Albion Monitor /Commentary
[Editor's note: The speech below was part of a day long session in the Senate debating a constitutional amendment prohibiting desecration of the American flag. For more on this subject, see the news story and "Constitutional Amendmentitis," elsewhere in this issue.]

Improper and Offensive Conduct

Orrin Hatch (R-Utah)

Friday, December 8, 1995

In listening to the debate on the flag amendment on Wednesday and some of the remarks of some of my colleagues here on the floor, my reaction with respect to some of their arguments and some of the arguments of the opponents of the flag amendment comes down to, there they go again. The same tired, old, worn out arguments, again and again.

One of my colleagues from Arkansas says we are here because of "pure, sheer politics." Evidently, some opponents of the amendment believe there is only one side to this argument, and everybody else must be playing politics. Tell that to Rose Lee, a Gold Star Wife and past president of the Gold Star Wives of America.

She testified in support of this constitutional amendment to prevent desecration of the American flag, our national symbol. She testified in support of this amendment on June 6, 1995, before the Constitution Subcommittee, and brought with her the flag that had draped her husband's coffin. She said:

It's not fair and it's not right that flags like this flag, handed to me by an honor guard 23 years ago, can be legally burned by someone in this country. It is a dishonor to our husbands and an insult to their widows to allow this flag to be legally burned.
Go tell Rose Lee she supports the flag protection amendment out of pure, sheer politics.

Go tell the members of the American Legion who have been visiting our offices. Go tell our colleague, Senator Heflin, a Silver Star winner from World War II, that he is playing politics. Tell the Senate Democratic whip, Senator Ford, that he is playing politics by cosponsoring and supporting this amendment, a man who has suffered a lot for this country. Tell the Democratic leader of the other body, Congressman Richard Gephardt, and 92 other House Democrats that they played politics when they voted for this amendment.

Is there a kind of moral equivalence between Nazi Germany, Iraq, and the United States if all three prohibit physical desecration of their flags?

As for the number of flag desecrations -- again, my friend from Arkansas was wrong. He said there were none this year. In fact, there have been published reports of at least 20 American flags destroyed at a cemetery in Bloomington, IN, alone. They were cut or ripped from flagpoles and burned. These desecrations were also reported on local television.

In July of this year, according to USA Today, a flag was defaced with obscene messages about President Clinton and Speaker Gingrich in New Hampshire. Are there not countless ways of expressing these views without defacing the flag?

In June, a flag was burned in Hays, Kansas. Just a short time ago, I saw a news clip about a motorist at a gas station using an American flag to wipe the car's dipstick. A veteran -- a veteran -- called it to the police's attention but, of course, the individual cannot be prosecuted today for that desecration of the flag. He can keep using it as he has, or perhaps he will next use it to wash his car.

My friend from Arkansas raised a concern about a person being punished for refusing to salute or honor the flag. No law enacted under the flag amendment can compel anyone to salute or honor the flag, to say nice things about the flag, or otherwise compel anyone to respect the flag. There is an obvious difference between prohibiting physical desecration of the American flag, and compelling someone to express respect for it. So it is totally irrelevant, in this debate, to talk about punishment for failing to respect or salute the flag or pledge allegiance to it. The pending amendment simply does not authorize such punishment. Nor does it authorize punishment for saying critical things about the flag, or anything else.

Some of my friends who have spoken here also drew attention to a chart with various flags on it from places like Nazi Germany, the Soviet Union, Cuba, and Iraq, with the American flag in the middle. One of my colleagues pointed out that these other countries prohibited flag desecration.

But when opponents of the amendment trot out these comparisons among countries and their flag desecration laws, they never really explain fully their point. To begin with, the difference between the American flag and these other flags is certainly self-evident to all of my colleagues and to the American people. And, of course, I know that those of my colleagues who think these comparisons are useful, recognize the difference between what the American flag represents and what Nazi Germany's flag represents.

So what really is the point of the comparisons of flag desecration laws in these countries? Is it that, in some undefined way, there is a kind of moral equivalence between Nazi Germany, Iraq, and the United States if all three prohibit physical desecration of their flags? That is too nonsensical to be the point. Indeed, until 1989, 48 States and Congress had outlawed physical desecration of the flag. Did any opponent of the amendment feel they were in a police state during that time? I do not think anybody did. Did the American people not have numerous ways to express themselves without physically desecrating our flag? Indeed, as I explained in my opening remarks on Wednesday, freedom of speech actually expanded in this country through 1989, even as flag protection statutes were being enacted.

