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the burning of our flag displays none of the qualities of meaningful dissent.

It can only be interpreted as a direct attack on the sovereignty of the United States and an attack on the symbol which guarantees the right to dissent.

The recent public assaults by a minority on our national symbol of unity tears at the very core of our democratic society. The burning of our flag puts into question the basic foundation, traditions, and ideals that have made our country the greatest democratic experiment ever undertaken.

The burning of our flag is a form of destruction of the basic values and principles of our Government. It is not an act to be taken lightly. Nor should we treat it lightly.

I therefore urge, Mr. Chairman, that this committee give favorable consideration to my bill, H.R. 764, which would make desecration of our flag a Federal offense, punishable by a fine of $1,000 and/or punishment of imprisonment of 1 year.

Mr. ROGERS. There was an incident in the State of New York recently, and the prosecution claimed a violation of the State law for desecration of the flag; is that correct?

Mrs. KELLY. That is correct, Mr. Chairman.

Mr. ROGERS. You propose to increase the penalty over what is in the present United States Code applicable to the District of Columbia? Mrs. KELLY. I would agree with that.

Mr. ROGERS. Mr. Whitener?

Mr. WHITENER. I thank Mrs. Kelly for her appearance. I suppose your own State law is the basis for the penalty you recommend?

Mrs. KELLY. Yes, and I note here you have the Library of Congress' reference to the State laws, and I was going to submit that for the record, but I see you already have it.

Mr. ROGERS. We have.

Mrs. KELLY. I would like to respond to some of the questions you had of the previous witness, as there is a possibility that my bill should be changed.

I do feel that it shall be a Federal offense, and I do think that desecration of the flag should be willful, and it should be public, and it is for that reason that I have introduced a bill.

Mr. ROGERS. Mr. McClory.

Mr. McCLORY. Thank you, Mrs. Kelly.

I assume you are making this a Federal offense with a Federal penalty that would be in addition to the New York State law, so that a person who violates the Federal statute would be violating the Federal statute and also presumably the State law.

There would be an opportunity for both parties to handle the prosecution.

Mrs. KELLY. Well, I have been told that the prosecution and the operation of a Federal law is questionable. I do not feel that way, Mr. Chairman. I feel that the local law enforcement agency should make the arrest and notify the Federal authorities and have it proceed in that way as a Federal offense.

Mr. McCLORY. Yes. I feel that part of the motivation for this legislation is that the local police, themselves, have appeared to be helpless. They have stood by, and they have not recognized that there was any

violation of law, even though there was a violation of State law, and therefore, there has been a demand for a national action.

But we still don't want to preempt, as the gentleman from Virginia, Mr. Poff, says, but we want to provide a Federal statute and Federal penalties to supplement the State penalties.

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Mrs. KELLY. Well, Mr. McClory, I don't know why the police of the city of New York or the State of New York have been questionable over this, but I do not want it questionable any more.

I want to insure that at the immediate time this act takes place there will be no question in their minds of what they should do.

Mr. McCLORY. What these hearings will do is to emphasize the State laws, emphasize the importance of enforcing the State laws, and in addition, make it a Federal offense where the Federal Government will have authority if the State fails to exercise the authority it has.

Mrs. KELLY. And I want the same recognition of it in the other States of the Union.

Mr. MCCLORY. Thank

you very much.

Mr. POFF. I wonder if the lady, being from New York, and apparently the only witness from New York this morning, could advise whether or not the laws of New York have been enforced in connection with the incident that was in the newspapers a week or so ago.

Mrs. KELLY. I am not sure of that, Mr. Chairman, but I want to say that one of the outstanding members of this committee is from New York, and I am sure Mr. Celler is familiar with those acts.

Mr. ZELENKO. There is one case pending, People v. Sidney Street, which is a flag desecration case from Kings County, and it will be argued before the Court of Appeals in New York State on May 17. There was a conviction for the public burning of the flag and the conviction was upheld by the Appellate Term, the intermediate appellate court of New York State.

Mr. POFF. I wonder if we could have it for the record, the names and other particulars.

Mr. ZELENKO. I will be happy to supply the information we have. (The information referred to follows:)

OFFICE OF THE DISTRICT ATTORNEY,

KINGS COUNTY, Brooklyn, N.Y., April 26, 1967.

Re People v. Sidney Street.

Hon. EMANUEL CELLER,

House of Representatives,

Washington, D.C.

MY DEAR SIR: In accordance with the request of your Counsel, Benjamin Zelenko, Esq., I am pleased to furnish you with the following information regarding the above entitled matter.

