Obrázky stránek
PDF
ePub

The response the demonstrators have inspired would be laughable were the consequences not so dangerous. Are we really ready to let an emotional reaction to a picayunish provocation restrict the precious freedoms guaranteed by our Bill of Rights?

More than any other nation, we Americans have invested in our flag special properties. We revere it, we pledge allegiance to it, we have a special code for the proper treatment of it. To us it represents the embodiment of those mystical qualities that make up the American spirit.

We are infuriated by those who desecrate it to call attention to whatever it is that feeds their discontent at the moment. But beyond raising the calculated ire among the rest of us, no real harm has been done. Our society is not endangered. Our country has not quaked on its foundation and there are no cracks in its walls. Our strength as a nation is not one whit reduced.

In truth, the opposite has happened. These random acts establish once again that our democratic system is as strong as we always have hoped it would be, strong enough to tolerate any peaceful dissent no matter how objectionable to the vast majority.

Even if the flag desecrators were of far greater numbers and represented a cause of some significance, they still would cause no threat to the integrity of our national emblem. But those who would amend the Constitution do threaten the integrity of that far more precious of our possessions-our freedom of thought and speech.

PREPARED STATEMENT OF KEITH A. KREUL

I provide this statement in opposition to S.J. Res. 14, the flag desecration resolution under Senate consideration in this 106th Congress. This amendment will neither protect the flag nor promote true patriotism. It is a radical approach to a near nonexistent dilemma akin to atom bombing a sleeping city because a felon may be in the vicinity.

I am a U.S. Army veteran who proudly served my country, and was privileged to subsequently serve as National Commander of The American Legion. The preamble of The American Legion states that "right is the master of might." With that motto in my heart, I urge the Senate to reject the amendment, to say "no" to the misguided organized campaign that would put the flag above the Constitution. The flag is a beautiful and inspiring banner representing freedom and justice for all Americans. It represents those beliefs, credos and tenets that are outlined by the Constitution of the United States of America.

Freely displayed, our flag can be protected only by us, the people. Each citizen can gaze upon it, and it can mean what our heartfelt patriotic beliefs tell us individually. Government "protection” of a nation's banner only invites scorn upon it. A patriot cannot be created by legislation. Patriotism must be nurtured in the family and educational process. It must come from the heartfelt emotion of true beliefs, credos and tenets.

The proposed amendment is described by advocates as being narrowly written. In reality, the amendment language is broad based and vague. It clearly would provide future Congresses with a carte blanche authority to enact statutes whenever it was perceived there was a majority demand for increased "protection". In our history we have witnessed the enactment of Sedition Acts that subsequently were repealed. Recently Supreme Court Justice Scalia stated “A Bill of Rights that means only what the majority wants it to mean is no Bill of Rights at all". The idea that the flag can be protected or will be safer if flag desecration legislation is enacted is an idle myth. Those very few citizens that resort to the extremism of defiling the Nation's banner will not be deterred by a law. In fact, the law likely will give their cause added undeserved publicity.

Long standing local statutes and ordinances concerning theft, vandalism, destruction of stolen property, are realistic punishment for offenders. These laws ensure swift justice under the jurisdiction of the local community. Vague Federal statutes will only assure publicity and unending litigation resulting in diminished reverence to the now beautiful flag that means so very much to patriotic Americans. Chief Supreme Court Justice Rehnquist, former Attorney General Meese and the American Bar Association have all recently made pleas to Congress to desist enacting Federal law that burdens the Court with trivial cases.

Yes, the Constitution can be amended. But will an amendment that is in obvious conflict with the First Amendment accomplish a purpose, or will it bring further confusion and discontent diminishing the beauty the flag has today as it hangs free, revered by us, the people, not ordered by Government edict? Our nation was not

founded on devotion to symbolic idols, but principles, beliefs and ideals expressed in the Constitution and its Bill of Rights.

American veterans who have protected our banner in battle have not done so to protect a "golden calf." Instead, they carried the banner forward with reverence for what it represents-our beliefs and freedom for all. Therein lies the beauty of our flag.

The proposed amendment would stain the image of our banner, as it would no longer wave free, unprotected by Government and freely held high by the proud citizens of the United States of America. Legislators advocating "drawing a line" are indeed fostering the birth of tyranny. Are we now, after 210 successful and glorious years, going to knuckle under to the pressure of modern lobbying techniques to pursue pseudo patriotism? Organizations exploiting high tech lobbying, spending millions pressuring lawmakers and pandering to a false patriotism, should rethink their priorities and not succumb to the temptation of the "golden calf."

We must not delegate to government our responsibility of citizenship lest we endanger our most precious freedoms. Teaching in the home and in our schools the principles evident in our Constitution and Bill of Rights requires responsibility and sacrifice. That energy enhances pride in our heritage. Respect for our beautiful flag can only come from the hearts of the people. Attempts to bestow honor by government decree upon the flag are idle myths and must not prevail. Thank you for this opportunity to express my views.

