Legislature(2001 - 2002)
02/01/2002 01:10 PM House JUD
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* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
+ teleconferenced
= bill was previously heard/scheduled
HJR 30 - DESECRATION OF U.S. FLAG Number 1375 CHAIR ROKEBERG announced that the last order of business would be 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 1345 LINDA SYLVESTER, Staff to Representative Pete Kott, Alaska State Legislature, sponsor, gave the following presentation on behalf of Representative Kott: I wanted to first just [read] some of the core elements of the resolution that deals with the constitutional amendment for flag desecration: "WHEREAS certain actions, although arguably related to one person's free expression, nevertheless raise issues concerning public decency, public peace, and the rights of expression and sacred values of others; ... WHEREAS there are symbols of our national soul, such as the Washington Monument, the United States Capitol Building, and memorials to our greatest leaders, that are the property of every American and are therefore worthy of protection from desecration and dishonor; ..." Continuing on page 2, [line] 18: "WHEREAS the American Flag to this day is a most honorable worthy banner of a nation that is thankful for its strengths and committed to curing its faults and remains the destination of millions of immigrants attracted by the universal power of the American ideal; ..." Page 3, Line 1: "WHEREAS it is only fitting that people everywhere should lend their voices to a forceful call for restoration to the Stars and Stripes of a proper station under law and decency; 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; ...." Number 1270 MS. SYLVESTER continued: Until being overturned by a 1989 decision of the [United States] Supreme Court, on a five to four vote, the American flag was consistently afforded protections under state law. These laws survived five various challenges in the Supreme Court until finally falling in Texas v. Johnson. Writing for the majority, Justice Brennan held that Johnson's conviction for flag desecration, under a Texas statute, was inconsistent with the First Amendment; Johnson could not be punished for burning the flag as a part of a public demonstration. The law as interpreted by the United States Supreme Court, we believe, no longer accords to our nation's precious banner the reverence and respect befitting the symbol of our noble experiment of a nation state, which President Lincoln called, "our last, best hope of mankind." This resolution supports Congressional [House Joint Resolution] 36 and Senate Joint Resolution 7. Both resolutions ask Congress to send an 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, ... the overwhelming majority of the U.S. House of Representatives and the [U.S.] Senate, and, as of August 2001, 100 percent of the state legislatures. U.S. Senator Ted Stevens issued a news release on a similar resolution, quote: "Noting 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 headlong into 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," end quote. Number 1134 MS. SYLVESTER went on to say: 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 nation's flag. As I said, until 1989, 48 out of 50 states had statutes prohibiting the burning of the flag. Most of the state statutes were patterned after the Uniform Flag Act [of] 1917. In that Act, Section 3 provides that: "no person shall publicly mutilate, deface, defile, trample upon, or by word or act, cast contempt upon such flag, standard, color, ensign or shield." Most of these laws were passed by the states at the time of World War I. The American flag, then, throughout our 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, veterans of the Viet Nam War, upon returning home to a rejecting nation, found singular comfort and solace in the symbol of the American flag. This [was] distinct and separate from the citizens and the political leaders that had sent them there to fight. 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, social, and philosophical beliefs. We maintain that the American flag is a national monument, a special kind of personality. It is the symbol of our nationhood and unity. The mystical status that inspires loyalty and intense devotion is "rooted in those who gave their lives that our nation might live. The brave men and women, living and dead who have struggled in its defense have consecrated it far and above our poor power to add or detract." Number 1032 MS. SYLVESTER concluded: The dissenting opinion in Texas v. Johnson, authored by Chief Justice Rehnquist, argued that it was Johnson's use of this particular symbol and not the idea that he sought to convey by it or by his many other expressions, for which he was punished. The fact is that Mr. Johnson was convicted for his use of the American flag - for its desecration. Similar to the desecration of American soldiers who were dragged through the streets of Mogadishu, burning or trampling the American flag carries an air of villainy, treachery, and barbarism. With respect, the sponsor requests that the [House Judiciary Standing Committee] pass [HJR 30], which urges the Congress to act on their joint resolution and send an amendment to the states for their consideration and ratification. This resolution has no fiscal impact on the state, as it is a communication to the Congress. CHAIR ROKEBERG asked for an update on the status of [congressional] SJR 7 and HJR 