Mr. KUYKENDALL. I am recommending on line 8 adding, “by any overt act."

Mr. WIGGINS. Assuming we adopt that language. I would like your idea as to what physical conduct would constitute contempt of the flag other than what is mentioned on line 7.

Mr. KUYKENDALL. I would say stomping the flag in the dirt, spitting upon it, or burning it, which is a physical act-I would say any of society's recognized acts of physical contempt, and there are many, but society would recognize this, and I think the court would be the judge as to whether this was one particular act of contempt.

Mr. WIGGINS. Thank you.

That is all I have, Mr. Chairman.

Mr. ROGERS. Mr. Poff?

Mr. PoFF. Mr. Chairman, I want to compliment my distinguished colleague for the statement he has made.

May I ask him if he would say which of the two offenses is more grave, the burning of the flag, or the burning of a draft card?

Mr. KUYKENDALL. I would say the burning of the flag.

Mr. POFF. The gentleman is aware of the legislation that Congress in its last session adopted concerning the burning of a draft card? Mr. KUYKENDALL. I am not familiar with the details, but with the fact that it passed the legislation.

Mr. POFF. If my memory serves me correctly, the penalty fixed in that law was up to 5 years' imprisonment, or up to $10,000 fine, or both. The penalty fixed in your bill, I believe, is 1 year and $1,000 fine. Do you have any feeling about the penalty?

Mr. KUYKENDALL. I would not object particularly to increasing the penalty in my bill. However, Mr. Poff, let me say this, you used the words, "which is the more serious."

The whole tone of my statement, as you have noticed, is the effect that these acts have upon our Nation, and the seriousness of these acts. I was using the seriousness in its effect on the Nation, and not the degree of malice within the person who does the violation.

Now to reword it, to give you another answer in a different way to your question, as far as its effect upon the Nation is concerned, as far as its effect upon the morale of the Nation is concerned, I think the burning of the flag, next to an out and out direct attack upon the physical leadership of our Nation, a physical attack, I think this is one of the most serious things you could do in this Nation.

In the matter of the draft card action, of course, we are getting involved in the draft laws, the laws of military service, and we have complementary situations here.

I am not an attorney, as you know, and I am not too familiar with them. So that I couldn't answer this except to say that as far as its effect upon the Nation is concerned, the burning of the flag to me is one of the most serious offenses you could consider, and I certainly would accept and would not object to a higher penalty.

Mr. POFF. I thank the gentleman.

I believe you have indicated in response to a previous question that you would not object if the thrust of your bill were confined to deeds as distinguished from words by an appropriate amendment in your bill.

Mr. KUYKENDALL. That is correct.

Mr. POFF. The gentleman is aware, as I assume other authors of similar bills are aware, that the posture of your bill would create two separate and distinct offenses, one for the District of Columbia, as it is presently defined in the statute, and another for the Nation at large.

This may not be the purpose of the bill, but it has this effect, and if you are willing to agree to an amendment to confine the national law to deeds rather than words, I assume you would be willing to accept a similar amendment to the law that is already on the books concerning the District of Columbia.

Mr. KUYKENDALL. Mr. Poff, may I read a few words here? On section 3 of title 4, of the United States Code, where it says, "any person in the District of Columbia who desecrates the flag," I suggest my bill and similar bills be amended to title 4, so that would cover desecration of the flag in the 50 States, and apply to all U.S. citizens.

So I am suggesting an additional section, section 4, that would cover the 50 States.

Mr. POFF. Then you would amend the present law——

Mr. KUYKENDALL. Yes, which is for the District only, and add a section which would be for the 50 States.

Mr. JACOBS. Mr. Kuykendall, with reference to the words "cast contempt upon any flag, standard," and so forth, of the United States, I wonder what your opinion would be of the reported situation in the State of Alabama where it is alleged that the flag of the United States is displayed in conspicuous subordination to so-called Confederate flags. Do you think that would run afoul of your legislation?

Mr. KUYKENDALL. I wouldn't, sir, attempt to interpret the law of the State of Alabama

Mr. JACOBS. I want you to interpret your bill, sir.

