For refusing to comply with a state court order to produce the
names of persons attending his summer camp during 1954 and 1955 for
use in an investigation by the Attorney General of New Hampshire on
behalf of the State Legislature to determine whether "subversive
persons" were then in the State, petitioner was adjudged guilty of
civil contempt and ordered committed to jail until he complied.
That judgment was sustained by the State Supreme Court and by this
Court. He then appealed again to the State Supreme Court, claiming
that, since his former appeal, the State Legislature had terminated
the Attorney General's authority to make such an investigation on
its behalf; but the State Supreme Court held that such authority
had not been terminated.
an appeal to this Court from that judgment is
dismissed for want of jurisdiction, since that judgment is based on
a nonfederal ground.
Reported below: 102 N.H. 461, 159 A.2d 160.
In view of the Court's decision in Uphaus v. Wyman,
360 U. S. 72
361 U.S. 856, the motion to dismiss is
granted, and the appeal herein is dismissed for want of
jurisdiction, in that the judgment sought to be reviewed is based
on a non-federal ground.
MR. JUSTICE BRENNAN.
The New Hampshire Supreme Court has held in this proceeding that
the New Hampshire Legislature still wanted Dr. Uphaus' answers on
December 14, 1959, notwithstanding
Page 364 U. S. 389
the omission from Laws 1957, c. 178, of the provision of Laws
1955, cc. 340 and 197, authorizing the Attorney General "to
determine whether subversive persons . . . are presently located
within this state," Wyman v. Uphaus,
102 N.H. 461, 159
A.2d 160, on denial of motion for bail, 102 N.H. 517, 162 A.2d 611.
We are bound by the highest state court's construction of the
pertinent New Hampshire statutes. We must therefore consider the
substantiality of the federal constitutional questions presented on
this appeal on the basis of that construction, and not upon the
premise urged by Dr. Uphaus that the 1957 statute shows that the
legislature, on December 14, 1959, no longer wanted him to produce
the list of names. In consequence, while I remain of the view that
the Court in Uphaus v. Wyman, 360 U. S.
, incorrectly sustained the previous order of civil
contempt made against Dr. Uphaus, see
dissent at page
360 U. S. 82
that holding, while it stands, also sustains the order challenged
on this appeal. Solely under compulsion of that decision, I think
that the appeal must be dismissed as not presenting a substantial
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS concur, dissenting.
I concur in the dissent of MR. JUSTICE DOUGLAS, and agree with
him that, since the New Hampshire law upheld by this Court in
Uphaus v. Wyman, 360 U. S. 72
now been changed, new federal questions are presented which cannot
be dismissed as involving only the correctness of a ruling on local
law, and that we consequently should not dismiss this appeal, but
should note jurisdiction, grant bail, and hear arguments. The
recent amendment withdrew the power, involved in the previous
appeal, which authorized the Attorney General of New Hampshire "to
determine whether subversive persons . . . are presently located
within" the State, and thus took
Page 364 U. S. 390
away the very power under which the Attorney General was acting
when he demanded the names of guests at the summer camp in New
Hampshire managed by the appellant, Dr. Willard Uphaus.
Notwithstanding that fact, the New Hampshire courts have held that
the State still has an interest in those names sufficient to
justify the continued imprisonment of Dr. Uphaus for his refusal to
comply with the demand to produce them. [Footnote 1
] This appeal therefore raises federal
questions as to whether this latter holding violates the Federal
Constitution. I think that the Court's action today in treating
those federal questions as insubstantial [Footnote 2
] is wrong in at least two different
First, I think this action is inconsistent with the Court's own
test as set forth in its opinion on the prior appeal and there used
to square the imprisonment of Dr. Uphaus with the First Amendment.
That test was stated in these terms:
"The interest of the guests at World Fellowship in their
associational privacy having been asserted, we have for decision
the federal question of whether the public interests overbalance
these conflicting private ones. [Footnote 3
This required the Court to weigh the interest of those guests
against the interest of the State, as broadly expressed by its
legislature, in knowing
Page 364 U. S. 391
"whether subversive persons . . . are presently located within"
the State, a balancing process [Footnote 4
] which there resulted in the conclusion that
the state interest must prevail. Now, however, it is clear that the
interest of the State so weighed no longer exists, and a new
balance must be made if the invasion of "associational privacy"
previously sanctioned is to be permitted to continue. But this the
Court refuses to do, apparently on the theory that the present
appeal is controlled by the previous disposition. It seems to me
that "balancing" which refuses to take note of such an important
change in the interest of the State is little balancing at all -- a
mere illusion, in fact.
