Since it is for Congress and the President to determine the wisdom of such legislation, I shall limit my remarks to the constitutionality of H.R. 10480 and related bills.

I share with the Attorney General, Mr. Chairman, serious doubts as to the constitutionality of H.R. 271 and the companion measures which he discussed with you. In addition, I am of the view that H.R. 10480 now under consideration, though designed to avoid the several objections raised by the Attorney General, is nevertheless unconstitutional.

Preliminarily, I commend to this distinguished committee the words of Mr. Justice Jackson, speaking for the majority in West Virginia Board of Education v. Barnette, 319 U.S. 624, 641 (1942). Mr. Jackson said:

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make a unflattering estimate of the appeal of our institutions to free minds.

We can have intellectual individualism and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right of differ as to things that touch the heart of the existing order.

These several measures and particularly H.R. 10480 now under consideration by this committee, are, in my view, violative of fundamental rights guaranteed by the first and fifth amendments to the Constitution of the United States. They would abridge freedom of speech and of the press, and they are so vague, indefinite, and uncertain as to furnish no reasonably ascertainable standard of guilt.

There is no question that, under the reserved police power and the delegated national power, both the States and Congress may regulate behavior relating to the U.S. flag. However, the legislation under discussion has not been drafted to avoid unconstitutional strictures on freedom of speech with the required precision and definiteness.

A study of the history of State flag-desecration statutes shows that they were designed principally to prevent misuse of the flag for commercial purposes and to prohibit such public disrespect for the flag as threatened to lead to a breach of the peace. In so doing, these statutes kept close in intendment, although not in actuality, to the rationale of clear and present danger as a limit upon freedom of speech.

The question of the constitutionality of these flag-desecration statutes has never been reviewed by the U.S. Supreme Court on issues relating to the freedom-of-speech provisions of the first amendment. The Supreme Court's holding sustaining the validity of the Nebraska flag-desecration statute in Halter v. Nebraska (205 Ü.S. 34 (1907)), is irrelevant to our consideration because that case arose on 14th amendment issues relating to the deprivation of property without due process of law and denial of equal protection of the laws in terms of the State's power to regulate misuse of the flag for commercial purposes. The Uniform Flag Act, which has been adopted in 15 States and the District of Columbia, was an attempt to cure obvious defects in some

of the State statutes as they then existed and also to make them comport with constitutional requirements. But the Uniform Act was drafted and approved in 1917, long before the Supreme Court had before it many of the cases now controlling First Amendment rights and before that Court had restated the void-for-vagueness doctrine in the area of First Amendment rights which defined the limits and character of first amendment freedoms. Thus the broad language of the Uniform Act is open to serious question. The language in its material proportions:

No person shall publicly mutilate, deface, defile, defy, trample upon or by word or act cast contempt upon any such flag, standard, color, ensign or shield . . (3 Uniform Flag Act).

Apparently the aim of the present bill, by amending section 3, title 4 of the United States Code and section 22-3414 of the District of Columbia Code, striking out the language: "or who, within the District of Columbia, shall publicly mutilate, deface, defile or defy, trample upon, or cast contempt either by word or act, upon any such flag, standard, colors, or ensign," and by substituting in its place the language; "whoever, within the District of Columbia, casts contempt upon any flag, standard, colors, or ensign of the United States of America by publicly mutilating, defacing, defiling or trampling upon any such flag, standard, colors, or ensign shall be fined not more than ***" is to save the statute from attack on the ground of First Amendment violations. But it is clear that the presence of the word "defile" which has already received a speech interpretation opens this language to First Amendment objections. (State v. Schleuter, 23 A. 2d 249, 251, 127 N.J.L. 496.)

The two principal objections I want to discuss and conclude with are void for vagueness and first amendment limitations.

VOID FOR VAGUENESS

The exaction of obedience to a "rule or standard” which is vague or indefinite is really no rule or standard at all. (H. B. Small Co. v. American Sugar Ref. Co., 267 U.S. 233, 239 (1925).) Sections 700 (a) and (b) of this bill are encouched in language fatally defective for vagueness. It is submitted that the language, and I quote from H.R. 10480: "... by which the average person seeing the same without deliberation may believe the same to represent the flag, standards, colors, or ensign of the United States of America" using the person's test is so faulty that, coupled with the vagueness of the standard enunciation in section 700 (a), it infects the whole bill with indefinite

ness.

