Mr. ROUDEBUSH. This is correct. It merely demonstrates the proper method (s) of displaying the flag.

Mr. JACOBS. I again commend my colleague for appearing before the committee, and commend him on his outstanding war record.

Mr. ROUDEBUSH. Thank you.

Mr. ROGERS. Mr. McClory.

Mr. McCLORY. Thank you, Mr. Chairman.

I want to commend the gentleman from Indiana for his leadership role on this important legislation, and to commend him also for the public interest that has been coordinated through his office and through his public position with regard to this extremely important legislation. I am a little curious about the gentleman's position in this area. We are talking here about a Federal law, a Federal statute, and since we recognize that we have a number of State statutes, is it the gentleman's idea that the Federal law would preempt, or be a substitute for, the State laws, or do you prefer that it would be coordinated and effective concurrently with the State laws?

Mr. ROUDEBUSH. I know of only one State that has a more stringent law than that I propose, and that is the State of Georgia. It is recently enacted. I do not intend to usurp the right of the State. But I hope we an have better enforcement.

Mr. McCLORY. While we do not want to preempt this area of legislation, at the same time if we have a Federal statute there is going to be a virtual surrender on the part of the local law enforcement agencies in favor of the Federal Government.

In other words, if there is a flag burning, the local law enforcement officials are going to take the attitude, "Well, this is a Federal offense, let the Federal Government take over."

Do you think that is apt to occur, would you be in favor if it did occur, or what is your position?

Mr. ROUDEBUSH. No, I do not favor that, and I do not think it is apt to occur. As I pointed out, every State has a flag desecration statute on their books in my opinion, and it is incomprehensible to me why some of the flag burners have not already been prosecuted.

The recent affair that happened at Terre Haute, Ind., although the present Indiana statutes are weak, up until September, when the new statute goes into effect, I cannot understand why some effort was not made to prosecute this man. This man, as I mentioned, was not a citizen of the United States, and if we had prosecution of this act, it might give us more authority to cancel his visa and get rid of this undersirable person.

Mr. McCLORY. I think this indicates what is going to happen to an even greater extent. If we have a Federal statute that applies throughout the States, local authorities are going to surrender their jurisdiction and decline to assume responsibility and turn it over to the Federal authorities.

Don't you think that is apt to occur?

Mr. ROUDEBUSH. I do not think it will. I hope it does not. I think a more stringent law on the Federal books will give greater enforcement of this act.

Mr. McCLORY. On this business of publicly burning and defiling and defacing the American Flag, we have had a great tendency to-or we have seen a great increase on the part of manufacturers and pro

moters to commercialize on the American flag and other national insignia.

Last year we had an example of ladies undergarments which used red, white and blue to promote sales, and there are various other instances of commercializing the American flag.

Do you think this legislation should be broad enough—[laughter]? Mr. ROUDEBUSH. I might say to my friend that I do not consider myself an authority on women's undergarments. However, I do know of cases where the American flag has been made into pillows and placed on sale, and into beach towels in the form of the American flag. I would say this comes under the act.

Mr. McCLORY. You would intend that this legislation-I'm trying to choose my words carefully-should cover those things?

Mr. ROUDEBUSH. Yes, that is my intent.

Mr. McCLORY. I think that is all I dare ask. [Laughter.]

Mr. POFF. Mr. Chairman, does the gentleman feel that the law should have extra territorial application?

Mr. ROUDEBUSH. I definitely do. You mean in the American territories, right?

Mr. POFF. I mean on foreign soil outside the United States if the act is committed by an American citizen.

Mr. ROUDEBUSH. I do. We had the case in Madrid, Spain, last week, where American students burned our flag in Spain, and I definitely think it should have the extraterritorial application.

Mr. POFF. Do you think we should have a single Federal law to the exclusion of the State law, or do you think there should be concurrent jurisdiction?

Mr. ROUDEBUSH. I believe in the concurrent jurisdiction.

Mr. POFF. Thank you.

Mr. ZELENKO. Mr. Scerra, you gave the need to have uniformity as a reason for supporting the proposed legislation. If you do not want to strike down State statutes, and do not want to preempt the field, what uniformity would exist?