Secondly, it seems to me that the record as it now stands before
this Court requires a reappraisal of the question whether the
actions of the State of New Hampshire constitute a bill of
attainder in violation of Art. I, § 10, of the Constitution. On the
prior appeal, the majority of this Court held that the record as it
then stood would not justify such a conclusion. The present record,
however, presents new facts relevant to that issue. For here we are
confronted with a situation in which the courts of New Hampshire
have stated that it was the intention of the legislature of that
State to permit the Attorney General to single out Dr. Uphaus and
any others (if, indeed, there are any others) against whom
investigative proceedings had already been commenced and to pursue
those proceedings, not in furtherance of any general aim of the
State -- that general aim, if it ever existed, has been abandoned
by the amendment -- but apparently for the sole purpose of setting
these people off for special treatment. What this special treatment
is to be is clearly
Page 364 U. S. 392
shown by the brief filed before this Court in this appeal by the
State Attorney General himself, who administers the Act. That brief
states unequivocally that
"[t]hose who voluntarily and knowingly appear with, consult
with, confer with, attend functions with and otherwise act in
concert with Communists or former Communists in America cannot
possibly have any reasonable right of privacy in regard to such
activities. . . . [Footnote
In the light of all these new facts, the decision upon the
former appeal is not and cannot properly be held to be dispositive
of the question whether this record shows that New Hampshire is
unconstitutionally imposing a bill of attainder upon Dr.
I think the summary dismissal of this appeal without even so
much as the benefit of oral argument, when the abridgment of the
rights of free speech and assembly is so obvious, is a sad
indication of just how far this Court has already departed from the
protections of the Bill of Rights, and an omen of things yet to
come. Such retrogression, of course, follows naturally from the
Court's recent trend toward substituting for the plain language of
the commands of the Bill of Rights elastic concepts which permit
the Court to uphold direct abridgements of liberty unless the Court
views those abridgments as "arbitrary," "unreasonable," "offensive
to decency" or "unjustified on balance," [Footnote 6
] for these concepts reduce the absolute
commands of the Constitution to mere admonitions. I think it is
time for all who cherish the liberties guaranteed by the Bill of
Rights to look closely at the disastrous consequences upon those
liberties which have resulted from the
Page 364 U. S. 393
Court's use of such concepts. The present case graphically
illustrates those consequences when it is stripped of the ambiguous
legal formulations which have been imposed upon it and considered
in the context in which it actually arose -- the conduct of Dr.
Uphaus as an individual.
He is a citizen of this country by birth. Throughout the nearly
seventy years of his life, evidently from early boyhood, he has
been a deeply religious person. The record shows his active
membership in and official service for various Methodist churches
in the communities where he has lived. The value of that membership
and those services is attested by affidavits filed by the pastors
of those churches. The record further indicates, without dispute,
that he is a man whose life has been dedicated to the principles of
his religion. He holds a degree as a Doctor of Theology. He taught
religious education at Yale University, and was associated with the
Religion and Labor Foundation for a number of years. Over the
years, his religious faith manifested itself in an increasing
opposition to war. It was this belief which led him, in 1952, to
become the Director of World Fellowship, Inc., a summer camp
operated, he says, in the interest of promoting the ideas of
Almost immediately upon his arrival at World Fellowship, Dr.
Uphaus came under the fire of an investigation being conducted by
the Attorney General of New Hampshire, apparently on the theory
that World Fellowship was frequented by "subversive" persons.