36. MS. SYLVESTER confirmed that HJR 36 was passed by the U.S. House of Representatives in July by a vote of 298 to 125, and has been referred to the U.S. Senate. She mentioned that in the past, legislation similar to SJR 7 has passed the U.S. Senate four votes short of a two-thirds majority. CHAIR ROKEBERG, after noting that to his recollection, there is another way for the states to "ratify an amendment," asked whether HJR 30 qualifies for that type of activity. MS. SYLVESTER said that HJR 30 does not qualify because it simply urges Congress to act on it's own resolutions. REPRESENTATIVE MEYER asked whether the House State Affairs Standing Committee had any objections to HJR 30. MS. SYLVESTER relayed that in that committee report, there was one vote of "no recommendation," and all the rest were "do pass." She also relayed that one of the concerns expressed in the House State Affairs Standing Committee was how broad the statutes were and what would qualify; as examples, would a person be precluded from wearing a flag tie or from having a flag [patch] in the seat of a pair of pants, and if so, what would the penalties be. In response to a question, Ms. Sylvester explained that while damage to other national symbols and monuments could result in charges of property damage, she views such damage as striking a larger blow "to our national psyche" than mere property damage. Number 0761 REPRESENTATIVE BERKOWITZ said he has done a little research regarding what constitutes a flag. He explained that in statute a flag is described in the following way: "The field of the flag shall have 13 horizontal strips, alternate red and white, and a union consisting of white stars on field of blue", and it actually lays out some dimensions. It's basically 1 to 1.9 between width and length. So, that would be the physical description of a flag. And [although] we were unable to pull [it] off the web, there's an attachment to this executive order that originally came from Dwight Eisenhower about the flag. So I would suspect that the tie that someone might wear wouldn't qualify as a flag, nor would a 12-stripe flag, or a flag of a different dimension than 1 to 1.9. A piece of paper that just had the imprint on one side - that wouldn't qualify as a flag. ... Also, ... there's some description about what constitutes appropriate behavior towards a flag ... in ... Title 4, Chapter 1, Section 8 of the U.S. code.... It says "Respect for flag: (d) The flag should never be used as wearing apparel, bedding, or drapery.... (e) The flag should never be fastened, displayed, used, or stored in such a manner as to permit it to be easily torn, soiled, or damaged...." And, I think most interesting - because we see instances of this on a regular basis - is that "(i) The flag should never be used for advertising purposes in any manner whatsoever." I would suggest that according to statute, it is a desecration of the flag to use it for advertising purposes and those who use it in advertisement would, in fact, be violating this proposed amendment. Number 0610 MS. SYLVESTER said that's correct. She went on to say that those elements of the U.S. code originated in 1923 and pertain to how the army and navy approached the treatment of the flag. Following Texas v. Johnson, those [codes] were [found] unconstitutional but have not been excised from statute. She explained that Title 18, as amended in 1989, replaces those outmoded codes. She relayed that Title 18, Part 1, Chapter 33, Section 700(a)(1) says: "Whoever 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." She also remarked that Section 700(b) had been revised to say: "As used in this section, the term 'flag of the United States' means any flag of the United States, or any part thereof, made of any substance, of any size, in a form that is commonly displayed". She added, however, that this, too, has been found unconstitutional as a result of the 1990 United States v. Eichman case. She then noted: "That's not the point of what the issue is, because if an amendment were to be put to the congress and ratified by the states, then those issues would have to be readdressed for the definition." REPRESENTATIVE BERKOWITZ, referring to a letter from Colin Powell on this subject, mentioned that the letter concludes by saying: "I shudder to think [of] the legal morass we'll create trying to implement the body of law that will emerge from such an amendment." Representative Berkowitz relayed that Mr. Powell also says: "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." Representative Berkowitz went on to emphasize that, "for or against [this amendment], we all love our flag with equal devotion." Number 0433 REPRESENTATIVE JAMES, in response to the aforementioned concerns, said: I've thought a lot about this issue, and what we currently do with the flag. ... I know that backing up is very, very difficult to do, but the way I look at it is this: I do believe that our flag is certainly a representative of who we are, the freedoms that we have, and the Forefathers that came before us that set up a government that is not perfect but is the best there is .... REPRESENTATIVE JAMES continued, saying she believes that when people desecrate the flag, it is indicative of disrespect for this country and yet the flag bears the brunt of this disrespect. She implied that she considers this sort of behavior to be treasonous because one act incites another. She remarked that she is distressed to note that foreigners, who come to the United States