Substance, not symbols. The principles of freedom and the sacrifices of our veterans are important. They have about them a greatness that we cannot improve upon and that is beyond the power of any protester to diminish.

I am proud that in 1995, the Vermont Legislature chose the First Amendment over the temptation to make a politically popular endorsement of a constitutional amendment regarding the flag. The Vermont House passed a resolution urging respect for the flag and also recognizing the value of protecting free speech "both benign and overtly offensive." Our Vermont Attorney General has urged that we trust the Constitution and not pander to the passions of the times.

Vermont's actions are consistent with our strong tradition of independence and commitment to the Bill of Rights. Indeed, Vermont's own Constitution is based on our commitment to freedom and our belief that it is best protected by open debate. Vermont did not join the Union until the Bill of Rights was ratified and had become part of the country's fundamental charter.

Vermont sent Matthew Lyon to Congress and he cast the decisive vote of Vermont for the election of Thomas Jefferson. He was the same House member who was the target of a shameful prosecution under the Sedition Act in 1789 for comments made in a private letter. Vermont served the nation again in the dark days of McCarthyism when Senator Ralph Flanders stood up for democracy and in opposition to the repressive tactics of Joseph McCarthy. Vermont's is a great tradition that we cherish and that I intend to uphold.

At the conclusion of last week's hearing on this proposed constitutional amendment, some expressed their view that this is a nation in moral decline and that amending the Constitution to punish "desecration" of the flag is thereby justified. I would point out that there is far more civic virtue in the American people than some credit. At least that is the case in Vermont.

The issue of civic virtue does merit discussion. We in the Senate do play a role, and an important one, in setting the tone of civic virtue in the Nation.

Many religious leaders, however, take the view that it is a sign of moral confusion that the proposed amendment speaks of "desecrating" a secular object, the flag. They find the language of this proposed amendment offensive.

Reverend Wilson testified last week that "Desecration of an object is possible only if the object is recognized as sacred." He said that when the Government forces people to treat something not associated with the divine as holy, it has mandated religious idolatry.

Do we promote civic virtue when we arrogate to Congress the right to declare "sacred" and capable of “desecration" something that is not associated with the divine? Or do we simply mandate idolatry for people of faith, as Reverend Wilson warned? This concern is not limited to religious leaders. Conservative legal scholar Bruce Fein emphasized this concern when he testified before a House Subcommittee in 1995. He said:

Inserting the term "desecration" into the Constitution would in and of itself seem highly inappropriate. Webster's New World Dictionary defines "desecrate" as "to violate the sacredness of," and in turn defines "sacred" as "consecrated to a god or God; holy; or having to do with religion." The introduction of these terms could create a significant tension within our constitutional structure, in particular with the religious clause of the first amendment.

This widespread uneasiness over the language of this amendment underlies a deeper problem. Keith Kreul, a former National Commander of The American Legion, makes this point in his written statement to the Committee:

A patriot cannot be created by legislation. Patriotism must be nurtured in the family and educational process. It must come from the heartfelt emotions of true beliefs, credos and tenets.

We will never promote civic virtue by punishing people for peaceful protest. That can only undermine the foundations of our civic life. If we are sincere about wanting to do something to promote civic virtue in the United States, we can best do it by setting an example in our own service as Senators and as citizens, rather than by attempting to punish a handful of yahoos, most of whom already can be and are punished under existing State laws against theft, destruction of property, and other forms of ordinary hooliganism. We can promote civic virtue not by empty words but by action, by what we do, not by what we say.

We can teach the lessons of civic virtue by setting an example in the way we conduct the work of the Senate. We can show it is important to keep our promises to veterans by providing them with decent health care. We can show leadership by promoting an effective treaty to remove land mines from the face of the earth. We can help put more teachers in the classroom, to help the youth of our country to appre

ciate and reach for something higher, something nobler. We can help provide more school resource officers and better security at our schools in a time when it is needed.

