other people? If I take a crayon flag from a kid and I say I am going to burn this, is that desecration?

I don't know that we have considered all these things. What size should those crayon flags be, incidentally? Or how do we know what is prosecutable and what is not under this?

Let me take this even further, and I don't want to be disrespectful in any way, shape, or form, but in Chicago, I was in a shop that specializes in just flags and flag paraphernalia when we were out there at the convention some years ago. And I went in because I was curious about what they had, and I was surprised at some of the things I found. What I found were flag bikinis; I also found boxer shorts. I found not only boxer shorts but other shorts. Are people to wear the flag as underwear? If they soil it, is that desecration? Can the police arrest you if you are wearing a flag in that way? I think we ought to consider these things.

I saw a person working under a car with a flag T-shirt on, lying on his back, grease all over, dirt, sweaty. Is that desecration of the flag that he was wearing? I don't know. I think we have to consider things like this, though, if we are going to contemplate making this the law of the land.

Or if you see a person jogging down the street with a flag T-shirt which becomes drenched with sweat. You can't imagine what it smells like if you sidle up to that person. But I don't like that one bit. I have never worn things that had flags like that on them that were mainly a piece of clothing.

Or how about a bumper sticker covered with dust that is a flag? Is that desecration? I think these are things that would have to be thought through. Maybe this is taking it to too much of an extreme. And there could be more examples made, of course.

But about the person who has an old tattered flag and says he is burning it for two reasons: first, I am going to dispose of it, as we are supposed to dispose of it, by burning it; and, second, I just want everybody to know I protest the tax policy in this country, and I am burning it partly because of that.

Now, since burning flags is an officially approved and sanctioned means of flag disposal, will that mean that just half this person's action would be legal? How would a court or jury assign penalty

in such a case?

You can say, well, intent is the criteria. Well, is intent that he was made when he burned it? Or was he friendly, was he smiling when he burned it? Plus the lawyers up here can tell me chapter and verse about how tough it is to prove intent in court. I have heard in the past that is one of the most very difficult things to take to court and prove, is intent.

I think we know the reason this is up again, and it is because many organizations, most of which I am a member of and a proud member of-and I think the veterans' organizations have done a tremendous job. As Senator Kerrey said a few moments ago, they have done a tremendous job for this country through the years, going way back. And I am a member of most of those organizations, and I have had the heads of the organizations visit me in my office. And I have posed some questions to them, but I believe the reason this is up again is pressure from some organizations that decided what they wanted many years ago, and they didn't really think

through completely what this action would do and are not willing to see that the right-the right that we are talking about here— and not just the symbol, is the main thing to be protected.

I have tried to discuss this in my office, and we just came to disagreement on that particular item. But this amendment for the very first time in American history would actually change the right because of some action we don't like against the symbol, dear as that symbol is dear as that symbol is. And I think history and future generations will judge us harshly, as they should, if we permit those who would defile our flag to hoodwink us into also defiling our Constitution.

As has been said this morning, there are laws that cover this kind of thing, and I would hopefully have the toughest kind of arrests and prosecutions of anybody under existing law. But to change our Constitution and diminish the rights that it protects is just not to me the way to go.

As Senator Chafee said a moment ago, how many have been burned, anyway? Is this really a solution looking for a problem? We don't really have any major problem. I don't know that I have ever seen a person burn a flag. It is abhorrent to me, as it is to everybody else. But I don't think we need to let the passions of the moment stampede us into abandoning principles in this issue.

It was once said on another occasion and in another context that what we need now in the Senate and in the Congress is less profile and more courage. If America is truly going to continue to be the land of the free, I think all of us must prove it is still the home of the brave, no matter how much the pressure is and no matter what the threats.

Thank you.

The CHAIRMAN. Thank you, Senator Glenn.

