fense to communicate to others views and opinions respecting policies concerning the future of our own and other nations. As applied to the appellants, it punishes them, although what they communicate is not claimed nor shown to have been done with an evil or sinister purpose, to have advocated or excited subversive action against the Nation or State, or to have threatened any clear or present danger to our institutions or our Government." I take it from that statement that so long as you and I sit down and talk and criticize what the Government may do, we can communicate symbolically or otherwise and we are free to do so under this decision. Mr. SPEISER. I don't believe that is the extent of the freedom of speech in the country. I think the Taylor case at the time it was decided handled the problem of a statute of the State of Mississippi that was clearly unconstitutional, but I don't think the court meant to imply then what the limits of free speech were then nor what I think is the law today. Mr. ROGERS. Thank you, Mr. Speiser. Mr. JACOBS. I have one point I want to make, Mr. Chairman. Mr. JACOBS. On this symbolic act, would you apply objective or subjective tests as to whether or not an act was symbolic in burning the flag of the United States? Mr. SPEISER. I think that is part of it. I would like to suggest that even without that intent, you also have the problem here within the statute as presently phrased, getting away from the free speech language itself, making it a crime for someone to legitimately destroy a flag in accordance with the proper procedure. Mr. JACOBS. No, no. Let me illustrate exactly what I mean. Some time ago, it was suggested that small American flags be worn on persons lapels indicating they supported the Government's foreign policy with respect to Vietnam, and I received mail at that time resenting the suggestion that the mere wearing of the American flag endorsed a particular foreign policy of the United States. Now, applying that to the problem that we have at hand, I would ask whether or not the American flag represents only that foreign policy, or represents the entire length and breadth and being of the United States of America. That is what I meant when I asked if you were supplying an objective standard as to whether the burning of the flag was a symbolic act, or whether you would leave it up to the individual doing it, even though he was burning much more than the physical object, to say that it related to only one aspect of the U.S. existence? Mr. SPEISER. I am not sure how to answer your question. Mr. JACOBS. Does he get to say "This is a symbolic act, even though I am burning something that symbolizes much more than that which I protest"? "It is just one particular point I am objecting to, although I have burned the symbol of the entire United States of America." This is what has given me some difficulty with your testimony, frankly. Mr. SPEISER. The difficulty with symbols is that different people get different things out of them. Mr. JACOBS. Precisely. 79-543-67— -12 Mr. SPEISER. And some individuals feel that it is a representation of the entire country, as you suggest, and they may not understand individuals who burn it, are really only burning it because they disagree with a particular policy of the Government. This may be a situation of "overkill." I guess my problem is that once I get into the area of symbolic acts, that I am having difficulty with, and you are having difficulty with, in distinguishing what people think the symbol stands for, that we are going to have the same difficulty in a criminal prosecution, I am saying that I am unwilling to leave it in that kind of context. For example, there are people in the Southern States who burned the U.S. flag years ago when they were unhappy with our policy with respect to race relations or segregation. Now, it had a certain meaning to them. Mr. JACOBS. Then do I infer that you would leave it up to the respondent or defendant or the person who commits the act, and whatever he says the symbol is, then that is the symbol and you would not permit an objective test? Mr. SPEISER. Yes. Mr. JACOBS. Thank you. Mr. McCLORY. I wanted to ask a final question with respect to the O'Brien case. The court there suggested in a footnote that if the draft card burner was at the same time inviting other people to burn their draft cards, that their opinion with regard to violation of that part of the statute relating to draft card burning would be a different one. Now, what is your opinion, if in addition to what you describe at the symbolic burning, he is also inducing or inviting others to burn their draft cards? Mr. SPEISER. I would again utilize the clear and present danger doctrine. I think to encourage, to advocate other people to burn draft cards should not be punished. But if you are in a situation where the talking is what is going to be the precipitous act which accomplishes that, assuming that the validity of the draft card burning lie Mr. McCLORY. Your answer is that it simply wouldn't make any difference as far as you are concerned? Mr. SPEISER. No, because I am basing it on the invalidity of the draft card burning law. Mr. Chairman, I would like to offer as an appendix an editorial from the Washington Post today. Mr. ROGERS. Give us that for the record, and has your organization filed any briefs in connection with these cases that might help us in this situation? Mr. SPEISER. What cases, Mr. Chairman? Mr. ROGERS. Miller, O'Brien? Mr. SPEISER. Yes, I will try to supply them for you. Mr. ROGERS. I would appreciate it. Mr. CONYERS. May we add at this point in the record, the case, State v. Kent, a fairly recent case that came out of Hawaii, where the defendant was