Summoned to testify before a Subcommittee of the House of
Representatives Committee on Un-American Activities, which was
investigating alleged Communist infiltration into the field of
education, petitioner, formerly a graduate student and teaching
fellow at the University of Michigan, refused to answer questions
as to whether he was then or had ever been a member of the
Communist Party. He disclaimed reliance upon the privilege against
self-incrimination, but objected generally to the right of the
Subcommittee to inquire into his "political" and "religious"
beliefs or any "other personal or private affairs" or
"associational activities" upon grounds set forth in a previously
prepared memorandum, which was based on the First, Ninth, and Tenth
Amendments, the prohibition against bills of attainder and the
doctrine of separation of powers. For such refusal, he was
convicted of a violation of 2 U.S.C. § 192, which makes it a
misdemeanor for any person summoned as a witness by either House of
Congress or a committee thereof to refuse to answer any question
pertinent to the question under inquiry. He was fined and sentenced
to imprisonment for six months.
Held: Petitioner's conviction is sustained. Pp.
360 U. S.
111-134.
1. In the light of the Committee's history and the repeated
extensions of its life, as well as the successive appropriations by
the House of Representatives for the conduct of its activities, its
legislative authority and that of the Subcommittee to conduct the
inquiry under consideration here is unassailable, and House Rule
XI, 83d Congress, which defines the Committee's authority, cannot
be said to be constitutionally infirm on the score of vagueness.
Watkins v. United States, 354 U.
S. 178, distinguished. Pp.
360 U. S.
116-123.
(a) Rule XI has a "persuasive gloss of legislative history"
which shows beyond doubt that, in pursuance of its legislative
concerns in the domain of "national security," the House of
Representatives has clothed the Committee with pervasive authority
to investigate Communist activities in this country. Pp.
360 U. S.
117-121.
Page 360 U. S. 110
(b) In the light of the legislative history, Rule XI cannot be
construed so as to exclude the field of education from the
Committee's compulsory authority. Pp.
360 U. S.
121-123.
2. The record in this case refutes petitioner's contention that
he was not adequately apprised of the pertinency of the
Subcommittee's questions to the subject matter of the inquiry.
Watkins v. United States, supra, distinguished. Pp.
360 U. S.
123-125.
3. On the record in this case, the balance between the
individual and the governmental interests here at stake must be
struck in favor of the latter, and therefore the provisions of the
First Amendment were not transgressed by the Subcommittee's inquiry
into petitioner's past or present membership in the Communist
Party. Pp.
360 U. S.
125-134.
(a) Where First Amendment rights are asserted to bar
governmental interrogation, resolution of the issue always involves
a balancing by the courts of the competing private and public
interests at stake in the particular circumstances shown. Pp.
360 U. S.
126-127.
(b) The investigation here involved was related to a valid
legislative purpose, since Congress has wide power to legislate in
the field of Communist activity in this Country and to conduct
appropriate investigations in aid thereof. Pp.
360 U. S.
127-129.
(c) Investigatory power in this domain is not to be denied
Congress solely because the field of education is involved, and the
record in this case does not indicate any attempt by the Committee
to inquire into the content of academic lectures or discussions,
but only to investigate the extent to which the Communist Party had
succeeded in infiltrating into our educational institutions persons
and groups committed to furthering the Party's alleged objective of
violent overthrow of the Government.
Sweezy v. New
Hampshire, 354 U. S. 234,
distinguished. Pp.
360 U. S.
129-132.
(d) On the record in this case, it cannot be said that the true
objective of the Committee and of the Congress was purely
"exposure," rather than furtherance of a valid legislative purpose.
Pp.
360 U. S.
132-133.
(e) The record is barren of other factors which, in themselves,
might lead to the conclusion that the individual interests at stake
were not subordinate to those of the Government. P.
360 U. S.
134.
102 U.S.App.D.C. 217, 252 F.2d 129, affirmed.
Page 360 U. S. 111
MR. JUSTICE HARLAN delivered the opinion of the Court.
Once more the Court is required to resolve the conflicting
constitutional claims of congressional power, and of an
individual's right to resist its exercise. The congressional power
in question concerns the internal process of Congress in moving
within its legislative domain; it involves the utilization of its
committees to secure "testimony needed to enable it efficiently to
exercise a legislative function belonging to it under the
Constitution."
McGrain v. Daugherty, 273 U.
S. 135,
273 U. S. 160.
The power of inquiry has been employed by Congress throughout our
history, over the whole range of the national interests concerning
which Congress might legislate or decide upon due investigation not
to legislate; it has similarly been utilized in determining what to
appropriate from the national purse, or whether to appropriate. The
scope of the power of inquiry, in short, is as penetrating and
far-reaching as the potential power to enact and appropriate under
the Constitution.
Broad as it is, the power is not, however, without limitations.
