It is a source of pride and honor to all Americans. Or at least this is what I thought-until recently.

It is strange indeed to see on the same day in the same newspapers, pictures of American young men facing danger and death in Vietnam and pictures of other American young men burning their Nation's flag in the safety of an American park. Certainly, the Bill of Rights never was intended to protect those who would contemptously set fires to the American flag.

What the desecrators refuse to realize is that by their own acts they are undermining the very system that assure them the freedom to dissent. The flag, since the beginning of this Nation, has been fought for as the cherished symbol to preserve our unique way of life and to save for even these demonstrators, the right of free speech.

Mr. Chairman, the flag is the property of all Americans. Hundreds of thousands have died on the battlefield for it and do so today. To allow this rabble to trample on it is to condone an obscene insult to these brave Americans.

They may have whatever political views they choose, they may speak, they may organize, they may conduct demonstrations-but burning the American flag, universal symbol of freedom and liberty, is an action that I, for one, cannot let go unchallenged.

It is deplorable that an American would even think of desecrating the symbol of our freedom and proud heritage. And yet, demonstrators in Georgia pulled down the flag from courthouse grounds and proceeded to tear it, trample and spit on it; a speaker on a college campus in Indiana ripped the flag to pieces; and a New York theater sponsored the burning of the American flag on the stage.

It is my strong belief, Mr. Chairman, that at a time when our soldiers are engaged in a war halfway around the world away, we, at home, should not hesitate to insure proper respect and protection of our National flag.

It is my understanding that every State in the Union prohibits desecration of the flag by statue so that we are not creating anything new. The flag, however, is a national symbol and surely should have national protection.

I hope that your Committee and Congress will act swiftly on this bill and punish those who insult the honor and dignity of the United States.

E. Y. BERRY.

STATEMENT OF HON. CRAIG HOSMER, U.S. REPRESENTATIVE FROM

THE STATE OF CALIFORNIA

Mr. Chairman: This bill, one of some sixty similar measures before the Subcommittee, prohibits desecration of the Flag of the United States and provides punishment by imprisonment of not more than one year and a fine of not more than $1,000.

Patriotic Americans are up in arms about the recent "peace demonstrations" where the American Flag was burned and are demanding a Federal law to deal with such desecration. It is true that each of the 50 states has its own law against desecration of the Flag, but these laws all differ. For instance, the New York State law makes burning a Flag a misdeameanor punishable by a $50.00 fine. That is light punishment for the groups of demonstrators in New York City who recently burned the Flag in Central Park. I believe the law should be uniform throughout the 50 states and this will only be accomplished by our enacting a strong Federal law. After all, it is the Nation's Flag and therefore the Nation should exercise its power to protect it.

This Flag is the symbol of the Republic for which it stands and of the glorious heritage which generations of Americans have held dear and for which thousands have laid down their lives. Our present generation inherited a sacred trust to retain the integrity and freedom for which its ancestors paid so dearly. Thousands of today's young men have accepted that trust and are presently fighting to preserve the freedom which we have and to help others remain free from the menace of Communism. I think it is time that we dealt severely with those demonstrators for any cause who defile our Flag and flaunt before the world their disrespect for our Nation, its heritage, and their fellowmen who are fighting to protect them.

I quote the following from a letter written by a 20-year-old soldier to his parents just prior to his being killed in Viet Nam:

"I want my Country to live for billions of years to come. I want it to stand as a light to all people oppressed and guide them to the same freedom we know. If we can stand and fight for freedom, then I think we have done the job God

set down for us. It's up to every American to fight for the freedom we hold so dear. If we don't, the small of free air could become dark and damp as in a prison cell. We won't be able to look at ourselves in a mirror, much less at our sons and daughters, because we know we have failed our God, country and our future generation. Don't mourn me, for I died fighting my Country's enemies. I died a soldier of the United States of America."

If we are to stand behind our men in uniform and our own patriotism it is time that we took stringent action against those individuals who have no respect for their County or its Flag. I respectfully urge you to take action on one of these bills before the Subcommittee today and then to work to get it through Congress as quickly as possible.

STATEMENT OF HON. EDWARD G. BIESTER, JR., U.S. REPRESENTATIVE

FROM THE STATE OF PENNSYLVANIA

Mr. Chairman: I wish to make this brief statement for the record in support of legislation which would prohibit willful desecration of the American flag. In a sense, this bill is a symbolic act of the Congress to meet obvious dangers. It reaffirms America's commitment to herself and her unique institutions. It is urgent and appropriate.

This legislation is not designed to stifle dissent. I personally believe that the right to dissent is an essential ingredient in American life, and the act of speaking out and dissenting is important to good government and to the perpetuation of freedom. Nor is this act intended in any sense as an expression of the Congress against those who do engage in dissent. Flag burning is not dissent, it is symbolic anarchy. It is an act of contempt not to any special American policy but to America itself.