Eventually, as the Director of World Fellowship, he was called
before the Attorney General to testify. At the very outset of the
hearing before the Attorney General, he expressed a complete
willingness to answer any question concerning himself, including
any views he might hold or any actions he might have taken with
regard to any subject. In addition, he expressed a willingness to
give the Attorney General any information which might be wanted in
Page 364 U. S. 394
the subject matter of any speeches made at World Fellowship. But
he absolutely refused to give the Attorney General: (1) a list of
the nonprofessional employees of the camp; (2) a list of all the
guests who had stayed at the camp; and (3) his personal
correspondence with the speakers who had appeared at the camp. Upon
being met with this refusal, the Attorney General sought a court
order requiring Dr. Uphaus to produce these items. At the resulting
hearing, the court, apparently viewing the request of the Attorney
General for the names of the camp's dishwashers and floor sweepers
as totally unreasonable, and, being uncertain as to the legal
amenability to subpoena of the correspondence, ordered Dr. Uphaus
to produce only the names of the guests. This, Dr. Uphaus
persisted, he could not do, resting his refusal upon the following
reasons, to which he has adhered throughout this long ordeal: (1)
"by the direct teachings of the Bible . . . , it is wrong to
bear false witness against my brother, and inasmuch as I have no
reason to believe that any of these persons whose names have been
called for have in any sense hurt this state or our country, I have
reason to believe that they should not be in the possession of the
"the social teachings of the Methodist Church teach us clearly
and specifically that we in the United States should stand up and
uphold civil and religious rights, and, in particular, it condemns
guilt by association [Footnote
and (3) because
Page 364 U. S. 395
this document [the Bill of Rights], and I propose to uphold it
with the full strength and power of my spirit and
Nonetheless, the order to produce was upheld, and Dr. Uphaus was
imprisoned for his failure to comply with it. As a result, he has
been in jail since last December 14 under a judgment which
sentenced him to imprisonment for one year or until such time as he
would comply with the order to produce. His plight, however, is
even worse than would normally be indicated by that sentence, in
that there can be no assurance at all that he will be released at
the end of the year specified. The Attorney General of New
Hampshire insists, notwithstanding the recent legislation reducing
his powers, that he has a right to continue all investigations
presently pending, and the Supreme Court of New Hampshire
apparently agrees with him. This Court, by its action today,
necessarily takes the position that this serious abridgment of the
rights of free speech and peaceable assembly does not even raise a
substantial federal question. As a result, it is entirely possible
that Dr. Uphaus will be subjected to new questioning and forced
into a new "contempt" as soon as he serves out this year's
imprisonment. The brief filed by the Attorney General of New
Hampshire makes it appear that he has every intention of doing just
that. Thus, a distinct possibility exists that this man, who, at
least so far as these records show, has never committed a single
crime, nor even so much as an immoral act, faces imprisonment for
the rest of his life. This simply because he has refused to violate
his religious principles and sacrifice his constitutional rights by
disclosing the names of those with whom he has peaceably assembled
to discuss public affairs in this country.
In this respect, the predicament of Dr. Uphaus may be likened to
that of the defendant in the famous Sheriff's
Page 364 U. S. 396
before the House of Lords in 1767. [Footnote 8
] There, the City of London sought
to prosecute a religious dissenter for refusing to serve in the
office of sheriff, as required by its bylaws. The defense was that
the Corporation Act [Footnote
] would have made it a crime for a dissenter to serve in that
office, for it required an oath from all office holders that they
had taken the sacraments of the Church of England within the year.
The dilemma of the dissenter was vividly described by Lord
Mansfield in stating his views on the case:
"Make a law to render them incapable of office; make another, to
punish them for not serving. . . . If they accept, punish them; if
they refuse, punish them; if they say, yes, punish them; if they
say, no, punish them. My Lords, this is a most exquisite dilemma,
from which there is no escaping; it is a trap a man cannot get out
of; it is as bad persecution as the bed of Procrustes: if they are
too short, stretch them; if they are too long, lop them. [Footnote 10
This technique of putting unorthodox groups into a position
where their only real choice is between various alternative
punishments (a technique the prevalence of which today extends far
beyond the borders of New Hampshire) is strikingly similar to that
being utilized here against Dr. Uphaus. If he testifies, his
friends will suffer; if he refuses to testify, he goes to jail. The
dilemma is truly one "from which there is no escaping" for a man
who, like Dr. Uphaus or like the religious dissenter in the
cannot bring himself to sacrifice either
his religious principles or his legal rights.
Page 364 U. S. 397
That case also serves to highlight a most unfortunate aspect of
the decision in this case. For there, nearly two hundred years ago
and in England, where there was no Bill of Rights, the House of
Lords refused to countenance the use of that technique. They held
it to be inconsistent with the Toleration Act, [Footnote 11
] by which Parliament had
guaranteed religious freedom, even though the terms of that
guarantee were far less sweeping and more limited in application
than the absolute commands of our First Amendment. In my view, the
majority's disposition of this case, reducing as it does those
absolute commands to mere admonitions, means that our First
Amendment amounts to something less as a charter of freedom than
England's Toleration Act was held to be. This in the very face of
the indisputable historical fact that one of the primary reasons
for the establishment of this country was the desire of early
settlors to escape religious persecution.