[The prepared statement of Senator Glenn follows:]

PREPARED STATEMENT OF HON. JOHN GLENN

A CONSTITUTIONAL AMENDMENT ON FLAG DESECRATION

Thank you Mr. Chairman, Senator Leahy, and the distinguished members of the Committee. It is an honor to be here in my first appearance before the Senate since my retirement earlier this year. I certainly miss the opportunity to discuss and debate the great issues of the day with my friends and colleagues here but I am happy to leave the hectic schedule and heavy workload to you.

It is also a great privilege to appear today in the company of these most distinguished, much honored and highly decorated men. Our country is fortunate to have had these men in times of war and peace. I am proud to know them as friends.

As a former member of the Senate Armed Services Committee I worked very hard to protect the security interests of the nation and to protect the interests of those who serve in our armed forces. I want to extend to the men and women serving in the Balkans my heartfelt support and my prayer that peace will come soon.

The Committee has before it today for consideration the question of a constitutional amendment to permit Congress to enact legislation prohibiting the physical desecration of the American flag.

Like most Americans, I have very, very strong feelings about our flag. Like most Americans I have a gut reaction in opposition to anyone who would dare to demean, deface, or desecrate the flag of the United States. But also like most Americans Í am concerned about any effort to amend the Constitution and the Bill of Rights.

I have watched as those who expressed qualms or doubts or reservation about this amendment have run the risk of being smeared, of being labeled as unpatriotic or a friend of flag burners. And I can assure you that I am neither. We feel uncomfortable sometimes talking about what involves such private and personal emotions. We do not wear those feelings on our sleeves about how we feel about the flag and about

patriotism. We do not parade around those things that are near sacred to us. And trying to put those feelings into words only proves the inadequacies of language.

We all love the flag and no one more than I do. I fought hard for this flag through two wars and representing the country in the space program. I am both honored and proud that few people in this nation have been able to take our flag where I took it. The first thing I selected to take on my trips to space was a flag. I took along little silk flags so I could give them to my children, and they remain among my children's most cherished possessions to this day.

For those who served in the armed services, we risked our lives because we believed it was our duty to defend our nation. I can tell you that in combat you do not start out thinking about the philosophy of our nation. When you start a run on a ground position from the air, through antiaircraft, or lead a patrol where people are getting shot, you do not think about those philosophical thoughts. It is the survival of the moment that holds your attention. Only later do you think about some of these great philosophical thoughts.

But every last tiny fiber in our flag stands for someone who has given his or her life to defend what it stands for. Many of us here have as many friends in Arlington Cemetery, bearing silent witness to our flag, as we do bearing public witness to it in the world of the living. Maybe that is why I have so little patience, and even less sympathy, for those pathetic and insensitive few who would demean and defile our nation's greatest symbol of sacrifice. They deserve harsh censure.

But, in what I view as their demented ways, they also have my pity because they cannot, apparently, feel the pride and the exhilaration that comes from being called to a purpose larger than ones own self. They cannot feel the pride in our nation and what it stands for, even though not perfect as yet; the pride in a nation whose very strength rests in a guarantee of freedom of expression for every single person, whether that person agrees with the majority, or not. It is a guarantee that some misguided souls exploit for their own egotistical, self-centered purposes.

I believe that the members of this committee have a special responsibility to recognize that it would be a hollow victory indeed if we preserved the symbol of our freedoms by chipping away at those fundamental freedoms themselves. Let the flag fully represent all the freedoms spelled out in the Bill of Rights, not a partial, watered-down version that has altered its protections.

The flag is the nation's most powerful and emotional symbol. It is our most sacred symbol. And it is our most revered symbol. But it is a symbol. It symbolizes the freedoms that we have in this country, but it is not the freedoms themselves. That is why this debate is not between those who love the flag on the one hand and those who do not on the other. No matter how often some try to indicate otherwise, everyone on both sides of this debate loves and respects the flag. The question is, how best to honor it and at the same time not take a chance of defiling what it rep

resents.

Those who have made the ultimate sacrifice, who died following that banner, did not give up their lives for a red, white and blue piece of cloth. They died because they went into harm's way, representing this country and because of their allegiance to the values, the rights and principles represented by that flag and to the Republic for which it stands.