Since Congress may only investigate into those areas in which it
may potentially legislate or appropriate,
Page 360 U. S. 112
it cannot inquire into matters which are within the exclusive
province of one of the other branches of the Government. Lacking
the judicial power given to the Judiciary, it cannot inquire into
matters that are exclusively the concern of the Judiciary. Neither
can it supplant the Executive in what exclusively belongs to the
Executive. And the Congress, in common with all branches of the
Government, must exercise its powers subject to the limitations
placed by the Constitution on governmental action, more
particularly, in the context of this case, the relevant limitations
of the Bill of Rights.
The congressional power of inquiry, its range and scope, and an
individual's duty in relation to it, must be viewed in proper
perspective.
McGrain v. Daugherty, supra; Landis,
Constitutional Limitations on the Congressional Power of
Investigation, 40 Harv.L.Rev. 153, 214; Black, Inside a Senate
Investigation, 172 Harpers Monthly 275 (February 1936). The power
and the right of resistance to it are to be judged in the concrete,
not on the basis of abstractions. In the present case,
congressional efforts to learn the extent of a nationwide, indeed
worldwide, problem have brought one of its investigating committees
into the field of education. Of course, broadly viewed, inquiries
cannot be made into the teaching that is pursued in any of our
educational institutions. When academic teaching -- freedom and its
corollary, learning -- freedom, so essential to the wellbeing of
the Nation, are claimed, this Court will always be on the alert
against intrusion by Congress into this constitutionally protected
domain. But this does not mean that the Congress is precluded from
interrogating a witness merely because he is a teacher. An
educational institution is not a constitutional sanctuary from
inquiry into matters that may otherwise be within the
constitutional legislative domain merely for the reason that
inquiry is made of someone within its walls.
Page 360 U. S. 113
In the setting of this framework of constitutional history,
practice, and legal precedents, we turn to the particularities of
this case.
We here review petitioner's conviction under 2 U.S.C. § 192
[
Footnote 1] for contempt of
Congress, arising from his refusal to answer certain questions put
to him by a Subcommittee of the House Committee on Un-American
Activities during the course of an inquiry concerning alleged
Communist infiltration into the field of education.
The case is before us for the second time. Petitioner's
conviction was originally affirmed in 1957 by a unanimous panel of
the Court of Appeals, 100 U.S.App.D.C. 13, 240 F.2d 875. This Court
granted certiorari, 354 U.S. 930, vacated the Judgment of the Court
of Appeals, and remanded the case to that court for further
consideration in light of
Watkins v. United States,
354 U. S. 178,
which had reversed a contempt of Congress conviction and which was
decided after the Court of Appeals' decision here had issued.
Thereafter, the Court of Appeals, sitting en banc, reaffirmed the
conviction by a divided court. 102 U.S.App.D.C. 217, 252 F.2d 129.
We again granted certiorari, 356 U.S. 929, to consider petitioner's
statutory and constitutional challenges to his conviction, and
particularly his claim that the Judgment below cannot stand under
our decision in the
Watkins case.
Pursuant to a subpoena, and accompanied by counsel, petitioner,
on June 28, 1954, appeared as a witness before
Page 360 U. S. 114
this congressional Subcommittee. After answering a few
preliminary questions and testifying that he had been a graduate
student and teaching fellow at the University of Michigan from 1947
to 1950 and an instructor in psychology at Vassar College from 1950
to shortly before his appearance before the Subcommittee,
petitioner objected generally to the right of the Subcommittee to
inquire into his "political" and "religious" beliefs or any "other
personal and private affairs" or "associational activities," upon
grounds set forth in a previously prepared memorandum which he was
allowed to file with the Subcommittee. [
Footnote 2] Thereafter, petitioner specifically declined
to answer each of the following five questions:
"Are you now a member of the Communist Party? [Count One.]"
"Have you ever been a member of the Communist Party? [Count
Two.]"
"Now, you have stated that you knew Francis Crowley. Did you
know Francis Crowley as a member of the Communist Party? [Count
Three.]"
"Were you ever a member of the Haldane Club of the Communist
Party while at the University of Michigan? [ Count Four.]"
"Were you a member while a student of the University of Michigan
Council of Arts, Sciences, and Professions? [Count Five.]"
In each instance the grounds of refusal were those set forth in
the prepared statement. Petitioner expressly disclaimed reliance
upon "the Fifth Amendment." [
Footnote 3]
Page 360 U. S. 115
Following receipt of the Subcommittee's report of these
occurrences, the House duly certified the matter to the District of
Columbia United States Attorney for contempt proceedings. An
indictment in five Counts, each embracing one of petitioner's
several refusals to answer, ensued. With the consent of both sides,
the case was tried to the court without a jury, and, upon
conviction under all Counts, a general sentence of six months'
imprisonment and a fine of $250 was imposed.
Since this sentence was less than the maximum punishment
authorized by the statute for conviction under any one Count,
[
Footnote 4] the judgment below
must be upheld if the conviction upon any of the Counts is
sustainable.
See Claassen v. United States, 142 U.
