Mr. McMillan?

Mr. MCMILLAN. Mr. Chairman, I want to thank Mr. Vinson for sending this proposal down for the consideration of Congress. In my opinion, I think he has placed his finger on the type of legislation that we are very much in need of in the District at the present time. I am sure that I will do all I can to see that this proposed legislation is expedited in the Congress. I certainly feel that as long as we have able and capable people like Mr. Vinson willing to render public service we do not have to worry too much about the welfare of our country. Mr. WHITENER. Mr. Nelsen?

Mr. NELSEN. No questions; thank you.

Mr. WHITENER. Mr. Fuqua?

Mr. Fuqua. Mr. Vinson, you mentioned the case where substantial damage is done. I believe that is defined as damage amounting to over $5,000.

Mr. VINSON. Yes.

Mr. FUQUA. This would be something like the Newark or Detroit cases where buildings were burned, this type of situation?

Mr. VINSON. Yes, sir; but I don't think it would have to reach that extent.

Mr. FUQUA. I understand. The disturbance we had here in the earlier part of the year in Washington could come under the "substantial damage" provisions, such as store windows?

Mr. VINSON. Yes, sir. It is hard to conceive of a riot which resulted in arson not doing $5,000 damage.

Mr. FUQUA. You mentioned one provision about throwing missiles. I assume that would include Molotov cocktails?

Mr. VINSON. Yes. Molotov cocktails actually could be reached now, I suppose, under the arson statutes as a felony.

Mr. MCMILLAN. Will the gentleman yield?

Mr. FUQUA. Yes.

Mr. MCMILLAN. How did they arrive at the $5 fine for throwing missiles?

Mr. VINSON. I think that is one of our very archaic statutes, Mr. Chairman. I understand that this distinguished committee is going to undertake a revision of Title 22 of the D.C. Code, which is long overdue.

Mr. MCMILLAN. Thank you. We even have, I know, a $10 fine for a parking ticket, which should not be more than $2.

Mr. FUQUA. Mr. Chairman, I understand that the Commissioners sent over in August, the latter part of August, a bill. I do not know whether you are aware of it or not. We are awaiting, as I understand it, a report on the bill from the Bureau of the Budget, the bill concerning the possession of Molotov cocktails and also the provisions regarding the ingredients to make these Molotov cocktails. Are you familiar with this bill? In effect, I think we would need this bill to give added help to the bill that you are speaking in favor of now.

Mr. VINSON. I am familiar with the bill. I know that we have been asked to comment upon it. I would defer to Mr. Bress on this question, but I would certainly feel that we could proceed against the possession or the throwing of Molotov cocktails at this time under several statutes.

Mr. FUQUA. This is after the act has been committed, though; am I not right?

Mr. VINSON. That is correct.

Mr. FUQUA. Now, if someone has in his possession a Molotov cocktail already made up that he has not thrown yet, then he is in violation of no law?

Mr. VINSON. I think it would be possession, he would violate the possession laws. Is that not right, Mr. Bress?

Mr. BRESS. Yes. I think under Title 22, Sec. 3204 of the D.C. Code, carrying a dangerous weapon, a Molotov cocktail would be charged as a dangerous weapon. We have currently pending indictments against defendants arising out of the August 2 incident in Washington which involve Molotov cocktails, some who threw and some who possessed.

Mr. FUQUA. In the letter of the District Commissioners to the Speaker, and I quote:

At the present time there is no law in the District of Columbia specifically dealing with firebombs, fire torches or Molotov cocktails. The first section of the proposed bill makes it a crime for any person in the District of Columbia to possess any flammable or explosive or combustible material or substance with intent to wilfully and maliciously use such material or substance to set fire to or burn any building or other property.

Mr. VINSON. I believe the language there has to do with "specifically deals with".

Mr. FUQUA. Yes, this particular case.

Mr. VINSON. Yes.

Mr. FUQUA. One other point. On page 4 you mention:

Speech which invites dispute or has unsettling effects is protected only until there is clear and present danger of serious substantive evil.

Could you give me some examples of what would happen under this?

Mr. VINSON. Well, any time you deal with utterances you are confronted with the First Amendment. The First Amendment protects speech. There is no absolute freedom of speech. The First Amendment protects it up to a point and it is a question then of drawing a line. If the speech, as in the Finer case in the Supreme Court decided in 1949 I believe, if the speech has an unsettling effect and creates a real risk of incitement to riot, then obviously the speech is not protected. However, up to that point speech is accorded the protection of the First Amendment.