I do not suggest, of course, that this imprisonment of Dr.
Uphaus is without precedent in history. Indeed, I am painfully
aware that there are a multitude of such precedents extending from
many centuries back in the past and continuing forward in an almost
unbroken line to the present day. There is, for example, the case
of the Puritan minister John Udall in 1590, a case which bears a
strong similarity to that of Dr. Uphaus. Udall was called before a
court in connection with the investigation of the authorship of
certain religious tracts which, in the words of one of the judges,
"tend[ed] to the overthrowing of the State, and the moving of
Rebellion." [Footnote 12
That court sought to force Udall to disclose the identity of other
Puritans so that it might question them as to the authorship of the
tracts. In refusing to divulge the demanded
Page 364 U. S. 398
names, Udall gave his reasons in a statement not unlike that of
Dr. Uphaus before the New Hampshire court.
"I will take an oath of allegiance to her majesty, wherein I
will acknowledge her supremacy according to statute, and promise my
obedience as becometh a subject; but to swear to accuse myself or
others, I think you have no law for it. [Footnote 13
Udall, like Dr. Uphaus, was sentenced to jail for civil contempt
under a judgment which ordered his imprisonment until such time as
he would consent to testify. [Footnote 14
] But such coercion was as ineffective in that
case as it has been to date in this. Udall's dauntless spirit was
never broken even though his body was. He died in prison within a
It would not be difficult to point out many other cases such as
that of Udall, but I will content myself with one other. Some
seventy years after John Udall's experiences, there was a
dissenting preacher in England named John Bunyan. He was arrested
for preaching, and efforts were made to get him to agree not to
preach any more. He refused to be coerced into silence. The result
was that he was put through a kind of trial [Footnote 15
] and sentenced to prison for holding
"several unlawful [religious] meetings . . . to the great
disturbance and distraction of the
Page 364 U. S. 399
good subjects of this kingdom. . . ." [Footnote 16
] In Bunyan's case, the imprisonment lasted
12 years, and it was during those 12 years that he gave to the
world The Pilgrim's Progress. [Footnote 17
] One of the judges who acquiesced [Footnote 18
] in the imprisonment
Page 364 U. S. 400
of Bunyan was Sir Matthew Hale, later Lord Chief Justice Hale, a
man described by Lord Campbell as "one of the most pure, the most
pious, the most independent, and the most learned" Chief Justices
England ever had. [Footnote
] That this description is not entirely unjustified, despite
the fact that his record was also marred by the part he took in the
conviction and sentencing to death of two unfortunate women as
witches, [Footnote 20
] is, I
think, a tragic commentary upon the record of the judiciary, during
that period, in discharging its duty to protect civil liberties. It
is perhaps one of the ironies of history that the name of John
Bunyan, a poor tinker and preacher, is at least as well known and
respected today as that of the great Chief Justice of England who
permitted him to languish in jail.
My guess is that history will look with no more favor upon the
imprisonment of Willard Uphaus than it has upon that of Udall,
Bunyan or the many others like them. For this is another of that
ever-lengthening line of cases where people have been sent to
prison and kept there for long periods of their lives because their
beliefs were inconsistent with the prevailing views of the moment.
I believe the First and Fourteenth Amendments were intended to
prevent any such imprisonments in this country. The grounds urged
by the Attorney General of New Hampshire here are, as shown by the
cases of Udall and Bunyan, precisely those that have always
Page 364 U. S. 401
urged for throwing dissenters in jail, namely, that they are a
menace to the community and it is dangerous to leave them free. It
may be true, as the Attorney General of New Hampshire suspects,
that Dr. Uphaus has at some time been in the company of Communists,
or that the people who have been in his camp have been in the
company of Communists. But, even if it is true and those associates
are as bad as they are suspected to be, it is my belief that our
Constitution, with its Bill of Rights, absolutely forbids the
imposition of pains and penalties upon him for peaceably assembling
with them. That great charter was drafted by men who were well
aware of the constant danger to individual liberty in a country
where public officials are permitted to harass and punish people on
nothing more than charges that they associate with others labeled
by the Government as publicans and sinners.
