on the ground by the pole. A few minutes later, a passerby told Mr. Rue that he saw two young men running near an alley across the street from the Rue residence. The passerby did not recognize the men, nor did he put two-and-two together until he thought about the burning flag later. Deputy Goldsberry of the local police said this will be "booked as an Arson case." 9/25/97 The Humboldt Standard, Humboldt, Nebraska.

November 26, 1997-Lawrence County, OH: An American Flag and staff were set on fire about 10 p.m. at the Macedonia Baptist Church on County Road 20 North in South_Point. The fire damaged the floor of the church. The Lawrence County Sheriff's Department has reported this as arson, and also said the church does not conduct regular services. (The last service was Sept. 28.) No arrests have been made. 11/30/97 The Herald-Dispatch, Huntington, West Virginia.

January 1, 1998-Fresno, CA: a group of about 10 people wearing masks burned a U.S. Flag in front of Fresno City Hall to protest the nation's "contribution" of guns to a massacre in Mexico. Representing a movement called the Nation of Aztlan, they said the flag burning was dedicated to the people of Chiapas, Mexico, 45 of whom were killed in the Dec. 22, 1997 massacre. Sighting the U.S. Flag is a symbol of murder, drugs and rape, they stated this incident is "about the seventh flag we've burned publicly." 1/2/98 The Fresno Bee, Fresno, California.

February 21, 1998-Washington, DC: Protesters burned an American Flag in Lafayette Park across from the White House in Washington to protest a possible military action against Iraq. It is unknown what type of action, if any, was taken. 2/ 22/98 Standard-Examiner, Ogden, Utah.

May 14, 1998–Manhattan, NYC, NY: Angry over last week's episode of “Seinfeld" set during the annual Puerto Rican parade, about 75 protesters demonstrated in front of NBC headquarters at Rockefeller Center. In the episode that touched off protests, the Kramer character accidentally set a Puerto Rican flag on fire. Midway through the protest one man, who identified himself as Elio Monteverde Torres, set fire to an American Flag, which quickly burned to ashes. Another man attempted to set fire to an Israeli flag, but was stopped by police officers and other protesters. Organizers of the demonstration said they did not support the flag burnings. 5/15/ 98 Newsday, NY.

May 21, 1998 Somers, CT: Several flags were taken down, ripped, tied in knots and stuffed in toilets at the town's park on Field Road. Town officials believe in the shadow of darkness some local kids destroyed the flags. 6/1/98 WTNH News Channel 8.

June 5, 1998-Coventry, CT: Half of about 150 flags disappeared Friday night from veterans graves in the Nathan Hale Cemetery. The loss of the flags was upsetting to members of American Legion Post 52, which serves Coventry and Mansfield. Just before Memorial Day each year, members place flags at veterans' graves in all the cemeteries in town. 6/12/98 The Hartford Courant, Hartford, CT.

*June 15, 1998-Prince George, VA: Retired Army Colonel Charles Thornton and wife Amanda woke up to the sound of broken glass. Mr. Thornton later found their American flag lying on the ground ripped and burned along with broken flood lights. Police were called to investigate the crime. Later that evening, American Legion Post 146 Commander Jim Morin, Hopewell, VA presented the Thorntons with a new flag. 6/15/98 Prince George's Journal, Lanham, MD.

*June 23, 1998-Prince George, VA: An American Flag was burned a second time in Retired Army Colonel Charles Thornton's front lawn. The flag was found burning on the pole around 6 a.m. by Mr. Thornton. Holes were still burning in the material when found. Arrests have not been made in either incidents. A second replacement flag as donated to the Thorntons by the members of American Legion Post 146 in Hopewell, VA. 6/23/98 Prince George's Journal, Lanham, MD.

July 12, 1998-Danbury, CT: A flag was desecrated at the home of Peggy and Wesley Ferguson. The flag was given to them by their son, who is a Marine. The couple notified the police Sunday after noticing someone had also vandalized a sign and gazebo at their home. 7/14/98 The Danbury News-Times, Danbury, CT.

August 7, 1998-Minersville, PA: A Pottsville, PA man and four juveniles were arrested in connection with a vandalism spree at the Mount Peace and St. Stanislaus cemeteries. The vandalism included the beheading of a stone statue of Jesus, the burning of about 100 American flags on veteran's graves, the toppling of numerous headstones and an attempt to burglarize a tool shed. Police said an anonymous tip, fueled by public outrage and $1000 reward, led to the arrests. 8/20/98 The Harrisburg Patriot, Harrisburg, PA.