If I told my colleagues that Nazi Germany also had stringent gun control laws, do the opponents of the flag protection amendment believe, for that reason, America better not adopt a particular gun control measure? They did. To use that kind of reasoning, why would that not follow?

If I told the opponents of the flag protection amendment that a police state had liberal abortion laws, would that turn them into pro- lifers in America? Would it turn them into supporters of the Partial- Birth Abortion Ban Act of 1995?

So what is the point of comparing whether Nazi Germany, Iraq, and the United States protect their respective flags?

Certainly, it is not to compare those who voted for a measure protecting the flag, such as the Biden statute, including the Senator from Arkansas and almost every other Senator, with the dictators of Nazi Germany and Iraq.

I was struck by the highlighting of the Nazi flag on the same chart as the American flag. It reminded me of another use of these two flags.

Some argue that this flag amendment would be the beginning of a long slide down a slippery slope to further restrictions on free speech. Give me a break.

Stephan Ross is a psychologist in Boston, Massachusetts. He gave a presentation in the Hart Senate Office Building earlier this year. He began by displaying a Nazi flag, and told the audience he had lived under that flag for several years.

In 1940, at the age of nine, the Nazis seized him from his home in Krasnik, Poland. He was a prisoner for 5 years in 10 Nazi death camps. The American army liberated Mr. Ross from Dachau in April 1945. In Mr. Ross's words:

We were nursed for several days by these war-weary, but compassionate men and women until we had enough strength to travel to Munich for additional medical attention.

As we walked ever so slowly and unsteadily toward our salvation, a young American tank commander -- whose name I have never known -- jumped off his tank to help us in whatever way he could. When he saw that I was just a young boy, despite my gaunt appearance, he stopped to offer me comfort and compassion. He gave me his own food. He touched my withered body with his hands and his heart. His love instilled in me a will to live, and I fell at his feet and shed my first tears in five years.

The young American tank commander gave Mr. Ross what he at first believed to be a handkerchief. Mr. Ross said:
It was only later, after he had gone, that I realized that his handkerchief was a small American flag, the first I had ever seen. It became my flag of redemption and freedom. . . .

Even now, 50 years later, I am overcome with tears and gratitude whenever I see our glorious American flag, because I know what it represents not only to me, but to millions around the world . . . .

Protest if you wish. Speak loudly, even curse our country and our flag, but please, in the name of all those who died for our freedoms, don't physically harm what is so sacred to me and countless others.

Go tell Stephen Ross that protecting the American flag from physical desecration is in any way like protecting the Nazi flag from such desecration, or in any way represents some notion, however small, of moral equivalence between Nazi Germany and the United States, or in any way puts the United States on some kind of par with Nazi Germany. That analogy just will not float.

Mr. Ross still has the flag the American tank commander gave him in 1945. Mr. Ross is a supporter of this amendment, and one can read about his story on the front page of the July 4, 1995, USA Today.

Some of my other colleagues argue that enactment of this flag amendment would be the beginning of a long slide down a slippery slope to further restrictions on free speech. Give me a break.

They even make a thinly veiled comparison between prohibiting physical desecration of the American flag with the Chinese Government's execution of three dissidents. Give me a break. This argument is incredibly overblown. In answer to this, I would like to quote from a letter Bruce Fein, an opponent of the amendment who testified against the amendment. He wrote to the Judiciary Committee in June of this year in response to my questions. He states:

The proposed amendment is a submicroscopic encroachment on free expression that would leave the U.S. galaxies beyond any other nation in history in tolerating free speech and press. If foreign nations were to emulate the constitutional protection of freedom of expression in the United States even with a flag burning amendment, they would earn glittering accolades in the State Department's annual Human Rights reports and from Amnesty International and Human Rights Watch.
It is time for us to recognize that the American flag is our national symbol; that it has meaning to millions and millions of Americans all over this country, many of whom have fought for this country, many of whom have suffered as family members who have lost somebody who has fought for this country under our flag. About 80 percent of the American people are for this amendment. The remaining 20 percent either do not know, or are people who would not be for anything that contrasts values.

