Americans enjoy under the First Amendment, and would do nothing to bolster respect for the flag. Respect for the flag flows from 

the freedoms we enjoy and from the sacrifices of those who have 

protected and spread that freedom. Freedom is what we should 

cherish. Freedom is what we should protect. 

We respectfully urge that S.J. Res. 4 not be approved by the Senate.

PATRICK LEAHY. 

TED KENNEDY. 

HERB KOHL. 

RUSSELL D. FEINGOLD. 

CHARLES SCHUMER. 

DICK DURBIN.

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XI. SUPPLEMENTAL VIEW OF SENATOR EDWARD M. 

KENNEDY 

Since the majority states, in Section IV. C. 1 of its views, that 

there would be ‘‘no reduction in First Amendment rights,’’ they 

should have no objection to an amendment to the resolution so 

stating, and I recommend consideration and addition of such an 

amendment before the resolution is considered on the Senate floor. 

TED KENNEDY. 

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APPENDIX A 

GENERAL COLIN L. POWELL, USA (RET), 

Alexandria, VA, May 18, 1999. 

Hon. PATRICK LEAHY, 

U.S. Senate, 

Washington, DC. 

DEAR SENATOR LEAHY: Thank you for your recent letter asking 

my views on the proposed flag protection amendment. 

I love our flag, our Constitution and our country with a love that 

has no bounds. I defended all three for 35 years as a soldier and 

was willing to give my life in their defense. 

Americans revere their flag as a symbol of the Nation. Indeed, 

it is because of that reverence that the amendment is under consideration. Few countries in the world would think of amending their 

Constitution for the purpose of protecting such a symbol. 

We are rightfully outraged when anyone attacks or desecrates 

our flag. Few Americans do such things and when they do they are 

subject to the rightful condemnation of their fellow citizens. They 

may be destroying a piece of cloth, but they do no damage to our 

system of freedom which tolerates such desecration. 

If they are destroying a flag that belongs to someone else, that’s 

a prosecutable crime. If it is a flag they own, I really don’t want 

to amend the Constitution to prosecute someone for foolishly desecrating their own property. We should condemn them and pity 

them instead. 

I understand how strongly so many of my fellow veterans and 

citizens feel about the flag and I understand the powerful sentiment in state legislatures for such an amendment. I feel the same 

sense of outrage. But I step back from amending the Constitution 

to relieve that outrage. The First Amendment exists to insure that 

freedom of speech and expression applies not just to that with 

which we agree or disagree, but also that which we find outrageous. 

I would not amend that great shield of democracy to hammer a 

few miscreants. The flag will still be flying proudly long after they 

have slunk away. 

Finally, I shudder to think of the legal morass we will create trying to implement the body of law that will emerge from such an 

amendment. 

If I were a member of Congress, I would not vote for the proposed amendment and would fully understand and respect the 

views of those who would. For or against, we all love our flag with 

equal devotion. 

Sincerely, 

COLIN L. POWELL. 

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P.S. The attached 1989 article by a Vietnam POW gave me further inspiration for my position.

WHEN THEY BURNED THE FLAG BACK HOME

(By James H. Warner) 

THOUGHTS OF A FORMER POW

In March of 1973, when we were released from a prisoner of war 

camp in North Vietnam, we were flown to Clark Air Force 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 have received the Silver Star Medal and two Purple 

Hearts, they were nothing compared with the gratitude 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 51⁄2 years, it hurts me to see other 

Americans willfully desecrate it. But I have been in a Communist 

prison where I looked into the pit of hell. I cannot compromise on 

freedom. It hurts to see the flag burned, but I part company with 

those who want to punish the flag burners. Let me explain myself. 

Early in the imprisonment the Communists told us that we did 

not have to stay there. If we would only admit we were wrong, if 

we would only apologize, we could be released early. If we did not, 

we would be punished. A handful accepted, most did not. In our 

minds, early release under those conditions would amount to a betrayal, of our comrades of our country and of our flag. 