Mr. KUYKENDALL. Let me say this: I think if you examine the Washington Post this morning, in their statement on the young men who have given their lives in Vietnam, you would find the State of Alabama percentagewise among the highest.

Mr. JACOBS. That is very true, but

Mr. KUYKENDALL. Let me continue, if I may, sir.

I do not know what the intent is of what the State of Alabama is doing with their flag, with their State flag, incidentally, and that is their State flag, and I am neither going to condone or condemn what the State of Alabama is doing. I do not know their intent, and you notice that we very carefully in our bill say there has to be malice, there has to be malice.

Mr. JACOBS. That is the proposal you make to change your bill?

Mr. KUYKENDALL. Yes, I say, "cast contempt." The judge and the jury would have to determine that. I do not happen to think they are, because I know too many Alabamians who are honest, loyal Americans, and feel no such thing.

I do not think the State of Alabama is doing this. I would have to know. I would have to leave it up to a judge and a jury to decide, but I cannot believe there is any contempt in the action of one of our Sovereign States.

Mr. JACOBS. You would not say, however, that the act of subordinating the U.S. flag to a State flag displayed in a State capital was per se not illegal under your bill?

Mr. KUYKENDALL. I would not say an opinion on this in either way, sir, because I do not know whether the flag of Alabama is subordinated. I know they are not on the same flagpole, they are not on the same dome of the building. I am not defending it. I just do not know whether they are subordinating it or not, sir, and this law is not intended to cover that anyway as far as subordination is concerned.

Mr. JACOBS. It is not intended to cover what, sir?

Mr. KUYKENDALL. I do not believe that my bill, or any bills I have seen, covers a thing called "subordination" by a State government, and I think we would have to specifically cover it, and I don't intend to cover it here.

Mr. JACOBS. And the final test of whether such activity would run afoul of the provisions of your bill would be whether or not it were proved in court whether contempt for the American flag was shown by such an arrangement?

Mr. KUYKENDALL. That's correct.

Mr. JACOBS. It was reported a few years ago that a retired major general of the U.S. Army, it is alleged that he displayed the flag, the U.S. flag, upside down in front of his home.

It is further alleged that he did it to display contempt for the Federal Government.

Do you think that those circumstances would constitute a crime under your bills?

Mr. KUYKENDALL. Mr. Jacobs, I assume you are an attorney. I am not. But I assume you are an attorney. May I ask you a question? What is the significance of flying the flag of the United States upside down, normally?

Mr. JACOBS. I think normally, just as in the case of burning the flag, there is a proper purpose for flying the flag upside down. It shows distress, although the hypothetical case that I have given you does not indicate that to be the purpose.

Mr. KUYKENDALL. I don't believe your case is hypothetical. I think it actually happened.

Mr. JACOBS. It is hypothetical as far as I have no evidence.

Mr. KUYKENDALL. I think the case actually happened. I believe were this case to come to court, if this man by physical act was casting contempt upon the flag itself, yes, so the court, the judge, would have to decide whether he was actually in distress, or whether he was casting contempt.

Mr. JACOBS. And this would be true, of course, in case of burning the flag?

Mr. KUYKENDALL. I cannot imagine, except in the proper method of burning the flag, and there is a proper method of burning a wornout flag, as we all know. I cannot think of a case where there would be doubt of intent.

Mr. JACOBS. So to come right down to it, the question involved in the legislation which you wish to propose is the showing of contempt for the flag of the United States of America, regardless of who does it or how it is done?

Mr. KUYKENDALL. Well, I do not believe that is a completely accurate statement of my position on this question. Certainly, I do not think there should be any discrimination in the enforcement of this legislation. It should apply equally to every citizen of this country and be embodied in our code as one of the statutory laws of the land. However, I have stated that it does matter as to the manner in which contempt for our flag is shown or manifested. I have suggested that oral statements against the flag be excluded from coverage under my bill and have specifically required that there must be a willful act of malice by the violator and that one "casting contempt" upon the flag must do so by an overt act.

Mr. ROGERS. Thank you, Mr. Kuykendall. We appreciate your appearing before us.