August 26, 1998-Pocono Mountain, PA: A Monroe County man and a 17-yearold_were_charged with desecrating flags at the Pocono Pines Cemetery. The men broke a flag on a veteran's grave and then set fire to it. 8/28/98 Allentown Morning Call, Allentown, PA.

September 10, 1998—Boulder, CO: City maintenance crews found the charred remains of an American flag near city hall and the city's main library. When city employees found it, half the charred stripes lay smoldering on the ground, while the burned stars were still attached to the pole. 9/11/98 Denver Post, Denver, CO.

October 24, 1998-Sioux Falls, SD: An 18-year-old Sioux Falls man was arrested for burning a U.S. Flag, according to police. Steve Knorr was arrested after police were called to a loud party. As the party ended, Knorr picked up a flag and began to set it on fire with a lighter. Knorr was arrested on charges of desecrating a flag, disorderly conduct, resisting arrest and underage consumption. 10/27/98 Sioux Falls Argus Leader, Sioux Falls, SD.

October 31, 1998-York, PA: A 14-year-old boy has been charged in York County Juvenile Court with desecration of a flag after police came across the burning flag Saturday evening, according to Hanover Police Lt. Randy Whitson. A spokesman for the American Civil Liberties Union said, regardless of the motivation, flag burning is protected by the U.S. Constitution. 11/4/98 The Harrisburg Patriot, Harrisburg, PA.

November 11, 1998-High Point, NC: Someone ripped and then burned an American flag outside the Dr. I.T. Mann American Legion Post 87 on Veterans Day or early the next morning. High Point police are investigating the flag burning but have no suspects in the case. The 5-by-8 flag had flown at half-staff since Tuesday because of the death of a Post 87 member. 11/13/98 Greensboro News & Record, Greensboro, NC.

January 28, 1999- Jacksonville, FL: John Edward Reeves, 41, was arrested after he was spotted wearing a flag as a dress. A police officer reported the man had cut a hold in the flag for his head and tied it around his waist with a tie. 1/31/99 Orlando, Sentinel, Orlando, FL.

The CHAIRMAN. I might also mention that this amendment simply provides Congress the opportunity of passing legislation to protect the flag, and I would suggest that legislation would be very similar to the legislation that passed 91 to 9 back in 1989. And everyone who was here then who testified against the flag amendment voted for that particular bill at that time, except Senator Chafee, who, with me, voted against it because I believed it to be unconstitutional. And, of course, the Court held that it was unconstitutional.

So we will put that list of those who voted for that particular flag amendment into the record at this particular point.

[The information referred to follows:]

Legislative Activities

U.S. Senate Roll Call Votes

101st Congress - 1st Session (1989)

as compiled through Senate LEGIS

by the Senate Bill Clerk under the direction of the Secretary of the Senate

Vote Number: 227

Vote Date: October 5, 1989, 11:35 AM

Title: "Flag Protection Act of 1989"
Req. for Majority: 1/2

Bentsen (TX)

Bill Number: H.R.2978

Result: Bill Passed

By Vote

-Yeas-Nays

YEAS 91--

Fowler (GA)

Hollings (SC)

Inouye (HI)
Jeffords (VT)

Johnston (LA)

Kassebaum (KS)

Mikulski (MD)

Mitchell (ME)

Murkowski (AK)
Nickles (OK)
Nunn (GA)
Packwood (OR)
Pell (RI)

Pressler (SD)

Pryor (AR)

Reid (NV)
Riegle (MI)
Robb (VA)
Rockefeller (WV)
Roth (DE)
Rudman (NH)
Sanford (NC)

Sarbanes (MD)
Sasser (TN)

Shelby (AL)
Simon (IL)

Simpson (WY)

Specter (PA)

The CHAIRMAN. But the point shouldn't be lost that we actually did come up with a statute that would have solved this problem in a very limited but measured and important way that 91 Senators voted for, including Senators Glenn and Kerrey. And it was a valiant attempt to try and do by statute that which the Supreme Court said could not be done, and that statute was ruled unconstitutional. So, that is why we are here.

