6

It

amendment process because there is some doubt about the validity of its legislation. Nor 'should it do so here. passes credulity to believe that flag desecration presents so overriding a problem that real social harm will ensue if the proposed legislative solution ultimately fails in the Supreme Court.

That being the case, it seems to me wholly contrary to a two hundred year old tradition to resort to the process of amending the United States constitution.

2 Whether flag desecration is in fact likely to be a frequent occurrence is a point to which no one can speak with confidence, but I think that some basis exists for the belief that flag desecration will continue as a form of protest. See U.S. Art News, Summer Issue 1989, p. 45 (linking the defendant Johnson with the flag desecration incident at the Art Institute of Chicago).

The United States Supreme Court recently overturned the conviction of a man who was found guilty of violating the laws of Texas by willfully and physically desecrating the flag of the United States of America. A 5 to 4 majority of the Court voted to overturn the conviction on the grounds that the individual's right to freedom of expression under the First Amendment to the U. S. Constitution was violated by the application of the Texas law.

On behalf of the 325,000 Grange members across the nation, I would like to express the National Grange's disappointment in the Supreme Court's ruling in this case. I was pleased to learn of your public comments expressing your dismay over this decision as was reported in the Congressional Record. I, therefore, urge you to work with your fellow members of Congress and the President to find a proper means of making the willful desecration of the United States' flag a punishable crime under both state and federal law.

National Grange policy, which was adopted last November at the National Grange's 122nd Annual Convention, states in part:

"The Grange recommends that courts uphold to the fullest extent the provisions of applicable laws pertaining to flag desecration."

We believe that the United States' flag holds a special, symbolic value for American citizens. Millions of Americans have fought and died to protect the blessings of liberty that the United States' flag represents. Displayed proudly in offices, factories, schools, private homes, and wherever Americans gather together, the United States' flag symbolizes the prosperity that our form of government has nurtured. Around the world, the United States' flag is the most widely recognized symbol of freedom and is a beacon of hope for those who yearn for a better life.

The Grange is proud that we make special efforts to provide our local, county and state chapters with information on the proper procedure and etiquette by which to display and honor the United States' flag. In fact, no Grange meeting anywhere in the nation can legally conduct business without a United States' flag being displayed and without an appropriate

August 3, 1989
Page 2

display of respect for that flag by those who are assembled. We further support efforts to disseminate information for showing proper respect to the flag through radio, television and other media.

We appreciate the value of the right of free speech that is guaranteed under the First Amendment, and we understand that the freedom of expression is a lynch pin of a free society. The range of tolerance that is needed to accommodate a multitude of opinions in a free society must, indeed, be vast. However, that tolerance is not limitless. In this instance, we cannot accept that the ideas of freedom and liberty are being substantially advanced by protecting the willful and physical desecration of the United States' flag. How can we expect to protect and defend our Constitutional rights as Americans if we cannot protect and defend the most poignant, physical symbol of those rights? We cannot.

I, therefore, urge you to work with the President and your fellow members of Congress to fashion statutory language that will satisfy the objections of the Supreme Court and, once again, will allow the United States' flag to be fully protected under law. If such protection is not possible in accordance with the Supreme Court's recent rules, I then urge you to carefully draft an amendment to the Constitution of the United States that will specifically allow federal, state, and local laws to protect the United States' flag from willful and physical desecration.

Thank you for allowing me this opportunity to express the views of the National Grange. I would appreciate learning your views on this issue.

Sincerely,

Check & Barrow

Robert E. Barrow
National Master

REB/1wh

Statement of Robert L. Nolan, M.D., J.D.
Before the Committee on the Judiciary,
U. S. Senate

September 12, 1989

I am a combat veteran of World War II, have over 30 years of reserve service, and am a decorated senior reserve officer (ret.). I am a physician and attorney in California.