All this amendment would do is allow the Congress to enact a law prohibiting physical desecration of the American flag. We are going to take out of the amendment the three words "and the States," so that we will not have 51 different interpretations of what flag desecration is. This change will be made at the request of a number of Senators who are concerned, as I am, about that possibility. At the appropriate time, an amendment to make that change will be filed.

All this amendment does is restore the symbol of our American flag to a constitutionally protected status. And it allows the Congress, if it chooses to -- it does not have to, but if it chooses to -- to enact implementing legislation to protect the flag.

For those who do not want a constitutional amendment passed, they will have a right to demand that people not allow us to protect the flag from desecration. They will have an equal right with anybody else to make their case

There is no one in Congress who is going to go beyond reason in protecting the flag. We will still have our emblems on athletic equipment. We will still have little flags. We will still be able to have scarves and other beautiful and artistic renditions of the flag. What we will not have is the ability to physically desecrate the American flag.

All we are asking here is to let the American people decide this. If we have enough support, 66 people in favor, we will pass this amendment through the Senate. That is, of course, only the beginning of the process, because three-quarters of the States will then have to ratify this amendment before it becomes the 28th amendment to the Constitution. I believe three-quarters of the States will ratify it, because almost all of the States have already called for this amendment through effective legislative enactment.

But what will ensue once this amendment passes -- something that is worth every effort we put forward -- is a tremendous debate in our country about values, about patriotism, about what is right or wrong with America, about things that really will help us to resurrect some of the values that have made America the greatest country in the world. It will be a debate among the people.

For those who do not want a constitutional amendment passed, they will have a right to go to every one of our 50 States and demand that people not allow us to protect the flag from desecration. They will have an equal right with anybody else to make their case. We are here to make the decision to let that debate over values, over right and wrong, over patriotic thoughts and principles ensue. It is worth it.

I personally resent anybody indicating that this is just politics. I have heard some people say, "Well, if this was a secret ballot, it would not pass at all." I do not agree with that. I believe there are enough people in this body who realize that we are talking about something pretty valuable here, something pretty personal, something that really makes a difference in all of our lives; our national symbol. The symbol that soldiers rally behind, fight under, went up San Juan Hill to retrieve. For those of us who have lost loved ones in various wars, this particular debate plays an especially significant role.

There are those here who are themselves heroes, and who may disagree, and they have a right to do so. I think they do so legitimately in their eyes, and certainly sincerely. I respect them and respect their viewpoints, just as I hope that those on the other side will respect the viewpoints of those of us who believe that this is an important thing, that this is a value in America that is important, that ought to be upheld.

One of my most prized possessions is the American flag that draped my brother's coffin

In my case, our family has seen suffering. I can remember as a young boy playing in the woods down in front of our very, very humble home that my dad had built from a burned-out building. In fact, for the early years of my life our house was black. I always thought all houses were black, or should have been. One side of it had, as I recall, a Meadow Gold Dairy sign on the whole side of the house, because he had to take that wood from another building. It was either that or a Pillsbury Flour sign. I believe it was a Meadow Gold Dairy sign. It was one or the other. I always thought that was a pretty nice thing to have on our house as a young kid.

I was down in front of the house playing in the woods, when I heard my mother and dad. I could tell there was something wrong. I ran out of the woods and ran up to the front porch of our house, this humble place, and there was a representative of the military informing my folks that my brother, my only remaining brother, who we all loved dearly, Jess Hatch, Jess Morlan Hatch, was missing in action. It was a sad occasion. My folks were just broken up about it. They loved all nine of us kids, two of whom had predeceased Jess, who was missing in action.

When my brother was home, my mother had some beautiful yellow roses that she had grown. She really had a green thumb. She could raise beautiful flowers. He used to kid her about taking those yellow roses and giving them to his girlfriend, or taking the plants and giving them to his girlfriend. She always laughed. She knew he would never do it. But, for a couple of months after my brother was listed as missing in action, my mother received a dozen yellow roses from my brother. She believed right up until the day that they found his body and brought him back that he was still alive.

