Legislature(2001 - 2002)

02/01/2002 01:10 PM JUD

Audio Topic
* first hearing in first committee of referral
+ 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                                                                   
     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                                                                   
     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                                                                   
     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                                                              
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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