Without a doubt, the most important of those values, rights and principles is individual liberty: The liberty to worship, to think, to express ourselves freely, openly and completely, no matter how out of step those views may be with the opinions of the majority. In that first amendment to the Constitution we talk about freedom of speech, of religion, of the press and right to assemble.

The Bill of Rights was not included in the Constitution. The Bill of Rights was added after the Constitution was passed. Some states refused to ratify the Constitution because it did not have a Bill of Rights defining basic human rights that they wanted this country to stand for. James Madison worked to get a Bill of Rights put together while the Constitution was already in existence.

The Congress passed the first 10 amendments known today as the Bill of Rights. Freedom of speech, freedom of religion, freedom of the press, and freedom of assembly are protected in the first amendment.

That commitment to freedom is encapsulated and encoded in our Bill of Rights, perhaps the most envied and imitated document anywhere in this world. The Bill of Rights is what makes our country unique. It is what has made us a shining beacon of hope, liberty, of inspiration to oppressed peoples around the world for over 200 years.

In short, it is what makes America, America. Those 10 amendments to the Constitution we call the Bill of Rights have never been changed or altered by one iota, by one word, not a single time in all of American history. That is how our forefathers have looked at the Bill of Rights. There was not a single word of change

in that Bill of Rights during the Civil War. There was not a single change during any of our foreign wars, and not during recessions or depressions or panics. Not a single change when we were going through great national times of trials and tribulations and times of great emotion and anger like the Vietnam era, when flag after flag was burned or desecrated, far more often than they are today. Even during all that time, our first amendment remained unchanged and unchallenged.

The amendment under consideration today goes directly to the issue of freedom of speech. We are talking about freedom of expression. The Supreme Court has held on two separate occasions that no matter how great the majority, the minority, under our Bill of Rights, has the right of expression. That expression is protected by freedom of speech.

Do we want to take a chance on reducing our freedom of speech? What about freedom of the press? Do we want to open even a tiny chance to restrict our ability to assemble peaceably? And do we want to take a chance that we would not be able to petition our government for redress of grievances? Those are the things that are covered in that first amendment, known as the Bill of Rights.

I think there is only one way to weaken the fabric of our country, our unique country, our country that stands as a beacon before other nations around this would and that is to allow the few misguided souls to lessen the freedom that we all share. One of the most exhilarating things that can ever happen to a man or woman is to be able to represent their country and be called to something, to a purpose larger than themselves.

I feel sorry for people who have never had that experience. It is something you cannot really explain.

Of course some may argue that the first amendment is not and has never been absolute, that we already have restrictions on freedoms of expression and that a prohibition on flag burning would simply be one more? After all, it is said that freedom of speech does not extend to slander, libel, revealing military secrets or yelling 'fire' in a crowded theater. That is true. To the extent that flag burning would incite others to violence in response does not constitute a clear and present danger, and that is what the Supreme Court. The difference here is whether it is a clear and present danger that we have every right to try to avert.

I believe that this argument misses a key distinction, and that distinction is that all those restrictions on free speech I just mentioned threaten real and specific harm to other people, harm that would come about because of what the speaker said, not because of what listeners did.

To say that we should restrict speech or expression that would outrage a majority of listeners or move them to violence is to say that we will tolerate only those kinds of expression that the majority agrees with, or at least does not disagree with too much. That would do nothing less than gut the first amendment.

What about the argument that flag desecration is an act and is not a form of speech or expression that is protected by the first amendment? Well, I think that argument is a bit specious. Anybody burning a flag in protest is clearly saying something. They are making a statement by their body language, and what they are doing makes a statement that maybe speaks far, far louder than the words they may be willing to utter on such an occasion.

They are saying something, just the same way as people who picket, or march in protest, or use other forms of symbolic speech expressing themselves. Indeed, if we did not view flag burners as something we find offensive and repugnant, we surely would not be debating their right to do so.