S. 140,
142 U. S. 147;
Roviaro v. United States, 353 U. S.
53;
Whitfield v. Ohio, 297 U.
S. 431. As we conceive the ultimate issue in this case
to be whether petitioner could properly be convicted of contempt
for refusing to answer questions relating to his participation in
or knowledge of alleged Communist Party activities at educational
institutions in this country, we find it unnecessary to consider
the validity of his conviction under the Third and Fifth Counts,
the only ones involving questions which on their face do not
directly relate to such participation or knowledge.
Petitioner's various contentions resolve themselves into three
propositions: first, the compelling of testimony by the
Subcommittee was neither legislatively authorized nor
constitutionally permissible because of the vagueness of Rule XI of
the House of Representatives, Eighty-third Congress, the charter of
authority of the parent Committee. [
Footnote 5] Second, petitioner was not adequately apprised
of the pertinency of the Subcommittee's questions to the
Page 360 U. S. 116
subject matter of the inquiry. Third, the questions petitioner
refused to answer infringed rights protected by the First
Amendment.
SUBCOMMITTEE'S AUTHORITY TO COMPEL TESTIMONY
At the outset, it should be noted that Rule XI authorized this
Subcommittee to compel testimony within the framework of the
investigative authority conferred on the Un-American Activities
Committee. [
Footnote 6]
Petitioner contends that
Watkins v. United States, supra,
nevertheless held the grant of this power in all circumstances
ineffective because of the vagueness of Rule XI in delineating the
Committee jurisdiction to which its exercise was to be appurtenant.
This view of
Watkins was accepted by two of the dissenting
judges below. 102 U.S.App.D.C. at 124, 252 F.2d at 136.
The
Watkins case cannot properly be read as standing
for such a proposition. A principal contention in
Watkins
was that the refusals to answer were justified because the
requirement of 2 U.S.C. § 192 that the questions asked be
"pertinent to the question under inquiry" had not been satisfied.
354 U.S. at
354 U. S.
208-209. This Court reversed the conviction solely on
that ground, holding that Watkins had not been adequately apprised
of the subject matter of the Subcommittee's investigation or the
pertinency
Page 360 U. S. 117
thereto of the questions he refused to answer.
Id. at
354 U. S.
206-209,
354 U. S.
214-215, and
see the concurring opinion in that
case,
id. at
354 U. S. 216.
In so deciding, the Court drew upon Rule XI only as one of the
facets in the total
mise en scene in its search for the
"question under inquiry" in that particular investigation.
Id. at
354 U. S.
209-215. The Court, in other words, was not dealing with
Rule XI at large, and indeed in effect stated that no such issue
was before it,
id. at
354 U. S. 209.
That the vagueness of Rule XI was not alone determinative is also
shown by the Court's further statement that, aside from the
Rule,
"the remarks of the chairman or members of the committee, or
even the nature of the proceedings themselves, might sometimes make
the topic [under inquiry] clear."
Ibid. In short, while
Watkins was critical of
Rule XI, it did not involve the broad and inflexible holding
petitioner now attributes to it. [
Footnote 7]
Petitioner also contends, independently of
Watkins,
that the vagueness of Rule XI deprived the Subcommittee of the
right to compel testimony in this investigation into Communist
activity. We cannot agree with this contention, which, in its
furthest reach, would mean that the House Un-American Activities
Committee under its existing authority has no right to compel
testimony in any circumstances. Granting the vagueness of the Rule,
we may not read it in isolation from its long history in the House
of Representatives. Just as legislation is often given meaning by
the gloss of legislative reports, administrative interpretation,
and long usage, so the proper meaning of an authorization to a
congressional committee is not to be derived alone from its
abstract terms unrelated to the definite content furnished them by
the course of congressional actions. The Rule comes to us with
a
Page 360 U. S. 118
"persuasive gloss of legislative history,"
United States v.
Witkovich, 353 U. S. 194,
353 U. S. 199,
which shows beyond doubt that, in pursuance of its legislative
concerns in the domain of "national security," the House has
clothed the Un-American Activities Committee with pervasive
authority to investigate Communist activities in this country.
The essence of that history can be briefly stated. The
Un-American Activities Committee, originally known as the Dies
Committee, was first established by the House in 1938. [
Footnote 8] The Committee was
principally a consequence of concern over the activities of the
German-American Bund, whose members were suspected of allegiance to
Hitler Germany, and of the Communist Party, supposed by many to be
under the domination of the Soviet Union. [
Footnote 9] From the beginning, without interruption to
the present time and with the undoubted knowledge and approval of
the House, the Committee has devoted a major part of its energies
to the investigation of Communist activities. [
Footnote 10] More particularly, in 1947, the
Committee announced
Page 360 U. S. 119
a wide-range program in this field, [
Footnote 11] pursuant to which, during the years 1948
to 1952, it conducted diverse inquiries into such alleged Communist
activities as espionage; efforts to learn atom bomb secrets;
infiltration into labor, farmer, veteran, professional, youth, and
motion picture groups, and, in addition, held a number of hearings
upon various legislative proposals to curb Communist activities.
