It is obvious that Professor Dowd's definition of patriotism coincides with that of the dowdy Samuel Johnson.

Mr. Chairman, I am sure that the entire country, and I say most sincerely, is grateful to you and your committee for holding these hearings.

When I said a few days ago to friends of mine in Pittsburgh I was coming down here to testify on this subject which has so disturbed the country, they were very happy.

They glowed with obvious appreciation that the Congress of the United States intended to devote its attention to the appalling things which happened in New York, in San Francisco, and other parts of the country on April 15.

I feel confident that the wounds the good citizens have suffered in watching the disgraceful conduct of the flag burners will heal under the recommendations your committee will make for legislation which will suitably punish those who dare to treat with contempt the beautiful emblem of our country which offers freedom, justice, and opportunity unsurpassed in any other country in the world.

Mr. ROGERS. What do you think about the proposition that our friend from Virginia, Mr. Poff, has asked: Suppose an American citizen, beyond the territorial limits of the United States, should burn a flag, as a person in Spain is alleged to have done.

Justice MUSMANNO. Anyone who travels with a passport of the United States asking for the protection of the flag as he travels is certainly also amenable to the laws that that flag symbolizes.

Mr. ROGERS. Do you think that the Congress would have authority to apply this law outside the United States?

Justice MUSMANNO. I don't think there would be any question, Mr. Chairman, about the authority of the U.S. Government to seize that miscreant who burns the flag in Spain or elsewhere and take him to the nearest Federal jurisdiction and try him for his crime against the United States.

Mr. ROGERS. That is, if we made it a crime to burn the flag, or desecrate it in a foreign country, that we could say when he first enters the United States he would be tried at the place where he would be as a matter of jurisdiction, that it would be conferred there, or if we had the chance to seize him and bring him home, wherever we brought him home?

Justice MUSMANNO. Yes. I would be for seizing him wherever he is. Mr. ROGERS. Of course, you might have a little difficulty sending the Army into Spain.

Justice MUSMANNO. We sent General Pershing into Mexico.
Mr. ROGERS. But he never did find Villa.

Justice MUSMANNO. He was hidden, of course.

Mr. ROGERS. But from a legal standpoint, you don't think that should raise any problems to us as Congress, and we would encounter no difficulty in having the Supreme Court hold that kind of de

cision

Justice MUSMANNO. I don't foresee any difficulty there whatsoever. Mr. ROGERS. Do you feel that we could so enact and not run into this unfortunate decision you referred to?

Justice MUSMANNO. Yes. I feel that here you would tread a very safe path.

Mr. ROGERS. Do you envision any problem that may arise in the enforcement of legislation of this type whereby someone would accuse us of setting up a police state?

Justice MUSMANNO. Oh, no, no. I am positive in my mind that if someone attempted to burn the flag on the streets of Pittsburgh the district attorney would immediately institute prosecution.

The same would be true of Philadelphia, or any other city or town of our State.

Mr. ROGERS. And you see no greater difficulty in the enforcement of this proposed statute than exists with respect to any other Federal criminal statute?

Thank you, Justice Musmanno.

I again express our appreciation to you for coming and testifying. Of course, you have a statute in the State of Pennsylvania making it a crime to desecrate the American flag.

As I understand it, it provides a penalty of $200 fine and 6 months imprisonment?

Mr. MUSMANNO. That is true, Mr. Chairman, and there is another statute, too.

Mr. ROGERS. Have there been any prosecutions in your State for desecration of the flag, that you know of?

Mr. MUSMANNO. Not recently, that I am aware of.

Mr. ROGERS. Now, you stated you had an opportunity to examine about 25 bills. Would you say that they require proof of intent to desecrate?

Mr. MUSMANNO. Undoubtedly. Anything which is done accidently is not criminal.

Mr. ROGERS. Yes. You make some point as it relates to the speech, the right of the individual to make speeches that you did not believe that we are limited in legislation that we may pass to only proscribe a physical act, but you emphasized that the fact that a person may make a speech which is to downgrade and defy and hold in contempt the flag itself.

Mr. MUSMANNO. Mr. Chairman, I do not necessarily exclude defamation and desecration of the flag by speech, but I know we are now confronted with a situation where the flag has been physically destroyed, that is what is disturbing us. I am perfectly willing that there be included in the eventual bill a provision that those who defy and defame and disparage and hold the flag in contempt, if it is done with a treasonable purpose, should also be subject to the penalty.