Let me say a word about something that has gotten short shrift in this debate, something we should consider very carefully. I am talking about the practical problems with this amendment. Let us say we pass it, the States pass it, it becomes an amendment, and we change the Constitution. Then what a nightmare we would have enforcing it.

If Congress and States are allowed to prohibit the physical desecration of the flag, how precisely are we defining the flag? We do not have an official flag, as such, with an exact size, type, kind of ink, dyes, or fabric. There is no official flag, as such. So does this amendment refer to only manufactured flags of cloth or nylon of a certain size or description, such as the ones we fly over the Capitol? Does it refer to the small paper flags on a stick we hand out to children at political rallies or stick in a cupcake at a banquet? Those flags are often tossed on the floor or in a garbage can at conclusion of an event. How about during the 1976 bicentennial when vendors were selling flag bikini swimsuits for women and boxer shorts for men.

Remember that the proper way to destroy a flag that is old or has become soiled is to burn it. But what if you do it in protest? What was the intent? Every lawyer will tell you that the toughest thing to prove is intent.

I do not know what the courts would do in a case like that. We can go on with all kinds of examples here of how this would be very difficult to administer, and it would be subject to 50 different interpretations. I might be able to do something in Ohio, and I drive across the Ohio River to Kentucky, West Virginia, or Pennsylvania and the same thing might be illegal.

This amendment should be defeated. The dangers from it far outweigh the threat that we have to the flag. I simply do not believe that this is a major problem for this county requiring an amendment to the Constitution of the United States of America.

Our most revered symbol stands for freedom but is not freedom itself. We must not let those who revile our way of life trick us into diminishing our great gift or even take a chance of diminishing our freedoms.

The CHAIRMAN. We will finish our senatorial panel with Senator Cleland, the prime cosponsor of the amendment.

I gave you a better introduction before.

Senator LEAHY. No, he didn't, Max. He said you weren't coming. No, he didn't. He gave you a very good introduction.

STATEMENT OF HON. MAX CLELAND, A U.S. SENATOR FROM THE STATE OF GEORGIA

Senator CLELAND. Thank you very much, Mr. Chairman. Like many Americans, I was troubled when the Supreme Court ruled in two cases, Texas v. Johnson and United States v. Eichman, that statutes protecting the U.S. flag were unconstitutional violations of the first amendment right to free speech.

I respect the wisdom of the Justices of the Supreme Court. Yet, I was saddened that we were no longer able to rely upon statutory authority to protect the flag. I was especially saddened by the views expressed by such distinguished past and present Supreme Court Justices as Justices Harlan, Warren, Fortas, Black, White, Rehnquist, Blackmun, Stevens and O'Connor. These Justices have each supported the view that nothing in the Constitution prohibits the States or the Federal Government from protecting the flag. Nonetheless, the current Supreme Court view stands. That is what brings us here today.

The flag is not merely a symbol; it is not just a symbol of America. It is in many ways what we stand for; it is what we believe in. It is sacred. I don't have to tell the Senate what the flag means. Just ask the soldier who proudly marches behind the flag what it means to salute the flag. Ask the newly-sworn citizen what it means to claim the flag. Ask the grieving widow or the mother of a slain soldier who is presented with the flag that drapes the soldier's casket.

I like the Civil War, I like to study it, I like to read about it. It is interesting that literally hundreds of citations were given to men in battle during the Civil War for acts of valor associated with the flag. Soldiers were routinely awarded the Medal of Honor, America's highest military award, for defending the flag and carrying it forward in battle. Many of these were awarded posthumously.

Everywhere history has been made in this country, the flag has been present. It was the U.S. flag that inspired our National Anthem. It was an American flag that was raised when Jesse Owens stunned Nazi Germany. It was a U.S. flag that was hoisted in Iwo Jima.

Those who would desecrate the flag, I think, would desecrate our country. Therefore, I favor a constitutional amendment. The