Sidney Street was convicted on June 6, 1966 before Hon. Ludwig Glowa, in the Criminal Court of the City of New York, County of Kings, for violation of Section 1425 (16-d) of the Penal Law in that he wilfully and unlawfully defiled, cast contempt upon and had burned an American Flag under the following circumstances:

On June 6, 1960 at about 7 P.M. of that at Lafayette Avenue and St. James Place in the County of Kings he did then set fire to an American Flag and shout, "If they did that to Meredith [the noted Civil Rights Leader], we don't need an American Flag".

Following the conviction, the appellant filed his appeal with the Appellate Term of the Supreme Court for the Second Judicial Department, and on December 23, 1966, the said Appellate Term consisting of Mr. Justices Margett, Schwartzwald, and Cone, affirmed the judgment of conviction. Thereafter, leave to appeal to the Court of Appeals was granted by Hon. Kenneth B. Keating, an Associate Judge. I shall argue the case in that Court on Wednesday, May 17th. You will be interested in knowing that the firm of Cadwalader, Wickersham & Taft (by Messrs. Terence F. Gilheany, and Haven C. Roosevelt), 1 Wall Street, New York City, is appearing as Amicus Curiae for the United States Flag Foundation, Inc.

My research indicates that this is the only case wherein that type of conduct, to wit, burning a flag, was ever brought to a court. In order to acquaint you with cases involving the American Flag, I would like to bring to your attention the following cases:

1. People ex rel. McPike v. Van de Carr, 91 App. Div. 20 (1904) aff'd 178 N.Y. 425 (1904). In this case a certain portion of the statute was excised on constitutional grounds, but with reference to that portion of the statute which proscribed defiling the flag in a manner not associated with advertising;

2. Halter v. Nebraska, 205 U.S. 34, 27 S.Ct. 419 (1906) (using the flag for advertising purposes was herein concerned);

3. People v. Picking, 23 N.Y.S. 2d 148 (1940) aff'd 263 App. Div. 366 (1942),. aff'd 288 N.Y. 644 (1942) cert. denied 317 U.S. 632 (1942); (advertising);

4. People v. von Rosen, 147 N.E. 2d 327, Illinois (1958) (also an advertising case);

5. State v. Schleuter, 23 A 2d 249 (New Jersey, 1941). In this case the Supreme Court of New Jersey affirmed the conviction of the defendant, an admitted Nazi, who expressed her contempt for the American Flag by taking a small flag, and after breaking its staff, crumpled it and tossed it to the ground. The tenor of the court's decision was with regard to the manner of "dishonor".. The conviction had originated in the Court of Quarter Sessions of Ocean County, New Jersey ;

6. State v. Peacock, 25 A. 2d 1942. In this case the conviction was reversed because the judge's charge was erroneous. The facts in this case indicate that the defendant had expressed a contempt for the flag by words only. The conviction was under the Uniform Flag Law, Rev. Stat. 1930, ch. 128; (Maine).

7. Ex parte Starr, 263 F. 145 (District Court, Montana, 1920). In this case the defendant was compelled to kiss the American Flag and while doing so referred to the flag as unsanitary, a piece of rag, and full of microbes. As a result of that a sentence was imposed of ten to twenty years.

8. Friend v. United States, 100 F. 2d 691 (District of Columbia, 1938). In this case the defendant was charged with carrying placards and banners criticizing the Austrian and the German Embassies. It is significant that the conviction was. predicated on the defendant's act of bringing public odium on a foreign nation. This case is significant in that it shows the attempts made by our country to protect the reputation of a foreign nation. If that be so, certainly the United States should make a similar effort to preserve the integrity and honor of its flag by punishing those who seek to corrupt it;

9. There is a statute similar to the one in New York in the District of Columbia (see 4 U.S.C.A., S.3 (passed in 1917)). The New York statute was passed sometime in 1903;

10. 36 U.S.C.A., S.176 (j) sets forth the proper manner of burning a flag and in a dignified manner;

11. See also 51 New York State Dept. Reports 240 (1934); 1941 Report New York Atty Gen. 465 (1941).

I am enclosing photocopies of newspaper clippings which are self-explanatory. One deals with the case of United States Flag Foundation, Inc. v. Radich (New York Times), and the other covers the facts of a case in Hawaii from the American Civil Liberties Union Magazine. Although it is true that the act in the latter case was condoned by the court as symbolic speech, we must realize that the background of the State of Hawaii is not as steeped in the same spirit of Americanism as are the other states of the Union. Hawaii has a foreign ideology as its background and that is probably explanatory of the Court's attitude.

In order that problems be avoided in the future with regard to a state's right to enforce a statute such as Section 1425 (16-d) of the Penal Law of the State of New York, supra, it is respectfully suggested that should a Federal law be enacted, a provision setting forth a state's right to enforce its statute

be inserted therein. Otherwise, critics may later seek to apply the Supremacy Clause.

