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As they say down my way, I have read of you a good bit. I am mighty

glad to have you.

Mr. MUSMANNO. Thank you very much. I feel honored to have been received as graciously as the committee have received me.

Mr. ROGERS. Mr. Jacobs.

Mr. JACOBS. The fact that you have characterized your direct and formal testimony as hueing to the line the ruffians who destroy or desecrate the flag has puzzled me somewhat in looking over your testimony.

For example, is it your position that the conduct of the college professors to which you have referred would run afoul of the provisions of the bills that are pending before this committee?

Mr. MUSMANNo. No. What I am saying is that these professors, these college professors, are failing to do their duty. They are misleading the youths that come to them for guidance. These youths then go out and desecrate the flag.

Mr. JACOBS. Mr. Justice, you quote one of the professors I believe from one of your State institutions as himself quoting Samuel Johnson as saying "Patriotism is the last refuge of scoundrels."

Yet in the next sentence you say that Professor Eddy declared that patriotism is for scoundrels. Is that not a little misinterpretation of what you quoted Johnson as saying? When you say "refuge for scoundrels" and when you say "patriotism is for scoundrels," is that the same thing in your mind?

Mr. MUSMANNO. Yes. When that college president quoted Johnson and then said, "As Johnson wisely said, 'Patriotism is the last refuge of the scoundrels,'" he makes every patriot a scoundrel.

Now these students who are gathering pearls of wisdom from a professor, especially the college one, then go out and say that this patriotism business is all farce, that the flag is a painted rag and nothing else. And then they meet with others who are working under the domination of Communist spies and agents and the first thing you know these lads,. who never had any treasonable thoughts in their mind before they heard the professor, will find themselves working with these criminals to destroy the flag and to injure and damage our American policy with regard to foreign nations.

Mr. JACOBS. Again referring to your characterizing your testimony a referring only to ruffians who desecrate the flag, I am somewhat puzzled as to whether you characterize Senator McGovern, Senator Fulbright, and Senator Clark in that category.

Mr. MUSMANNO. No, that is the last thought in the world I would

express.

Mr. JACOBS. I wanted to make that quite clear.

Mr. MUSMANNO. Absolutely. I am so glad, Congressman Jacobs, that you allowed me to expatiate on that for a moment. They said that General Westmoreland was being brought back to the United States to stifle dissent. I say it is a very poor kind of dissent on their part when they won't listen to the reply to the dissent.

That is all I say with regard to them. The only reason my reference to them was incorporated into my statement is that it finally led up to what General Westmoreland said about the flag, about how the enemy treats our resolve, he said our Achilles heel is how we appear before the world.

Mr. JACOBS. I do not wish to belabor the point but you quote the Senator not as saying that he was brought back to stifle dissent but that his utterances were an attempt to stifle dissent.

Mr. MUSMANNO. I think one of the Senators went that far to say he was brought back to stifle dissent. I don't know whether it was Senator McGovern or Senator Fulbright, probably Senator Fulbright. Senator Clark from my State said that the General's whole speech was irrelevant, complaining because the General didn't talk about the cost of the war. That is the business of Congress, it is not that of the generals, to talk about the cost of war.

The economics of war is something that you distinguished gentlemen will resolve.

Mr. JACOBS. I presume, Mr. Justice, as a student of the Constitution of the United States you would hold in no less regard those who publicly proclaim, say, the policies of the administration, which, for the most part, I myself support, in Vietnam, but those who proclaim those policies to be a detriment to our country? I presume you would hold them in no less regard.

Mr. MUSMANNO. I treat them with the utmost respect.

Mr. JACOBS. Let me finish my question.

Mr. MUSMANNO. But I do object to a member of Congress or a Member of the Senate traveling at taxpayers' expense abroad and speaking against the Government of the United States while abroad.

Mr. JACOBS. Yes. But my question was going to be, do you hold them in any less regard than other Americans who in good conscience proclaim the decisions of the U.S. Supreme Court to be not in the best interest of the United States and are harmful to the United States?

Mr. MUSMANNO. I believe in the first amendment implicitly. We have free speech and we can talk about the Supreme Court and its decisions, favorably or unfavorably.

Abraham Lincoln criticized and castigated the Dred Scott Decision in language which was pretty severe but who can doubt his love of the Union?