Mr. SCERRA. It would make it known throughout the United States that there would be a uniform penalty.

Mr. ZELENKO. But there would not be a uniform penalty. There would be 50 State penalties as well as the Federal penalty.

Let me ask you this question, Congress Roudebush: In your statement you mentioned an incident with respect to flag desecration, which has recently occurred in the State of Indiana. Do you believe that the Federal law enforcement officials are better equipped than State and local officials to apprehend those who desecrate the flag?

Mr. ROUDEBUSH. I can only quote the prosecutor of Vigo County, Ind., in saying that he would like to arrest the man who desecrated the flag on the campus of Indiana State University, but he said the law did not make it worthwhile. It is now a misdemeanor and a $5 fine.

A new law has been passed in Indiana which will provide a year imprisonment and a thousand dollars fine, but I think in this case, for example, if we had had the Federal law passed, certainly this young man who was a protestor on the Indiana State campus, would have been punished to the full extent of the law.

Mr. ZELENKO. Your bill would penalize nonphysical attacks on the flag, that is statements directed against it. Some suggest that unless

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there is a "clear and present danger" such speech would be protected under the First Amendment.

Would you say the legislation should be restricted to physical desecration?

Mr. ROUDEBUSH. Yes, I believe that would be a necessity.

Mr. WHITENER. Mr. Chairman. I note your comment about the pillow and other uses of the flag. I am sure that the commander knows that right now in Vietnam we have a very active program to encourage the use of the Vietnamese flag.

When you are in the forward zones and go to a little school, you see the children carrying their books in a little plastic bookcase with the Vietnamese flag on it. This was provided by our own Government, in part.

The same thing would be true of a bookcover. I am one of those who don't agree that the only proper place to display the flag is on a flagpole. I think that we gain a lot by the frequent use of the flag, and I hope you don't mean to imply that you would object to the reproduction of the American flag on a pillow

Mr. ROUDEBUSH. Yes, I do object to using it on a pillow, and I will tell you why.

I think the use of the American flag on a pillow or on a beach towel actually defiles our flag. I think it lessens the appreciation of the flag by the use of that item, very definitely.

Mr. WHITENER. President Andrew Johnson, I am told, lies in his grave with his head on the Constitution and on a flag.

If a pillow has a flag on it, and if you or any American would like to go the last resting place with your head on a flag, I do not think that is a desecration.

I do not think that I could agree that any use of the flag other than on a flagpole or in a parade would be improper.

Mr. ROUDEBUSH. I didn't mean to imply that, Mr. Whitener, but I brought two illustrations that I am familiar with. I know that it is very popular to sell the American flag as a chenile-type bath towel, and I think when you go into the ocean and throw this towel bearing the flag down in the sand and toss your wet body on that, I think it is a desecration.

However, I would not take exception to the burial. I think that is ceremonial.

Mr. WHITENER. This same beach towel would be not distasteful to you if it were hoisted on the Fourth of July in front of someone's home, would it?

Mr. ROUDEBUSH. No; again, it is the intent and purpose.

Again, the usage, I think, is the main thing there.

Mr. ZELENKO. Under your bill, Congressman, would not that person who throws himself on the beach towel be in violation of the Federal law? Would a person using such a pillow be indicating contempt of the flag under your bill?

Mr. ROUDEBUSH. Yes; I would say this is true.

Mr. ROGERS. Thank you, Mr. Roudebush, and thank you, Mr. Scerra. We appreciate your coming here.

Our next witness is Congressman Jack Edwards.

STATEMENT OF HON. JACK EDWARDS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF ALABAMA

Mr. EDWARDS. When immature young people make a spectacle of themselves largely in order to attract attention, the usual thing to do is to ignore them. The one thing they can least tolerate is failure to attract attention.

However, only some of the young people involved in recent cases of desecration of the American flag are immature attentionseekers.

The hard-core people in these cases are skilled, semiprofessional agitators who seek not attention but general chaos and the destruction of the American system.

Our American flag symbolizes our system of representative government, but more than that, it symbolizes the freedom of dissent which these skilled agitators pretend to value.