As indicated by my concurrence in the opinion of MR. JUSTICE
DOUGLAS, I think the better interpretation of that holding is that
it rests upon the theory that the imprisonment is for criminal
contempt, and I think that MR. JUSTICE DOUGLAS conclusively
demonstrates that, if that is so, this Court cannot properly refuse
review of that imprisonment. But the Court's dismissal of the
appeal is an implicit holding that the New Hampshire Supreme
Court's action rests upon the civil contempt theory. Even upon that
view, however, I think the present appeal raises federal questions
both new and substantial.
Implicit, of course, in the Court's order dismissing this appeal
because the judgment is based on a nonfederal ground is the holding
that the federal questions actually presented are
360 U.S. at 360 U. S.
My opinion of this balancing process, when applied as here to
justify direct abridgments of First Amendment freedoms, has been
fully expressed in previous cases. See, e.g., Barenblatt v.
United States, 360 U. S. 109
360 U. S.
-146 (dissenting opinion), Beauharnais v.
Illinois, 343 U. S. 250
343 U. S.
-270, 343 U. S.
-275 (dissenting opinion).
Thus, the case falls squarely within the holding of this Court
in United States v. Lovett, 328 U.
, 328 U. S.
-316, in that it imposes special pains and penalties
upon an easily ascertainable group.
See, e.g., Beauharnais v. Illinois, 343 U.
; Rochin v. California, 342 U.
; American Communications Ass'n v. Douds,
339 U. S. 382
At the hearing upon remand of these proceedings to the New
Hampshire courts following this Court's affirmance of the first
contempt order, Dr. Uphaus expanded this second reason to encompass
the teachings of all religions. Relying upon a recent article by a
Professor of Church History at Harvard University, Williams,
Reluctance To Inform, 14 Theology Today 229, Dr. Uphaus argued that
his position with respect to informing against his friends is
required by the historic traditions of all religions. That article
pointed to the indisputable truth that religious groups have time
and again resorted to a refusal to inform as a shield against
Harrison v. Evans,
1 Eng.Rep. 1437.
13 Charles II, c. I.
Lord Mansfield's statement does not appear in the report of the
case cited above. It is, however, fully reproduced in The Palladium
of Conscience, a collection of writings on religious liberty at
1 William & Mary, c. XVIII.
1 Howell's State Trials 1271, 1294.
at 1276. Although the term "civil contempt" was not
used, the following colloquy reported between Udall and the Bishop
of Rochester, one of the judges at his trial, makes it clear that
such was the nature of his sentence:
"Roch. The day is past, and we must make an end: will you take
"U. I dare not take it."
"Roch. Then you must go to prison, and it will go hard with you,
for you must remain there until you be glad to take it."
Bunyan's own report of the events surrounding his
imprisonment, A Relation of the Imprisonment of Mr. John Bunyan, in
Grace Abounding and The Pilgrim's Progress at 103-132 (Brown ed.,
Brown, John Bunyan at 253-262, casts some doubt upon this
traditional version of the genesis of The Pilgrim's Progress by
suggesting that it was written, not during this 12 years'
imprisonment, but a few years later during another shorter
incarceration. See also
Encyclopedia Britannica, Vol. IV
at 392 (1957 ed.); Dictionary of National Biography, Vol. III at
It is difficult to ascertain with precision the extent of Hale's
part in this matter. He was not one of the judges who conducted
such trial as Bunyan was accorded, which resulted in his prison
sentence. But, several months later, he, with Justice Twisden, was
presented with a petition challenging the legality of Bunyan's
conviction and seeking his release. The colloquy between Mrs.
Bunyan, who presented that petition, and the two judges is reported
in Bunyan, A Relation of the Imprisonment, supra,
which it appears that Hale was quite sympathetic to Bunyan's
plight. Nonetheless, he refused to order his release, apparently on
the belief that he was powerless to do so. Thus, he is quoted as
"I am sorry, woman, that I can do thee no good; thou must do one
of those three things aforesaid, namely; either to apply thyself to
the King, or sue out his pardon, or get a writ of error. . . ."
at 130. An accurate evaluation of the legal
correctness of Hale's position is difficult, but it may be pointed
out that it is inconsistent with the claim made in Bunyan's report
that his wife had previously petitioned the House of Lords and had
been told that the question of her husband's release had been
placed in the hands of the judges at the next assize (the assize at
which Hale and Twisden were sitting), and also with a statement
attributed to Justice Twisden by that report: "What, will your
husband leave preaching? If he will do so, then send for him."