[
Footnote 12]
In the context of these unremitting pursuits, the House has
steadily continued the life of the Committee at the
Page 360 U. S. 120
commencement of each new Congress; [
Footnote 13] it has never narrowed the powers of the
Committee, whose authority has remained throughout identical with
that contained in Rule XI, and it has continuingly supported the
Committee's activities with substantial appropriations. [
Footnote 14] Beyond this, the
Committee was raised to the level of a standing committee of the
House in 1945, it having been but a special committee prior to that
time. [
Footnote 15]
In light of this long and illuminating history, it can hardly be
seriously argued that the investigation of Communist activities
generally, and the attendant use of
Page 360 U. S. 121
compulsory process, was beyond the purview of the Committee's
intended authority under Rule XI.
We are urged, however, to construe Rule XI so as at least to
exclude the field of education from the Committee's compulsory
authority. Two of the four dissenting judges below relied entirely,
the other two alternatively, on this ground. 102 U.S.App.D.C. at
224, 226, 252 F.2d at 136, 138. The contention is premised on the
course we took in
United States v. Rumely, 345 U. S.
41, where in order to avoid constitutional issues, we
construed narrowly the authority of the congressional committee
there involved. We cannot follow that route here, for this is not a
case where Rule XI has to "speak for itself, since Congress put no
gloss upon it at the time of its passage," nor one where the
subsequent history of the Rule has the "infirmity of
post litem
motam, self-serving declarations."
See United States v.
Rumely, supra, at
345 U. S. 44-45,
48.
To the contrary, the legislative gloss on Rule XI is again
compelling. Not only is there no indication that the House ever
viewed the field of education as being outside the Committee's
authority under Rule XI, but the legislative history affirmatively
evinces House approval of this phase of the Committee's work.
During the first year of its activities, 1938, the Committee heard
testimony on alleged Communist activities at Brooklyn College, N.Y.
[
Footnote 16] The following
year, it conducted similar hearings relating to the American
Student Union and the Teachers Union. [
Footnote 17] The field of "Communist influences in
education" was one of the items contained in the Committee's
Page 360 U. S. 122
1947 program. [
Footnote
18] Other investigations including education took place in 1952
and 1953. [
Footnote 19] And,
in 1953, after the Committee had instituted the investigation
involved in this case, the desirability of investigating Communism
in education was specifically discussed during consideration of its
appropriation for that year, which, after controversial debate, was
approved. [
Footnote 20]
In this framework of the Committee's history, we must conclude
that its legislative authority to conduct the inquiry presently
under consideration is unassailable, and that, independently of
whatever bearing the broad scope of Rule XI may have on the issue
of "pertinency" in a given investigation into Communist activities,
as in
Watkins, the Rule cannot be said to be
constitutionally
Page 360 U. S. 123
infirm on the score of vagueness. The constitutional
permissibility of that authority otherwise is a matter to be
discussed later.
PERTINENCY CLAIM
Undeniably, a conviction for contempt under 2 U.S.C. § 192
cannot stand unless the questions asked are pertinent to the
subject matter of the investigation.
Watkins v. United States,
supra, at
354 U. S.
214-215. But the factors which led us to rest decision
on this ground in
Watkins were very different from those
involved here.
In
Watkins, the petitioner had made specific objection
to the Subcommittee's questions on the ground of pertinency; the
question under inquiry had not been disclosed in any illuminating
manner, and the questions asked the petitioner were not only
amorphous on their face, but, in some instances, clearly foreign to
the alleged subject matter of the investigation -- "Communism in
labor."
Id. at
354 U. S. 185,
354 U. S.
209-215.
In contrast, petitioner in the case before us raised no
objections on the ground of pertinency at the time any of the
questions were put to him. It is true that the memorandum which
petitioner brought with him to the Subcommittee hearing contained
the statement,
"to ask me whether I am or have been a member of the Communist
Party may have dire consequences. I might wish to . . . challenge
the pertinency of the question to the investigation,"
and, at another point, quoted from this Court's opinion in
Jones v. Securities & Exchange Comm'n, 298 U. S.
1, language relating to a witness' right to be informed
of the pertinency of questions asked him by an administrative
agency. [
Footnote 21] These
statements cannot,
Page 360 U. S. 124
however, be accepted as the equivalent of a pertinency
objection. At best, they constituted but a contemplated objection
to questions still unasked, and, buried as they were in the context
of petitioner's general challenge to the power of the Subcommittee,
they can hardly be considered adequate, within the meaning of what
was said in
Watkins, supra, at
354 U. S.
214-215, to trigger what would have been the
Subcommittee's reciprocal obligation had it been faced with a
pertinency objection.
We need not, however, rest decision on petitioner's failure to
object on this score, for here "pertinency" was made to appear
"with undisputable clarity."