Mr. JACOBS. Mr. Justice, you characterized the misfortune or the evil which we seek to legislate against as involving the national security. I find that a very alarming thought, particularly in view of your testimony on page 6 of your formal testimony where you disagree with the proposition that vandals represent a substantial part of our population and go on to say of course that is not true.

Do you believe that this is a matter of respect for the flag? Do you really think that these dissenters who desecrate the flag do constitute a life and death security matter for the United States?

Mr. MUSMANNO. I think it is absolutely a challenge to the security of the Nation when the flag is burned publicly and the burners are not punished. What does that lead to? After the burning of the flag then they parade the Vietcong flag. What does that lead to? Then they carry signs to this effect "Lee Harvey Oswald, where are you now, we need you."

That is an invitation to assassinaton, nothing else. Each evil step leads to the next evil step, each one becoming more grave, until finally you have the serious situation of the security of this Nation being in danger.

Mr. JACOBS. You are speaking of the ultimate consequences, not the immediate act, itself.

Mr. MUSMANNO. The ultimate consequences.

Mr. JACOBS. One final question.

I confess, Mr. Chairman, I don't think it is entirely relevant to our legislation but I must say that I was made somewhat curious by a statement, Mr. Justice, that you made on page 4, that "The hand that pulled the fatal trigger that killed President Kennedy was trained in Russia."

Are you suggesting that Oswald was given training in firearms in Russia?

Mr. MUSMANNO. Absolutely. Certainly he was.

Certainly, he trained in Russia. He went to target ranges. He got all the instructions that the Communist agents receive on how to destroy the democracies, how to kill Presidents and all those in authority. Mr. JACOBS. Ás a former Marine, sir, I am glad to hear that.

Mr. ROGERS. I assume by the same token that you don't agree with what the district attorney down in New Orleans said that Oswald was a CIA agent?

Mr. MUSMANNO. With regard to these reports in New Orleans I have decided not to read them until we get the final result. So I pay no attention to them.

I am very happy to know that you are a former Marine. I was a Navy man. So we are brothers in that respect.

Mr. JACOBS. It has been suggested by some that Oswald's only training with firearms was in the Marine Corps. I am relieved to hear that there is evidence as to other military training.

Mr. MUSMANNO. Oh, yes. He received the entire category of instruction in violence in Russia.

Mr. ROGERS. Mr. McClory.

Mr. McCLORY. Mr. Justice Musmanno, I want to congratulate you on the forthright and emphatic statement you made to the committee here today and also to recognize your many contributions to the public and your patriotic activities of which I have become aware. Mr. MUSMANNO. Thank you, Congressman.

Mr. McCLORY. If I have any question about your statement it is the extreme zeal that you indicate. I certainly want to indicate to you that as far as the work of the committee is concerned we must deliberate in a very calm and a very reflective, very rational, and very unemotional spirit.

Perhaps the part of your remarks that concern me the most is the analogy between the treatment of the flag burners in our country and your supposition as to how a flag burner in North Veitnam would be treated because I am sure that we want to treat our flag burners differently than they do theirs.

Mr. MUSMANNO. I did follow it up by saying that certainly Ho Chi Minh would be considerably amazed that we don't shoot our flag burners, we don't even put them in jail.

Mr. McCLORY. The question I really wanted to ask is about your recommendation that flag desecration cases should take priority over all other crimes, particularly because you impute to the judiciary

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Mr. MUSMANNO. A disposition toward leniency and procrastination-yes, I will impute that because I am a judge, myself; therefore I am not speaking from the outside.

Now I don't mean to say that there is anything disreputable in what they are doing or immoral but I know how judges act. If you allow 2 or 3 years to go by after the commission of the act of the flag desecration, the judge begins to feel, “Well, so much time has passed and emotions have subsided and this boy comes from a good family, he didn't know what he was doing," ignoring the effect of the flag desecration on the community.

Mr. McCLORY. The balance of my question would concern your suggestion that the judge would not apply the law. That is the implication of your statement.

Mr. MUSMANNO. No, Mr. Congressman.

Congressman O'Neal indicated that although his penalty is the most severe one recommended, 5 years maximum, he had no minimum, he would leave it all up to the judge.

It could be a matter of a slap on the wrist, jail for an hour, a $10 fine. I think that is absurd. I think that in itself is a desecration of the flag.