We can and should promote civic virtue, but we should do so by setting an example in our own exercise of our rights and responsibilities, and not by an effort to limit the rights of others. That is what John Glenn and our other witnesses do every day and what we all should rededicate ourselves to doing.

Senator LEAHY. I would also ask that statements by Professor Robert Cole and a statement of Robert Evans on behalf of the American Bar Association be put in the record at the appropriate place.

[The statements of Mr. Cole and Mr. Evans follow:]

PREPARED STATEMENT OF PROF. ROBERT H. COLE

Thank you for giving me the opportunity to submit this testimony. My name is Robert H. Cole. I am Professor of Law Emeritus at the University of California School of Law at Berkeley, where I have taught Constitutional Law for over 30 years.

As the Nation's great deliberative body, the Senate has a unique role and the solemn responsibility to assure that proposed changes in the basic structure or principles of American Government are in fact necessary to promote fundamental needs of the people. The proposed flag desecration amendment does not meet this test. On the contrary, the proposed amendment represents a very risky departure from established American traditions of freedom and serves no purposes worthy of changing the Bill of Rights.

In our system of individual liberty and limited government, the established legal framework for evaluating government proposals to restrict citizens' expression is to assume that people are free to speak and communicate in ways they think best and to require the government to have very strong justification for silencing them. In constitutional law, cases involving government restriction of speech arose relatively late, but this framework, which was first and eloquently formulated by Justices Holmes and Brandeis, has now been established law for some half of this century. Texas v. Johnson, the 1989 Supreme Court decision which, as you know, is the central case on "desecration" of a flag, is squarely in this established framework. The Court's treatment of the government's justification for restricting speech is at the heart of the issue before you, and so it may be worth spending a few minutes describing the holding. Johnson was convicted of "damag[ing] a *** national flag" knowing that this would "seriously offend one or more persons likely to observe * * * his action"; he burned a flag while fellow protesters chanted outside the Republican National Convention. The State of Texas conceded, as it had to, that Johnson's conduct communicated his views and was expression under the First Amendment. Following the established framework, the Supreme Court then looked for the government's justification for punishing communication and found none: In fact there was no damage to others' property or person and no actual threat of violence or disturbance of the peace.

The communication did seriously offend others, but it has been established law for fifty years that offensiveness cannot be a justification for silencing speech. You can readily see why, because all kinds of views may be offensive, outrageous, blasphemous to someone; we simply cannot have a free society if we are going to get into the business of picking and choosing which offensive speech to silence, let alone silence it all. The harms done by speech have to be more than disturbing other people's minds and hurting their feelings, even very much. Few people really disagree that tolerating offensiveness is an acceptable price of our system of free speech.

Finally, the Court acknowledged that government has an interest in preserving the flag as a national symbol but held that such an interest does not justify criminal punishment for burning a flag in political protest. Again, you can see why this is: Coerced belief in symbols is diametrically contrary to the citizen's freedom of conscience. As the Supreme Court said, to pick and choose which symbols some citizen cannot speak ill of or hold in contempt, and thereby to force our political preferences for certain symbols on the citizenry, is exactly what the First Amendment does and must forbid. Instead we come back to the basic framework: If a person expresses his contempt in a way that does real harm to substantive interests-he burns someone else's property, he causes violence, and so on-the government has the justification for punishing his expressive conduct.