And General Brady made it clear that in spite of the there weren't just 44, there were 74, since March of 1994, incidents, some of which had multiple burnings of flags or desecration of flags and General Brady made it clear that not all of the flag desecrations were reported. That is why he said "hundreds." So this isn't just the itty-bitty problem that some would have you think.

We are happy at this time to have Mr. Randolph Moss, the administration's witness from the Justice Department, with us, and we are happy to give you this opportunity to express the administration's viewpoint, Mr. Moss, and we welcome you to the committee.

STATEMENT OF RANDOLPH D. MOSS, ACTING ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGAL COUNSEL, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC

Mr. Moss. Thank you, Mr. Chairman, and members of the committee. It is difficult to imagine a more humbling experience than to testify after the panel that has just appeared. But I am very honored to appear before you today on behalf of the administration to present testimony regarding the proposed constitutional amendment on flag desecration.

As you know, in 1989, the Supreme Court held, in Texas v. Johnson, that a State could not, consistent with the first amendment, enforce a statute criminalizing flag desecration against a demonstrator who burned an American flag.

In 1990, in United States v. Eichman, the Court held that the first amendment prohibited the conviction of demonstrators for flag burning under a Federal statute criminalizing mutilating, defacing, or physically defiling an American flag.

For 9 years, then, the flag has been left without any statutory protection against desecration. For 9 years, only one thing has stood between the flag and its routine desecration-the fact that the flag, as a potent symbol of all that is best about our country, is justly cherished and revered by nearly all Americans.

Chairman Hatch has eloquently described the flag's status among the American people.

The American flag represents in a way nothing else can, the common bond shared by a very diverse people. Yet, whatever our differences of party, politics, philosophy, race, religion, ethnic background, economic status, social status, or geographic region, we are united as Americans. That unity is symbolized by a unique emblem, the American flag.

It is precisely because of the meaning the flag has for virtually all Americans that the last 9 years have witnessed no outbreak of flag burning, but only a few isolated instances. If proof were need

ed, we now have it. With or without the threat of criminal penalties, the flag is amply protected by its unique stature as an embodiment of our national ideals and unity.

It is against this background that one must assess the need for a proposed constitutional amendment that would provide Congress with the power to prohibit and presumably to punish the physical desecration of the flag. Such an amendment would run counter to our traditional resistance, dating back to the time of the Founders, to resorting to the amendment process. Moreover, the amendment, if passed, would for the first time in our history limit the individual liberties protected by the Bill of Rights, adopted over 2 centuries ago.

Whether other truly exigent circumstances might justify altering the Bill of Rights is a question we can put to one side here. For you are asked to assume the risk inherent in creating a firsttime exception to the Bill of Rights in the absence of any meaningful evidence that the flag is in danger of losing its symbolic value. The proposed amendment before you would create legislative power of uncertain dimension to override the first amendment and other constitutional guarantees. For these reasons, the proposed amendment and any other proposal to amend the Constitution in order to punish isolated acts of flag burning-should be rejected by this Congress.

Although it goes without saying, I would like to emphasize that the administration's view on the wisdom of the proposed amendment does not in any way reflect a lack of appreciation for the proper place of the flag in our national community. The President always has and always will condemn in the strongest terms those who would denigrate the symbol of our country and our highest ideals. The President's record and statements reflect his longstanding commitment to protection of the American flag and his profound abhorrence of flag burning and other forms of flag desecration.

To conclude that flag desecration is abhorrent and that it should be resoundingly and unequivocally condemned, however, is not to conclude that we should for the first time in our Nation's history cut back on the individual liberties protected in the Bill of Rights. As James Madison observed at the founding, amending the Constitution should be reserved for "great and extraordinary occasions." This caution takes on unique force when we think of restricting the Bill of Rights, for its guarantees are premised on an unclouded sense of permanence, a sense that they are inalienable, a sense that we as a society are committed to the proposition that the fundamental protections of the Bill of Rights should be left alone.

As my written submission sets forth in greater detail, even if it were appropriate to create an exception to the Bill of Rights in some limited manner, the scope of the proposed amendment is far from clear.

To give the first amendment meaning, we must infer at least some restriction on the first amendment freedoms identified in the Supreme Court's flag decisions. It is profoundly difficult, however, to identify just how much the first amendment would be affected. It is unclear whether the powers to be exercised under the amend