Legislature(2001 - 2002)

01/22/2002 08:03 AM STA

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
HJR 30-DESECRATION OF U.S. FLAG                                                                                               
                                                                                                                                
Number 0055                                                                                                                     
                                                                                                                                
CHAIR  COGHILL announced  that  the first  order  of business  was                                                              
HOUSE JOINT  RESOLUTION NO.  30, Relating to  an amendment  to the                                                              
Constitution of  the United States prohibiting desecration  of the                                                              
Flag of the United States.                                                                                                      
                                                                                                                                
Number 0134                                                                                                                     
                                                                                                                                
LINDA SYLVESTER,  Staff to Representative Pete Kott,  Alaska State                                                              
Legislature,  read  her testimony  on  behalf  of the  sponsor  as                                                              
follows:                                                                                                                        
                                                                                                                                
     The core  of this resolution  is found on page  3, lines                                                                   
     3-8:                                                                                                                       
                                                                                                                                
     "Be  it resolved by  the Alaska  State Legislature  that                                                                   
     the  Congress of  the United  States  is [requested]  to                                                                   
     pass  House   Joint  Resolution   36  or  Senate   Joint                                                                   
     Resolution  7, or  comparable  legislation, and  present                                                                   
     to the legislatures  of the several states  an amendment                                                                   
     to  the Constitution  of the  United  States that  would                                                                   
     specifically  provide [the]  Congress power to  prohibit                                                                   
     the  physical  desecration of  the  Flag of  the  United                                                                   
     States; ..."                                                                                                               
                                                                                                                                
     The American  flag has long  been enshrined as  a symbol                                                                   
     of  what is  right with  America  and is  a most  worthy                                                                   
     emblem of our  nation.  In fact, until  being overturned                                                                   
     by a  1989 decision by the  U.S. Supreme Court, on  a 5-                                                                   
     to-4 vote,  the American flag was consistently  afforded                                                                   
     protections  under state  law in  48 out  of 50  states.                                                                   
     These  laws  survived  five various  challenges  in  the                                                                   
     Supreme  Court until  finally failing  in a case  called                                                                   
     Texas  v. Johnson.    And I'll  tell  you  a little  bit                                                                 
     about that case, because it's quite interesting:                                                                           
                                                                                                                                
Number 0271                                                                                                                     
                                                                                                                                
     After publicly  burning an American  flag as a  means of                                                                   
     political  protest, Gregory  Johnson  was convicted  for                                                                   
     desecrating  the American  flag  in violation  of  Texas                                                                   
     law.   While at  the Republican  National Convention  in                                                                   
     Dallas, 1984,  Mr. Johnson  participated in a  political                                                                   
     demonstration  dubbed  ...  the  "Republican  War  Chest                                                                   
     Tour."   The purpose  of the  event was  to protest  the                                                                   
     policies  of the  Reagan Administration  and of  certain                                                                   
     Dallas-based  corporations.   The demonstrators  marched                                                                   
     through Dallas  streets, chanting political  slogans and                                                                   
     stopping  at several  corporations  to stage  "die-ins."                                                                   
     And  what they  were trying  to do was  ... protest  the                                                                   
     consequences  of  nuclear  war.   On  several  occasions                                                                   
     they  spray-painted walls  of  buildings and  overturned                                                                   
     potted  plants.  Johnson  himself did  not take part  in                                                                   
     these activities.   He did, however, accept  an American                                                                   
     flag  that  was handed  to  him  by a  fellow  protestor                                                                   
     who'd  taken it  from the  flagpole outside  one of  the                                                                   
     targeted buildings.                                                                                                        
                                                                                                                                
     The demonstration  ended in  front of Dallas  City Hall,                                                                   
     where  Johnson unfurled  the  American  flag, doused  it                                                                   
     with  kerosene, and  set it  on  fire.   While the  flag                                                                   
     burned,  the protesters chanted,  "America, red,  white,                                                                   
     and blue, we spit on you!"                                                                                                 
                                                                                                                                
     After  the demonstrators  dispersed,  a  witness to  the                                                                   
     flag-burning  collected the  flag's  remains and  buried                                                                   
     them in  his backyard.   No  one was physically  injured                                                                   
     or  threatened  with injury,  though  several  witnesses                                                                   
     testified  that  they  were seriously  offended  by  the                                                                   
     flag-burning.                                                                                                              
                                                                                                                                