The most glaring defect in the bill is the language of subsection (a) where the words used to define the offense: "mutilate, deface, defile, trample upon or cast contempt upon" are so vague and indefinite that the imposition of a penalty for their violation constitutes a denial of due process of law. It is not the penalty itself that is invalid, as the Court has said, but the exaction of obedience to rule or standard that is so vague and indefinite as to be really no rule or standard at all. Champlin Refining Co. v. Corporation Commission of Oklahoma, 286 U.S. 210, 243 (1932); Jordan v. De Gorge, 341 U.S. 223, 231–232 (1951); Cramp v. Board of Public Instruction, 368 U.S. 278, 287

(1961); Watkins v. United States, 354 U.S. 178 (1957); Roth v. United States, 354 U.S. 476, 491-492 (1957); United States v. Petrillo, 332 U.S. 1, 6-8 (1947); Lambert v. California, 355 U.S. 255, 231 (1957). There is no sufficiently specific meaning of the words used in paragraphs (a) and (b) at the common law, by statute, or by prior judicial interpretation to allow for their use in a statute regulating first amendment conduct which provides penal sanctions for its violation.

I call the committee's attention to the Connally case, which exemplifies the void-for-vagueness doctrine. In Connally v. General Construction Co., 269 U.S. 385, 391, the Supreme Court held:

a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.

I attempted to be of some assistance to the committee by bringing that line of cases down to the current term.

See also Lanzetta v. State of New Jersey, 306 U.S. 451, 453 (1939); Bagget v. Bullitt, 377 U.S. 360 (1964); Winters v. New York, 333 U.S. 507, 509, 518 (1948); Stromberg v. California, 283 U.S. 359, 369 (1931); Garner v. Louisiana, 368 U.S. 157, 205-207 (1961) (Harlan, J., concurring); Cramp v. Board of Public Instruction, 368 U.S. 278, 287288 (1961); Boyce Motor Lines v. United States, 342 U.S. 337, 340 (1952); Dombrowski v. Pfister, 380 U.S. 479 (1965); Smith v. California, 361 U.S. 147, 151 (1959); Scarbeck v. United States, 317 F. 2d 546, 556 (1962); Screws v. United States, 325 U.S. 91, 101 (1945); Cox v. Louisiana, 379 U.S. 536, 552 (1965).

Substantive due process requires that a statute be specific enough so that the court may ascertain what the offense consists of and charge the jury accordingly. Certainly the court should not allow a jury to determine not only if the alleged offense was committed but also what acts constitute the offense. If "neither the person to decide in advance nor the jury to try him after the fact can safely and certainly judge the result," the statute must fall. Cline v. Frink Dairy Co., 274 U.S. 445, 465; United States v. F. Cohen Grocery Co., 255 U.S. 81 (1921); Musser v. Utah, 333 U.S. 95, 97 (1948); Winters v. New York, supra; Boyce Motor Lines v. United States, supra. Here the jury will have to determine what acts deface, defile, or cast contempt upon a flag.

As the Supreme Court said as late as January 19, 1966, in Giaccio v. Pennsylvania, 86 S. Ct. 518:

It is established that a law fails to meet the requirements of the Due Process Clause if it is so vague and standardless that it leaves the public uncertain as to the conduct it prohibits or leaves judges and jurors free to decide, without any legally fixed standards, what is prohibited and what is not in each particular

case.

(Citations omitted) . . .

This... Act contains no standards at all, nor does it place any conditions of any kind upon the jury's power . . . Certainly one of the basic purposes of the Due Process Clause has always been to protect a person against having the Government impose burdens upon him except in accordance with the valid laws of the land. Implicit in this constitutional safeguard is the premise that the law must be one that carries an understandable meaning with legal standards that courts must enforce.

Moreover, those in the executive and judicial branches are without any standards to apply in enforcing the bill. Thus, a citizen may speak out only at the uncontrolled discretion of the nearest Federal law enforcement officer. Long ago in Cantwell v. State of Connecticut, 310

U.S. 296, 308 (1940), the Supreme Court held that a conviction is unconstitutional if obtained under a statute which sweeps in "a great variety of conduct under a general and indefinite characterization, and leave[s] to the executive and judicial branches too wide a discretion in its application."

The Court restated the Cantwell doctrine in the Shuttlesworth case as late as 1965. See also Shuttlesworth v. City of Birmingham, 382 U.S. 87 (1965).

In Edwards v. State of South Carolina, 372 U.S. 229, 236-238 (1963); Cox v. State of Louisiana, 379 U.S. 536, 551-552 (1965); and even more recently in Ashton v. Kentucky, 86 S. Ct. 1407, 1410 (1966), the Supreme Court has held that a citizen's conduct cannot be made illegal merely because others are offended even to the point of violence by what is said or done. Under this bill a citizen's words or acts are made criminal for that very reason. When speech is provocative and challenging, when it strikes at prejudices or preconceptions, it can have unsettling effects.

