No one but an anarchist would claim that the right of free speech is a completely unbridled right. If it were, all laws against slander would be unconstitutional as well as those that punish the one who yells fire in a crowded theater. This is because the rights of those affected supersede the right of free speech to the offending individual By the same token, no constitutional right belonging to an individual is as great as the right of the Nation itself to continue to exist. He who publicly and intentionally and maliciously desecrates the precious symbol of the country is committing an actual assault upon the country. He is an enemy, whether he is a foreign enemy or a domestic enemy. The country's rights certainly supersede his.

It is a fact that each of the 50 States has a law protecting the American flag. This, however, is not sufficient justification for Congress to be remiss in its duty to pass legislation dealing with the desecration of its own flag. This cannot be interpreted as a States rights issue. If it could be so interpreted, I would be the last man in Congress to introduce such a bill. If this were a bill to prohibit desecration of a State flag, I would not be here.

I am pleased that each of the 50 States has a flag protection law. However, there is a wide variance in the penalties provided. For example, the maximum penalty for the first offense of flag desecration in the State of Indiana is a fine not to exceed $10, and repeated offenses carry only a $25 fine.

I might stop and say that I learned from the gentleman from Indiana, Mr. Roudebush, this morning that this has been corrected by a bill which will take effect in the future.

The State of Texas, on the other hand, provides a maximum penalty of 25 years' imprisonment for the same offense, and I might add, Mr. Chairman, here at this point, that according to a study made by the Library of Congress, the Texas law would punish those who not only publicly, but privately deface the flag. I feel that it is the obligation of the Congress to provide uniform protection for our own national standard.

The American flag over the years has become the supreme and beloved symbol of our Nation, its freedoms, its ideals, its triumphs. To show respect for the flag is to show respect for the men who fought and died to keep this Nation free and for a remarkable system of government.

In a Flag Day address of June 14, 1917, President Woodrow Wilson said, "this flag which we honor and under which we serve is the emblem of our unity, our power, our thought and purpose as a nation." Just recently Gen. William C. Westmoreland said, and I quote, "The burning of the flag-I cannot view that as other than an unpatriotic act. Thousands of men have died for that flag, and are still dying for it in Vietnam."

Mr. Chairman, I urge your subcommitee to make the punishment for flag desecration equal to that set by the Congress for draft card burning. Why should it be less? I fail to see how anyone could argue that it should be less.

At this time in history, we can ill afford to allow acts of antiAmericanism within our own country to go unchecked. A Federal law to prohibit desecration of our flag, as in the bill I have introduced, is a step in the right direction.

The next step will be for the Executive and his Justice Department to protect this country by prompt and vigorous action against our domestic enemies instead of the "Chamberlain at Munich" sort of appeasement attitude toward Communist revolutionaries we have seen for too long.

Mr. ROGERS. Thank you so much. I am wondering if you gave much thought to the question of whether or not Federal preemption may result from the enactment of this legislation? What are your thoughts on this?

Mr. O'NEAL. Mr. Chairman, I have thought about preemption, and I certainly would not want to preempt the field.

I think that it would be well if we had both, if we had Federal laws that would supplement, especially, those laws that I think are presently inadequate.

I am not concerned about my own State, but it does disturb me that people in other States seemingly go unpunished, or if they did violate the State law that it would be an inadequate punishment.

Uniformity was not necessarily a goal that I had in mind when I introduced my bill. I think the disparity between States is ridiculous, and I think some uniformity is desirable, or at least less disparity is advisable.

But I would think that it would be best if we had a law that either State or the Federal prosecutors could use, especially if the other one did not act.

Mr. ROGERS. As I understand it, your bill provides a penalty constituting a felony of up to 5 years imprisonment and $10,000 fine. Do you see or anticipate that if a bill of this type were adopted that there may be a tendency because of the severity of the penalty not to convict?

Mr. O'NEAL. As a former prosecuting attorney, Mr. Chairman, and I served in the State court for six 4-year terms, my concern is not with the maximum punishment. I would be concerned if the minimum was too high.

My experience over the years was I had much greater difficulty if the jury or the judge had to deal with a high minimum than with a high

maximum.

As long as the minimum is all the way down at the bottom, I would have no concern with this.