Id. at
354 U. S. 214.
First of all, it goes without saying that the scope of the
Committee's authority was for the House, not a witness, to
determine, subject to the ultimate reviewing responsibility of this
Court. What we deal with here is whether petitioner was
sufficiently apprised of "the topic under inquiry" thus authorized
"and the connective reasoning whereby the precise questions asked
relate [d] to it."
Id. at
354 U. S. 215.
In light of his prepared memorandum of constitutional objections,
there can be no doubt that this petitioner was well aware of the
Subcommittee's authority and purpose to question him as it did.
See p.
360 U. S. 123,
supra. In addition, the other sources of this information
which we recognized in
Watkins, supra, at
354 U. S.
209-215, leave no room for a "pertinency" objection on
this record. The subject matter of the inquiry had been identified
at the commencement of the investigation as Communist infiltration
into the field of education. [
Footnote 22] Just prior to petitioner's appearance before
the Subcommittee, the scope of the day's hearings had been
announced as,
"in the main, communism in education and the experiences and
background in the party by Francis X. T. Crowley.
Page 360 U. S. 125
It will deal with activities in Michigan, Boston, and, in some
small degree, New York."
Petitioner had heard the Subcommittee interrogate the witness
Crowley along the same lines as he, petitioner, was evidently to be
questioned, and had listened to Crowley's testimony identifying him
as a former member of an alleged Communist student organization at
the University of Michigan while they both were in attendance
there. [
Footnote 23]
Further, petitioner had stood mute in the face of the Chairman's
statement as to why he had been called as a witness by the
Subcommittee. [
Footnote 24]
And, lastly, unlike Watkins,
id. at
354 U. S.
182-185, petitioner refused to answer questions as to
his own Communist Party affiliations, whose pertinency, of course,
was clear beyond doubt.
Petitioner's contentions on this aspect of the case cannot be
sustained.
CONSTITUTIONAL CONTENTIONS
Our function at this point is purely one of constitutional
adjudication in the particular case and upon the particular record
before us, not to pass judgment upon the general wisdom or efficacy
of the activities of this Committee in a vexing and complicated
field.
Page 360 U. S. 126
The precise constitutional issue confronting us is whether the
Subcommittee's inquiry into petitioner's past or present membership
in the Communist Party [
Footnote
25] transgressed the provisions of the First Amendment,
[
Footnote 26] which, of
course, reach and limit congressional investigations.
Watkins,
supra, at
354 U. S.
197.
The Court's past cases establish sure guides to decision.
Undeniably, the First Amendment in some circumstances protects an
individual from being compelled to disclose his associational
relationships. However, the protections of the First Amendment,
unlike a proper claim of the privilege against self-incrimination
under the Fifth Amendment, do not afford a witness the right to
resist inquiry in all circumstances. Where First Amendment rights
are asserted to bar governmental interrogation, resolution of the
issue always involves a balancing by the courts of the competing
private and public interests at stake in the particular
circumstances shown. These principles were recognized in the
Watkins case, where, in speaking of the First Amendment in
relation to congressional inquiries, we said (at p.
354 U. S.
198):
"It is manifest that, despite the adverse effects which follow
upon compelled disclosure of private matters, not all such
inquiries are barred. . . . The critical element is the existence
of,
Page 360 U. S. 127
and the weight to be ascribed to, the interest of the Congress
in demanding disclosures from an unwilling witness."
See also American Communications Assn. v. Douds,
339 U. S. 382,
339 U. S.
399-400;
United States v. Rumely, supra, at
345 U. S. 43-44.
More recently, in
National Association for the Advancement of
Colored People v. Alabama, 357 U. S. 449,
357 U. S.
463-466, we applied the same principles in judging state
action claimed to infringe rights of association assured by the Due
Process Clause of the Fourteenth Amendment, and stated that the
"
subordinating interest of the State must be compelling'" in
order to overcome the individual constitutional rights at stake.
See Sweezy v. New Hampshire, 354 U.
S. 234, 354 U. S. 255,
354 U. S. 265
(concurring opinion). In light of these principles, we now consider
petitioner's First Amendment claims.
The first question is whether this investigation was related to
a valid legislative purpose, for Congress may not constitutionally
require an individual to disclose his political relationships or
other private affairs except in relation to such a purpose.
See
Watkins v. United States, supra, at
354 U. S.
198.
That Congress has wide power to legislate in the field of
Communist activity in this Country, and to conduct appropriate
investigations in aid thereof, is hardly debatable. The existence
of such power has never been questioned by this Court, and it is
sufficient to say, without particularization, that Congress has
enacted or considered in this field a wide range of legislative
measures, not a few of which have stemmed from recommendations of
the very Committee whose actions have been drawn in question here.
[
Footnote 27] In the last
analysis, this power rests on
Page 360 U. S. 128
the right of self-preservation, "the ultimate value of any
society,"
Dennis v. United States, 341 U.