No nation can tolerate anarchy in either a symbolic or an actual form. We Americans are products of our own heritage, and that heritage is a body of ideals and laws designed to foster and guarantee a special quality of freedom and opportunity to all our citizens. We guarantee to each other as rights, expression and conduct which are not even considered a privilege in many lands. We offer to each other and to the world the bright hope that freedom does work and is worth the extra effort to maintain. The concept of freedom has always been under attack in this world by those who seek to stifle it and by those who seek to exhaust its exercise to the breaking point. Our flag is a symbol of this heritage, a symbol of this freedom, and those who desecrate this symbol desecrate freedom itself.

The message this Congress should give is this: America's life for all its faults is a beacon to millions of other peoples. America's strength is and has been a source of protection for free people in many lands. The future of freedom and America are inextricably bound together. Both are too precious to suffer the petulant and childish nihilism of those unwilling to understand our nation's long range goals. We are in a critical phase of our history. Those millions upon millions of Americans who can see beyond this phase have the right to expect their love and affection for our country not to be dirtied by those who apparently love neither America nor the principles of which she is a special steward.

STATEMENT OF HON. HALE BOGGS, U.S. REPRESENTATIVE FROM THE STATE OF LOUISIANA, ON H.R. 271

Mr. Chairman: I received a letter the other day from Mrs. William Stephens, Secretary of the Parent-Teachers Association of Lutcher High School in Lutcher, Louisiana.

In the letter, Mrs. Stephens expressed the same concern that many other citizens have expressed to me in the dozens of letters I have been receivingconcern about the way our flag is being desecrated.

On behalf of the Lutcher High School PTA, she wrote:

"We do not recognize the right of anyone to dishonor our flag. The flag is a symbol of much that we hold dear-courage, patriotism, dedication, and a great and generous country. To insult the flag is to dishonor all the men, living and dead, who struggled valiantly to preserve this Nation and its cherished principles. Certainly it is an affront to the mothers and wives whose loved ones have served and are serving that flag."

This letter is representative of the many I have received.

For many months I have been concerned about the way our flag has been publicly mutilated, defaced, defiled, and trampled upon by some who are among the first to demand their rights, but who are never willing to share our responsibilities.

Public Law 829, known the "The Flag Code," is the only Federal law dealing with the display and use of the flag of the United States by civilians and civilian groups.

The Act does not prescribe any penalties for noncompliance with the rules. Nor does it include any other provision for enforcing compliance. It is intended to be, therefore, simply a guide to be followed on a purely voluntary basis by all our citizens.

It should be noted that all 50 States have enacted their own statutory provisions relating to the United States flag. All such laws prescribe criminal penalties for desecrating the flag, although they differ widely as to what acts constitute desecration. The penalties also differ from State to State. These laws, unfortunately, are not being enforced in many cases.

Needless to say, most of our citizens respect the flag and the rules related to it. Only a few choose to show disrespect for our colors.

It is clear that we need a Federal law which provides penalties for those who choose to abuse our flag.

Thousands have died for our flag and the freedom that it symbolizes. The least that we can do is to prescribe proper penalties for those who desecrate it.

In the 89th Congress, I introduced a bill which would make it a Federal crime to desecrate our flag. Because of the heavy workload of the Congress, adjournment came before we were able to consider my flag desecration proposal and those of my colleagues.

I wish we had been able to adopt such a law in the 89th Congress because it was needed April 15 when our flag was burned in New York's Central Park during peace demonstrations.

The WASHINGTON EVENING STAR, commenting on the flag burners in an April 17 editorial, said:

"Still, in our society, there needs to be a place for the imbeciles-for the flag burners, those who burn their draft cards and the like. How they get away with this moronic activity is something of a mystery, since a man who has burned his draft card certainly is in violation of law, and if there is no law which makes it illegal to burn the flag, there ought to be."

My proposal provides a maximum fine of $1,000 and/or a prison term of one year.

I believe, and I am sure a majority of the American people concur, that those who mutilate, deface, defile, or trample upon our flag should be punished. The flag of the United States represents all of America. It belongs to all of our citizens; therefore, it should be protected by national legislation. It is the responsibility of the Congress to enact this legislation which will provide for punishment of those who desecrate the flag of our Nation.

Our flag is the symbol of all of the privileges we know and enjoy. We cannot give it less than our allegiance. I urge quick action by the Committee and by the Congress.

Mr. ROGERS. The committee will recess until 2:15, at which time we expect to hear witnesses from the American Civil Liberties Union and the American Legion.

(Whereupon, at 12:15 p.m., the subcommittee recessed, to reconvene at 2:15 p.m., the same day.)

AFTERNOON SESSION

The hearing was reconvened at 2:20 p.m.

Present: Mr. Rogers, chairman, Messrs. Whitener, Conyers, Jacobs, McClory, Wiggins, and Poff.

Staff present: Benjamin L. Zelenko, counsel, Donald G. Benn, associate counsel.

Mr. ROGERS. The committee will come to order.