Mr. FUQUA. In other words, if someone is on the rooftop of an automobile saying, "We ought to burn the town down," then he might not be protected by the First Amendment?

Mr. VINSON. That is entirely possible or probable.

Mr. FUQUA. Did you give us your reason for the five men rather than the three persons contained in the common law precedent? Mr. VINSON. There is certainly nothing magic about either figure. We made a survey of similar statutes throughout the country. The common law rule is that which has already been stated here, which refers to three persons. There are statutes in the states going as high as ten people. There is one statute that may go as high as 20 people. The New York statute is four people. Several statutes are five people. It was our subjective judgment that five or more people might rise to the dignity of a riot. Certainly fewer people than that can cause great trouble. However, fewer people than that causing trouble are much easier to handle, prosecutively, with regard to substantive offenses.

Mr. FUQUA. In other words, then, there was no magic in the figure five? This is a figure you arrived at after looking at the other states? Mr. VINSON. Surveying other states and trying to decide what we were trying to get a handle on through this legislation.

Mr. FUQUA. Do you think there would be any conflict causing confusion in the handling of court cases where we have three people in one statute and in this one five?

Mr. VINSON. What statute?

Mr. FUQUA. Common law, I am speaking of.

Mr. VINSON. This would supplant common law.

Mr. BROYHILL. Mr. Chairman, I request that my statement be included in the record just prior to the testimony of this witness. Mr. WHITENER. Without objection, the statement will appear in the record at the point requested.

Mr. BROYHILL. I wanted to inquire why this was necessary as a separtare piece of legislation. I had offered what I believe is a similar provision as an amendment to the Cramer Bill when it was debated on the floor. I discussed the amendment and between the time of general debate and the time of the offering of amendments under the five-minute rule, it was stated by some members of the committee that by merely changing the reference to what would be interstate commerce in Title 18 of the U.S. Code, this would bring actions occurring within the District of Columbia under the definition of interstate commerce.

I believe that definition was similar to that in other laws on federal jurisdiction.

As I understand your explanation, there is some ambiguity as to whether the District of Columbia is included in the definition of interstate commerce under H.R. 421, as approved by the House.

Mr. VINSON. No, sir; we haven't reached that question yet, but I am delighted that you brought it up. Originally H.R. 421, as reported by the committee, had its own definition of interstate commerce. I believe Congressman MacGregor offered a floor amendment to take that out, stating his reason to be that he saw no point in having differing definitions of interstate commerce in Title 18, that it could be a matter of some confusion. That means for purposes of H.R. 421 the definition of interstate commerce is contained in Section 10 of Title 18. I notice that you asked the question on July 19th on the floor: Does this bring the District into the bill for purposes of intrastate activities in the District? I believe someone answered that it did.

I think that was your intent and it was I am sure the intent of the person who answered that question. However, when you look at what was actually done, Section 10 of Title 18, in the definition of interstate commerce, it is defined as commerce between the states and includes the District of Columbia as a state, so in our view of that amendmentit would be quite doubtful that activities solely within the District, without use of interstate facilities or without travel from Maryland, Virginia or elsewhere to the District, whether they would be within the purview of that statute.

Mr. BROYHILL. I would hope that some language could be added to H.R. 421 while it is being considered in the Senate, unless there is some reason to believe that bill will not become law, because it does deal with interstate commerce. I know there is some opposition to the bill. I am hoping there will be no opposition to this bill.

Mr. VINSON. Leaving the point of the definition of interstate commerce aside, the purpose of that bill, as stated in the committee report, was to supplement local legislation and the flavor of the bill is not local. The flavor is interstate movement or use of interstate facilities with the intent to (1), (2), (3). The wording is not perfectly adapted to a statute for purely local applications.

Mr. BROYHILL. I hope we act very promptly on this legislation.

Mr. GUDE. Mr. Vinson, with reference to the federal bill as opposed to some of the bills we have before us, the definition for riots in one sense seems to be stronger, or a stronger definition and in another sense it is not as strong.

For example, in Mr. McMillan's bill, the riot is said to be one whereby the threat thereof creates a riot is defined as one where the threat thereof creates grave damage, whereas in federal legislation it is an immediate danger rather than a grave danger. How about the difference between these two words, "immediate" and "grave?"