I am now directing myself to the destruction of the flag.

Mr. ROGERS. When you say "treasonable", is it recognized that treason is difficult to prove

Mr. MUSMANNO. Someone who hates America and is upholding the Soviet form of government and stands in the public square and curses the flag, associated with other phraseology which indicates that he has a greater allegiance to our enemies than to the United States, indulges in a treasonable act.

Mr. ROGERS. And if we place such an act in this proposed law, you feel that it would not be struck down by the Supreme Court as being in violation of the First Amendment?

Mr. MUSMANNO. My experience has been, Mr. Chairman, that we cannot contemplate what the Supreme Court of the United States is going to do where so-called personal privileges are concerned.

I had the privilege of speaking before another distinguished committee of the Senate a couple of weeks ago on some decision which the Supreme Court of the United States has handed down. I spoke very respectfully, but not very favorably of those decisions, the Escobedo and the Miranda decisions and so I am not going to look into the crystal ball and speculate on what the Supreme Court of the United States will do if you would include in the bill a provision that an oral attack on the flag is also subject to a penalty.

I would say that the first amendment does not protect a defilement of the flag orally when the utterance is made in such a setting as to show a treasonable intent.

Mr. ROGERS. May I lead you on then, to the next question concerning preemption. If, as we have been taught for a long time, that when the Federal Government may have the authority to exercise a certain jurisdiction, that its failure to exercise it does not mean that it has abandoned it, but States may pass laws in that field. But once the Federal Government has enacted statutes in a certain field, then they have the exclusive right in that field.

The Nelson case, which came out of your State

Mr. MUSMANNo. It not only came out of the State, but I was one of the prosecutors. I am very familiar with the case.

Mr. ROGERS. You recognize that the State of Pennsylvania had a sufficient statute, and we passed the so-called Smith Act, in which we provided we weren't preempting the field in sedition matters.

Mr. MUSMANNO. That is another decision with which I do not agree. Mr. ROGERS. And yet the Supreme Court held that you couldn't, you, as a prosecutor in this case in Pennsylvania, couldn't prosecute because, by Congress taking some action on sedition, then

Mr. MUSMANNO. It was a very unfortunate decision by the Supreme Court of the United States, because the Supreme Court decision, released Steve Nelson to carry on his nefarious activities throughout the country; Steve Nelson, whom I would call the field general of the forces seeking to Bolshevize the world.

Mr. ROGERS. As you and I know, there are 50 State statutes, and that means 50 State statutes would cover certain phases of desecration of the flag, and they are not uniform throughout the 50 States, nor is the punishment uniform.

Do you feel that if we do enact antidesecration legislation that it would take the place of State laws; or would the State laws continue in force and effect?

What is your opinion?

Mr. MUSMANNO. My opinion is, Mr. Chairman, that there would be concurrent jurisdiction. We had that situation during the prohibition days. We had, of course, the Volstead Act, the congressional legislation, and many of the States had their own individual liquor enforcement acts, and so there was concurrent jurisdiction.

I don't think that there would be any quarrel with a Federal law as against a State law. I believe a Federal law would be very salubrious in the respect that these States which have very nominal penalties would increase their penalties. One referred to here this morning provided for merely a $25 fine for the desecration of the flag. I think that once Congress would indicate the penalty should be 1 year im

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prisonment, if that is what Congress eventually agrees upon, these other States would be inclined to let their legislation agree with that of the Federal law.

Mr. ROGERS. Thank you, Justice Musmanno.

Mr. Whitener?

Mr. WHITENER. Judge, as I interpret your statement, one of the principles you stand for is prompt and effective punishment.

Mr. MUSMANNO. That is right, Mr. Congressman.

Mr. WHITENER. You know around here there seems to be some notion which is contrary to yours and mine about minimum sentences, and the result has been that some of these so-called-to use Mr. Rogers' expression-"Judges" have been letting criminals eat up the good people because they will not give even a minimum sentence of incarceration. So we may have some trouble with your theory on minimum punish

ment.

Mr. MUSMANNO. I think that is very important, Mr. Congressman. I do think the law would be weak unless you indicated that the minimum penalty is mandatory.