A BRIEF BIOGRAPHY OF KEITH A. KREUL

Keith was born to Harry and Elsie Kreul on a farm near Mt. Ida, Wisconsin on April 21, 1928. At one year of age the family moved to a farm southwest of Fennimore, Wisconsin. He attended the rural one room school and graduated from Fennimore High School in 1946. In 1947 he enrolled at the University of Wisconsin, graduating in 1951 with a B.S. in Mechanical Engineering.

He enlisted in the U.S. Army in October 1951 and received a commission of Second Lieutenant in the Ordnance Corps at Aberdeen Proving Grounds in September 1952. He was assigned to Lima Ordnance Depot, Lima, Ohio until separated in October 1953. He served in the U.S. Army Reserve until 1962.

Following a stint with Fairbanks-Morse at Beloit, Wisconsin in their Plant Engineering Dept., Kreul returned to Fennimore. He joined his father and brother in a family farming operation that grew from 320 acres and 50 registered Angus cows to 950 acres and 300 Angus cows. In 1964 the family formed one of the first family farm corporations in the area. He still resides on the family farm.

In 1969 he was appointed Chairman, Agricultural Stabilization and Conservation Service State Committee. In 1971 Kreul was appointed State Executive Director of that USDA agency, a capacity he served until August 1977. In 1981 Kreul was appointed State Director of the Farmers Home Administration located at Stevens Point, Wisconsin, a position he left to serve as National Commander, The American Legion, in August 1983. Following his year at the helm of The American Legion, he was employed as a District Director for the Farm Service Agency of the USDA until his retirement after twenty-four years of Federal Service.

In the American Legion, Kreul has served in all leadership positions on the Post, County, District, Department and National echelons. This career of volunteer service was climaxed with the election as National Commander in Seattle, Washington in 1983.

Keith and his wife Dolores are the parents of three sons, one daughter and eight grandchildren.

PREPARED STATEMENT OF THE PEOPLE FOR THE AMERICAN WAY

The Bill of Rights, the bulwark of American liberty, has never been restricted by constitutional amendment in its 206 year history. The proposed amendment would be the first in our nation's history to cut back on the First Amendment's guarantee of freedom of expression that is central to vigorous debate in our democracy. It would set an exceedingly dangerous precedent for further erosion of our fundamental freedoms.

According to a 1995 Peter Hart poll, a majority of Americans opposed such an amendment by 52 percent to 38 percent when they knew that it would be the first in our nation's history to restrict our First Amendment freedoms of speech and expression. This finding was confirmed by a 1997 Freedom Forum poll where a majority also opposed the proposed amendment after learning that it would be the first to restrict First Amendment freedoms.

As the Supreme Court has repeatedly explained since 1931 when the Court first applied the First Amendment to a flag statute, the non-verbal, peaceful use of the flag to make a political statement, whether it be by flying, saluting, or burning, is fully protected under the First Amendment's guarantee of free expression. Thus, since 1931, the Supreme Court has consistently struck down flag statutes requiring students to salute the flag, prohibiting flying a "red flag," and prohibiting burning the U.S. flag. In doing so, the Court has held that it is a "bedrock principle underlying the First Amendment *** that the Government may not prohibit the expression of an idea simply because society finds the idea itself offensive and disagreeable." The First Amendment is designed precisely to protect unpopular forms of peaceful expression and political dissent such as flag or cross burning, although these acts are highly offensive to almost all Americans.

Banning flag desecration would put America in the unwelcome league of totalitarian states such as Communist China, the former Soviet Union, Cuba and Iran which fear political dissent and imprison dissenters for desecrating their national flags. We do not need to coerce patriotism in America and we should not let a handful of offensive individuals cause us to voluntarily surrender the very freedoms that make us a beacon of liberty for the rest of the world.

It is entirely unnecessary to amend the Constitution to punish most incidents of flag desecration. Most of these acts, including burning or soiling a flag, are typically punishable under public burning, public health, theft or destruction of public property statutes. In addition, any offensive expression, including flag desecration, performed for the purpose of inciting violence or a breach of the peace and that it is likely to produce an immediate danger is already punishable consistent with the First Amendment.

The amendment addresses a non-issue. Flag burning is an exceedingly rare occurrence in our country and the voluntary love of flag and country are nowhere in jeopardy. The Congressional Research Service found, on average, less than eight flag desecration incidents per year from 1990 to 1994. According to one prominent historian of the flag issue, there have been fewer than 200 flag burning incidents in all of American history. Public repudiation of persons desecrating the flag has been widespread and clear.

Instead of increasing respect for the flag, the amendment would actually make flag burning-which is exceedingly rare a more noteworthy and common occurrence. Indeed, there have been almost three times as many flag burnings since 1989 when this became a front-page issue than in the preceding over 200 years of American history since the flag was adopted in 1777.