at 128. On the other hand, Judge Hale's refusal to act
without a "writ of error" was consistent with the general judicial
attitude of caution attributed to him in 3 Hallam, The
Constitutional History of England at 214 (2d ed., 1829). Hallam
there criticized English lawyers for "dwell[ing] on the authorities
of Sir Edward Coke and Sir Matthew Hale" in treason cases
"these eminent men, and especially the latter, aware that our
law is mainly built on adjudged precedent, and not daring to reject
that which they would not have themselves asserted, will be found
to have rather timidly exercised their judgment in the construction
of this statute, yielding a deference to former authority which we
have transferred to their own."
For a sympathetic treatment of Hale's part in the Bunyan case,
2 Campbell, Lives of the Chief Justices of England,
2 Campbell, Lives of the Chief Justices of England at 171.
Burnett, The Life and Death of Sir Matthew Hale;
Foss, The Judges of England at 105-116; Dictionary of National
Biography, Vol. VIII at 902-908.
6 Howell's State Trials 687.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE
BLACK concur, dissenting.
I would note jurisdiction in this case for several reasons.
Dr. Uphaus is in prison for civil contempt for
failure to deliver to a state investigating agency lists which he
claims are constitutionally protected from disclosure. On June 8,
1959, we affirmed his conviction in the state courts of New
Hampshire by a divided vote. Uphaus v. Wyman, 360 U. S.
. Following the remand in that case, Uphaus was given
a further hearing at which questions never before presented to us
were raised. The law under which Uphaus is committed was N.H.Laws
1953, c. 307; N.H.Laws 1955, c. 197, c. 340, directing the Attorney
General "to determine whether subversive persons . . . are
presently located within this state." That law, however, no longer
exists. For, in 1957, the authority of the Attorney General of New
Hampshire was limited to
Page 364 U. S. 402
making investigations of violations of law. N.H.Laws 1957, c.
178. As respects this change in legislation, the New Hampshire
Supreme Court, on June 27, 1960, said: [Footnote 2/1
"Our opinion of March 31, 1960, [Footnote 2/2
] did not turn upon any holding that RSA
588:8-a provided an extension of the legislative investigation
first authorized in 1953. The plaintiff stands committed for
refusal, while Laws 1955, c. 197, was still in effect, to comply
with an order entered prior to enactment of RSA 588:8-a."
The majority conclude that this is a ruling on local law only,
and therefore presents no federal question. That plainly would be
right if this were a commitment for criminal contempt and if it may
be constitutionally imposed. The expiration of a law normally would
be no defense to violations committed while it was in force. But
this is a case of civil contempt used for its coercive authority to
make the defendant produce the documents which were demanded. In
such a case, the defendant carries the keys to freedom in his own
pocket, as pointed out in Uphaus v. Wyman, supra,
360 U. S. 81
But the requirement to produce assumes that their production is
relevant to some interest of the State. As stated in Uphaus v.
at 360 U. S.
"What was the interest of the State? The Attorney General was
commissioned to determine if there were any subversive persons
within New Hampshire. The obvious starting point of such an inquiry
was to learn what persons were within the State. It is therefore
clear that the requests relate directly to the Legislature's area
of interest, i.e.,
the presence of subversives in the
State, as announced in its resolution. "
Page 364 U. S. 403
That interest no longer exists, by reason of the statutory
change that I have noted. The Supreme Court of New Hampshire, in
its opinion of June 27, 1960, quoted above, concedes that it does
not rely on "an extension of the legislative investigation first
authorized in 1953." 102 N.H. at 518, 162 A.2d at 612. In other
words, the Attorney General is no longer authorized to investigate
whether "subversive persons" are present in the State. That is to
say, the answers are no longer relevant to any existing legislative
Thus a new and important question is presented in this second
appeal which is now filed with us. May a person be incarcerated for
civil contempt for failure to produce documents to a legislative
committee when the committee is no longer authorized to investigate
the matter? If, of course, the 1957 Act extended this authority
respecting pending cases, the conclusion of the majority that the
question is a local, nonfederal one, so far as the contempt issue
is concerned, would obviously be correct. But the opinion of the
Supreme Court of New Hampshire rendered June 27, 1960, rejects that
construction of the New Hampshire statutes. It treats the offense
as completed while the earlier Act was in force. I can read its
opinion of June 27, 1960, to mean only that it considered the case
as if it involved criminal, rather than civil, contempt. For the
criteria it considered relevant have no apparent pertinency when an
issue of civil contempt is tendered.