Because we would not say the words they wanted us to say, they 

made our lives wretched. Most of us were tortured, and some of my 

comrades died. I was tortured for most of the summer of 1969. I 

developed beriberi from malnutrition. I had long bouts of dysentery. I was infested with intestinal parasites. I spent 13 months 

in solitary confinement. Was our cause worth all of this? Yes, it 

was worth all this and more. 

Rose Wilder Lane, in her magnificent book ‘‘The Discovery of 

Freedom,’’ said there are two fundamental truths that men must 

know in order to be free. They must know that all men are brothers, and they must know that all men are born free. Once men accept these two ideas, they will never accept bondage. The power of 

these ideas explains why it was illegal to teach slaves to read. 

One can teach these ideas, even in a Communist prison camp. 

Marxists believe that ideas are merely the product of material conditions; change those material conditions, and one will change the 

ideas they produce. They tried to ‘‘re-educate’’ us. If we could show 

them that we would not abandon our belief in fundamental principles, then we could prove the falseness of their doctrine. We could 

subvert them by teaching them about freedom through our example. We could show them the power of ideas. 

I did not appreciate this power before I was a prisoner of war. 

I remember one interrogation where I was shown a photograph of 

some Americans protesting the war by burning a flag. ‘‘There,’’ the 

officer said. ‘‘People in your country protest against your cause. 

That proves that you are wrong.’’

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‘‘No,’’ I said, ‘‘That proves that 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. 

Aneurin Bevan, former official of the British Labor Party, was 

once asked by Nikita Khrushchev how the British definition of democracy differed from the Soviet view. Bevan responded, forcefully, 

that if Khrushchev really wanted to know the difference, he should 

read the funeral oration of Pericles. 

In that speech, recorded in the Second Book of Thucydides’ ‘‘History of the Peloponnesian War,’’ Pericles contrasted democratic 

Athens with totalitarian Sparta. Unlike the Spartans, he said, the 

Athenians did not fear freedom. Rather, they viewed freedom as 

the very source of their strength. As it was for Athens, so it is for 

America—our freedom is not to be feared, for our freedom is our 

strength. 

We don’t need 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 the subversive idea of freedom? Spread freedom. 

The flag in Dallas was burned to protest the nomination of Ronald 

Reagan, and he told us how to spread the idea of freedom when he 

said that we should turn American into ‘‘a city shining on a hill, 

a light to all nations.’’ Don’t be afraid of freedom, it is the best 

weapon we have.

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APPENDIX B 

VETERANS DEFENDING THE BILL OF RIGHTS, 

Newburgh, IN, March 10, 2004. 

Re oppose S.J. Res. 4, the Flag Desecration Constitutional Amendment.

DEAR SENATOR: My name is Gary May and I am writing to you 

today as the chair of a group called Veterans Defending the Bill of 

Rights to urge you to oppose S.J. Res. 4, the flag desecration constitutional amendment. I know you hear from many veterans who 

support this amendment, but you should also know that there are 

many veterans that have faithfully served our nation who strongly 

believe that amending the Constitution to ban flag desecration is 

the antithesis of what they fought to preserve. 

I lost both of my legs in combat while serving in the U.S. Marine 

Corps in Vietnam. I challenge anyone to find someone who loves 

this country, its people and what it stands for more than I. It offends me when I see the flag burned or treated disrespectfully. But, 

as offensive and painful as this is, I still believe that those dissenting voices need to be heard. 

This country is unique and special because the minority, the unpopular, the dissident also have a voice. The freedom of expression, 

even when it hurts the most, is the truest test of our dedication to 

the principles that our flag represents. 

In addition to my military combat experience, I have been involved in veterans’ affairs as a clinical social worker, program manager, board member of numerous veterans organizations, and advocated on their behalf since 1974. Through all of my work in veterans’ affairs, I have yet to hear a veteran say that his or her service and sacrifice was in pursuit of protecting the flag. 

When confronted with the horrific demands of combat, the simple 

fact is that most of us fought to stay alive. The pride and honor 

we feel is not in the flag per se. It’s in the principles that it stands 

for and the people who have defended them. 