Number 0425                                                                                                                     
                                                                                                                                
     Of the  approximately 100  demonstrators, Johnson  alone                                                                   
     was  charged with  a crime.   The crime  he was  charged                                                                   
     with  was  the  desecration  of a  venerated  object  in                                                                   
     violation of  Texas penal code.   Johnson was  convicted                                                                   
     of flag  desecration  - for burning  the American  flag,                                                                   
     rather than  for uttering any  words.  Of note,  Texas's                                                                   
     penal code required  the intentional or knowing  abuse -                                                                   
     that  is,   the  kind  of   mistreatment  that   is  not                                                                   
     innocent;  it's  intentionally   designed  to  seriously                                                                   
     offend other individuals.                                                                                                  
                                                                                                                                
     Writing  for the  majority, Justice  Brennan ruled  that                                                                   
     the states may  not prevent flag-burning, as  it was [a]                                                                   
     protected expression under the First Amendment.                                                                            
                                                                                                                                
     The  law, as interpreted  by the  United States  Supreme                                                                   
     Court,  we  believe,  no  longer  accords  the  nation's                                                                   
     precious  banner  the reverence  and  respect  befitting                                                                   
     the  symbol of  our noble  experiment called  "America."                                                                   
     This is  what President Lincoln  called "our  last, best                                                                   
     hope of mankind."                                                                                                          
                                                                                                                                
Number 0486                                                                                                                     
                                                                                                                                
     This  resolution  supports   congressional  HJR  36  and                                                                   
     Senate  [Joint]  Resolution  7.   Both  resolutions  ask                                                                   
     Congress  to  send  a constitutional  amendment  to  the                                                                   
     states  for  ratification.    If  agreed  to  by  three-                                                                   
     fourths  of  the states,  the  amendment  would  empower                                                                   
     Congress  to prohibit  the physical  desecration of  the                                                                   
     flag.    No   other  issue  on  Capitol  Hill   has  the                                                                   
     endorsement of  80 percent of the American  people [and]                                                                   
     the majority  of the U.S.  House of Representatives  and                                                                   
     [the] Senate.   And, as of  August 2001, 100  percent of                                                                   
     the  state legislatures  had,  at one  time or  another,                                                                   
     passed  various   resolutions  similar  to   what  we're                                                                   
     asking you to approve.                                                                                                     
                                                                                                                                
Number 0550                                                                                                                     
                                                                                                                                
     We  realize  that  there's  strong  opposition  to  this                                                                   
     issue,  and  we respect  those  people  [who]  disagree.                                                                   
     ...  This   is  a  critical   facet  of  American   free                                                                   
     expression,  and  ... the  exchange  of ideas  [is]  the                                                                   
     hallmark of our society.                                                                                                   
                                                                                                                                
     U.S.  Senator Ted  Stevens issued  a news  release on  a                                                                   
     similar  resolution  [February   4,  1998].    He  says:                                                                   
     "Noting that  Alaskans are  strong in their  belief that                                                                   
     our flag  should not be  desecrated, the power  to amend                                                                   
     the Constitution  demands a cautious  respect.  It  is a                                                                   
     considerable  power - one that  has helped to  chart the                                                                   
     course  of  our  history.    We  should  not  jump  into                                                                   
     headlong ...  amendments.  But  we should not  be afraid                                                                   
     to act  on our  beliefs, either."   He continues:   "The                                                                   
     U.S.  Supreme  Court has  given  us a  choice.   We  can                                                                   
     accept  ...   that  the   First  Amendment  allows   the                                                                   
     desecration  of [America's flag],  or we can  change the                                                                   
     law to prevent it."                                                                                                        
                                                                                                                                
MS. SYLVESTER continued:                                                                                                        
                                                                                                                                
     The citizens of  the United States have set  in motion a                                                                   
     grassroots  campaign of  unprecedented  success, and  it                                                                   
     is with  great respect  that we ask  the members  of the                                                                   
     Alaska  State  Legislature  to  affirm  the  efforts  to                                                                   
     change  the law  to  protect the  monument  that is  our                                                                   
     national flag.                                                                                                             
                                                                                                                                