Are the principles announced in Uphaus v. Wyman, supra,
applicable to criminal as well as to civil contempt? Perhaps so.
But the careful delineation of the issues in that case made by my
Brother CLARK, who wrote for the majority, restricts the case to
civil contempt. As appellant states in his brief, the conditional
nature of a civil contempt order
"makes tolerable the omission, from civil contempt proceedings,
of many of the procedural
Page 364 U. S. 404
safeguards with which criminal proceedings are hedged about. . .
Are the due process problems no different when the prisoner, who
invokes the First Amendment, can go to prison for 10 years or for
life and when he has the keys to the prison in his own pocket? If
the two cases are not different, then local law questions decide
the case. But we should not decide without argument that there is
no difference in due process terms between the two cases.
The Supreme Court of New Hampshire, in its June 27, 1960,
opinion, stresses that the point now pressed was
"not presented in the pending proceedings at any time, until
first advanced before the Superior Court on December 14, 1959, the
day on which the order of committal was entered."
102 N.H. at 518, 162 A.2d at 612. That seems to be true. But no
waiver of the point appears to have been made. It is true that, at
the hearing, counsel for Uphaus stated that his client had a legal
duty to comply.
"Your Honor please, it is not our purpose to deny that Willard
Uphaus is under legal obligation to answer the question which has
been propounded to him. We have explained to him his legal
obligation, and he understands it. It is our contention that this
is a real matter of conscience; that he feels bound to a higher
obligation even than the direction of the court. . . . We are not
contending at all that he is not obligated to answer the
But the transcript makes clear that the attorneys for Uphaus
made two separate points. First, they argued that the 1957
amendment to the statute deprived the Attorney General of his power
to investigate the presence of "subversive persons" in New
Hampshire, and therefore that commitment for civil contempt was no
longer permissible. A motion to dismiss on that ground was argued
and denied, an exception being noted. As a second and separate
point, evidence was offered and argument made
Page 364 U. S. 405
concerning the duration of the sentence. It was during the
presentation of this point that the statement, now claimed to be a
waiver, was made. Whether imprisonment for civil contempt can
constitutionally be imposed in light of the statutory changes
affecting the "area of interest" of the legislature, Uphaus v.
at 360 U. S. 78
and the Attorney General's powers is a question which never had
been waived. It is earnestly pressed. Moreover, if there is now no
basis for civil contempt, is criminal contempt constitutionally
available? These are substantial questions never resolved, as far
as I know, in any of our prior decisions.
Recently, when Alabama asked the National
Association for the Advancement of Colored People to disclose its
membership list, we held that disclosure was not required because,
if compelled, it might well abridge the rights of members to engage
in lawful association in support of their common beliefs. We said
in NAACP v. Alabama, 357 U. S. 449
357 U. S.
"It is hardly a novel perception that compelled disclosure of
affiliation with groups engaged in advocacy way constitute as
effective a restraint on freedom of association as the forms of
governmental action in the cases above were thought likely to
produce upon the particular constitutional rights there involved.
This Court has recognized the vital relationship between freedom to
associate and privacy in one's associations. When referring to the
varied forms of governmental action which might interfere with
freedom as assembly, it said in American Communications Assn.
v. Douds, 339 U. S. 382
, at 339 U. S.
"A requirement that adherents of particular religious faiths or
political parties wear identifying arm-bands for example, is
obviously of this nature."
"Compelled disclosure of membership in an organization engaged
in advocacy of particular beliefs is of the same order.
Page 364 U. S. 406
Inviolability of privacy in group association may in many
circumstances be indispensable to preservation of freedom of
association, particularly where a group espouses dissident beliefs.
U. S. Rumely,
] at 345 U. S. 56
What we there said was not designed, as I understood it, as a
rule for Negroes only. The Constitution favors no racial group --
no political or social group. The group, with which Dr. Uphaus was
associated and whose membership list he refused to disclose is
entitled under the First Amendment to the same protection as the
NAACP. No groundwork whatever was laid in any of the records before
us that World Fellowship, Inc., was at any time engaged in any
conduct that could be called unlawful.
