H.R. 271, AND SIMILAR BILLS, TO PROHIBIT DESECRATION OF THE FLAG WEDNESDAY, MAY 10, 1967 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE No. 4 OF THE The subcommittee met, pursuant to call, at 10 a.m., in room 2141, Rayburn House Office Building, Hon. Byron G. Rogers (chairman of the subcommittee) presiding. Present: Representatives Rogers, Whitener, Conyers, Jacobs, McClory, Wiggins, and Poff. Present also: Benjamin L. Zelenko, counsel, and Donald G. Benn, associate counsel. Mr. ROGERS. The committee will come to order and resume its hearings in connection with certain bills prohibiting desecration of the flag. The first witness is the Honorable Dan Kuykendall, Representative from Tennessee, who is the author of H.R. 8536. Mr. Kuykendall, we are happy to receive you. Go ahead in your own manner. STATEMENT OF HON. DAN KUYKENDALL, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TENNESSEE Mr. KUYKENDALL. Thank you, Mr. Chairman and members of the committee. I appreciate this opportunity to appear before you in support of legislation to punish those who desecrate the flag of the United States. I would like to commend the members of this great committee for making these hearings possible so that the American people and the world will know that the flag burnings, the anti-American riots and demonstrations in which a few malcontents have indulged, do not represent the thinking of the vast majority of our citizens. My bill to prevent desecration of the flag is H.R. 8536. It is tragic, indeed, that Federal legislation is needed to protect the flag of our country. Those Americans who have engaged in trampling the flag, burning it, spitting upon it, fail to realize the significance of their actions. Throughout the history of nations the flag has been the symbol of the principles upon which the particular nation has been founded. The very act of despoiling the flag threatens the foundations upon which the Nation is built. 93 79-543-67- -7 Those who demand the freedom to dissent risk the destruction of the institutions which protect their right to dissent when they tear down respect for the flag and the free institutions for which it stands. The strength of our country cannot be maintained without allegiance to the principles for which we stand and the flag is the banner around which we rally in support of these principles. It has always been so. On every battlefield throughout history, the flag has been a prime target because to destroy the flag was to weaken the morale of the fighting forces. Who among us has not been thrilled at the pictures of American fighting men valiantly risking their lives in battle to save the flag from falling? Which is the greater contribution to the security of freedom: The inspiring photo of the Marines raising the flag on a bloody hill at Iwo Jima, or the shameful pictures of unshaven beatniks burning that same flag in Central Park in New York? Perhaps we would do well to recall the words of Woodrow Wilson in a tribute to the flag: The lines of red are lines of blood, nobly and unselfishly shed by men who loved the liberty of their fellowmen more that they loved their own lives and fortune. God forbid that we should have to use the blood of Americans to freshen the color of the flag. But if it should ever be necessary, the flag will be colored once more, and in being colored, will be glorified and purified. In another stirring message on the flag, Wilson said: This flag, which we honor and under which we serve, is the emblem of our unity, our power, our thought and purpose as a nation. It has no other character than that which we give it from generation to generation. The choices are ours. It floats in majestic silence above the hosts that execute those choices, whether in peace or in war. And yet, though silent, it speaks to us-speaks to us of the past, of the men and women who went before us, and of the records they wrote upon it. We celebrate the day of its birth; and from its birth until now it has witnessed a great history, has floated on high the symbol of great events, of a great plan of life worked out by a great people *** Woe be to the man or group of men that seeks to stand in our way in this day of high resolution when every principle we hold dearest is to be vindicated and made secure for the salvation of the nation. We are ready to plead at the bar of history, and our flag shall wear a new luster. Once more we shall make good wth our lives and fortunes the great faith to which we were born and a new glory shall shine in the face of our people. Wilson uttered those words in 1917, but they could have been said in New York last month in this year of 1967. The American idea for which the flag so nobly stands has not changed. We stand today, as our forefathers stood in 1776, for the freedom of mankind. We cherish not only our own freedom, but the freedom of those who are enslaved anywhere in the world. That is why we have nearly a half million men in South Vietnam today: to protect the freedom of a people whose land has been invaded. America seeks not a single inch of real estate in Vietnam and those who are leading the anti-American demonstrations here at home and abroad must know this. Our cause today is as it always has been and which is set forth so stirringly in our National Anthem : Then conquer we