Mr. ROGERS. As long as your bill provides that within his discretion the judge can impose a fine

Mr. O'NEAL. Yes. Of course, I am speaking from experience in a State where the jury fixes the punishment. If the jury knew the judge was required to fix the punishment too high, they might just, you know, especially if there was any borderline case at all, just not act. The same thing would be true of the prosecuting attorney, but I would have no concern, no matter how high the maximum is.

Mr. WHITENER. I would like to thank Mr. O'Neal. He has mentioned his interest in this legislation to me privately on many occasions. His statement here today, which I have read, is a very fine one, and I am delighted he has made it.

Mr. O'NEAL. Thank you.

Mr. ROGERS. Mr. McClory?

Mr. McCLORY. Thank you, Mr. Chairman.

I want to commend the gentleman from Georgia on his statement and on his legislation. I would like to ask the gentleman whether he finds any problem, whether he anticipates any problem because of including the words "by words" in his legislation.

The bill refers to contempt being cast on the flag of the United States either by word or act.

Do you think we are running the risk of violating the first amendment to the Constitution if we make reference to the words "by words"? In other words, to make some oral, verbal attack against the flag a crime?

Mr. O'NEAL. I don't think so, Mr. McClory. If you will permit me. Counsel made some reference this morning to the rule. I think he was talking about Justice Holmes' decision, the Schenk case, and under this doctrine freedom of the press and of speech is subject to restrictions only when necessary to avert extreme and immediate danger, and Mr. Justice Holmes pointed out in his view that this was a question of proximity and degree.

Now, I can see the necessity of the Holmes decision, but at the same time I think it has caused a great many problems: This resolves itself into a question of whether you prosecute "little bitty" cases or not, or whether you will wait until the country is at the point of revolution before you prosecute a case.

I think the result has been that because of Justice Holmes' view, the Justice Department has failed to prosecute quite a number of these cases; although they may not be at the point of revolution, they have a continuous and erosive effect upon the safety of this country, and so I think it is high time that we were prosecuting some of these people for sedition, and I would have no worries about the first amendment.

I just think that the Supreme Court has perhaps gone too far in reversing some of the cases that should have been affirmed.

Mr. McCLORY. I notice that the penalty clause of your bill suggests that an offender be imprisoned for not more than 10 years and $5,000do you mean 10 years or

Mr. O'NEAL. Yes, I would say "or" would be better language. My bill was written as long ago as March or April of 1966. I think an incident which happened in my district was the first of a series which happened throughout the United States, and I got very excited about it at the time, and the people in my district were shocked and amazed to learn that the U.S. district attorney had ruled that he had no jurisdiction over the matter.

And the result is that I sent word to the bill-drafting office here that I would like to introduce a bill that would extend this jurisdiction from the District of Columbia to include the whole United States, and at the same time make the punishment the same as in draft-card burning, and so I did not look at the language very carefully, and I didn't realize until today that there were some corrections in it that I myself would like to make.

Mr. McCLORY. As I understand your position, you are recommending that Federal courts have coordinate jurisdiction with State courts on this subject?

Mr. O'NEAL. I don't know whether I understand what you mean by the word "coordinate."

Mr. McCLORY. Both would have jurisdiction.

Mr. O'NEAL. Yes, sir. I wouldn't want to give up the jurisdiction that the State would have. It disturbs me sometimes because the other States, the authorities in other States don't seem to have the zeal that I would have in prosecuting these cases, and it disturbs me sometimes because the Federal authorities don't have the zeal that I would have, and so this is a serious matter to me, because I think the safety of the Nation is at stake, and I think few people realize it.

I think that there is a sort of an embryo Communist revolution going on in this country today, and I am desirous of doing something about it, and I would like for somebody to be in a position to do something about it, even if the other person won't.

Mr. McCLORY. You don't anticipate any serious conflict because of the existence of a dual system of legislation?

Mr. O'NEAL. I do have some concern about it, because I think the Supreme Court has brought about a preemption, has declared a preemption some time, but I would like to see this Congress discourage the Supreme Court in this field.

Mr. McCLORY. Thank you, Mr. Chairman.

Mr. ZELENKO. Congressman O'Neal, as I understand it, the State of Georgia has a statute which makes it a crime to desecrate the flag. and it is a crime to mutilate, deface, or defile, or contemptuously abuse the flag in the State of Georgia.