The amendment is phrased in broad and vague terms that will have unintended consequences including censorship of images of the flag in works of art, commerce or advertising that contains physical representations of flag. Display of the flag in a Jasper Johns painting, above a car dealership, or on a billboard could constitutionally be criminalized under the amendment. Amendment supporter and House Constitution Subcommittee Chair Charles Canady (R-FL) has conceded that the amendment would permit punishment for producing boxer shorts with the design of the flag on them. In this regard, it should be noted that the existing Flag Code expressly prohibits the use of the flag as "wearing apparel" or "as a costume or athletic uniform," and expressly prohibits use of the flag "for advertising purposes in any manner whatsoever." 36 U.S.C. 176. Ironically, the proposed amendment would permit prosecutions not only of protesters, but of individuals who do not intend disrespect for the flag.

Congress has already debated and rejected a constitutional amendment on the flag twice, in 1990 and 1995. The issue has had no impact on subsequent Congressional elections. The public as demonstrated by the 1996 elections, wants Congress to focus on real issues that affect their daily lives and well being.

People For the American Way is a nonprofit, nonpartisan organization representing more than 300,000 members and activists dedicated to fighting for fundamental American values including opportunity, equal justice under the law, and individual liberty.

DUKE UNIVERSITY,
SCHOOL OF LAW,

Durham, NC, March 31, 1999.

Senator ORRIN G. HATCH,

Chairman, Senate Judiciary Committee,
Washington, DC.

DEAR SENATOR HATCH: I have reviewed S. 1335 styled "The Flag Protection and Free Speech Act of 1995." I have also reviewed the November 8, 1995 Memorandum of the Congressional Research Service, and the recent letters you received from Professors Stephen Presser and Paul Cassell offering comments and observations on the proposed act. My observations, such as they are, are these

I

If the principal provisions of this proposed bill are narrowly construed as I believe they might well be1-then I am inclined to agree more nearly with the analysis provided by the Memorandum of the Congressional Research Service than with that provided by my able colleagues at Northwestern (Steve Presser) and Utah (Paul Cassell). In brief, as narrowly construed and rigorously applied, the principal section of the act (§3(a)) may not be inconsistent with the First Amendment and may withstand judicial scrutiny when reviewed in the courts. I say this because as thus narrowly construed and applied, §3(a) may apply only in circumstances in which it would meet the requirements the Supreme Court itself has laid down in the principal case applicable to more general laws of this same sort.2 Herein is how that analysis is likely to proceed:

A. Specifically, §3(a) proposes to amend §700 of title 18 (the Criminal Code of the United States). It does so, however, by subjecting to criminal prosecution only such person who

destroys or damages a flag of the United States with the primary purpose and intent to incite or produce imminent violence or a breach of the peace, and in circumstances where the person knows it is reasonably likely to produce imminent violence or a breach of the peace.

Fairly (albeit strictly) read, the statute thus may require both of the following matters to be proved in any case brought pursuant to this section-and both of these matters must, as in any other criminal case, be proved beyond reasonable doubt:

1. That "the primary purpose" (i.e., the principal objective3) sought by the defendant was to incite "violence or a breach of the peace" and, indeed, that it was his specific intent to do just that;

2. That when he acted primarily to bring about the result (and only secondarily, if at all, to achieve some other aim), moreover, the circumstances were such that it was at least "reasonably likely" in fact his actions would have precisely that consequence (as he fully intended) even as he himself fully understood.

3. Likewise, however, according to the plain implication of its own terms as thus understood, nothing in this section 4 is meant otherwise to subject one to prosecution

It is the firm practice of the Supreme Court to construe acts of Congress very stringently (i.e., narrowly) when any broader construction would at once draw it into serious first amendment question. (For useful and pertinent examples, see National Endowment for the Arts v. Karen Finley et al., 118 S. Ct. 2168 (1998); Watts v. United States, 394 U.S. 705 (1969); Yates v. United States, 354 U.S. 198 (1957).)

2 That controlling case is almost certain to be Brandenburg v. Ohio, 395 U.S. 444 (1969) (discussed infra, in footnote 9).