Number 0646                                                                                                                     
                                                                                                                                
     Until  1989,   48  states,  out  of  50,   had  statutes                                                                   
     prohibiting  the burning  of the  flag.   Most of  these                                                                   
     state  statutes are  patterned after  the "Uniform  Flag                                                                   
     Act  [of] 1917."   Section  3 of  that statute  provides                                                                   
     that  "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."   Most of  these  laws were  passed by  the                                                                   
     states at about the time of World War I.                                                                                   
                                                                                                                                
     The American  flag, then,  throughout history,  has come                                                                   
     to be  the very  symbol embodying our  nation.   It does                                                                   
     not  ... represent  the views  of  any political  party.                                                                   
     It  does not  represent any  [particular] ...  political                                                                   
     philosophy.   In fact, the veterans of the  Vietnam War,                                                                   
     upon  returning  home  to   a  rejecting  nation,  found                                                                   
     singular  comfort  and  solace  in  the  symbol  of  the                                                                   
     American flag,  distinct and separate from  the citizens                                                                   
     and political leaders that had sent them to fight.                                                                         
                                                                                                                                
Number 0738                                                                                                                     
                                                                                                                                
     The flag  is not  another idea or  "point of view"  that                                                                   
     filters  to  the  top  of pop  culture.    Millions  and                                                                   
     millions   of  Americans  regard   it  with  an   almost                                                                   
     mystical  reverence,   regardless  of  their   divergent                                                                   
     political  and social  beliefs.   We  maintain that  the                                                                   
     American  flag is a  national monument,  a special  kind                                                                   
     of  personality.    Its use  ...  is  traditionally  and                                                                   
     universally subject to special rules and regulations.                                                                      
                                                                                                                                
     The  dissenting   opinion  authored  by   Chief  Justice                                                                   
     Rehnquist  argued  that it  was  Johnson's use  of  this                                                                   
     particular  symbol,  not  the  idea that  he  sought  to                                                                   
     convey, ...  or any of his other expressions,  for which                                                                   
     he  was  punished.    The   fact  is,  Mr.  Johnson  was                                                                   
     convicted  for his  use of  the American  ... flag,  for                                                                   
     its  desecration.   Similar  to the  desecration of  the                                                                   
     American soldiers  who were dragged through  the streets                                                                   
     of  Mogadishu,  burning  or trampling  of  the  American                                                                   
     flag carries an air of villainy, of treachery.                                                                             
                                                                                                                                
Number 0798                                                                                                                     
                                                                                                                                
     With  respect,  the  sponsor  requests  that  the  House                                                                   
     State  Affairs  Committee  pass  HJR  30  and  urge  the                                                                   
     Senate to  act on [its]  joint resolution and  send [an]                                                                   
     amendment  to the  states  for their  consideration  and                                                                   
     ratification.    This  resolution   has  no  ...  fiscal                                                                   
     impacts,  as   it  is  a   mere  communication   to  the                                                                   
     Congress.                                                                                                                  
                                                                                                                                
Number 0820                                                                                                                     
                                                                                                                                
CHAIR  COGHILL  said  the  resolution  would  be  heard  in  other                                                              
committees,  and he would  like the  House State Affairs  Standing                                                              
Committee to  focus mostly  on the  policy issues surrounding  the                                                              
resolution.     In  reference  to   a  previous  comment   by  Ms.                                                              
Sylvester,  he responded  as follows:    "You said  it's a  'mere'                                                              
request.    I don't  know  that  it's  a 'mere'  request;  it's  a                                                              
significant request in my view."                                                                                                
                                                                                                                                
Number 0895                                                                                                                     
                                                                                                                                
REPRESENTATIVE  HAYES  asked Ms.  Sylvester  if  she knew  of  any                                                              
other nations with constitutional protection of their flags.                                                                    
                                                                                                                                
MS. SYLVESTER replied  no; however, she told  Representative Hayes                                                              
she could  find an  answer to his  question.   She added  that her                                                              
interest focused  on how this issue had historically  been treated                                                              
in the United States.                                                                                                           
                                                                                                                                
Number 0935                                                                                                                     
                                                                                                                                
REPRESENTATIVE  STEVENS  stated  his  belief  that  [HJR  30]  was                                                              
probably  a  good idea.    He  added  that  he thought  the  First                                                              
Amendment was a  good idea.  Having served for three  years in the                                                              
United States  Army, he  said he  felt very fond  of the  flag and                                                              
was   concerned   about   anyone   burning   or   mutilating   it.                                                              
Representative  Stevens asked how  far the  issue would  truly go.                                                              
For instance,  he mentioned "kids"  who wear the flag  [design] as                                                              
clothing, and  he said he  owned a  cap with the  flag of it.   He                                                              
questioned how "contempt" would be defined.                                                                                     
                                                                                                                                