We had NAACP v. Alabama, supra,
before us when the
case was decided. It involved rights of the
organization itself to defy those who wanted its membership lists.
Not until later, however, did we have the case where as individual
who possessed membership lists challenged the right of government
to demand their production. In Bates v. Little Rock,
361 U. S. 516
decided after we handed down our decision in the Uphaus
case, we reversed a state conviction of custodians of the records
of local branches of NAACP for refusing to disclose its membership
lists to city officials. We said:
"On this record, it sufficiently appears that compulsory
disclosure of the membership lists of the local branches of the
National Association for the Advancement of Colored People would
work a significant interference with the freedom of association of
their members. There was substantial uncontroverted evidence that
public identification of persons in the community as members of the
organizations had been followed by harassment and threats of bodily
Page 364 U. S. 407
There was also evidence that fear of community hostility and
economic reprisals that would follow public disclosure of the
membership lists had discouraged new members from joining the
organizations and induced former members to withdraw. This
repressive effect, while in part the result of private attitudes
and pressures, was brought to bear only after the exercise of
governmental power had threatened to force disclosure of the
members' names. NAACP v. Alabama,
357 U.S. at 357 U. S.
. Thus, the threat of substantial government
encroachment upon important and traditional aspects of individual
freedom is neither speculative nor remote."
Id., 361 U. S.
Can there by any doubt that harassment of members of World
Fellowship, Inc., in the climate prevailing among New Hampshire's
law enforcement officials will likewise be severe? [Footnote 2/3
] Can there be any doubt that its
members will be as closely pursued as might be members of NAACP in
some communities? If either NAACP or World Fellowship were engaged
in criminal activity, we would have a different problem. But
neither is shown to be. World Fellowship, so far as this record
shows, is as law-abiding as NAACP. The members of one are entitled
to the same freedom of speech, of press, of assembly, and of
association as the members of the other. These rights extend even
to Communists, as a unanimous Court held in De Jonge v.
Oregon, 299 U. S. 353
Page 364 U. S. 408
What is an unconstitutional invasion of freedom of association
in Alabama or in Arkansas should be unconstitutional in New
Hampshire. All groups -- white or colored -- engaged in lawful
conduct are entitled to the same protection against harassment as
the NAACP enjoys. Since we allowed in the Bates
protection we deny here, and since Bates
was decided after
we decided Uphaus' case, we should reconsider our earlier decision
in this case. The Bates
case and the Uphaus
put into focus for the first time the responsibility of an
individual to make disclosure of membership lists. We cannot
administer justice with an even hand if we allow Bates to go free
and Uphaus to languish in prison.
For these reasons, as well as those advanced by MR. JUSTICE
BLACK, which I wholly share, I would note probable jurisdiction of
this appeal. And Dr. Uphaus should, of course, be released on bail
pending resolution of the questions by the Court.
Uphaus v. Wyman,
102 N.H. 517, 518, 162 A.2d 611,
Wyman v. Uphaus,
102 N.H. 461, 159 A.2d 160.
The Attorney General of New Hampshire, in the motion to dismiss
in this case, states,
"Those who voluntarily and knowingly appear with, consult with,
confer with, attend functions with, and otherwise act in concert
with Communists or former Communists in America cannot possibly
have any reasonable right of privacy in regard to such activities.
. . ."
Chief Justice Hughes wrote for the Court in that case:
"The greater the importance of safeguarding the community from
incitements to the overthrow of our institutions by force and
violence, the more imperative is the need to preserve inviolate the
constitutional rights of free speech, free press and free assembly
in order to maintain the opportunity for free political discussion,
to the end that government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful
means. Therein lies the security of the Republic, the very
foundation of constitutional government."
"It follows from these considerations that, consistently with
the Federal Constitution, peaceable assembly for lawful discussion
cannot be made a crime. The holding of meetings for peaceable
political action cannot be proscribed. Those who assist in the
conduct of such meetings cannot be branded as criminals on that
score. The question, if the rights of free speech and peaceable
assembly are to be preserved is not as to the auspices under which
the meeting is held, but as to its purpose; not as to the relations
of the speakers, but whether their utterances transcend the bounds
of the freedom of speech which the Constitution protects."
299 U.S. at 299 U. S.