I am grateful for the many heroes of our country. All the sacrifices of those who went before us would be for naught, if an 

amendment were added to the Constitution that cut back on our 

First Amendment rights for the first time in the history of our 

great nation. I write to you today to attest to the fact that many 

veterans do not wish to exchange fought-for freedoms for protecting 

a tangible object. 

To illustrate my point, here is what some of the Veterans Defending the Bill of Rights have said about this amendment: 

• * * * to undertake to carve out an area of free speech and say 

that this or that is unpatriotic because it is offensive is a movement that will unravel our liberties and do grave damage to our 

73

nation’s freedom. The ability to say by speech or dramatic acts 

what we feel or think is to be cherished not demeaned as unpatriotic * * * I hope you will hear my pleas. Please do not tinker with 

the First Amendment.—Reverend Edgar Lockwood, Falmouth, 

Massachusetts, served as a naval officer engaged in more than ten 

combat campaigns in WWII. • My military service was not about protecting the flag; it was 

about protecting the freedoms behind it. The flag amendment curtails free speech and expression in a way that should frighten us 

all.—Brady Bustany, West Hollywood, California, served in the Air 

Force during the Gulf War. • The first amendment to our constitution is the simplest and 

clearest official guarantee of freedom ever made by a sovereign people to itself. The so-called ‘flag protection amendment’ would be a 

bureaucratic hamstringing of a noble act. Let us reject in the name 

of liberty for which so many have sacrificed, the call to ban flag 

desecration. Let us, rather, allow the first amendment, 

untrammeled and unfettered by this proposed constitutional red 

tape, to continue to be the same guarantor of our liberty for the 

next two centuries (at least) that is has been for the last two.—

State Delegate John Doyle, Hampshire County, West Virginia served 

as an infantry officer in Vietnam. • As a twenty two year veteran, combat experience, shot up, shot 

down, hospitalized more than a year, Purple Heart recipient, with 

all the proper medals and badges I take very strong exception to 

anyone who says that burning the flag isn’t a way of expressing 

yourself. In my mind this is clearly covered in Amendment I to the 

Constitution—and should not be ‘‘abridged’’.—Mr. Bob Cordes, 

Maston, Texas was an Air Force fighter pilot show down in Vietnam. He served for 22 years from 1956 to 1978. • Service to our country, not flag waving, is the best way to demonstrate patriotism.—Mr. Jim Lubbock, St. Louis, Missouri, served 

with the Army in the Phillipines during WWII. His two sons fought 

in Vietnam, and members of his family have volunteered for every 

United States conflict from the American Revolution through Vietnam with the exception of Korea. His direct ancestor, Stephen Hopkins, signed the Declaration of Independence. 

• The burning of our flag thoroughly disgusts me. But a law banning the burning of the flag pays right into the hands of the 

weirdoes who are doing the burning. * * * By banning the burning 

of the flag, we are empowering them by giving significance to their 

stupid act. Let them burn the flag and let us ignore them. Then 

their acts carries no significance.—Mr. William Ragsdale, 

Titusville, Florida, an engineer who worked in the space industry 

for over 30 years, retired from the US Naval Reserve in 1984 with 

the rank of Commander, having served in the Navy for over forty 

years including active duty in both WWII and the Korean War. He 

has two sons who served in Vietnam. 

• I fought for freedom of expression not for a symbol. I fought 

for freedom of Speech. I did not fight for the flag, or motherhood, 

or apple pie. I fought so that my mortal enemy could declare at the 

top of his lungs that everything I held dear was utter drivel * * * 

I fought for unfettered expression of ideas. Mine and everybody 

else’s.—Mr. John Kelley, East Concord, Vermont, lost his leg to a 

74

Viet Cong hand grenade while on Operation Sierra with the Fox 

Company 2nd Battalion 7th Marines in 1967. 

I hope you will join me and the Veterans Defending the Bill of 

Rights in opposing S.J. Res. 4, the flag desecration constitutional 

amendment. 

Sincerely, 

GARY E. MAY.

Æ