S. 494,
341 U. S. 509.
Justification for its exercise, in turn, rests on the long and
widely accepted view that the tenets of the Communist Party include
the ultimate overthrow of the Government of the United States by
force and violence, a view which has been given formal expression
by the Congress. [
Footnote
28] On these premises, this Court, in its constitutional
adjudications, has consistently refused to view the Communist Party
as an ordinary political party, and has upheld federal legislation
aimed at the Communist problem which, in a different context, would
certainly have raised constitutional issues of the gravest
character.
See, e.g., Carlson v. Landon, 342 U.
S. 524;
Galvan v. Press, 347 U.
S. 522. On the same premises, this Court has upheld
under the Fourteenth Amendment state legislation requiring those
occupying or seeking public office to disclaim knowing membership
in any organization advocating overthrow of the Government by force
and violence, which legislation none can avoid seeing was aimed at
membership in the Communist Party.
See Gerende v. Board of
Supervisors, 341 U. S. 56;
Garner v. Board of Public Works, 341 U.
S. 716.
See also Beilan v. Board of Public
Education, 357 U. S. 399;
Lerner v. Casey, 357 U. S. 468;
Adler v. Board of Education, 342 U.
S. 485. Similarly, in other areas, this Court has
recognized the close nexus between the Communist Party and violent
overthrow of government.
See Dennis v. United States, supra;
American Communications Assn. v. Douds, supra. To suggest
that, because the Communist Party may also sponsor peaceable
political reforms, the constitutional issues before us should now
be judged as if that Party were just an ordinary political
Page 360 U. S. 129
party from the standpoint of national security, is to ask this
Court to blind itself to world affairs which have determined the
whole course of our national policy since the close of World War
II, affairs to which Judge Learned Hand gave vivid expression in
his opinion in
United States v. Dennis, 183 F.2d 201, 213,
and to the vast burdens which these conditions have entailed for
the entire Nation.
We think that investigatory power in this domain is not to be
denied Congress solely because the field of education is involved.
Nothing in the prevailing opinions in
Sweezy v. New Hampshire,
supra, stands for a contrary view. The vice existing there was
that the questioning of Sweezy, who had not been shown ever to have
been connected with the Communist Party, as to the contents of a
lecture he had given at the University of New Hampshire, and as to
his connections with the Progressive Party, then on the ballot as a
normal political party in some 26 States, was too far removed from
the premises on which the constitutionality of the State's
investigation had to depend to withstand attack under the
Fourteenth Amendment.
See the concurring opinion in
Sweezy, supra, at
354 U. S. 261,
354 U. S. 265,
354 U. S. 266,
n. 3. This is a very different thing from inquiring into the extent
to which the Communist Party has succeeded in infiltrating into our
universities, or elsewhere, persons and groups committed to
furthering the objective of overthrow.
See Note 20 supra. Indeed, we do not
understand petitioner here to suggest that Congress in no
circumstances may inquire into Communist activity in the field of
education. [
Footnote 29]
Page 360 U. S. 130
Rather, his position is, in effect, that this particular
investigation was aimed not at the revolutionary aspects, but at
the theoretical classroom discussion of communism. In our opinion,
this position rests on a too constricted view of the nature of the
investigatory process, and is not supported by a fair assessment of
the record before us. An investigation of advocacy of or
preparation for overthrow certainly embraces the right to identify
a witness as a member of the Communist Party,
see Barsky v.
United States, 83 U.S.App.D.C. 127, 167 F.2d 241, and to
inquire into the various manifestations of the Party's tenets. The
strict requirements of a prosecution under the Smith Act, [
Footnote 30]
see Dennis v.
United States, supra, and
Yates v. United States,
354 U. S. 298, are
not the measure of the permissible scope of a congressional
investigation into "overthrow," for, of necessity, the
investigatory process must proceed step by step. Nor can it fairly
be concluded that this investigation was directed at controlling
what is being taught at our universities, rather than at overthrow.
The statement of the Subcommittee Chairman at the opening of the
investigation evinces no such intention, [
Footnote 31] and, so far as this record reveals
Page 360 U. S. 131
nothing thereafter transpired which would justify our holding
that the thrust of the investigation later changed. The record
discloses considerable testimony concerning the foreign domination
and revolutionary
Page 360 U. S. 132
purposes and efforts of the Communist Party. [
Footnote 32] That there was also testimony
on the abstract philosophical level does not detract from the
dominant theme of this investigation -- Communist infiltration
furthering the alleged ultimate purpose of overthrow. And certainly
the conclusion would not be justified that the questioning of
petitioner would have exceeded permissible bounds had he not shut
off the Subcommittee at the threshold.
Nor can we accept the further contention that this investigation
should not be deemed to have been in furtherance of a legislative
purpose because the true objective of the Committee and of the
Congress was purely "exposure." So long as Congress acts in
pursuance of its constitutional power, the Judiciary lacks
authority to intervene on the basis of the motives which spurred
the exercise of that power.