Convictions for "breach of the peace" where the offense was imprecisely defined were reversed in Edwards v. State of South Carolina, 372 U.S. 229, 236-238, 83 S. Ct. 680, 683-684, 9 L.Ed. 2d 697, and Cox v. State of Louisiana, fined were reversed in Edwards v. State of South Carolina, 372 U.S. 229, 379 U.S. 536, 551-552, 85 S.Ct. 453, 462-463, 13 L.Ed. 2d 471. These decisions recognize that to make an offense of conduct which is "calculated to create disturbances of the peace" leaves wide open the standard of responsibility. It involves calculations as to the boiling point of a particular person or a particular group, not an appraisal of the nature of the comments per se. (Ashton v. Kentucky, S6 S.Ct. 1407 (1966).)

With your permission, I turn to the first amendment objections.

FIRST AMENDMENT OBJECTIONS

The Supreme Court has said, "Vague laws in any area suffer a constitutional infirmity. When first amendment rights are involved, we look even more closely lest, under the guise of regulating conduct that is reachable by the police power, freedom of speech or the press suffer." (Ashton v. Kentucky, 86 S. Ct. 1407 (1966).)

Turning from the infirmity of vagueness, these several measures would effect an unconstitutional restraint upon rights protected by the first amendment.

In the language of Justice Brandeis, concurring in Whitney v. California, 274 U.S. 357, 47 S. Ct. 641 (1927):

The right of free speech, the right to teach and the right of assembly are, of course, fundamental rights. See Meyer v. Nebraska, 262 U.S. 390; Pierce v. Society of Sisters, 268 U.S. 510; Gitlow v. New York, 268 U.S. 652, 666; Farrington v. Tokushige, 273 U.S. 284. These may not be denied or abridged. But, although the rights of free speech and assembly are fundamental, they are not in their nature absolute. Their exercise is subject to restriction, if the particular restriction proposed is required in order to protect the State from destruction or from serious injury, political, economic or moral. That the necessity which is essential to a valid restriction does not exist unless speech would produce, or is intended to produce, a clear and imminent danger of some substantive evil which the State constitutionally may seek to prevent has been settled.

Congress having no reserve police power to prevent breaches of the peace, as well as no policing authority or machinery for the enforcement of such general statutes on a national basis, can only justify its exercise of governmental power in these premises on its power to

punish desecration qua desecration (see People v. Von Rosen, 13 Ill. 2d 68, 147 N.E. 2d 327 (1958)). Thus the proposed exercise of Federal power in the instant matter poses the question of what proper governmental interest is sought to be protected, what evil this legislation is intended to correct, balanced against the limitations upon first amendment rights.

It must be conceded at the outset, that these proposed measures seek to limit the expression and demonstrations of ideas and views. The standards by which this bill must be judged and the reason for that standard were clearly set forth by the Supreme Court in Terminiello v. Chicago, 337 U.S. 1,4 (1948):

The vitality of civil and political institutions in our society depends on free discussion. As Chief Justice Hughes wrote in De Jonge v. Oregon, 299 U.S. 353, 365, it is only through free debate and free exchange of ideas that government remains responsive to the will of the people and peaceful change is effected. The right to speak freely and to promote diversity of ideas and programs is therefore one of the chief distinctions that sets us apart from totalitarian regimes. Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, pp. 571-572, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262; Craig v. Harney, 331 U.S. 367, 373. There is no room under our Constitution for a more restrictive view. For the alternative would lead to a standardization of ideas either by legislatures, courts, or dominant political or community groups. Six years earlier in West Virginia State Board of Education v. Barnette, supra at 633, the Supreme Court applied this same standard to a statute compelling a flag salute and pledge.

It is now a commonplace that censorship or suppression of expression of opinion is tolerated by our Constitution only when the expression presents a clear and present danger of action of a kind the State is empowered to prevent and punish.

It is now beyond question that Congress has some power to regulate the use of the flag of the United States. In Halter v. Nebraska, 205 U.S. 34 (1906), the Supreme Court upheld State legislation designed to prevent the use of the flag of the United States for advertising purposes. The existence of congressional power to prohibit the use of the flag for purposes of speech and dissent is of course a totally different question, for in similar circumstances the Supreme Court stated in West Virginia Board of Education v. Barnette, supra at 639, language which would indicate that in this area where there may be some governmental power, its exercise of course is limited:

The test of legislation which collides with the Fourteenth Amendment, because it also collides with the principles of the First, is much more definite than the test when only the Fourteenth is involved. Much of the vagueness of the due process clause disappears when the specific prohibitions of the First become its standard. The right of a State to regulate, for example, a public utility may well include, so far as the due process test is concerned, power to impose all of the restrictions which a legislature may have a "rational basis" for adopting. But freedoms of speech and of press, of assembly, and of worship may not be infringed on such slender grounds. They are susceptible of restriction only to prevent grave and immediate danger to interests which the State may lawfully protect.