to live and work, love this country more than some of the people who are born here. She said she supports HJR 30 and thinks that there should be an intense discussion about the issues it raises. REPRESENTATIVE COGHILL said he supports HJR 30 because he thinks that the issues it raises, such as freedom of speech and protection of national monuments/symbols, should be part of a national debate. REPRESENTATIVE BERKOWITZ said: We need to be on our guard against hollow signs of patriotism without making sure that real patriotism follows. I think one of the great things about living in a democracy is that it enables every person to participate. And after September 11, I've done a lot of thinking about this, and what I saw on September 11 was that the real heroes, the real patriots, are the ones who participated - not just the ones who waved flags and sang God Bless America. But I hope that the people that have ... at least the appearance of patriotism, will take the time, come November, to vote, and will take part in the public process that's available to us. And if we can use an amendment like this to encourage that kind of conversation, that's a positive development. But if we use an amendment like this as simply a way of saying "well, I told someone once that I respected the flag, but I don't have to live up to the ideals that the flag represents," that does a disservice to what we're all about. I hope we use this discussion about this amendment to encourage real patriotism and real participation in the democracy. TAPE 02-8, SIDE A Number 0001 REPRESENTATIVE JAMES remarked that she has been voting since the age of 18. Number 0041 JOSEPH CRAIG, American Legion; and Citizens Flag Alliance, testified via teleconference in support of HJR 30. He explained that the Citizens Flag Alliance consists of 142 organizations representing millions of citizens. Mr. Craig provided the following testimony: This fight has gone on for over 10 years. It took four years for the State of Alaska to pass a memorializing resolution. Fifty states had passed such a resolution, and ... I'm not happy to report that we're no closer now than we were ten years ago. ... It has been a long hard fight to convince many that this bill does not infringe on free speech in any way, and to get the point across that an amendment to the constitution is the only way to protect the flag of this country. Poll after poll has been taken and over 80 percent of the citizens want a flag-protection amendment. All 50 states have passed memorializing resolutions.... If they say we are trying to amend the Bill of Rights for the first time, I ask you if the Supreme Court ... had voted to protect the flag, would they be amending the Bill of Rights. If there are among those in the last election who said that every vote must count, or if the impeachment process said that we must listen to the people, I remind you that is exactly what we are asking: listen to the people and let every voice count. Number 0290 The House has voted overwhelming two times to move this to the Senate for passage, only to be rejected by one or two votes. That sends a message to the American people that our opinion does not count, and that's a hard pill to swallow. Some people have trouble defining the American flag, and pretend to be concerned about prosecuting those who would burn bikinis embroidered with the flag or toilet paper marked with the flag. Simply ask them if they would put a bikini or toilet paper on their carpet [in] the bedroom, or raise them on a flagpole during retreat. If anyone says that the flag represents the freedom to burn it, and that our military died on the battlefields of the world so that their flag could be burned on the street corners of America, I warn you not to say that to a veteran. For those that may question efforts of the Citizens Flag Alliance, I would ask them "How do you stop doing what is right?" Skeptics pretend to be alarmed over how much has been spent on the flag amendment, and how much more time will be spent on the issue. My reply, and the reply of millions is: "As long as it takes, and for how much it takes, because it's a great thing to do." REPRESENTATIVE BERKOWITZ referred to Mr. Craig's comment that [HJR 30] is the only way to protect the flag, and said, "I vehemently disagree with you." He specified, "I think the best way of protecting the flag is for us to have this kind of conversation and for people to live up to the ideals that the flag represents. And I thank you, sir, for doing just that." CHAIR ROKEBERG acknowledged that the debate and discussion of this legislation has been going on for decades. He remarked, "I find myself really torn and in a conflict on this." For the record, Chair Rokeberg announced, "I am a great supporter of our First Amendment rights in this country and this state, but I'm also a veteran of the armed forces of this country, and I feel so strongly about this that I can't do anything other than ... vote to pass it." Number 0492 REPRESENTATIVE COGHILL 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 Judiciary Standing Committee. MR. CRAIG referred to the "COPIES" section of HJR 30, and asked whether a copy would be sent to the President of the United States. CHAIR ROKEBERG, on that point, suggested that Mr. Craig speak with Representative Kott, Chair, House Rules Standing Committee, because the resolution has no other committee of referral. [HJR 30 was reported from committee.]
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