Arizona v. California,
283 U. S. 423,
283 U. S. 455,
and cases there cited. "It is, of course, true," as was said in
McCray v. United States, 195 U. S. 27,
195 U. S.
55,
"that, if there be no authority in the judiciary to restrain a
lawful exercise of power by another department of the government,
where a wrong motive or purpose has impelled to the exertion of the
power, that abuses of a power conferred may be temporarily
effectual. The
Page 360 U. S. 133
remedy for this, however, lies, not in the abuse by the judicial
authority of its functions, but in the people, upon whom, after
all, under our institutions, reliance must be placed for the
correction of abuses committed in the exercise of a lawful
power."
These principles, of course, apply as well to committee
investigations into the need for legislation as to the enactments
which such investigations may produce.
Cf. Tenney v.
Brandhove, 341 U. S. 367,
341 U. S.
377-378. Thus, in stating in the
Watkins case,
p.
354 U. S. 200,
that "there is no congressional power to expose for the sake of
exposure," we at the same time declined to inquire into the
"motives of committee members," and recognized that their
"motives alone would not vitiate an investigation which had been
instituted by a House of Congress if that assembly's legislative
purpose is being served."
Having scrutinized this record, we cannot say that the unanimous
panel of the Court of Appeals which first considered this case was
wrong in concluding that "the primary purposes of the inquiry were
in aid of legislative processes." 240 F.2d at 881. [
Footnote 33] Certainly this is not a case
like
Kilbourn v. Thompson, 103 U.
S. 168,
103 U. S. 192,
where
"the House of Representatives not only exceeded the limit of its
own authority, but assumed a power which could only be properly
exercised by another branch of the government, because it was in
its nature clearly judicial."
See McGrain v. Daugherty, 273 U.
S. 135,
273 U. S. 171.
The constitutional legislative power of Congress in this instance
is beyond question.
Page 360 U. S. 134
Finally, the record is barren of other factors which, in
themselves, might sometimes lead to the conclusion that the
individual interests at stake were not subordinate to those of the
state. There is no indication in this record that the Subcommittee
was attempting to pillory witnesses. Nor did petitioner's
appearance as a witness follow from indiscriminate dragnet
procedures, lacking in probable cause for belief that he possessed
information which might be helpful to the Subcommittee. [
Footnote 34] And the relevancy of
the questions put to him by the Subcommittee is not open to
doubt.
We conclude that the balance between the individual and the
governmental interests here at stake must be struck in favor of the
latter, and that, therefore, the provisions of the First Amendment
have not been offended.
We hold that petitioner's conviction for contempt of Congress
discloses no infirmity, and that the judgment of the Court of
Appeals must be
Affirmed.
[
Footnote 1]
"Every person who having been summoned as a witness by the
authority of either House of Congress to give testimony or to
produce papers upon any matter under inquiry before either House,
or any joint committee established by a joint or concurrent
resolution of the two Houses of Congress, or any committee of
either House of Congress, willfully makes default, or who, having
appeared, refuses to answer any question pertinent to the question
under inquiry, shall be deemed guilty of a misdemeanor, punishable
by a fine of not more than $1,000 nor less than $100 and
imprisonment in a common jail for not less than one month nor more
than twelve months."
[
Footnote 2]
In the words of the panel of the Court of Appeals which first
heard the case, this memorandum
"can best be described as a lengthy legal brief attacking the
jurisdiction of the committee to ask appellant any questions or to
conduct any inquiry at all, based on the First, Ninth and Tenth
Amendments, the prohibition against bills of attainder, and the
doctrine of separation of powers."
100 U.S.App.D.C. at 17, n. 4, 240 F.2d at 879, n. 4.
[
Footnote 3]
We take this to mean the privilege against
self-incrimination.
[
Footnote 4]
See Note 1
supra.
[
Footnote 5]
H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24. The
Committee's charter appears as paragraph 17(b) of Rule XI.
References to the Rule throughout this opinion are intended to
signify that paragraph.
[
Footnote 6]
"The Committee on Un-American Activities, as a whole or by
subcommittee, is authorized to make from time to time
investigations of (1) the extent, character, and objects of
un-American propaganda activities in the United States, (2) the
diffusion within the United States of subversive and un-American
propaganda that is instigated from foreign countries or of a
domestic origin and attacks the principle of the form of government
as guaranteed by our Constitution, and (3) all other questions in
relation thereto that would aid Congress in any necessary remedial
legislation."
H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24. The
Rule remains current in the same form. H.Res. 7, 86th Cong., 1st
Sess., Cong.Rec. Jan. 7, 1959, p. 13.
[
Footnote 7]
Had
Watkins reached to the extent now claimed by
petitioner, a reversal of the judgment of the Court of Appeals, not
a remand for further consideration, would have been required when
this case first came to us.
[
Footnote 8]
H.Res. 282, 75th Cong., 3d Sess., 83 Cong.Rec. 7568, 7586.
