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.The statute involved symbolic expression, Congress conceded, but because its focus was on actionrather than pure speech, it should not be subjected to strict scrutiny.8Page 61The Supreme Court, however, was not persuaded by the congressional declaration.It declared the 1989 FlagProtection Act invalid in a case involving a political demonstration on the east steps of the U.S.Capitol inwhich Shawn Eichman and others, including Gregory Lee Johnson of the Texas v.Johnson case, burnedseveral U.S.flags to protest a variety of foreign and domestic policies.The court, in United States v.Eichman(1990), quoting Texas v.Johnson in part, declared that  although the Flag Protection Act contains no explicitcontest-based limitation on the scope of prohibited conduct, it is nevertheless clear that the Government sasserted interest is  related to the suppression of free expression  (p.315).Since then, there have beenrepeated but unsuccessful attempts in Congress to overturn the Johnson and Eichman cases and effectivelyreinstate the Flag Protection Act by enacting proposals to amend the Constitution.The current proposalstates as follows:Resolved by the Senate and House of Representatives of the United States of America in Congress assembled(two-thirds of each House concurring therein),SECTION 1.CONSTITUTIONAL AMENDMENT.The following article is proposed as an amendment to the Constitution of the United States, which shall bevalid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourthsof the several States within seven years after the date of its submission for ratification: Article The Congress shall have power to prohibit the physical desecration of the flag of the United States.The Flag Protection Act of 1968 as Amended in 1989Section 2.Criminal Penalties with Respect to the Physical Integrity of the United States Flag.(a)(1) Whoever knowingly mutilates, defaces, physically defiles, burns, maintains on the floor or ground, ortramples upon any flag of the United States shall be fined under this title or imprisoned for not more thanone year, or both.(2) This subsection does not prohibit any conduct consisting of the disposal of a flag when it has becomeworn or soiled.Page 62(b) As used in this section, the term  flag of the United States means any flag of the United States, or anypart thereof, made of any substance, of any size, in a form that is commonly displayed.Section 3.Expedited Review of Constitutional Issues.(d)(1) An appeal may be taken directly to the Supreme Court of the United States from any interlocutory orfinal judgment, decree, or order issued by a United States district court ruling upon the constitutionality ofsubsection (a).(2) The Supreme Court shall, if it has not previously ruled on the question, accept jurisdiction over the appealand advance on the docket and expedite to the greatest extent possible.Approved July 5, 1968, and October 28, 1989, respectively.NOTES1.Senate Report No.1287, 90th Cong., 1st Sess.3.See also H.R.Rep.No.350, 90th Cong., 1st Sess.3,which has similar language.2.The original bill in Congress contained a provision prohibiting flag desecration by words, but such provisionwas deleted upon advice of the attorney general of the United States.See H.R.Rep.No.35, 90th Cong., 1stSess.7 (1967).3.Street v.New York (1969).4.Smith v.Goguen (1974).5.Spence v.Washington (1974).Cambodia is a reference to President Nixon s 1970 military invasion ofCambodia, and Kent State is a reference to the student protest of this invasion at Kent State University inOhio in May 1970, at which National Guardsmen killed four students.6.As Congressman James Quillen (R-TN) then chairman of the powerful Rules Committee, which hadintroduced the 1968 flag bill put it, the Johnson decision stirred up such a  tempest that the public became outraged and demanded that Congress act to rectify matters.Representative Brooks, chairman of theCommittee on the Judiciary, stated that  it has been our position throughout consideration of this legislationthat the Congress should act quickly to amend the law in order to respond to the Supreme Court s decision inTexas versus Johnson and protect the physical integrity of the flag. Congressional Record House,Thursday, October 12, 1989, 101st Cong., 1st Sess., 135 Cong.Rec.H 6989.7.Tex.Penal Code Ann.§ 42.09 (1980).8.See H.R.Rep.No.101 123, 101st Cong., 1st Sess.2 (1989); S.Rep.No.101 152, 101st Cong., 1st Sess.4 (1989).See generally, Hearings on Measures to Protect the Physical Integrity of the American Flag,Hearings Before the Comm.on the Judiciary, United States Senate, 101st Cong., 1st Sess.1 754; Statutoryand Constitutional Responses to the Supreme Court Decision in Texas v.Johnson, Hearings Before theSubcomm.on Civil and Constitutional Rights of the Comm.on the Judiciary, House of Representatives, 101stCong., 1st Sess.1 572 (1989).Page 633Election Campaign ActivitiesAs important as all the activities impacted by the landmark statutes discussed in this book are, none could bemore crucial for a functioning democracy than those that affect political campaigns for election to publicoffice.For, as James Madison stated,  The value and efficacy of [elections] depend on the knowledge of thecomparative merits and demerits of the candidates for public trust, and on the equal freedom, consequently,of explaining and discussing these merits and demerits of the candidates respectively. 1 The Supreme Courthas put it thus:  Whatever differences may exist about interpretations of the First Amendment, there ispractically universal agreement that a major purpose of that Amendment was to protect the free discussionof governmental affairs.This of course includes discussions of candidates, structures and forms ofgovernment, the manner in which government is operated or should be operated, and all such mattersrelating to political processes (Mills v.Alabama, 1996, pp.218 219).Article I, Section 4, of the Constitution grants Congress the power to regulate elections of members of theSenate and House of Representatives.2 Although the Supreme Court at one time indicated that party primaryor nominating elections were not  elections within the meaning of Article I, Section 4 (Newberry v.UnitedStates, 1921), it later held that primary elections were within the Constitution s grant of authority to Congressto regulate elections (United States v.Classic, 1941).The Court has also recognized broad congressionalpower to legislate in connection with the elections of the president and vice president (Burroughs v.UnitedStates, 1934) [ Pobierz caÅ‚ość w formacie PDF ]