In their public destruction of the American flag these people throw score on the same system which protects their right to honest dissent. In destroying the flag they seek to destroy the country.

This is an action which we cannot tolerate. While we must continue to protect the right of honest dissent for all American citizens we are under no obligation whatever to protect the dishonest acts of these ruffians who hide behind their claim of the right to dissent.

The semiprofessional flag burners have no more real interest in the right to dissent than did Joseph Stalin, Adolf Hitler, or Mussolini. What they really want is conformity to their views at whatever cost is required.

No national flag can be burned, stomped upon, or otherwise desecrated by persons living under the protection of that same flag without the entire nation suffering a loss.

Mr. Chairman, I commend you and the subcommittee for holding these hearings on H.R. 4465 and other proposals designed to prohibit desecration of the U.S. flag. I am hopeful that approval will be given to one or another of these proposals and that the measure will be enacted into law at an early date.

We in the Congress owe to the people of our country this action in protection of the flag. I am convinced that Americans are fed up as never before with the totally irresponsible, outrageous acts of defiance and scorn shown the flag.

I believe the country wants action, and I give my full support to this kind of legislation. Thank you.

Our next witness is Judge Maston O'Neal, from the State of Georgia, and if there is one man asking for hearings on this bill, it is Representative O'Neal, and I observe that we have other witnesses, particularly the Honorable Michael Musmanno, justice of the Supreme Court of Pennsylvania.

I think we would now adjourn and you come back at 2 p.m., because I know that you have made a great study of this matter, and having served as a judge, are in a position to name a lot of things that would help us.

So with that, we will stand adjourned until 2 p.m. this afternoon. (Whereupon, at 11:55 a.m., the subcommittee recessed, to reconvene at 2 p.m., the same day.)

AFTERNOON SESSION

The hearing was reconvened at 2:10 p.m.

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

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

Mr. ROGERS. The committee will come to order.

As we recessed at noon, we had called the Honorable Maston O'Neal, the Representative from Georgia, as our witness.

- Proceed in your own manner, Judge.

STATEMENT OF HON. MASTON O'NEAL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA

Mr. O'NEAL. Thank you, Mr. Chairman. I think the first thing I should do is correct a well-meaning mistake that the chairman made just before lunch when he called me "Judge." It is a mistake you have made frequently, Mr. Chairman, and I know with the best intentions, but I don't want to fly a false flag this afternoon, and I think I need to point out that I never was a judge.

Mr. ROGERS. I beg your pardon.

Mr. O'NEAL. Unless you count some 10 years that I had back in the 1930's as a justice of the peace.

Mr. ROGERS. Sometimes you have more problems to solve as a justice of the peace than you would as a Congressman.

Mr. O'NEAL. Thank you, Mr. Chairman, and gentlemen of the subcommittee. I am most appreciative of this opportunity to appear before your distinguished subcommittee to express my support for the many bills which have been introduced to prohibit public desecration of the American flag. I am particularly interested in H.R. 2364, a bill which I first introduced during the 89th Congress, and as the Chairman well knows, I have been looking forward to this opportunity for quite some time.

As far as I can determine, there is no bill pending which provides stiffer penalties than H.R. 2364. My bill would make it a criminal offense, punishable by a fine up to $10,000 or imprisonment up to 5 years, to publicly, and I might add here, Mr. Chairman, that I should have said "willfully," mutilate, deface, defile, defy, trample or cast contempt upon the flag of the United States at any place where the criminal jurisdiction of the Federal courts would apply.

You may recall, Mr. Chairman, that this is the same penalty approved by the 89th Congress for altering, destroying or mutilating a draft card. In my humble opinion, it should be an equally serious offense to desecrate the American flag.

I feel very strongly about the need to obtain passage of such legislation during the current session of Congress. The American flag represents the finest country in the world and certainly deserves better treatment and more respect than it has received from a few of our questionable citizens.

There have been a number of unfortunate incidents, going back to March 1966, which resulted in the deliberate desecration of our flag; yet, there still is no Federal law prohibiting such action outside the District of Columbia.