The first witness this afternoon is Mr. Lawrence Speiser, director of the Washington office of the American Civil Liberties Union.

Mr. Speiser, you are well known to the members of the committee. I understand you have a statement.

Mr. SPEISER. Yes, I have, Mr. Chairman. I believe you have copies of it.

Mr. ROGERS. Yes. It has been distributed. Proceed in your own

manner.

STATEMENT OF LAWRENCE SPEISER, DIRECTOR, WASHINGTON OFFICE, AMERICAN CIVIL LIBERTIES UNION

Mr. SPEISER. I am here to testify on a number of bills which would make it a Federal crime to prohibit desecration of the flag. We oppose these bills as being unconstitutional on the following grounds:

We believe the proposed statutes are unconstitutional on their face as constituting a prior restraint of speech. The proposed statutes are similar, and would make it a Federal crime for anyone, either by word or act, in public, to mutilate, deface, defile, defy, trample upon, or to cast contempt upon the flag, standard, color, shield, or ensign of the United States of America.

There is no legislative justification for such an unqualified restriction of free speech.

We have not yet reached that state in America where a person's use of words to defy or defile a national emblem is fraught with imminent danger and safety and well-being of the public at large.

"The question in every case is whether the words used are in such circumstances and are of such nature to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent." That is Schenck v. United States, 1919.

What is the substantive evil which the Congress seeks to prevent by the enactment of the statute? There is certainly no apprehension of danger to organized government in defiling its flag. It cannot be argued that the Congress is entitled to pass legislation with the deliberate purpose of suppression of a specific form of dissent.

And it should be noted, as reported on the front page of the New York Law Journal, on November 3, 1966, the Soviet Union amended its Criminal Code to include a statute much like the proposed legislation. The Soviet Union Criminal Code has now classified as a "state crime" the defacing of the national emblem or flag punishable by up to 2 years' imprisonment.

The most that can be said for the substantive evil is that people in a crowd may tend to grow violent when they see their American flag so treated. But we have long since passed the era that the threat of an angry crowd, or resentment by the listener against what is said, is a substantive reason for enactment of a statute that on its face restricts free speech. This was in Terminiello v. Chicago, 337 U.S. 1 (1949).

Even if the "clear and present danger" test is not applied, the statute would still be unconstitutional on its face. If Congress were to balance the interests of the United States of America to be free from offensive speech or conduct to express ideas, as against the rights of the individual to freedom of expression, it is submitted that

freedom of expression demands the greater protection. In American Communications Association v. Douds, the court stated at page 399: When particular conduct is regulated in the interest of public order, and the regulation results in an indirect, conditional, partial abridgment of speech, the duty of the courts is to determine which of these two conflicting interests demands the greater protection under the particular circumstances presented.

There may be a legitimate public interest for the Congress to encourage reverence and respect for the American flag. However, when this patriotic interest is balanced against the individual's constitutional right of dissent and freedom of expression the constitutional right "demands the greater protection." We are not speaking of questions of national security nor are we speaking of cases involving incitement to riot.

Perhaps the best illustration of the principle that the nationalistic or patriotic interests of this country will take a back seat to the individual's constitutional rights of freedom of expression are found in West Virginia State Board of Education v. Barnette (1953) 319 U.S. 624. This was a case involving a compulsory flag salute which was imposed on schoolchildren, and to which Jehovah's Witnesses children objected.

There, the U.S. Supreme Court had before it the validity of a statute compelling all schoolchildren to salute the flag. The Court stated at pages 632-634:

There is no doubt that in connection with the pledges, the flag salute is a form of utterance. Symbolism is a primitive but effective way of communicating ideas. The use of any emblem or flag to symbolize some system, idea, institution or personality, is a short cut from mind to mind. Causes and nations, political parties, lodges and ecclesiastical groups seek to knit the loyalty of their followings to a flag or banner, a color or design. *** Symbols of State often convey political idea just as religious symbols come to convey theological ones. Associated with many of these symbols are appropriate gestures of acceptance or respect: a salute, a bowed or bared head, a bended knee. A person gets from a symbol the meaning he puts into it, and what is one man's comfort and inspiration is another man's jest and scorn.

Over a decade ago, Chief Justice Hughes led this Court in holding the display of a red flag as a symbol of opposition by peaceful and legal means to organized government was protected by the free speech guaranties of the Constitution. * * * Here it is the State that employs a flag as a symbol of adherence to government as presently organized. It requires the individual to communicate by word and sign his acceptance of the political ideas it thus bespeaks. Objection to this form of communication when coerced is an old one, well known to the framers of the Bill of Rights.

*** It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish *** To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind. The Court then went into an analysis of the significance and meanings of the first amendment and concluded, at page 642:

If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. We think the action of the local authorities in compelling the flag salute and pledge transcends constitutional limitations on their power and invades the sphere of intellect and spirit which it is the purpose of the First Amendment to our Constitution to reserve from all official control.