must when our cause it is just, We dare not ignore our past history nor the contributions to freedom made by those who created this Nation and designed the flag which represents it. We must agree with Henry Ward Beecher A thoughtful mind when it sees a nation's flag, sees not the flag, but the nation itself. And whatever may be its symbols, its insignia, he reads chiefly in the flag, the government, the principles, the truths, the history that belongs to the nation that sets it forth. The American Flag has been a symbol of Liberty and men rejoiced in it. Can we now allow the symbol of liberty to be destroyed without destroying liberty itself? I think not. Desecration of the flag in time of war cannot help but give comfort to the enemy. When pictures are flashed around the world of Americans burning and desecrating the flag of their country, the hand of those who would destroy America and the American way of life, is most certainly strengthened. I firmly believe that desecration of the flag comes very close to treason and I'm equally convinced that America, strong as we are, cannot withstand the onslaught of treason at a time when one-third of the world is controlled by a conspiracy which has as its stated purpose the defeat of the United States, and the destruction of free governments everywhere. As a part of this statement I would like to include a column, "Main Street, U.S.A.," distributed by the National Newspaper Association, which calls for enactment of legislation to prevent the desecration of the flag. I would also like to include the statement of the Republican policy committee of the House of Representatives which supports the enactment of this legislation. In introducing my bill, I am concerned with those who deliberately, and with malice, desecrate the flag. Because of the laxity we have shown toward respect for the flag, there have been growing abuses by persons who are committing desecration but unknowingly and in ignorance of the effect of their actions. I am hopeful that once this legislation is passed by Congress, there will be a rebirth of respect for the flag which will make unnecessary legislation to prevent some of these unintentional abuses. A number of the States already have legislation to punish those who desecrate the flag, and I would like to commend them for meeting this problem. However, Federal legislation is necessary because the flag is the national emblem and should be protected by national legislation just as our money is protected. State laws against counterfeiting would not solve the problem of convicting those who process or pass bogus money. This must be done by Federal law. The same reasoning is behind the introduction of legislation to punish desecration of the flag. This bill will in no way interfere with any State laws now on the books, but will indeed strengthen them and make it possible to punish those who desecrate the flag anywhere in the Nation. Mr. Chairman, members of the committee, I hope that you will act favorably upon this legislation and will send a bill to the floor of the House without delay, that will protect our flag, the symbol of all the greatness thatis ours as a nation of free men. Mr. Chairman, that concludes my prepared statement. Mr. ROGERS. Mr. Kuykendall, you made reference to an article or editorial that you wanted to leave with us together with the statement of the Republican Policy Committee? Mr. KUYKENDALL. Yes. Mr. ROGERS. We will receive those for the record. (The documents referred to follow :) HOUSE REPUBLICAN POLICY COMMITTEE URGES LEGISLATION TO PROHIBIT THE DESECRATION OF THE FLAG The House Republican Policy Committee urges the prompt enactment of legislation that would prohibit the deliberate and defiant desecration of the American Flag. It is strange indeed to see on the same day in the same newspapers, pictures of American young men facing danger and death in Vietnam and pictures of other American young men burning their nation's flag in the safety of an American park. Certainly, the Bill of Rights never was intended to protect those who would contemptuously set fire to the American Flag. One of the greatest strengths of this nation is the right of dissent. This right was established by our Founding Fathers and must remain inviolate. However, the right of dissent from particular policies or with particular individuals never was intended to sanction the desecration of the American Flag which is the symbol of our national heritage and unites all Americans in their allegiance "to the Republic for which it stands." [Our Washington Column (Distributed by National Newspaper Association) ] MAIN STREET, U.S.A. (By Bert Mills) WASHINGTON, May 1.