Number 0978                                                                                                                     
                                                                                                                                
MS. SYLVESTER answered  that many groups have codes  regarding the                                                              
flag:   raising  the flag;  lowering the  flag; when  to take  the                                                              
flag off  after it has become  frayed; and wearing a  [flag] patch                                                              
"on the  seat of your  pants."  She  clarified that  the "language                                                              
of  these  statutes"  addresses  the  intentional  defacement,  or                                                              
defilement, of  the American  flag.  She  surmised that  the focus                                                              
of [the  aforementioned perpetrator who  burned the flag]  was not                                                              
to hurt  the flag,  but to offend  others.   It was an  aggressive                                                              
action addressing  an audience,  she said.   She illustrated  that                                                              
wearing a  "flag tie" is just  a harmless act, whereas  ripping or                                                              
spitting on  the flag in front of  a group of veterans  or firemen                                                              
at "ground  zero" would  have a different  intention, and  that is                                                              
the offense.                                                                                                                    
                                                                                                                                
Number 1055                                                                                                                     
                                                                                                                                
CHAIR  COGHILL  said,  "I  would  think that  there's  a  ...  big                                                              
difference between 'disrespect' and 'desecration.'"                                                                             
                                                                                                                                
Number 1068                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES said  she  thought [the  United States]  had                                                              
lasted  as long  as  it  has because  of  the programs  that  were                                                              
instituted  by our forefathers  in the  beginning.  She  mentioned                                                              
people hating  [the United States]  as an entity.   Representative                                                              
James  said she  struggles  with allowing  those  who don't  agree                                                              
with the  U.S. government  and who  profess extreme beliefs,  such                                                              
as  communism, [to  live in  the  United States].   She  conceded:                                                              
"We can't  have 100  percent of  us agreeing  that our  government                                                              
currently  works correctly,  when  not always  does  it do  that."                                                              
Likewise, absolutely  perfect rules  that suit everyone  cannot be                                                              
made, she added.                                                                                                                
                                                                                                                                
REPRESENTATIVE   JAMES  characterized  the   flag  as   being  the                                                              
representation  of who  [Americans] are.   She  pondered what  the                                                              
U.S.  Supreme  Court's  ruling,  regarding  wearing  the  flag  as                                                              
clothing, would  be, if  "we went  this far on  this issue."   She                                                              
added that  she would not  like the U.S.  Supreme Court  to decide                                                              
that  one  person's   wearing  of  the  flag  was   negative,  and                                                              
therefore objectionable,  whereas another person's  wearing of the                                                              
flag was  positive, and  therefore allowable.   She expressed  her                                                              
support of  HJR 30,  but recommended that  the committee  find out                                                              
what  the results  of  its  action would  be.   She  posited  that                                                              
having  a constitutional  amendment  from the  federal level,  put                                                              
out  to the  states  for  ratification,  is probably  a  necessary                                                              
process.                                                                                                                        
                                                                                                                                
Number 1350                                                                                                                     
                                                                                                                                
REPRESENTATIVE  JAMES said  she was  interested to  hear what  the                                                              
House Judiciary  Standing  Committee would  have to say  regarding                                                              
HJR  30.   She  suggested  the sponsor  of  HJR  30 find  out  the                                                              
opinions  of people  nationwide  regarding  the resolution.    She                                                              
said:  "I think  we need to broaden the discussion  on this issue,                                                              
because we  don't want to  do something  that divides us;  we want                                                              
to  do something  that  puts us  ... more  in  agreement with  one                                                              
another."   She added  that it  was difficult  for her  to believe                                                              
that any  person could  live in  this nation  and not respect  the                                                              
flag.                                                                                                                           
                                                                                                                                
Number 1385                                                                                                                     
                                                                                                                                
REPRESENTATIVE FATE  moved to report HJR 30 out  of committee with                                                              
individual  recommendations  and   the  accompanying  zero  fiscal                                                              
note.   There being  no objection,  HJR 30  was reported  from the                                                              
House State Affairs Standing Committee.                                                                                         

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