candor, the commander of American forces in Vietnam, General Westmoreland, recently said: "The burning of the flag-I cannot view that as other than an unpatriotic act. Thousands of men have died for the flag, and they are still dying for it in Vietnam."

Ever since the turn of the century, there have been efforts in Congress to make it a Federal crime to burn or otherwise desecrate the American flag. These hearings are another effort in that direction, an effort which I sincerely trust will succeed.

The bill that I have sponsored for this purpose is H.R. 8980.

It is true that all fifty States and the District of Columbia have laws making the desecration of the flag punishable as a crime. Penalties range from none in New Hampshire to twenty-five years in Texas. Several States have increased or are considering the desirability of increasing their penalties for desecration of the flag.

Every State could punish for murder, too, yet Congress not long ago saw fit to make it a Federal crime to murder a President of the United States. The reasons for the enactment may not be relevant to the reasons for also making desecration of the flag a Federal crime, but at least it is clear that the existence of State penalties does not preclude the exercise of Federal legislative power in the same area.

I do not wish to repeat all the valid reasons for such a bill that have been spread wide in the newspapers, in the Congressional Record, and that have been heard in this Subcommittee's hearings. Most of these reasons reflect sincerely and deeply held patriotic beliefs and emotions, and I am in complete agreement with them.

It is particularly unfortunate that those who wish to express their dissent from the policies of their government in the conduct of the war in Vietnam have adopted flag-burning as a symbol of protest. I can think of no quicker way for them to engender support for the policies they propose. Dissenters must learn to dissent in a way that is acceptable to most Americans.

After all, the parents of young boys who are drafted to fight and die cannot be expected to restrain their rage at such abuses as flag-burnings. Why should their children be maimed or killed when others not only do not serve under the flag of the United States but also desecrate that flag? Do the flag-burners who attempt to justify their acts as expressions of dissent protected by the First Amendment have any idea of how little dissent is tolerated on the part of a private in the Army? Why should patriotic Americans, willing to do their part, be denied the simplest and most basic freedoms (and that is just how armies have to be run if they are to be run at all) in order to protect the freedom of those who mock the national emblem, who refuse to serve in the armed forces, and whose marching is confined to protest demonstrations?

That great veterans' organization, the Veterans of Foreign Wars, at its 67th National Conventional last year, adopted a resolution stating: "We strongly support legislation providing punishment . . . for any person who publicly and willfully destroys, mutilates, or desecrates the American Flag." The distinguished senior vice-commander of the V.F.W. testified before this Subcommittee on Monday that, "It is the position of the V.F.W. that the Congress must make desecration of the Flag a crime. Present laws concerning disrespect for the Flag are inadequate to meet the times. . . What is most regrettable is that defilement of our Flag has been interpreted by other nations and particularly by North Vietnam as a substantial resentment of the American people to the Vietnam war effort. The Flag of the United States is a Federal banner and a Federal concern. Let us guard that concern."

We must deter and punish any acts that are deliberately intended to cause desecration of the flag of the United States. That flag is the symbol of our national independence, of our freedom, of the precious heritage won for us by brave men and women over the generations. If the flag-burners hold the American heritage in contempt, that is their business, but they have no right to inflict their contempt for it on the rest of us.

They have a right to their opinions, and we have a right to ours. That is the basis for a free society. They must not be permitted to abuse the freedom of others. Public and over acts of disdain and contempt for the beliefs and traditions of the majority of Americans must not be protected under quixotic assertions of constitutional rights. If these characters want to burn flags, let them do so privately in their own furnaces at home. If they must burn American flags in public, let us jail them under a Federal criminal statute. If that sounds tough. so be it.

Mr. PEPPER. My bill is H.R. 8980, as the chairman has indicated. Mr. Chairman, it is not necessary to tell this distinguished and patriotic committee the meaning of the American flag to them or their committee or to the Congress of this country.

I think that there is no doubt about the right and power of the Congress, and I believe now the duty, to enact legislation suitably to protect the American flag.

In the first place, in the very preamble of the Constitution, one of the purposes of setting up the Constitution was to provide for the common defense, and the flag is intimately and most significantly related to the common defense.

The Congress has the authority and the duty to raise armies and navies and defense forces, and the flag is the symbol of those forces, and hundreds of thousands, millions of Americans over the years have died defending and perpetuating the principles of that flag.

Now I realize that there are those who say that because there are statutes provided in the several States for mutilation and defiling and contempt upon the flag that the Federal Government should not enact such legislation.