No Senator on either side of this issue wants to junk this framework or get into the totalitarian business of enforcing obeisance to various official symbols. Rather the supporters' position seems to be, as the dissenters in the Johnson case argued, that flags are unique and should be a one-time exception to this established framework, a framework I would emphasize that has preserved and prompted so much of our liberty and defined who we are as a people. But as we all know from our personal lives, from raising our children, and from standing up for principle, the idea of "just make this one exception" is rarely if ever neat and cost-free. It is certainly not going to be cost-free in the case of this amendment to the Constitution. To begin with, the amendment is not limited to the cases that are always and apparently only used to support it. No one proposes an amendment simply prohibiting burning flags with a contemptuous state of mind (and, as proponents' testimony keeps repeatedly and excessively saying, defecating on a flag). Obviously, then, the amendment is intended to cover much more than the examples used to support it, and no statute implementing it is likely to be written limited to those terms. However such open-ended language as "the flag" and "physical desecration" is interpreted, we can predict that much peaceful political activity using flags, for instance, draping a flag around oneself or taping a peace symbol to it to protest the Kent State killings (which the Supreme Court held protected in Spence v. Washington), or an African-American citizen's burning his ceremonial flag in mournful expression of despair over a racial murder (with accompanying speech protected in Street v. New York) will be prevented or punished. Because the flag is a powerful and ubiquitous cultural symbol as well, we can be certain that uses of flags in painting, graphic art, drama, even movies, will be prevented or punished. Because flag insignia are widespread in uniforms, athletic and casual clothing, and in advertising and store-front commercial displays, there is every reason to think that some of these personal and commercial uses of flags will be prevented or punished. Because flags are made in all sorts of sizes and from all sorts of materials for all sorts of display, all sorts of uses, from picnics to home decorations, may be called into question.

Attempting to withdraw so central-and beautiful and evocative-a symbol as the American flag from political and cultural discourse is extremely unwise and wrong, in my judgment. Yet this amendment will certainly attempt to do that in some degree or other. These uses of flags often create a sense of community and patriotic pleasure, as well as serve the high principles and purposes and political expression and cultural commentary. But perhaps it is even more important that these questions have not been debated seriously, systematically, or in the general public. During the ten years that a flag desecration amendment has been regularly brought to the Congress, not once to my knowledge have the supporters of the amendment actually attempted to spell out realistically how far the amendment will go in fact and how far they would like it to go. Not once to my knowledge have they attempted explicitly to work through and justify whether it would be worth the costs that could be fairly predicted. The supporters seem unwilling to acknowledge that there are any risks at all, except to burners and defecators. Nor do the costs seem to have been systematically worked out, stated up front, and debated in concrete terms in the Congress.

Yet, the burden of justifying something so fundamental as a change to the Bill of Rights, to any provision of the Constitution, must be on the proponents. The duty of the Senate is to preserve and protect the Constitution, and it should do so until persuaded that change is necessary for the good of the country. This kind of case has not been made at all and, in keeping with the Senate's conservative rule, the Committee should reject the amendment on these grounds alone. In my judgment, of course, this is not only a case of refusing to amend the Constitution when in such great doubt; these costs will be serious and the amendment will be positively harmful.

You may have seen a news story that the American pilot whose B-2 was downed over Yugoslavia felt sustained during his hours behind enemy lines by the American flag that he had stuffed under his clothes. The story illustrates the emotional attachment people have for our flag. It also illustrates what is wrong with the proposed amendment. Would a crushed, grubby, sweatsoaked flag carried as if it were underwear under one's uniform be thereby desecrated? (This is only an example, of course; the story did not say what the pilot's particular flag ended up looking like.) No statutory form of words can distinguish the condition of such a flag from that of a flag if it were used to dry off after exercise (or the flag that Abraham Lincoln is sitting on in the Lincoln Monument sculpture!)-unless, that is, the statute distinguishes not the grubby condition of the flag but the state of mind with which the person used the flag. Inevitably a statute implementing the amendment will have to distinguish between cases of physical harm to flags in which the person using

the flag approves of it or is expressing views deemed by police, prosecutors, or juries to be appropriately patriotic from cases in which these authorities decide the person used the flag with contempt or disrespect. Once the legal authorities get into citizen's attitudes toward patriotism or policy, what will prosecutors do about cases in which a person wraps a flag around himself to protest welfare cuts or to oppose the bombing in Yugoslavia (both examples from newspaper photos)? Are these sufficiently respectful or impermissibly hostile?