When I was first appointed a junior officer in training in 1944, the oath of office, which I have proudly repeated on subsequent occasions, was as follows:

"I do solemnly swear that I will support and defend the Constitu-
tion of the United States against all enemies, foreign and domestic;
that I take this obligation freely, without any mental reservation
or purpose of evasion; and that I will well and faithfully discharge
the duties of the office on which I am about to enter: So help me
God."

That language is significant particularly in its focus upon our allegiance to the Constitution. Our flag is a fitting symbol of our great freedoms, including the Bill of Rights. I respect it and would not condone its demeaning use. However, it's the Constitution that we have sworn to support and defend.

The clamor for a constitutional amendment by the President and some in Congress, in response to the Johnson case, poses a threat to the Bill of Rights and especially the First Amendment.

I agree with the concerns expressed in the attached editorials in the Los Angeles Times (June 28), the New York Times (July 19) and the Washington Post (July 20) and therefore incorporate them in my statement.

Any circumvention of the Bill of Rights via a flag amendment to the Constitution could have adverse effects not only upon our First Amendment freedoms, but lead to future weakening and trivialization of the Constitution itself.

The subject is not as simple as some advocates of a constitutional amendment seem to suggest. The fact that legal issues are complex is demonstrated by the differing views recently expressed by scholars such as Professor Lawrence Tribe, Judge Robert Bork, Professor Charles Fried, and Professor Burt Neuborne.

Therefore, I respectfully offer the following suggestions for action by the Congress:

1) Commision the American Law Institute, or similar body,
to study the problem of enhancing flag protection with-
out amending the Constitution, and propose model federal
legislation to achieve that objective.

2) Reject proposals to amend the Constitution for purposes
of flag protection.

As the Washington Post said two months ago:

The flag is a symbol of a magnificently broad and generous definition of freedom, including the freedom to dissent and the freedom of a tiny minority to stand up against majority opinion. The flag and its message have prospered for two centuries without protection of this constitutional amendment. Gregory Lee Johnson is no threat to it. But congressional tampering with the First Amendment is."

Enclosures: (3)

Dangerous Remedy

There are two possible explanations for President Bush's decision to promote a constitutional amendment prohibiting vandalism of the American flag. Neither does the President much credit.

One is that the advisers who so adroitly
manipulated the flag and other popular patriotic
symbols during his campaign last year persuaded
him to take what political advantage he could of
the Supreme Court's ruling that flag burning is a
protected form of political protest. The other
accepts his notion that the solemn compact by
which this nation governs itself ought to change
because Bush feels "viscerally" about the issue.

The First Amendment to the Constitution is the
most ajestic and flexible blueprint for the
practical realization of fundamental human liberty
lever devised. "Congress," it says, "shall make no
law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right
of the people peaceably to assemble and to petition
the Government for a redress of grievances."
- In the 200 years since Congress approved those
words as the first and most important provision of
the charter we call our Bill of Rights, the United
States has passed through armed civil turmoil,
foreign wars, global confrontation with aggressive
totalitarianism and economic and social changes so

profound as to have been unimaginable to the framers. Yet in all that perilous passage, no one, no⚫ matter how dire the press of circumstance, has found it necessary to alter the language of the First Amendment or to create a constitutional exception to its application.

Flag burning, with all its connotations of contempt for this country's basic institutions and the sacrifices made to maintain them, is a particularly noxious form of expressive speech. It is, in fact, political pornography. This court, like others before it, has wisely held that tolerance of obnoxious speech is the irritating-but, in the end, not very burdensome-price we pay for that freedom which is the root of all others.

Cooler heads on both sides of the congressional aisle, like House Speaker Thomas S. Foley and conservative New Hampshire Sen. Gordon J. Humphrey, already have expressed skepticism about any attempt to alter the First Amendment. As outrage gives way to prudent deliberation, others doubtless will join them. The cynical, the opportunistic and the merely rash, however vocal, must not be allowed to have their way in this.

. It would be a tragic paradox indeed if an attempt to protect the symbol of the American nation became, in fact, an assault on the most substantial foundation of its liberties.