-Patriotic Americans have endured much in recent years from youthful crackpots protesting one thing or another but surely outrage is the only word to describe the feelings of most people who saw the picture or read about the recent flag burning in a New York park. Americans today hold few things sacred but if the flag is not on everybody's list there is no list at all. Patriotism may be old fashioned but respect for the flag ought to be mandatory for everybody claiming the protection that the flag symbolizes. New York City policemen witnessed the Central Park flag burning but did nothing to prevent the misguided peace demonstrators from carrying out their traitorous act. Doubtless New York's finest were under strict orders to do nothing that would provoke a riot. Just possibly most Americans would have preferred police action to prevent the flag being burned, even at the risk of a riot. Suppose a New York policeman, perhaps one with a son in the front lines in Vietnam, had been unable to stomach the flag burning. Suppose this patriot had disregarded orders, pulled his pistol and threatened to shoot anybody who dese crated the flag. Suppose the demonstrators had persisted and the policeman had shot and killed the first youth to touch a match to the flag. Would that patriotic policeman have been adjudged a trigger happy cop guilty of murder? Or would the American public have backed up his defense of the flag? It is interesting to speculate on what verdict public opinion would have rendered. Most people will be surprised to know that it is not a Federal offense to burn the American flag. There is a New York state law that apparently can be invoked to impose a $50 fine on the New York flag burners. No doubt the Communist Party would be delighted to pay that fine. If not, Hanoi would surely forward a check upon request. Long before the New York flag burning, a bill was pending in Congress to make it a Federal crime to deface, mutilate, or desecrate the American flag in public. More than 150 House members supported the bill back in 1966 but it never received a hearing. Possibly politics doomed the bill because it was introduced by a Republican, Rep. Richard L. Rondebush of Indiana. The Roudebush bill was re-introduced on the first day of the 90th Congress last January. It is H.R. 1207. It has rested in a pigeonhole of the House Judiciary Committee ever since. Possibly a few patriots are still outraged enough by the New York incident to insist that their Representatives get behind this bill and make it law. H.R. 1207 would impose a fine of not more than $1,000 and a prison sentence of not more than one year on "whoever publicly mutilates, defaces, defiles, defies, tramples upon or casts contempt, either by word or act, upon any flag, standard, colors, or ensign of the United States." Surely that is not drastic legislation. Surely it will not vitiate the right of protest. Surely it will not violate the Constitutional liberties of any American. Surely it is a law that should have been added to the statute books years ago. What are you waiting for Congress? Flag waving has been out of style for years but flag burning by Americans is an act of treason few thinking citizens can pass off as mere mischief by misguided youths. Congress recently passed a law to make it a crime to burn a draft card. Enforcement has been slow at best. And maybe that slow enforcement explains why the lunatic fringe is now applying the match to the flag. Maybe officials have been leaning oyer backwards too long. Maybe it is time to crack down. Coddling of unruly demonstrators has not worked, the record shows. Patriotism can't be legislated but it is time the American public drew a line between legitimate dissent over national policies and treasonous acts by a tiny minority. If the voice of the people is heard in Washington, it will not take long for Congress to act. Why not invest a couple of minutes and fifteen cents to tell your Senators and Representatives to stop coddling those who abuse their freedoms as Americans? All it would take would be to clip this column, write "I agree” in the margin, and send it winging to Washington. Mr. ROGERS. Your colleague, Mr. Quillen, testified about the law in the State of Tennessee. Mr. KUYKENDALL. Yes. Mr. ROGERS. Do you know of any prosecution for flag desecration that has been brought in your State under that State law? Mr. KUYKENDALL. No, I do not know of any. I am proud to say that in my State I know of no necessity for prosecution. Mr. ROGERS. You know of no incident in the last 5 years in your State? Mr. KUYKENDALL. That is right. Mr. ROGERS. What is your thought as to whether or not we should have a Federal law which would preempt the field and strike down State laws? Do you think we should preempt the field by a uniform Federal law and do away with the State laws? Mr. KUYKENDALL. No, Mr. Chairman, I do not feel we should preempt. I think we should complement, and in this case the Federal law would be a minimum, for instance, because in the case where the State law's penalties were higher and more severe than the proposed Federal law, then the State law could possibly prevail. I think this is a complement, this bill, not a preemption. There are many other cases where there are State laws on the books that are in conjunction with Federal laws, as the learned chairman, I believe former attorney general of the State of Colorado knows, that there are many cases where there are complementary laws on the books. This would be intended to be so. Mr. ROGERS. You are suggesting that when we report a bill we preserve the States right to go ahead with their own laws in this field. Mr. KUYKENDALL. Oh, absolutely. Mr. ROGERS. In your bill, H.R. 8536, on line 7, you state: Whoever publicly mutilates, defaces, defiles, defies, and tramples upon, or casts contempt either by word or act upon any flag, standard, color or ensign of the United States shall be punished by imprisonment— |