Mr. VINSON. They both have a purpose. What we are interested in is legislation under which you can have swift, effective prosecution without raising a lot of constitutional issues and other such defenses. It is desirable not to have an overly broad statute, or a vague statute, and that is basically the purpose of those qualitative words; immediate risk, grave danger, or however you wish to put it.

Mr. GUDE. Then you feel "immediate" and "grave" have somewhat the same weight as far as the courts would be concerned?

Mr. VINSON. I am sure "grave" would include "imminent." I am not sure "imminent" would include all the connotations of grave. Mr. GUDE. Then you feel that "grave" is broader than "immediate?"

Mr. VINSON. Yes.

Mr. GUDE. Also in Subsection (d) it has a provision that if in the course of, or as a result of a riot a person willfully incites others to engage in a riot, that would be broader than the federal statute also. In other words, a person who wasn't actually present but incited or urged others to carry on with

Mr. VINSON. My recollection is that the federal statute requires

some overt act.

Mr. GUDE. Thank you very much.

Mr. WHITENER. Mr. Vinson and Mr. Bress, in the District of Columbia you have adequate laws under which you bring people to account for incitement of riot, don't you?

Mr. VINSON. I have a question about "adequate." I don't consider the penalty of $250 and 90 days to be adequate for a riot situation. Mr. WHITENER. As I understand the law here, it is somewhat like it is in my state. There is no specific statute on riots, but you do have a provision in the code which makes the common law applicable. Under the common law, riot or incitement to riot is a felony.

Mr. VINSON. That is correct, sir. The District of Columbia Code would in the judgment of most people incorporate the common law of Maryland, the 19th Century Common Law of Maryland, which does have a riot provision. It is not clear that that covers incitement. Also, it is possible to argue that the adoption of certain provisions of the D.C. Code, "disorderly, unlawful assembly," et cetera, might preempt the common law.

Mr. WHITENER. Title 49, Section 301, does make the common law, all the British statutes in force in Maryland, February 27, 1801, etcetera, applicable to the D.C., and the places under the jurisdiction of the United States and shall remain in force except insofar as the same are inconsistent with or replaced by subsequent legislation of Congress.

Mr. VINSON. That is correct, sir.

Mr. WHITENER. In my state we have a similar provision.

Mr. VINSON. Your state very clearly has its own common law. Mr. WHITENER. In our state we have no difficulty with riot cases or incitement to riot because we do rely on the common law. I was wondering if we could run the risk here of winding up with something less than is now available to the prosecuting arm of the District government.

Mr. VINSON. I don't see that as a real risk because (1) those who are apprehended in riot situations who have committed substantive offenses would ordinarily be prosecuted for those substantive felonies: arson, assault, assault with a dangerous weapon, etcetera.

Furthermore here we have more stringent penalties in the incitement situation than you would have under the common law. We feel that those who incite riots which are serious should be subject to more severe penalties than are provided in the common law.

Mr. WHITENER. What would serious "bodily injury" consist of? Mr. VINSON. That is a qualitative word. That is a sort of situation the prosecutor faces daily.

Mr. WHITENER. How does the judge charge the jury in the District of Columbia on the serious bodily injury?

Mr. VINSON. I would think that, assuming some injury and assuming the prosecution charges it to be serious, I think it would automatically be a jury question.

Mr. WHITENER. If you will look at Subsection (c) at the bottom of the page, "Whoever willfully incites or urges other persons to engage in a riot," in practical application, would that mean that this person would have to urge these people to engage in a public disturbance involving an assemblage of five or more persons which, by tumultuous and violent conduct or threat thereof, creates great danger or damage or injury to property and persons?

Mr. VINSON. I think you would have to go back to your definition

of riot.

Mr. WHITENER. In order to be guilty under this proposal of inciting a riot, would he have to actually stand up and say, "Now, come on, gang. Let's go. Let's create a public disturbance, and let's tear down 'x' department store and let's peel the head of that policeman over on the corner?"

Mr. VINSON. No, sir, I don't think he would have to be nearly that specific. I think you could infer a great deal of that from general words. Mr. WHITENER. What would you think about adding to that "to urge, or by conduct that is calculated to cause others to engage in the riot." You know, a smart fellow can get up and do a lot of things to start a riot. "Or who, by conduct which would be calculated by a reasonable person to-"

Mr. VINSON. I would think incitement of urging would cover such conduct, Mr. Chairman.

Mr. WHITENER. To me it doesn't.

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