Our next witness is the Honorable Seymour Halpern from the State of New York.

STATEMENT OF HON. SEYMOUR HALPERN, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF NEW YORK

Mr. HALPERN. First, I wish to thank you and the members of this distinguished subcommittee for this opportunity to testify in behalf of my bill, H.R. 7753, which would make it a Federal crime to publicly mutilate, deface, defile, defy, trample upon or cast contempt upon the flag of the United States. I note that some of my colleagues are already here, and I would like to express my appreciation to them for allowing me to testify now because I have an executive session of the Banking and Currency Committee which started at 10. Mr. ROGERS. Would you like to insert your statement in the record? Mr. HALPERN. No, I would rather give it orally in the event any member of the committee would wish to query me on any part of it. There are some points I would like to stress, and I'm certain I will take only a few minutes.

I have heard the thought expressed in some quarters, that because each of the 50 States has its own statute outlawing desecration of the flag, it is not necessary to pass a Federal statute.

I am sad to say that we have had more than enough blatant instances in recent months to point to the necessity for such a Federal statute.

We have seen and read about our flag being subjected to such disrespectful acts as using it as wallpaper, shoeshine cloths-yes, and I have even seen for myself during a recent visit to Washington Square in New York, our national standard being used mockingly as handkerchiefs, where the defilers were blowing their noses in our flag.

And, all our stomachs turned, I am sure, when we recently witnessed the repugnant act of publicly burning our flag in New York Central Park. This willful and deliberate act was seen by millions of people throughout the world via news photos and telecasts. Similar defiances to respect and decency have occurred in various parts of the country and have repulsed the vast majority of the American. people.

Such recent acts, Mr. Chairman, highlight the obvious question which many of us in the Congress have asked for years: "What is being done about it?"

Why isn't there more effective legislation to curb such flagrant defiance of national honor and to punish those who are responsible for it.?

This is not a question of asking for sorely needed corrective legislation merely because of the current emotions, or because of irresponsible uncontrollable demonstrations. It is a question that has been raised for many years and a glaring omission in the law that many of us have been trying to correct for years.

My bill, H.R. 7753, is identical with legislation I have introduced in previous Congresses.

The wave of open defiance to our flag focuses attention on the need for a meaningful Federal statute and to the obligation of this Congress to do something about it. That is why I am delighted that the Judiciary Committee of this House has undertaken these hearings and that this splendid subcommittee is giving full evaluation to the several approaches that have been proposed.

Mr. Chairman, as obnoxious as the instances I cited earlier are, they even go further than that and pinpointed all the more the need for Federal action. The problem has now reached even unprecedented new dimensions. Newspapers here and abroad recently carried stories about a filthy and revolting display of so-called pop art in New York City. This case involved use of the American flag in obscene conformations in a public gallery.

I hesitate to describe the pornographic and degrading uses made of the flag and recognizable parts of the flag-in this display. I have color photos of some of them, which I show to you gentlemen at this point. I think it is very pertinent.

Mr. ROGERS. Would you hand them up here for inspection?
Mr. HALPERN. Yes.

Mr. ROGERS. Thank you.

Mr. HALPERN. I think it would be very interesting to the committee to look at these pictures to highlight the extent to which this degredation of the flag has gone.

During the past week, I have discussed the case with the district. attorney of New York County. He informed me that the proprietor of the art gallery, on May 5, was convicted of a misdemeanor for violating section 1425-D of the New York State Penal Code.

The defendant in this case was fined $500. To some this may seem an adequate penalty. But when you consider that one of these so-called art pieces alone had brought $900 to the purveyor of this disgusting filth, it becomes evident that even with the fine, it still left him a $400 profit.

The repugnant desecration of the flag in this instance certainly called for a far more severe penalty. This man, in my opinion, should have been sent to prison. Yet, New York's law, as it now stands, is even stronger than most States.

In some States, the fine for desecrating the flag is only a $10 token fine-in Massachusetts-and $5 fine in Indiana. If the gallery were in Indiana, and fine were levied there, the profit could have been $895. What a mockery of patriotism.