3 Not a secondary or even related, co-equal, objective * * *

4 To be sure, other sections do reach some other acts (e.g., "damaging a flag belonging to the United States" (§ 700(b)) or stealing or knowingly converting and destroying a third person's flag (§ 700(c)), but these provisions are doubtless secondary in significance and so I defer consideration for such slight discussion of these provisions as they are worth. (Briefly, however, there is no likely problem with the provision re "a flag belonging to the United States." (See e.g., Spence v. Washington, 418 U.S. 405, 409 (1974) (dictum) ("We have no doubt that the State or National Governments constitutionally may forbid anyone from mishandling in any manner a flag that is public property.") As to a flag merely owned by a third party, that one "steal[s], knowingly convert[s], and destroy [s]," there may be as the other commentators have noteda federalism problem (the act in this regard would not appear to meet any of the requirements under United States v. Lopez, 514 U.S. 549 (1996), nor does the act appear to be connected to any other enumerated power provided in Article I §8 of the Constitution (e.g., the spending power, tax power, etc.). It remains arguable, however, that the same (merely implied) power providing Congress with legislative authority to establish incidental insignia of nationhood (e.g., a

merely for destroying or damaging a flag of the United States-no matter how offensive or objectionable others may find any such act to be. And, specifically, to make this latter matter quite clear in a relevant fashion, § 2(a)(4) (which immediately precedes §3(a))—expressly distinguishes any and all cases where one destroys or damages a flag when one does so to "make a political statement," rather then merely "to incite a violent response." "95

4. Subsection (a)(3) of §2, separately declares that "abuse of the flag * * * may amount to fighting words," which doubtless is true (i.e., it may, just as the provision thus also equally acknowledges, however, that it may not.) To avoid constitutional difficulties difficulties that would arise from any broader understanding of this provision--it would be appropriate to interpret this provision merely to declare that abuse of the flag may be a means chosen deliberately to provoke a violent reaction and if undertaken just for that purpose then-as in the instance of "fighting words" (e.g., when "fighting words" are themselves used not as a form of political statement but, rather, in order to provoke a violent reaction)—it is the author's understanding that such conduct when intended to incite a violent response rather than to make a political statement is outside the protections afforded by the first amendment. Again, taken this way, the observation may be substantially correct-but in being correct, it also covers very little ground.

B. Necessarily, all of this should mean that even if the circumstances were such that violence (or a breach of peace) could reasonably be expected to result as a consequence of the defendant's actions, so long as it was not his primary purpose or intent to induce or incite it—when he burned or destroyed a flag—he is not to be subject to any penalty under this law. Specifically, if this is correct, all merely "reactive" violence violence not sought as the immediate object by the defendant (who burns a flag as a political statement or as a public, politically demonstrative act of protest) but violence by those who, say, are but observers or passersby made angry or indignant by what they regard as outrageous behavior by him, for example, is thus not to be utilized as sufficient reason to seek his imprisonment rather than theirs. Or so, at least, I believe the statute can be interpreted to provide. And if (and probably only if) it is so interpreted as I believe it thus can be understood, I think it will survive in the courts.9

II

The vast majority of all instances when the American flag has been used in some fashion others find offensive (and some may be inclined to react to in ways involving violence or a breach of the peace) have been so overwhelmingly merely an inseparable part of some kind of obvious political statement, however, that a criminal statute reaching such a use of the flag (including defacing or burning a flag) only when "primarily * * * intended to incite a violent response rather than [to] make a political statement," will cover very little. For example, so far as I can determine, it will cover no instance of public flag "desecration" of any of the many (allegedly) offensive

flag, motto, seal, etc.) could conceivably permit it to draw on the "necessary and proper clause" to protect personal flag ownership from interference (including interference by theft or conversion), so the ultimate answer to this question is a bit unclear. agree with the other commentators, however, that without doubt state criminal (and tort) laws already reach all instances that would come within this provision-so it is at best redundant and may (inadvertently?) represent still one more instance of gratuitously piling federal criminal sanctions on top of pre-existing state sanctions (a practice the American Bar Association, as well as the Chief Justice of the United States, has recently asked Congress to use more sparingly if at all). In brief, neither need for, nor any special utility of, these provisions has been shown).

5 Subsection (a)(4) of §2, ("Findings and Purposes") declares (with emphasis and bracketed material added) that "destruction of the flag *** can [but need not] be intended to incite a violent response rather than make a political statement and such conduct (presumably meaning by 'such conduct' only such conduct as is indeed intended to incite a violent response and not intended to make a political statement] is outside the protections afforded by the first amendment **** As thus understood (i.e., understood as aided by the words I have placed in brackets), the subsection is not necessarily inaccurate as a strict first amendment matter. 6(See discussion infra in text at II.)

7 And to avoid first amendment objections, must probably be construed to mean 8 Whether as "a political statement" or for any other purpose * * *

***

As thus construed and applied, it may meet the test provided in Brandenburg v. Ohio, 395 U.S. 444, 447 (1969) (“[Our decisions] have fashioned the principle that the guarantees of free speech *** do not permit a State to forbid or proscribe advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action."). If such "advocacy" (i.e., such "speech act" as one engages in) is directed to "inciting or producing" imminent lawless action (and is "likely to incite or produce such action"), on the other hand, the Court plainly implies that "the guarantees of free speech" do not immunize one from arrest or from prosecution under a suitably framed, properly applied law.

« PředchozíPokračovat »