charged with desecrating the flag, and the court in an instructive opinion found that the defendant was not guilty, because he, in effect, was manifesting his own viewpoint, and in effect it was out of his concern for his country that this symbolic ex pression of opinion was-and the court agreed with him—within the ambit of the first amendment. Mr. ROGERS. We will include that in the record at this point, then. Thank you, Mr. Speiser. (The decision referred to follows:) State v. Kent The Defendant was charged with violating Section 275-6 of the Revised Laws of Hawaii. The charge is substantially in the language of the statute and states that the Defendant "did publicly defile, defy and cast contempt upon the flag of the United States by displaying a representation thereof, and by certain other words and actions ***" The facts of this case are not in dispute. The Defendant is a student at the University of Hawaii under the East-West Center grant program. In March of this year, he was the president of a campus organization called the Political Affairs Club. The Club scheduled an open rally in Hemenway Hall on the university campus between the hours of 12 noon and 1 p.m. Permission for this rally was obtained from the university's Bureau of Student Activities. The subject matter of the rally was to be a discussion of American participation in Viet Nam. The rally was held as scheduled. It was attended by about 300 to 500 people, including students and a number of uniformed and plainclothes police officers. The officers had arrived about an hour earlier. The hall was substantially but not quite filled to capacity. In preparation for the rally, the Defendant and one Lombardi (who was similarly charged) put up several posters on the wall of the hall near the speaker's platform with masking tape. One was a rectangular placard in color which resembled the American flag but differed in the following respects: stars in the field of blue were replaced by dollar signs; the red and white stripes at their ends away from the field of blue (right ends) were pointed with specks of red at the points; and the left ends of the stripes, instead of meeting the field of blue or the left edge of a normal flag, met a solid field of gray spotted with red. This placard had not been drawn by the Defendant. It had used at a rally two weeks previous, and been in the possession of the Defendant since. A Vietnam National Liberation, that is, Vietcong, flag of cloth was also pasted on the wall. Just as one Sarrant, the master of ceremonies, was about to begin the rally, a Miss Evard walked out of the audience and tore down the Vietcong flag, tried to tear it by biting at it. Sarrant attempted to retrieve it. Eight to ten people engaged in a mélee over this incident, but the police moved in and quieted them down. The Defendant then made his talk, using as a starting reference an article by a former United States sergeant who had fought in Vietnam as a member of the "Green Berets". The tenor of the article and of the Defendant's speech was highly critical of American participation in Vietnam. A young man in the audience who had been heckling the Defendant during his speech was invited to the stage by the Defendant. After making some commets, the young man tore down the placard resembling the American flag. Again, there was some pushing and pulling, which was broken up. The young man asked the Defendant whether the placard was the American flag. The Defendant replied that "that is what it has become", that LBJ had desecrated it by napalming and mutilating women and children in Vietnam, desecrated it in Cuba and in Santo Domingo. Boos, jeers and catcalls from the audience ensued. A David Kuh tore down the placard resembling the American flag a second time. Again a short struggle ensued, which was broken up by the police. An Anthony next spoke. Kuh challenged him to debate, and a confused discussion followed. Miss Evard then spoke, stating that her father and uncle were fighting in Vietnam and that she was proud of America. The Defendant received the impression that she was labelling opponents of American Vietnam policy as traitors, so he responded by saying that he loved America, that if he were a betrayer who did not love America he would not take the trouble to get himself involved, that he did not want to see people like Miss Evard's father and uncle killed in Vietnam. A WAC went up to the stage and spoke in support of United States policy. A Bill Woods also took the microphone but spoke on internal problems within the Political Affairs Club. A question and answer period ensued, shortly after which the rally was ended. The Defendant was then arrested for desecrating, in the words of the Sgt. according to the Defendant, “a caricature of the American flag." By motion for dismissal made prior to trial and by motion for judgment of acquittal made after the government's presentation, serious constitutional questions on the validity of the statute on its face and as applied have been raised. The Court commends all counsel involved for their presentation on the constitutional questions raised. However, under the view taken of this case, it becomes unnecessary to pass on them. In the words of the statute and the charge, the allegation is that the Defendant did "defile, defy and cast contempt upon" the flag of the United States. The import of these words is that the actor, whether by words or conduct, evinced a purpose to dishonor the flag. It is true that the statute does not contain the words "wilfully" or "intentionally" defile, defy and cast contempt upon the flag. However, the words "defile, defy and cast contempt" in themselves carry an inherent meaning of an attitude of mind which intends