These examples-and they are endless-tell what Americans are like. We are inventive, our culture creative, our tradition free. Like the B-2 pilot, we will find all kinds of individualistic ways to express ourselves with flags. It will be a disaster when the government starts trying to sort these out on pain of criminal punishment. The results are that the amendment will both prevent a wide range of expression and inevitably end up punishing those whose views are considered by someone in law enforcement to be unpatriotic or contemptuous of some symbol, policy, or principle deemed by the authorities to be above such criticism. Supporters of the amendment have repeatedly insisted that the amendment would not punish people for their views. The point is that the amendment necessarily will do just that.

All of these various examples of inhibition and suppression of expression illustrate the kinds of costs the amendment will inflict in our pluralistic and creative society as well as the costs in principle. There may be many more examples and other types of costs. To take just one more example, of a different sort, the judicial process under the proposed amendment might well adversely affect the protections afforded under the First Amendment to other kinds of speech. We do not know how courts would relate the proposed amendment to the First Amendment, but there is the risk that courts will take a flag desecration amendment as expressing an authoritative judgment that offensiveness or symbolism now can constitute interests that the government can use to justify silencing speech in other areas, having nothing to do with flags.

With all of these obvious risks to our very constitutional system, what can justify going ahead anyway? How can we proceed as if systematic study and acknowledgement of the grave downside risks of their proposal were irrelevant? One possibility is that the example the supporters have almost exclusively relied on-burning a flag contemptuously-seems so terrible that it justifies any solution, no matter how dangerous. But the number of such flag burnings is trivial, maybe a handful in a decade. There is no societal problem of actual flag burnings, and I do not believe anyone seriously contends that there is. So it must be that we simply must make sure there never is any such flag burning, or that no flag burner ever goes unpunished. This absolutist hope cannot be realized in fact and, more important, it shows a disabling loss of perspective and proportion. It is out of proportion when you think of all the truly serious evils that go unremedied, and it is out of proportion when you think of the loss of freedom for a significant number of our citizens that the amendment will impose for so little benefit. It begins to resemble a crusade more than a balanced legislative effort to solve real social problems. The Senate, as our great deliberative body, could well reject the amendment simply because its skewed sense of priority is unacceptable in the solemn context of changing the fundamental charter of the Nation. The cost to our sense of priorities at a time when so much tragedy and need exist in our country and around the world must be added to the costs of this amendment.

Another argument for the amendment that supposedly obviates the need to look at its costs is that the flag in some way functions as a symbol that unifies us or makes all our freedoms possible, so that misuse must be prevented whatever the cost. The argument has been put in various ways. Professor Richard Parker testified (Senate Judiciary Committee, July 8, 1998) that a system of free speech requires a community, that a community requires a unifying symbol, and that the flag is our unifying symbol. Unless desecration of the flag is prohibited, we cannot have a system of free speech. Under this far-fetched theory, we would really not have had a system of free speech at least since Texas v. Johnson in 1989, nor could we have free speech with Canada or Great Britain, with whom we do not share a flag or flagsubstitute symbol. How coercing people who experiment with flags will actually create a community, and what happens to the community if they start burning more flags, are unexplained. No, whatever community underlies the system of communication is to be found in the deep and ancient bedrock of culture, in the very foundations of language, speaking, and listening, and not in contemporaneous, changing attitudes toward particular political symbols.

