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Committee Reports for the 105th Congress | |
| Partial Report: Senate Report 105-298 | 1 of 1 | |
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III. SENATE JOINT RESOLUTION 40 IS AN UNPRECEDENTED RESTRICTION ON THE BILL OF RIGHTS
A. THE FIRST AMENDMENT, AS THE CORNERSTONE OF INDIVIDUAL FREEDOM IN THIS NATION, PROTECTS ABOVE ALL THAT EXPRESSION WITH WHICH SOCIETY DISAGREES OR FINDS OBJECTIONABLE
Ultimately, the debate over Senate Joint Resolution 40 and the earlier attempts to amend the Constitution to ban certain flag-burning turns on the scope we think proper to give to speech which deeply offends us. It turns on how free our speech should be.
One opponent, Bruce Fein, made clear the basis of his opposition to any restriction on the freedom of speech.
President Thomas Jefferson voiced the spirit of my opposition to the amendment in his first inaugural address when the nation was bitterly divided. That giant among the Founding Fathers lectured on the prudence of tolerating even the most extreme forms of political dissent: `If there be any among us who would dissolve the Union or * * * change its republican form, let them stand undisturbed as monuments of the safety with which error of opinion may be tolerated where reason is left to combat it.'
- Mr. Fein also cited, as an example of the Enlightenment spirit of the Framers that undergirds the First Amendment, Voltaire's `Promethean' statement, `I disapprove of what you say, but I will defend to death your right to say it.'
The Nation's faith in free speech is grounded ultimately in a confidence that the truth will prevail over falsehood, a faith that has sustained our thought since Milton wrote his `Areopagitica' in 1644.
[T]hough all the winds of doctrine were let loose to play upon the earth, so truth be in the field, we do injuriously, by licensing and prohibiting, to misdoubt her strength. Let her and falsehood grapple, whoever knew truth put to the worse in a free and open encounter?
B. THE AMERICAN PEOPLE CAN AND DO ANSWER UNPOPULAR SPEECH WITH TOLERANCE, CREATIVITY AND STRENGTH
The lesson of Milton is practiced every day in America. Flag-burning is not the only form of expression that is utterly abhorrent to the large majority of Americans. The instinctive answer of the American people, however, is not trying to ban speech that we find offensive. That is the response of weakness. As Justice Louis Brandeis observed, `those who won our independence eschewed silence coerced by law--the argument of force in its worst form.'
The American people respond with strength. The Majority Report argues that requiring respect for the flag among everyone will or does unify us. It is clear, though, that the rare occasions of flag desecration have not subverted the unity the rest of us feel and cannot subvert our sense of unity. More fundamentally, respect cannot be coerced. It can only be given voluntarily. Some may find it more comfortable to silence dissenting voices, but coerced silence can only create disrespect and disunity. What unifies our country is the voluntary sharing of ideals and commitments. We can do our share toward that end not by enforcing conformity but by responding with responsible actions that will justify respect and allegiance, freely given. That is exactly how the American people respond.
Senator Feingold pointed to the example of Appleton, Wisconsin, when each year 20,000 to 30,000 Americans join in the largest Flag Day parade in the Nation. Senator Durbin cited the example of the people of Springfield, Illinois, who faced the prospect of a Ku Klux Klan rally.
For each minute that the Klan rally goes on, each of us pledges a certain amount of money to be given to B'nai B'rith and to the NAACP and other organizations. So the longer they go on, the more money is being [raised] in defense of the values of America. I think that is what America is all about.
- (Transcript of June 24, 1998 at page 23.) Recently, in Jasper, Texas, an African American was brutally tortured and murdered, apparently on account of his race. The Ku Klux Klan decided to hold a rally in Jasper because of the murder. Even in all of their pain over the incident, the good citizens of Jasper, led by their African American mayor, let the Klan speak. They let them march, and they even let them wave American flags. The good citizens of Jasper quietly spurned the Klan, and the Klan slithered out of town.
Again, on July 18, 1998, in Couer D'Alene, Idaho, white supremacists obtained a permit for a `100-Man flag parade' and marched carrying American flags and Nazi banners side by side. As in Springfield the local residents turned `Lemons into Lemonade,' and raised $1,001 for each minute of the white supremacists' march, money for donations to human rights organizations. A few citizens loudly spoke back to the marchers, but most simply stayed
away. Steve Meyer, owner of The Bookseller made it a point to keep his store open, and observed that `Nazis were burning books in the 1930s, and I don't want them closing stores in the '90s.'
The positive examples of the citizens of Wisconsin, Illinois, Texas, and Idaho show the America for which soldiers have fought and died. This is the strength and unity that no statute, no amendment can compel or embellish.
A similar example of a powerful response to flag burning that protects the speech of everyone is cited, curiously, in the Majority Report. Curiously, because the act was committed prior to the Johnson and Eichman decisions when statutory sanctions were in full play, the act did not actually involve the burning of any flag, and the act ultimately appears to have been punished by ordinary, content-neutral laws which survive Johnson. The incident was the center of the testimony of Los Angeles Dodger General Manager Tommy Lasorda. In 1976, a father and son ran onto the field during a baseball game at Dodger Stadium and attempted to set fire to a flag. Contrary to the Majority Report's assertion, the attempt was unsuccessful and the flag was never burned, and the protestors appear to have been punished with stiff fines under the content neutral laws against running onto playing fields. Significantly, the crowd was in no way demoralized by the attempt, nor was their love for the flag or for our country diminished in the least. Far from it. As Mr. Lasorda accurately recounted:
The fans immediately got on their feet * * * and without any prompting that I can remember the whole crowd stood and began to fill the stadium with an impromptu rendition of `God Bless America.'
- (Testimony of Mr. Tommy Lasorda, July 8, 1998 at 40-41.) That was an answer on which Congress can never improve.
It is by such positive and creative acts, that we best answer offensive speech. `The proposed Amendment, in contrast,' observed Bruce Fein, `would be an act of negation, not an act of affirmation. It smacks too much of the petty tyranny of the discredited Alien and Sedition Act of 1798.' (March 25, 1998 Statement of Bruce Fein at page 3.)
It can be painful that the Klan and others try to associate themselves with the principles of our Nation by displaying the flag. It can be painful to see the crudeness and poverty of understanding of those who try to burn the flag. Stan Tiner spoke of
The political factions and sects that fly the American flag over their own various causes--the communists to the Birchers, to David Koresh and his followers--all seeking to imply that their particular brand of Americanism is the one true and righteous brand.
In a curious way, they are right. America is all of these things, or at least a haven for freedom, where all kinds of thinking can occur, and where free people can speak their minds without fear of state police.
- (Statement of Stan Tiner, March 25 1998 at page 3.) Therein lies part of the greatness of America. All voices, however hateful and obnoxious, can be heard, but it is the quiet nobility of the ordinary citizens of Appleton, Springfield, Jasper, and Couer D'Alene, and the spontaneous singing of `God Bless America' that wins the debate. The First Amendment works.
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