In an opinion by the Attorney General in 1925 (34 Op. Atty Gen. 483) it was stated, "The desecration or improper use of the national flag outside of the District of Columbia has not been made a federal offense, but should Congress wish to assume such control, it has the power under the Constitution to do so." See Life Magazine, March 31, 1965, Battle Over the Bill of Rights by Fred Powledge, pp. 22 et seq.

I am enclosing herewith a copy of the Record on Appeal in People v. Sidney Street which I believe you will find useful.

I would appreciate it very much if you would acknowledge receipt of this letter.

Thank you for your interest in the matter, and if I can be of any further assistance to you please let me know.

Very truly yours,

AARON E. KOOTA, District Attorney. By HARRY BRODBAR, Assistant District Attorney.

[From the Civil Liberties Monthly, February 1967]

COURT SAYS DISSENT DOESN'T DEFILE FLAG

A University of Hawaii student charged with publicly defiling, defying and casting contempt upon the flag of the United States, in violation of state law, recently was acquitted by an appellate court.

The student was one of two members of a university organization who were arrested after staging a campus rally to protest the Viet Nam war. Near the speakers' platform the students had put up a representation of the American flag with dollar signs substituted for the stars. The defendant in the present case gave a talk critical of United States conduct.

The ACLU of Hawaii as amicus argued that "under any reasonable interpretation [the defendants'] conduct can only be construed as an utterance of political opinion on an important issue of public policy." The flag desecration statute, the affiliate contended, is an unconsitutional abridgement of the First Amendment right of expression. The First Amendment can be limited only in cases of clear and present danger, the CLU argued.

Although the court did not invalidate the statute, the opinion did agree that the intent of the placard was symbolically to portray dissent. "It is not necessary to agree with the defendant for this court to arrive at the conclusion that the defendant, far from intending a desecration of the American flag, was himself accusing others of doing the same."

The court continued, "The flag is an emblem which, if it can be said to represent anything, is a symbolic representation of the United States as a nation, a unified body politic embracing the bad as well as the good and welded into one by common bond of territory and history. It is not symbolic of segmented fragments of the American nation, whether they be American military might or race riots, Rocky Mountain majesty or night life in Las Vegas, Viet Nam involvement, or peace marches against it. To this concept of the flag as symbolic of the entirety of what we call America, the defendant envinced no contempt or defiance. Rather, to his way of thinking, he wished to gain respect for it."

Attorneys Norman K. Chung, Richard P. Schulze, Jr., John M. A. Burgess and Gary J. Near prepared the CLU's brief in support of the two defendants. The two were not tried simultaneously, but in view of the decision charges against the other defendant probably will be dropped.

[From the New York Times, Dec. 29, 1966]

CIVIL LIBERTIES UNIT BACKS ART GALLERY

The New York Civil Liberties Union announced yesterday it would defend the right of artists to incorporate the American flag into their paintings and sculptures.

The announcement was prompted by a complaint filed against Stephen Radich, owner of the Radich Gallery, at 818 Madison Avenue, for his display of sculptures and paintings by Marc Morrel, Mr. Morrel, a 29-year-old former Marine, used elements of the American flag in his works. In one sculpture, a flag forms a symbolic figure in a hangman's noose.

Mr. Radich is charged with violating Section 1425 of the Penal Law, which provides that "no person shall publicly mutilate, deface, defile or defy, trample upon or cast contempt upon either by words or act" an American flag. On Wednesday he was served with a summons that ordered him to appear in criminal court next Wednesday.

"What is at stake," the Civil Liberties Union said in a news release, "is the right of artists to freely express themselves and to use all the materials available to them." It called the prosecution of Mr. Radich "a form a cultural suppression" and said the Police Department was seeking to "sanctify the symbols of government."

"This they cannot do because the First Amendment protects the right to freely criticize the Government and all its institutions," the group said.

HANGING THE AMERICAN FLAG

To sculpture Marc Morrel, who made it, and dealer Stephen Radich, who is currently displaying it in his window, the bundle below in a hangman's noose looks like a work of art that incorporates the U.S. flag. To Patrolman John P. Burns of the 19th precinct, it looked like a violation of Section 1425-16D of the Penal Law. Spurred by "viewers' complaints," he issued a Criminal Court summons to dealer Radich for having "publicly displayed the American flag that was defiled and mutilated" (sic). To the New York Civil Liberties Union, which is defending the case, it looks like Section 1425-16D is unconstitutional. "At stake," says the NYCLU, "is the right of artists to freely express themselves and to use all the materials available to them."

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(The Record on Appeal in People v. Sidney Street referred to is retained in the committee files.)

Mrs. KELLY. I didn't hear your last remark that you made, Mr. Zelenko.

Mr. ZELENKO. The case is before the Court of Appeals and will be argued on May 17.

Mrs. KELLY. I thought you added something.

Mr. POFF. According to the information available to the members of the subcommittee, the penalties under the New York law are $500

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