Yet the most vivid example to the contrary was the enactment of legislation by the Congress some time ago when we found it necessary to protect the life of the President of the United States.

Murder, of course, is punishable in every State of the Union, but we all, I think, wisely came to the conclusion, and I believe this able chairman handled that legislation-I recall appearing before your subcommittee with respect to that legislation.

We were not satisfied to leave to the several States, however conscientiously they might be expected to perform their several duties, the protection of the President of our country, because he is the leader of our country, chosen by the people for his exalted position.

Now, if we have the authority to protect against homicide of the President of the United States because he is the Chief Magistrate of our land, it seems to me indisputable that we have the authority to protect the integrity and the significance and the symbolism of the flag of our country against those who disrespect it.

Now, the question that I have, I followed the general language of the statutes that are proposed on this subject and my bill on page 2 says:

Whoever publicly mutilates, defaces, defies, defiles, tramples upon, or casts contempt either by word or act, upon any flag, standard, colors or ensign of the United States, shall be punished by imprisonment of not more than five years or a fine of not more than $10,000 or both.

Now, we all realize that in order to protect the flag, we do not wish to jeopardize the legitimate freedom of speech and the legitimate freedom of assembly and the other precious things that that flag symbolizes as well as our courage and our character and our faith.

One of those, of course, is the right of criticism and the right of dissent. I am not suggesting and I know this committee would not countenance any more alien and seditions laws, or disagree with whatever comes with a citizen's proper dissent with a political leader, and I realize the courts would be expected to construe the intent of Congress as not meaning any effort to deprive any citizen of the lawful right of freedom of speech and of dissent.

Now I think you have come to a quarter beyond which speech should not go. If you want to criticize the President of the United States, you can even say things that are shocking to the conscience and to one's sense of propriety. I think there are very ample ways that one can express his dissension without speaking in a matter contemptuously, and decidedly so, about the flag which is the very symbol of the sentiment and the patriotism of our country, but I don't want to associate myself with anything that could be construed as depriving people of their dissent or freedom of speech in any proper manner.

Mr. ROGERS. What you mean to say is that you believe we have the absolute right to pass a law that would make it a crime for one to publicly destroy the flag as a physical act?

Mr. PEPPER. As a physical act

Mr. ROGERS. And in public, and if we go into the symbolic grounds, we may get into the area of public speech

Mr. PEPPER. We have to be very careful. I cannot imagine words that are so shocking that they go beyond the pale of dissent, directed to our flag. I feel one can amply dissent and disagree without subjecting the flag of the United States of America to contempt.

But it would be a matter of considerable degree that the courts would require before they would find freedom of speech to be an offense under these statutes, because we cherish that, and we don't want to take it away from our people.

That is one of the things we are fighting for today in Vietnam. We are fighting for the freedom of those people to be able to dissent, if they want to, not have a government enforced upon them by a Communist tryanny which gives them no choice.

We want them to have a choice. Once they exercise that choice freely, we will support it, because it is theirs, and that is the right that we are insisting upon.

So if anybody is so misguided as to wish to oppose policies which I think are sound, he is still within his rights.

I don't feel the same way about the draft card as I do about our flag. So I make a difference in degree. If he wants to tear up his draft card, if they need him, they will send for him. They have a record of it where he would register. I don't think he ought to do it, and I think he ought to be punished for it, but he doesn't have to desecrate our flag in order to disagree with the policies of our country. Mr. ROGERS. Are there any questions, Mr. McClory?

Mr. McCLORY. Thank you for your statement, sir, I have no questions.

Mr. ROGERS. Mr. Wiggins.

Mr. WIGGINS. Thank you, I have no questions.

Mr. ROGERS. Mr. Poff?

Mr. POFF. I have no questions, except to thank the gentleman. Mr. PEPPER. Thank you, very much.

Mr. ROGERS. One question by counsel.

Mr. ZELENKO. The State of Florida has enacted a flag desecration statute. Can you tell the committee what enforcement there has been in the State of Florida under that statute?

Mr. PEPPER. I don't recall any instances. There might be one that has escaped our attention.

I see one of my distinguished colleagues says our statute contemplates a fine of up to $200, and jail of 90 days or both. I don't recall instances where there has been prosecution.

Mr. ZELENKO. In the State of Florida, there have been no instances of flag burning in the last 5 years?

Mr. PEPPER. None that I know of.

Mr. ZELENKO. And you do not suggest to the committee that the proposed Federal statute overide State enactments on the subject! Mr. PEPPER. If we don't give Federal legislation precedence, I suppose an offender would be liable to two punishments: State and Federal, since it would be an offense against the sovereign.