shame and dishonor upon the flag. As was said in State v. Schlueter, 23 A. 2d 249, a New Jersey case in which a similar charge was involved, "a blind man stumbles over the flag and, not knowing what it is, walks upon it and then casts it aside. Has he 'trampled' upon the flag? Has he 'defaced' or 'defiled' it? Has he 'dishonored' it? We think not; because those words carry with them, by inherent meaning, an attitude of mind which is wholly lacking in the supposed instance." The New Jersey Court said that the words defacing or defiling has an intendment of "dishonor", imputing "a lively sense of shaming or an equivalent acquiescent callousness." In the case before us, whether the Defendant defiled, defied or cast contempt upon the flag, that is, whether the conduct of the Defendant was with purposeful attitude of dishonoring the flag, must, of course, be determined in the context in which his conduct occurred. I find that there has been no showing of such conduct. First, although not determinative, there is the Defendant's statement that he had no intention of defiling, defying or casting contempt on the flag. Second, whatever may be argued as to whether the placard, Prosecution's Exhibit 1, does or does not constitute a "representation" of the American flag under the statute which speaks in terms of any picture by which the person seeing the same, without deliberation, may believe the same to represent the flag, the exaggerated distortions are sluch that it is clear that the intent of the Defendant was not that it represent the American flag nor that it portray a contemptous attitude, towards the American flag, but rather it is abundantly clear that Prosecution's Exhibit 1 was displayed by the Defendant with the intent that it symbolically portray his violent disagreement with present American participation in Vietnam. According to Officer Howell, the Defendant's answer in reply to the question, "Is that the American flag?" was: "That is what it has become *** LBJ has desecrated it by napalming and murdering women and children in Vietnam." 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. Third, at the rally, in reply to an inference that those of Defendant's posture towards American particpation in Vietnam were traitors to our country, the Defendant's statement was that he, too, loved America, that he would not be involving himself in the current Vietnam controversy if he didn't care enough about our country. 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, Vietnam involvement, or peace marches against it. To this concept of the flag as symbolic of the entirety of what we call America, the defendant evinced no contempt or defiance. Rather, to his way of thinking, he wished to gain respect for it. In short, the nature of the display and the circumstances under which the display was made are such that there has been no showing that the defendant's conduct was such as to evince an attitude of dishonor to the American flag. The Court therefore finds that the prosecution has not sustained its charge. Mr. SPEISER. Mr. Chairman, I have appeared before many committees of Congress, and I think today was noteworthy in two respects: One, the fact that I think it was an educational dialog for me, and I hope for members of the committee, and secondly, in an area which I know is of great concern to a great many Americans, the matter was handled in as dispassionate and as rational kind of way as this hearing was conducted. I think each of the members of the committee, no matter what their points of view, were interested in my view, and it was one of the best experiences I have had in appearing before a congressional committee. Mr. ROGERS. Thank you, and I hope the committee will always try to consider these things in a calm and dispassionate manner. Our next witness is Mr. Edmund G. Lyons, vice chairman, National Americanism Commission, of the American Legion, Maurice T. Webb, director of the National Americanism Commission and John S. Mears, assistant director, National Legislative Commission. Proceed in your own manner. STATEMENT OF EDMUND G. LYONS, VICE CHAIRMAN, NATIONAL AMERICANISM COMMISSION OF THE AMERICAN LEGION; ACCOMPANIED BY MAURICE T. WEBB, DIRECTOR OF THE NATIONAL AMERICANISM COMMISSION; AND JOHN S. MEARS, ASSISTANT DIRECTOR, NATIONAL LEGISLATIVE COMMISSION Mr. MEARS. Mr. Chairman. I know the hour is late. If I might take the time, however, I would just like to say that I hope our decorum here this afternoon will be symbolic of the American Legion's regard and respect for this subcommittee. Mr. ROGERS. We are sorry it took us this long to get here, but you know how these things go. We certainly appreciate your appearance and giving us the benefit of your own thinking in this matter. Mr. McCLORY. I think we ought to explain, we have had a number of witnesses, but this is the only witness we have had against the bill, so we spent a little more time with him. Mr. LYONS. You will notice that the heading of our statement indicates we are here in connection with H.R. 271. That was merely the title of the notice we received. We are not here to advocate the passage of any specific bill. People were here this morning pleading for and in behalf of specific bills. We want a bill that will make it a crime to desecrate the flag of the United States. Mr. ROGERS. We have had at this point over 55 introduced, so we understand that what you want is "a bill." Mr. LYONS. I hope by the time we are finished, you will understand our position and know what our objective is. I may say prior to reading the statement, I am not an attorney, and thus my testimony does not contain any citations or legal briefs, but I am expressing the opinion of 311⁄2 million Americans. |