Mr. McCLORY. The point I am trying to get at is your statement that the trial must take precedence over all other trials-in other words, that, immediate trials are mandatorily necessary in order for the judge to apply the law. Is that your statement?

Mr. MUSMANNO. That is my statement.

Let me say, Congressman McClory, that this does not present any practical difficulty whatsoever because how long does a trial of this kind last? How many witnesses would there be?

Mr. McCLORY. I am thinking a little bit now about the college professor to whom you have made reference and to the students who are perhaps misguided by the college professor, and about the emotional atmosphere in which they engage in the kind of misconduct that I want to help stop. Aren't we deliberating this subject in an emotional and misguided way when we recommend a trial in a highly emotional atmosphere that would undoubtedly prevail if we give precedence over all other cases and mandatorily require an immediate trial?

Mr. MUSMANNO. If you are going to equate the emotion which results in the desecration or burning of the flag with the emotion which is engendered from a wholesome resentment because of an attack on the security of our country, then I would have to point out there is no equation there at all.

No judge who is trained and has the experience of years of dealing with people is going to impose the penalty here in the same frame of mind as the miscreant who burned the flag, who spat upon it, or who trampled it into the dust.

Mr. McCLORY. I would judge from what you have said that if you want stiff penalties you have to get them right away or the judge is going to be lenient and provide the minimum penalty or no penalty at all.

Is that right?

Mr. MUSMANNO. I say the eventual bill should provide for a mandatory sentence of 1 year. So it doesn't matter how the judge is trained or how he feels, he has to impose a year's sentence.

Mr. McCLORY. You also feel that the trial should take place almost

immediately, is that right?

Mr. MUSMANNO. As soon as possible as the evidence can be gathered, the trial should take precedence over all other trials.

Mr. McCLORY. It would take precedence over narcotics trials, over homicide trials, and all other criminal trials?

Mr. MUSMANNO. All trials because I see no practical problem. As I say, if it were to be a protracted trial of months, then I can see that the district attorney, the man in charge of the trial list, would be confronted with some kind of a problem.

Mr. McCLORY. From your background of patriotic service and patriotic work, don't you think you are being a little overzealous before this committee?

Mr. MUSMANNO. I would hate to be accused of being underzealous on this subject because this flag means a great deal to me. I served under it in two wars. I don't apologize for being emotional about this. I do feel about the flag quite emotionally.

If we didn't have emotion we wouldn't have true patriotism. That is what patriotism is. What is emotion but love and feeling and reverence and, yes, anger, when it is necessary to become angry. I don't know of any American who saw that picture on the front page of the newspapers of these young people of our country, Americans, spitting, laughing, treating with contempt the flag, and then setting fire to it

Mr. MCCLORY. As an angry and emotional witness before this committee, you nevertheless want the committee to consider this legislation in a rational, unemotional, deliberative way, don't you?

Mr. MUSMANNO. Of course, that is the way I decide cases in court. Here I am an advocate. I am not sitting as a judge. You have that responsibility. You are the judges today. I have a day off from judging. Tomorrow I will be deliberate and calm and reflective and unemotional as you will be when you consider this case. But today I feel deeply on this subject.

Mr. MCCLORY. I yield to the gentleman from North Carolina. Mr. WHITENER. Judge, I don't want to ask you to make any comment about this but you are a little bit late in your suggestion about giving a priority on the court's time to these emotional issues because some of my colleagues beat me to that with some of this civil rights legislation we have been reporting out of here.

So if you express any disapproval of the way the judges handle their business or if you suggest that the issue that you are emotional about should get a priority in the courts you are going to have to fall at least in second place because they have already taken care of the first place.

Mr. MUSMANNO. I am sure that the bill which will finally emerge from this committee will meet the situation head on and will be consonant with deliberative throught and in accordance with the highest principles of our country.

Mr. ZELENKO. Mr. Chairman, the witness made reference to a draft card burning case, the decision of the First Circuit Court of Appeals which in pertinent part reads as follows:

It has long been beyond doubt that symbolic action may be protected speech. Speech is of course subject to necessary regulation in the legislative matter interests of the community, Kovacs v. Cooper, infra, but statutes that go beyond the protection of those interests to suppress expressions of dissent are

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