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in the House of Representatives


Thank you very much Chairman Canady and panel members for inviting me here today to testify on the Flag Protection Amendment.

I also want to commend Mr. Canady and the over 270 other cosponsors of this joint resolution. And let me add this: with such good people on my side, I cannot wait to represent this amendment, first on the House floor, and then to the states for ratification.

But first, with your indulgence Mr. Chairman, I would like to tell you why I think this amendment is so important.

It is important for many reasons. First of all, the overwhelming majority of Americans support this amendment.

In Congress, it has won the support of members from both sides of the aisle, in both chambers. The presence of my good friend Bill Lipinski next to me today is proof of that.

And finally, and this may be even more important, I am joined by constitutional scholars in saying this amendment actually strengthens our First Amendment freedoms.

I emphasize that, Mr. Chairman because some Americans have raised questions about our fundamental freedoms of speech and expression. I have the same concerns they do, and they deserve some straight answers.

Now, I am not going to spend too much time paying tribute to the flag. I am sure it's safe to say that respect for the flag is something everyone in this room shares.

Americans have always felt that way about their flag, and that's why there is so much precedent for what we're doing here today.

Some critics might say that the Supreme Court has spoken on this matter, and that's that! Well, not quite.

In the history of the Supreme Court, few members guarded the First Amendment so jealously as Justice Hugo Black and Chief Justice Earl Warren. Both stated forcefully that there is no First Amendment problem with banning flag desecration.

And they also believed that nothing in the Constitution prevented individual states from enacting laws to prohibit the physical desecration of the American flag!

What we seek today is not an amendment to ban flag desecration but an amendment to allow Congress to make that decision.

Some of you may point out that this amendment differs from the one I offered in the last Congress. You are right. In the 104th Congress, the House overwhelmingly voted 312 to 120 to allow Congress and the States to prohibit the physical desecration of the American flag.

Unfortunately, that amendment fell three votes short in the Senate. While I support enabling both Congress and the States to prohibit flag desecration, a few members expressed their concern that giving the States this power could lead to 50 very diverse laws on the topic. While I do not have those concerns myself, I worked with this amendment's cosponsors and the members of the Citizens Flag Alliance to rewrite the Amendment to address those concerns and only empower Congress to prohibit flag desecration.

It is entirely appropriate to draft the amendment in this way. It is after all, the American flag--our nation's flag--that we are discussing. The federal government should be the one to make laws protecting it. I know this will relieve many of those who raised this concern in the past.

And physical desecration does not only include flag burning, it also includes the outrageous acts of people defecating on the flag--that's right, actually treating our flag like it was nothing more than toilet paper. You will hear a witness testify more about that later.

One vote--I repeat, one vote--in a 5 to 4 decision turned the Court's back on the tradition of Justice Black and Chief Justice Warren, and all of a sudden flag-burning became `expression' protected by the First Amendment. But the very analysis of that slim majority did not support that conclusion.

The Court said that the government cannot prohibit the expression of any idea just because society finds that idea offensive or disagreeable.

But the Texas state law overturned in that 1989 decision did not suppress any idea at all.

Look at it this way. What idea does burning a flag communicate? What idea does defecating on the flag communicate? What thought does it express? Obviously, none!

Under that Texas statute, and others like it, no one was required to worship the flag or was prevented from speaking about the flag, or even prevented from insulting the flag verbally. It only said they could not physically desecrate the flag.

After all, everyone understands that no `right' is absolute. We cannot yell `fire' in a crowded theater. We cannot holler obscenities on the corner of a residential neighborhood and not get arrested for disturbing the peace.

And if I don't like someone, I can say so, but I cannot express my dislike by punching him in the nose. When my dislike goes from thoughts, or words, to action, well, then I have crossed the line the Supreme Court itself has drawn in the sand over and over again.

The finest constitutional minds in the country--including Judge Robert Bork and legal scholars Stephen B. Presser and Richard D. Parker--tell us that this is not a First Amendment issue.

They will tell you that for any society to survive, there has to be some common basic rules of civility and respect which we all can live with. Every viable society has to be able to say: `This you shall not do. We, as a community, find this conduct highly offensive!'

The only other alternative is chaos and fragmentation. This is true even in a society as pluralistic and diverse as ours. In such a society, it is all the more important to protect the most important symbol of unity we have. And what's more important than Old Glory? Our flag and all it represents make us Americans.

You know, not long ago, we celebrated the 50th anniversary of Iwo Jima, and we all know that the Marines did not run a copy of the Constitution up a pole on Mount Suribachi. When some tragedy occurs, we do not fly the Presidential Seal at half-mast from our federal buildings. We do not salute the Liberty Bell.

And so it's been across the world. Whether it's been Manila, or Paris, or Kuwait City, whenever American troops have liberated cities from oppressors, they have been greeted by grateful people waving--not the Constitution, not the Presidential Seal, not Big Macs or blue jeans--but the American flag.

And that love of the flag certainly is not dead in our own country. Eighty percent of the American people want this amendment. Over 100 national civic, fraternal and veterans organizations have been working since 1989 for its ratification.

Furthermore, forty-nine (49) states have asked Congress to pass this amendment. That's 11 more than the 38 needed to ratify it! When was the last time any amendment (regardless of whether or not it was ratified) garnered such broad-based support.

Mr. Chairman, I am pleased that consensus and reasoned arguments are going to enact this amendment, as opposed to the passions and politics of the moment. The grass-roots movement which has gathered steam over the past eight years is a testament to this.

For those who worry how ratifying this amendment would lead our nation down a slippery slope, I can assure you that the very difficult process which our Founding Fathers created to amend the Constitution will prevent a floodgate of amendments from happening, just as it has blocked frivolous amendments for more than 200 years.

And so, to sum up--We are not banning desecration of the flag. We're only giving Congress the right to do so, a right that it really always had up until the past eight years.

Not only does our amendment enhance rather than threaten the First Amendment, but burning the flag is not speech or expression, it is a hateful tantrum. And defecating on a flag is even worse.

Finally, the American people--and the constituents of every member in this room--want us to pass this amendment. So let's do it.

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Warren S. Apel