Mr. WHITENER. Mr. Rogers has mentioned the Steve Nelson case. Of course, the problem that was encountered there was the absence of any language in the Smith Act to indicate clearly, or affirmatively, that Congress did not intend to preempt the various State acts relating to sedition, even though the record, the debate, and everything else indicated that there was no intent to preempt State jurisdiction, but the Court seemed to say that because the statue did not specifically provide against preemption that Congress had preempted.

Mr. MUSMANNo. Which I think was fallacious reasoning.

Mr. WHITENER. I agree with you. After that, we dealt with H.R. 3, with which you are familiar, in this committee, and in many bills we have set out-we have put in standard preemption language.

Mr. MUSMANNO. Yes.

Mr. WHITENER. I think you would recommend that here.

Mr. MUSMANNO. Yes.

Mr. WHITENER. I am interested also in what you said about the word of mouth being the forerunner of riots and disorder and physical desecration of the flag.

Being practical, I think we must look at some of these decisions of the Supreme Court on the meaning of the first amendment. But I think your position is that we should do our legislative duty and let the Supreme Court tear down the country if they want to.

Mr. MUSMANNO. I believe that we have even more than sentiment involved here; that is, our love for the flag, our devotion to the flag. We have the proposition that the burning of the flag is bound to create disorder.

Even if we were talking about something not so sacred to our hearts but something which is destroyed would cause people to become inflamed and there would be fisticuffs and actual physical clashes, there should be a law to prevent the destruction of that particular thing. Mr. WHITENER. I judge this morning there was what we call some rabbit chasing around here about the flag on pillows and towels and that business. I remember as a boy going into many homes where they would have a pillow with the American flag that their son had sent home from the Philippines or someplace where he was serving his

country, on the sofa, in the living room, or in the parlor. To me this was an act of highest tribute and respect to the flag.

Mr. MUSMANNO. I would say, Congressman Whitener, that if it is a matter of ceremony and not physical comfort, if it is a matter of respect and not merely physical lounging, it would be entirely proper to have the picture of the flag of the United States on a pillow.

But I would resent anyone sitting on a pillow that had embroidered on its surface the flag of my country.

Mr. WHITENER. I think if we start trying to chase down every one of these rabbits we would never get any legislation because people cloud

the issue.

Mr. MUSMANNO. That is true. That is the reason I have attempted in my remarks to hue to the line and meet this present problem of the ruffians, the rogues, these miscreants burning our flag in the public parks and on our streets.

Mr. WHITENER. What you would say is that we should be more concerned about those who will intentionally publicly desecrate the flag so as to bring it into ill repute in the minds of those who have not had the proper training in America.

Mr. MUSMANNO. Particularly because the photographic documentation of these acts which are undoubtedly reproduced in enemy countries lead them to believe that there is so much dissention on this subject in America as to whether we support our troops in Vietnam that eventually we will have to withdraw in a cowardly way and with white feathers in our hats.

Mr. WHITENER. Judge, I recently visited the island of Quemoy and went into the psychological warfare section of the Chinese Nationalist Army. They handed me samples of propaganda leaflets which the enemy, the Chinese Communists, were using.

It certainly bears out what you said because on these leaflets were pictures of a bunch of beatniks in front of the White House. I might say the first one I saw was a fugitive of justice from my own State.

They had been making broadcasts in Cuba and then they fled from there over to Red China.

So these things are used.

As you mentioned, in the Volstead Act, we have another example of it. All of us have been in State courts that have dealt with it. Today we have concurrent jurisdiction in the narcotics field and the laws in my State are not nearly as severe in punishment as they are in my friend from Illinois' State which I believe is about the toughest.

Yet we regularly took jurisdiction in narcotics cases at the request of the Federal authorities and worked with the Federal authorities. In certain cases we would agree that they would take jurisdiction. But that did not mean that we could not try them in State courts and in Federal courts for violating the laws of the State and the Federal Government.

Mr. MUSMANNO. I believe that the enforcement officers of both jurisdictions, the Federal and State, would be very happy to see a congressional act on this subject, I am sure they would cooperate. After all, the legislation is aimed toward one end and that is to secure the country against the encroachments of our enemies.

Mr. WHITENER. Judge, I certainly thank you for taking your time to come down and give us the benefit of your wisdom because I know of your distinguished career.