Now, when Mr. Halpern testified before this committee, on page 162, counsel, Mr. Zelenko, asked him this question: Just to make your testimony clear, your testimony was that officials of the Department of State And Mr. Halpern answered this way: I didn't say I understood that. The word that was given to me, and it was purely third hand, was that it was the State Department. It is not a direct quote from me, and as I said, it was hearsay, but I know many members of the New York City Police Department have spoken to me about it, and they abhorred the fact that they could not take action because of instructions not to do so, despite the flagrant abuse taking place in Central Park that day. Now, do you know of anyone in the State Department who ever discussed that matter with you? Mr. VINSON. No, sir. I have absolutely no knowledge. And it sounds like thirdhand hearsay to me. Mr. PoFF. I am glad to have the assurance and the reassurance of the witness on that score. And I say that one of my purposes in asking you to appear was to give you an opportunity to deal responsively with that question. Now, I have another question. I have read with some care and, repeatedly, the letter addressed to the subcommittee by the distinguished Attorney General, a man I would call a personal friend. I do not in any manner challenge his purpose or his viewpoint, but I do wonder what he has said in that letter. It seems to me that he has been ambivalent, at least; that he has assumed not one position but two at least; and, as a consequence, I know not where he stands. Now, may I ask: Insofar as you speak for the Attorney General and for the Department of Justice, does the Department of Justice favor or oppose legislation in this field? Mr. VINSON. I think the letter makes clear that we felt that there were a number of issues to be determined by the Congress and that if the Congress felt that legislation was needed, that we certainly did not oppose it. Mr. POFF. Yes. That is precisely what you said, and I say that that does not take a position. And I believe that the Department of Justice should take a position. We have a number of criminal statutes pending before this committee, and the Justice Department has taken a position, I might say a very vigorous position, on each of those bills. This is another proposal with respect to a criminal statute. It is one which, if passed, will be within your sole and exclusive jurisdiction. It will be your responsibility to enforce it. Now, in light of those circumstances, I think this committee and the Nation are entitled to know what the chief law enforcement agency of the Federal Government thinks about such legislation. And I ask you: Does the Department of Justice favor, or oppose, legislation of this kind? Mr. VINSON. Well, as I stated before, we feel that if your committee inquiry develops a need for this legislation, we certainly do not oppose it. Mr. ROGERS of Colorado. Might I point out that on page 2 of the letter of the Attorney General, in the next to the last paragraph, this statement is made: Whether a Federal criminal statute is the proper redress for the injury inflicted on the nation when the flag is burned and whether it would serve as a need deterrent against further transgressions is a question for the Congress. Now, the Attorney General says that if the Congress thinks that this is a proper approach, he would have no objection to it. Isn't that what you are saying? Mr. VINSON. That is correct, Mr. Chairman. Mr. ROGERS of Colorado. And if the Congress does enact such a law, then you will enforce it, like any other laws that we place upon the statute books? Mr. POFF. I want to say in response that I am glad to have the benefit of the distinguished chairman's testimony, but what has been said in that paragraph might equally be said with respect to every bill which this committee considers. Of course, it is the province of the Congress to make the laws. We will abide by our responsibility, and we will decide. And I assume when we do so you will enforce what we write. But that does not argue the point that the Justice Department has in the past nearly universally advised this committee what it thinks the law should be and what it should not be, and I find no legitimate reason why it should depart from that practice on this particular occasion. Mr. VINSON. Mr. Congressman, I am sure that, given the opportunity to check through our legislative files, we would find many bills before this committee which we oppose and would find many bills which we took no position on. Mr. POFF. Well, if you have taken this position and identify it as a position, can you explain why you take this position? Mr. VINSON. I think the Attorney General's letter speaks for itself, Mr. Congressman. Mr. PoFF. Well, I do not think so, and that is why I have invited you to come and explain it. Mr. VINSON. And the second part of your question, of course, is also answered in that letter, where the