He had flown in that fateful Foggia, Italy mission and helped knock out the oil fields that really helped to shorten the war. He flew in a B-24 bomber. He was a hero, and one of the few people who ever shot down a German jet, which were new planes. I have his Purple Heart in our home out in Salt Lake City, as well as a number of his military memorabilia. I also have all of his letters to my mom and dad. I have read every one of them within this last year, and it was interesting to see how he was evolving as a high school graduate to the great person that he really was.

My mom and dad died -- my mother last June and my dad two years before. They would have given their lives to save the American flag. My brother did. One of my most prized possessions is the American flag that draped my brother's coffin. I have that in my home out at Salt Lake as well, along with his medals.

There have been hundreds of thousands of Americans who died to preserve liberty around the world who fought -- maybe not for the flag, but under the flag -- and who have revered the American flag. Who could forget the Iwo Jima Monument, commemorating the soldiers who risked their lives to see that our Nation's flag was lifted and flown above that island, a symbol for all of them.

You can go through literally thousands of stories on why the flag is important. I do not want to make this so emotional, but the fact is that it is emotional. I think it is wrong for anybody to come here and say that this is just a political exercise. That is not a knock at my dear friends who feel that way. I am sure they are sincere, but I think they are sincerely wrong.

Paul was sincere, I guess, when he held the coats of the people who stoned the first Christian martyr. He was as sincere as anyone could be. He held their coats. He believed in what they were doing. He persecuted the saints. But Paul was sincerely wrong, and I believe anybody that denigrates the intentions of those who want to preserve and protect the flag is, in this case, sincerely wrong.

I guess what I am saying here is that this is a much more important issue than just a political issue. To me, politics does not even enter into this. It is an issue of whether we value the values of our country, the things that made this country great. It is an issue of whether we want to have this debate over values, whether we want to let the American people really decide for themselves whether the flag is important or whether it is not.

This does not involve speech. It involves improper and offensive conduct

In a day and age where we seem to be denigrating values all the time, why should we not stand up for one of the values that really has helped make this country great, that has meant something from the beginning of this Nation? Why should we not have that debate? For those who disagree, however sincerely their opposition, I invite them to join the debate. Prove us wrong, not only here on the floor, but do it, once this amendment passes, with the American people. I think they are going to find that the vast majority of the American people do not agree with them.

Last but not least, there are those who would argue that this is a denigration of the First Amendment, or that nobody has ever amended the Bill of Rights. Let me tell you something. The Bill of Rights was no sooner passed when the 11th amendment was passed to overcome a faulty Supreme Court decision. A number of the other amendments have been passed since then to overcome Supreme Court decisions that were wrong. It is a legitimate thing.

Keep in mind that Earl Warren, Abe Fortas, Hugo Black, three of the most liberal members ever on the Supreme Court, wrote that they believed the flag could be protected. It had nothing to do with first amendment rights or freedoms in the sense of denigrating the first amendment.

The fact that in the Johnson case, the Supreme Court alluded to the first amendment, and spoke of the first amendment right of free speech being violated, does not make it right. How can anybody say that we are trying to stop any person from saying whatever they want to, to denigrate the flag. They can denigrate the flag all they want to, with all the free speech in the world, and I am certainly going to uphold their right to do it.

What we are against here, and what we need to establish through a constitutional amendment, is that this does not involve speech. It involves improper and offensive conduct. And that is what Justices Warren, Fortas, and Black basically said. This is not a violation of first amendment protected free speech. Anybody can speak any way they want. Physically desecrating the American flag, however, is a violation of the sensitivities and the values of America by means of offensive, improper conduct, physically treating our national symbol with contempt.

And even though desecrations of the flag occur more than they should, but certainly not in overwhelming numbers, every one of them is reported by the media, seen by millions of people.

So it is a lot bigger issue than some would make it on the floor. I have to say, I hope that our colleagues will vote for this amendment. It is worthwhile to do it. All we are going to do is give Congress the right to define this matter once and for all, and then we are going to have a debate in this country about values, one that I think is long overdue. I hope that our colleagues will consider that, and I personally believe we can pass this amendment, although it is always uphill on a constitutional amendment. We understand that, and that we may have to keep bringing this amendment forth. Ultimately, however, this amendment is going to pass. I guarantee it is going to pass someday, even if it does not pass this time. But I personally believe we have a good shot at it this time.

Albion Monitor January 12, 1996 (

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