Professor Stephen Presser testified (Subcommittee on the Constitution of the House Committee on the Judiciary, March 23, 1999) for the Citizens Flag Alliance, the principal proponent of the amendment, that it should be adopted because in our country "personal liberty * * * has * * * spun almost out of Constitutional control"

at the expense of "responsibility." "We have not reached the fatal point of anarchy yet in America, but we have come disturbingly close." We should therefore begin "to enforce responsibility and preserve order" by "restrict[ing] the incendiary manner of expressing "the message that flag burners, defecators, or other flag destroyers and abusers might seek to convey." The premise of this argument is a demeaning and, in candor, absurd caricature of the American people. It is an argument that knows no limits, for it would justify any number of other restrictions on liberty that would in Professor Presser's eyes improve the ratio of responsibility to liberty. It starts with the flag as a "coherent" American symbol but opens the door to whatever it takes to restore the "decency, civility, responsibility and order" that Professor Presser thinks we need to make "our fundamental freedoms possible," which apparently is not the case now. It takes no account of the fact that there are few, if any, flag destroyers who would be taught a lesson, while the rights of innumerable citizens to use flags in political and cultural discourse would be nullified. Above all, the idea that an amendment to the Constitution allowing Congress to prohibit flag desecration would turn around an out-of-control nation on the brink of anarchy cannot be taken seriously as a factual matter.

Less extreme arguments that the amendment would help "unify" the country are subject to the same empirical objections. In none of these arguments is unity as a social concept ever explained or described, so there is no way of knowing what it means in such a vast and complex country as ours and whether or how the amendment or any other strategy would promote it. It simply becomes a slogan. There is no explanation of how the rare occasions of flag abuse have subverted the unity the great majority of Americans seem to feel. Moreover, at a different level of analysis, respect is a condition of unity and it cannot be coerced. Coerced silence, coerced respect for flags, can only create resentment, disrespect, and disunity, and not just among the disaffected but also among the many ordinary people who will be adversely affected by the amendment. What unifies our country is consent, the voluntary sharing of ideals and commitments and the respect for others given voluntarily.

Another form of the absolutist argument that the amendment is required regardless of the costs to freedom is that "flag desecration" is simply wrong regardless of its failure to meet the existing constitutional requirement of substantive harm, and a way must be found to be sure it can be punished. We have seen that what would make it "wrong" could be offense to others or the desecrator's attitude, and that punishing a citizen for expression on either of these bases is fundamentally inconsistent with our established system of free expression. The only other basis on which "desecration" is always "wrong" is simply that any given flag ends up mutilated. This may be what is meant when the proponents talk about "protecting the flag.” This argument converts flags into a kind of icon whose purity or sanctity is violated when it is damaged or abused. It is at bottom a religious argument. It is no accident that the proposed amendment prohibits "desecration," the core meaning of which is to convert a sacred object to a secular use. But flags are secular objects; they are political emblems to be loved if one chooses but not to be sanctified. It is a dangerous confusion of the political with the sacred to think in terms of sanctifying our national flags, or even subconsciously to do so. For the sake of religious faith at least as much as for the neutrality of government, the sacred must be reserved for things having to do with the divine. I would think that believers perhaps above all should reject this argument for the amendment and look at the proposal with sceptical reserve.

A final argument for the amendment is that it is popular and that the Senate should defer to the many state legislatures that have passed resolutions in favor of it. I question the factual premises of this argument, because I believe perhaps not more than one or two percent of the public have ever heard of the proposed amendment, and even fewer have been informed of the arguments on both sides. I believe that state legislatures have responded to a little-noticed unopposed lobbying campaign. Some organized veterans groups have campaigned for the amendment, while other veterans (I am one, for what it is worth, though one not remotely exposed to combat) oppose it.

But, more basically, this whole line of argument misconceives the Senate's proper role in amending the fundamental charter of our government and liberties. This is not a piece of ordinary legislation, attempting to resolve a clash of interest groups on a specialized subject. The Senate's role in amending the Constitution is to rise dispassionately above the political pressures of the moment and to make a judgment with the depth, perspective, and independence appropriate to a Constitution that promises "to secure the blessings of liberty to ourselves and our posterity." In this context, as I have tried to show in this testimony, there really can be no cost-free symbolic gesture, no one-way deference to a constituency.