Attorney General stated that if the Congress determines that State or local enforcement is for any reason inadequate, or that there are overriding reasons why burning the Nation's flag should be a Federal offense, the Department of Justice can, and, of course, will, vigorously prosecute violations. Mr. POFF. Yes. I understand. But I repeat: If you regard this as a position, can you give us the reasoning which would justify your taking the position? Mr. VINSON. Well, I would again advert to the letter. I think the letter really explains why the position is taken, Mr. Congressman. The letter points out that a number of matters merit study and consideration by the committee in determining the need. One of those is: Are the State statutes inadequate? Do the States fail to enforce the law? Mr. POFF. May I put the question in a somewhat different posture? If this committee decides to report a bill which fixes a criminal definition for desecration of the U.S. flag, which omits a reference to words and confines itself to acts, if it fixes concurrent jurisdiction with the States, if it indicates an intent that it shall have extraterritorial application, when the proscribed conduct is committed by an American citizen on foreign soil, and if it fixes a penalty structure similar to that fixed in connection with the mutilation of draft cards, in such case would the Justice Department recommend a veto of the bill? Mr. VINSON. That is a question without my domain. My recommen dation would be: absolutely not. I think our letter makes it clear that our position is not one of opposition. Mr. POFF. I think it makes it equally clear, however, and I say this in all kindness, that it is not one in vigorous support of legislation. Mr. ROGERS of Colorado. May I testify further? Mr. POFF. Yes, I will be glad to have you testify, if you permit me to cross-examine. Mr. ROGERS of Colorado. Haven't you often heard that those dictators downtown, in the executive department, are telling the Congress what to do? And now you criticize this man because he hasn't? Is that it? Mr. POFF. What I find unusual is that virtue should manifest itself so seldom. Mr. ROGERS of Colorado. At least there is purity at some point along the line. Mr. POFF. I wish that they might have also adopted a similar position with respect to some of the other criminal bills, which Subcommittee No. 5 is a considering at the moment. Mr. VINSON. That might be subject to a point of order. Mr. POFF. I repeat my expression of appreciation to the gentleman. I think that you will agree that your attendance here has been useful, that it has filled a need and a void. I conclude with that. Mr. ROGERS of Colorado. Thank you, Mr. Vinson. We appreciate your coming and testifying before the committee. When we do get a bill somewhat like what the gentleman from Virginia has outlined we may be asking you whether or not part of it is constitutional. How would that be? Mr. POFF. I would be glad to have the benefit of his advice. We will at this time place in the record the statement of the Honorable Ancher Nelsen of Minnesota and the statement of the Honorable John McDonald of the State of Michigan. (The statements referred to follow :) STATEMENT OF HON. JACK MCDONALD, REPRESENTATIVE FROM THE STATE OF MICHIGAN Mr. Chairman, I want to thank you for the opportunity to testify before the Judiciary Committee to present my views on the need for legislation to make the desecration of the United States flag a Federal crime. I know that many thoughtful Americans tend to disagree as to the course our country should follow in these perilous times. In fact, there is one thing upon which we all agree-the right of our fellow Americans to dissent from the popular or least contrary opinion. I cherish the right to dissent and stand ready to defend all others in their right to do the same. But, we should not permit the very symbol of our rights to be desecrated, for such acts of desecration symbolically suggest a repudiation of the very rights our flag represents. The flag burner says to me, in effect, that he wishes destroyed the rights and traditions and freedoms symbolized by our flag. As all 50 states have some law prohibiting the desecration of our flag, I do not wish to see these laws circumvented or preempted. But, the Stars and Stripes represent America as a Nation. It is our duty to enact a Federal statute which would operate concurrently with the state laws to enforce a strict prohibition of any act of desecration of our Federal flag. I urge your committee to submit to the Congress a bill which would provide penalties of at least $1,000 or one year in jail or both in order to emphasize the unwillingness of the American people to accept anarchy, whatever its form. Thank you, Mr. Chairman, for allowing me this time to address the Judiciary Committee on this matter. STATEMENT OF HON. ANCHER NELSEN, U.S. REPRESENTATIVE FROM THE STATE OF MINNESOTA, H.R. 9200 On Saturday, April 15th, over 