I would prefer to leave it that way, and if the trial took place first in the State court, I suppose the Federal authorities could exercise their discretion as to whether public interest would require action under the Federal statute or not.

I would not wish to give the States, however, preemption to act, if the Federal authorities felt much action was appropriate.

Mr. ROGERS. Thank you for the benefit of your testimony. Our next witness is the Honorable H. Allen Smith, who is the author of H.R. 8998.

STATEMENT OF HON. H. ALLEN SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF CALIFORNIA

Mr. SMITH. Mr. Chairman, I commend your committee for holding these hearings and I appreciate the opportunity of testifying in support of my bill, H.R. 8998, to amend section 3 of title 4, United States Code, relative to the use of the United States flag making its provisions applicable outside the District of Columbia, and for other purposes.

My comments are directed toward any appropriate bill to accomplish this purpose. In other words, I support appropriate legislation, regardless of who the author may be.

After the recent burning of the American flag in Central Park in New York City during a demonstration in protest against the Vietnam I checked the law and was amazed to find that the only Federal law regarding such an incident was applicable only to the District of Columbia, as set forth in section 3 of title 4, United States Code.

war,

Accordingly, I joined with many of my colleagues in introducing legislation to make this a Federal crime applicable in all 50 States and the District of Columbia.

My bill, H.R. 8998, uses the present District of Columbia law, section 3 of title 4, as its base. It strikes out the words "within the District of Columbia" each place that they appear in the first sentence. Also in said sentence the amount of the fine designated "$100" is stricken and in place thereof there is inserted the amount "$1,000". Also, the jail provisions of "thirty days" are stricken out and in lieu are the words "one year." It seemed to me that this would be the easiest way to approach the problem. It may be that some additional language in the present law will have to be modified but basically I think it is easier to make the present statute applicable to the entire United States rather than repeal the present statute and write an entire new language. But I will be governed by the decision of your committee.

My mail has been voluminous in demanding that appropriate Federal legislation be passed. My individual constituents as well as organizations in my congressional district, have written letters or sent resolutions urging that legislation be passed to make it a Federal crime to burn, destroy or desecrate an American flag in public.

In addition, I noted in the May 4 issue of the Stars and Stripes where Mr. John E. Davis, American Legion national commander, termed the flag burning in New York's Central Park "a dastardly act, that was extremely disturbing."

I also noted an article in the March 31 issue of Life magazine covering other types of incidents where the American flag has been used in a manner in which I personally believe it should not be used.

I would suggest that the committee review this article to make certain that any legislation proposed will cover some of the situations mentioned therein which should be made a Federal offense.

This matter was discussed recently in the Rules Committee when the distinguished chairman of the full Judiciary Committee, the gentleman from New York, Mr. Celler, was requesting a rule on H.R. 2508, the Federal standards for congressional redistricting measure. A comment was made at that time regarding there being separate laws in each of the States, and that the Federal Government does not have a police department. I, of course, have no authority whatsoever to speak for the Federal Bureau of Investigation but as I commented in the Rules Committee, as a former member of the FBI, I am certain that the Federal Bureau of Investigation would accept and appropriately investigate any law Congress passes in connection with desecrating the flag, if the investigation of the same becomes the responsibility of the FBI.

I urge this distinguished committee to approve appropriate legislation regarding this subject and, in turn, I assure you that when it is brought to the Rules Committee for a rule I will do everything I can to assist in obtaining a rule and to assist in its passage. I usually don't give promises in advance.

Mr. ROGERS. I might say we have had so many members of the Rules Committee testify, that we might not have to ask for a rule

Mr. SMITH. Thank you.

Mr. ROGERS. Thank you, Mr. Smith.

Mr. WHITENER. Thank you, Mr. Smith.

Mr. McCLORY. Thank you. I have no questions.

Mr. WIGGINS. Thank you, too, Mr. Smith, especially for the able way in which you represent our State, but I have no questions. Mr. SMITH. You are very kind.

Mr. POFF. I am happy that you underscored the role that the FBI would be called upon to play, and, parenthetically, just for the record, at this point, I might say that the Attorney General in his letter addressed to the subcommittee, which was at best somewhat ambivalent, did agree that the FBI would in fact enforce the law.

Mr. SMITH. It will investigate the law. The enforcement will come some place along the line, but they will submit an investigative report. Mr. ROGERS. Thank you.

Our next witness is the Honorable James Kee of West Virginia, who is the author of H.R. 9041, and I may state perenthetically, that he is also the author of some legislation of the same type in the last