Your bill goes beyond the language of the State statute in Georgia; is that correct?

Mr. O'NEAL. Yes, sir: I would think so, and I just explained that I sent word to the legislative counsel's office in general terms what I wanted, and I didn't use the Georgia statute at all.

I didn't send it down there to him. It was not the basis of this at all. Mr. ZELENKO. Can you tell the committee what enforcement there has been under the Georgia statute?

Mr. O'NEAL. Well, as I said a moment ago, I think one of the first. if not the first of a series of incidents that have come to the Nation's attention took place in my district, in Cordele, Ga., and there was a flagrant case in the presence of thousands of people I think some of them shinned up the pole and hauled the flag down and ripped it to shreads in front of a vast audience, and this is when everybody looked to the U.S. dstrict attorney to do something about it, and he ruled that he could not.

Well, the State courts did act, and prosecution was obtained for the ringleaders. I am having to rely on my recollection now, and the sum total of my recollections in keeping up with this in the newspapers as it went along, but I am sure that I am correct that at least two of the ringleaders were prosecuted and given 12-month sentences in the State court.

Mr. ZELENKO. It was possible to convict under the State law?

Mr. O'NEAL. Yes.

Mr. ZELENKO. As I understand it, under Georgia law there is a fine not to exceed $1,000, and imprisonment not to exceed 12 months for debasement or defiling of the flag.

Mr. O'NEAL Yes.

Mr. ZELENKO. Your bill uses the term "defy." Perhaps you could enlighten the committee in what you comprehend that term to include. Mr. O'NEAL. I think you have got me there. I think what the leg

islative counsel's office did was take the language as it existed in the District of Columbia, and applied it to this bill. I might wonder myself what this means unless there are some accompanying words.

In other words, I can conceive of somebody standing on a platform and hurling one curse after another at the flag.

Mr. McCLORY. Would the gentleman yield?

Mr. O'NEAL. Yes.

Mr. McCLORY. I want to point out that the word "defy" is included in a uniform flag act recommended by the State commissioners on uniform State law, and I believe it is in the existing law in the District of Columbia, and it is included in the uniform State law recommended by the national commissioners.

Mr. O'NEAL. But this is the only way I could conceive of this word coming into play.

Mr. ZELENKO. As a practical matter, what do you think the effect of a Federal law on this subject will be, if it does not strike down State laws, but exists on a concurrent basis with the State laws? Do you think that as a result the States will look to the Federal Government for primary enforcement?

Mr. O'NEAL. It is probably true that they would wait to see if the Federal Government acts, but I think I would like to see it so that the State government could act even if they disagreed with the Attorney General.

Mr. ZELENKO. You are not suggesting that the Federal law enforcement is better equipped here than State enforcement?

Mr. O'NEAL. No, but I think there are vast differences of opinion sometimes, in connection with Justice Holmes' comment in the Schenk case, whether this is a trivial or serious matter.

Mr. ZELENKO. Your bill would penalize not only physical attacks, but statements directed against the flag?

Mr. O'NEAL. Yes, sir; it says "by word."

Mr. ZELENKO. Would you be satisfied with a bill that would limit its proscription to physical defilement?

Mr. O'NEAL. I wouldn't like it. I don't know what I would vote for.

Mr. ROGERS. Thank you. We appreciate your coming before the committee and giving us the benefit of your reasoning in connection with this, and we look forward to working further on this.

Mr. O'NEAL. Thank you.

Mr. ROGERS. The Honorable Walter S. Baring has a statement which will be placed in the record at this point.

(The document referred to follows:)

STATEMENT BY HON. WALTER S. BARING, U.S. REPRESENTATIVE-AT-LARGE

FROM THE STATE OF NEVADA

Mr. Chairman, I thank you for the opportunity to speak in favor of H.R. 3277 currently before the Committee. It is imperative that this bill be passed and, as quickly as possible, become law. There have been numerous cases in recent weeks of flag burning and defiling across the nation. These occurrences must be stopped and the perpetrators of such acts must be punished.

It is an outrageous disgrace to allow these Communist-lead beatniks to deface, defile, burn, and to continue to desecrate our flag. When accosted, they cry free speech. I am for free speech and the right to criticize. But there is a limit to abusive free speech. There is no reason why our country should stand still for those who burn the American flag and hoist that of the Viet Cong.