100,000 individuals gathered in New York, 50,000 in San Francisco and others elsewhere to protest the war in Vietnam. While undoubtedly some were serious, sincere dissenters, it is apparent there were also those present who abused the very right to dissent. The American flag was burned in Central Park. The flag of the Viet Cong enemy was carried proudly aloft while our own national ensign was trailed field down. Such uncivilized acts shame and embarass the United States before the world, feed fuel to the propaganda burner of our enemies, and degrade the people and institutions of the United States. Such acts insult the bravery and integrity of Americans fighting and dying in Vietnam. Such acts inpugn the sacrifices of countless Americans, living and dead, for this country. Mr. Chairman, there is a great responsibility inherent in every freedom won by the sweat and blood of generations of Americans. There is, in fact, no such thing as freedom without responsibility. When good judgment is abandoned in the exercise of freedom, it becomes license. The freedom of the press is not freedom to libel. The freedom to assemble is not freedom to riot. The freedom of speech is not freedom to shout "fire" in a crowded theatre. I feel the freedom to dissent is not the freedom to desecrate the American flag. This is irresponsibility of the worst order. It is the kind of irresponsibility that can destroy freedom. The flag of the United States is composed of red, white and blue cloth. But it is far more precious than its material cost. It is a symbol of no lesser significance than the paper and ink of the U.S. Constitution or the Declaration of Independence. Our government or basic rights would not disappear if these documents were burned. But we go to great lengths to preserve them as reminders of our past and what the past means for the future. The flag, too, holds such great meaning. It symbolizes a nation mighty because of its institutions, its people and its freedoms. Destruction of that symbol is a crime against the freedom, the people and the institutions it represents. Flag desecration is already prohibited by a law in the District of Columbia, and I feel we should extend the prohibition nationally. The bills many of us have introduced would make desecration or mutilation of the flag a federal crime, with punishment by imprisonment up to five years or a fine up to $10,000 or both. This penalty is the same as that enacted in 1965 for draft card burners under terms of an amendment to the Universal Military Training and Service Act. I hope that we may soon be given an opportunity to vote on such legislation to prevent these rash, profane and harmful incidents. Mr. ROGERS of Colorado. The committee will now recess, subject to the call of the Chair. (Whereupon, at 3:40 p.m., the committee recessed to the call of the Chair.) H.R. 271, AND SIMILAR BILLS, TO PROHIBIT DESECRATION OF THE FLAG MONDAY, JUNE 5, 1967 HOUSE OF REPRESENTATIVES, The subcommittee met, pursuant to call, at 10 a.m., in room 2141, Rayburn House Office Building, Hon. Byron G. Rogers of Colorado (chairman of the subcommittee) presiding. Present: Representatives Rogers of Colorado, Whitener, Conyers, and McClory. Present also: Benjamin L. Zelenko, counsel, and Donald G. Benn, associate counsel. Mr. ROGERS of Colorado. The committee will now come to order. Our first witness is Prof. Herbert O. Reid, of the Howard University Law School. Will you come forward, Professor Reid, and have a seat in front of the microphone. You may proceed in your own manner. I understand you have a statement. STATEMENT OF HERBERT 0. REID, PROFESSOR OF CONSTITUTIONAL LAW, HOWARD UNIVERSITY, SCHOOL OF LAW, WASHINGTON, D.C. Mr. REID. Mr. Chairman, I appreciate the opportunity to appear before this distinguished subcommittee to express my views in opposition to the passage by Congress of H.R. 10480, a bill to prohibit desecration of the flag and companion measures. On May 8, 1967, in response to a request from this committee for the views of the Department of Justice on H.R. 271, and companion measures, the Attorney General said: These proposals, and others presently pending in the Congress, are the result of a number of recent flag-burning incidents. The American people are deeply devoted to their flag. It is in the hearts and minds of the citizens, the symbol of our national ideal: "liberty and justice for all." We are deeply hurt when our flag is dishonored for it represents not only a noble history and the sacrifice and spirit of our fathers, but our aspirations for our children and their fulfillment. Whether a federal criminal statute is the proper redress for the injury inflicted on the nation when the flag is burned and whether it would serve as a needed deterrent against further transgressions is a question for the Congress. I heartily concur in this response. May I say, even though I am opposed to the bill, I am opposed to flag-burning as well as flag-waving. 279 |