[
Footnote 9]
See debate on the original authorizing resolution, 75th
Cong., 3d Sess., 83 Cong.Rec. 7567, 7572-7573, 7577, 7583-7586.
[
Footnote 10]
H.R.Rep. No. 2, 76th Cong., 1st Sess.; H.R.Rep. No. 1476, 76th
Cong., 3d Sess.; H.R.Rep. No. 1, 77th Cong., 1st Sess.; H.R.Rep.
No. 2277, 77th Cong., 2d Sess.; H.R.Rep. No. 2748, 77th Cong., 2d
Sess.; H.R.Rep. No. 2233, 79th Cong., 2d Sess.; H.R.Rep. No. 2742,
79th Cong., 2d Sess.; Report of the Committee on Un-American
Activities to the United States House of Representatives, 80th
Cong., 2d Sess., December 31, 1948 (Committee Print); H.R.Rep.
No.1950, 81st Cong., 2d Sess.; H.R. Rep No. 3249, 81st Cong., 2d
Sess.; H.R.Rep. No. 2431, 82d Cong., 2d Sess.; H.R.Rep. No. 2516,
82d Cong., 2d Sess.; H.R.Rep. No. 1192, 83d Cong., 2d Sess.;
H.R.Rep. No. 57, 84th Cong., 1st Sess.; H.R.Rep. No. 1648, 84th
Cong., 2d Sess.; H.R.Rep. No. 53, 85th Cong., 1st Sess.; H.R.Rep.
No. 1360, 85th Cong., 2d Sess.
[
Footnote 11]
The scope of the program was as follows:
"1. To expose and ferret out the Communists and Communist
sympathizers in the Federal Government."
"2. To spotlight the spectacle of having outright Communists
controlling and dominating some of the most vital unions in
American labor."
"3. To institute a counter-educational program against the
subversive propaganda which has been hurled at the American
people."
"4. Investigation of those groups and movements which are trying
to dissipate our atomic bomb knowledge for the benefit of a foreign
power."
"5. Investigation of Communist influences in Hollywood."
"6. Investigation of Communist influences in education."
"7. Organization of the research staff so as to furnish
reference service to Members of Congress and to keep them currently
informed on all subjects relating to subversive and un-American
activities in the United States."
"8. Continued accumulation of files and records to be placed at
the disposal of the investigative units of the Government and armed
services."
Report of the Committee on Un-American Activities to the United
States House of Representatives, 80th Cong., 2d Sess., Dec. 31,
1948, 2-3 (Committee Print).
[
Footnote 12]
Report of the Committee on Un-American Activities to the United
States House of Representatives, 80th Cong., 2d Sess., December 31,
1948, 15-21 (Committee Print); H.R.Rep. No.1950, 81st Cong., 2d
Sess. 1-10; H.R.Rep. No. 3249, 81st Cong., 2d Sess. 5-6, 27-29;
H.R.Rep. No. 2431, 82d Cong., 2d Sess. 6-9; H.R.Rep. No. 2516, 82d
Cong., 2d Sess. 7-67, 69-73.
[
Footnote 13]
H.Res. 26, 76th Cong., 1st Sess., 84 Cong.Rec. 1098, 1128;
H.Res. 321, 76th Cong., 3d Sess., 86 Cong.Rec. 532, 605; H.Res. 90,
77th Cong., 1st Sess., 87 Cong.Rec. 886, 899; H.Res. 420, 77th
Cong., 2d Sess., 88 Cong.Rec. 2282, 2297; H.Res. 65, 78th Cong.,
1st Sess., 89 Cong.Rec. 795, 810.
See Note 15 infra.
[
Footnote 14]
See, e.g., H.Res. 510, 75th Cong., 3d Sess., 83
Cong.Rec. 8637, 8638 (1938); H.Res. 91, 77th Cong., 1st Sess., 87
Cong.Rec. 899 (1941); H.Res. 415, 78th Cong., 2d Sess., 90
Cong.Rec. 763 (1944); H.Res. 77, 80th Cong., 1st Sess., 93
Cong.Rec. 699, 700 (1947); H.Res. 152, 80th Cong., 1st Sess., 93
Cong.Rec. 3074 (1947); H.Res. 482, 81st Cong., 2d Sess., 96
Cong.Rec. 3941, 3944 (1950); H.Res. 119, 83d Cong., 1st Sess., 99
Cong.Rec. 1358-1359, 1361-1362 (1953); H.Res. 352, 84th Cong., 2d
Sess., 102 Cong.Rec. 1585, 1718-1719 (1956); H.Res. 137, 86th
Cong., 1st Sess., Cong.Rec. Jan. 29, 1959, p. 1286.
[
Footnote 15]
H.Res. 5, 79th Cong., 1st Sess., 91 Cong.Rec. 10, 15. In 1946,
the Committee's charter was embodied in the Legislative
Reorganization Act of 1946, 60 Stat. 812, 828. Since then, the
House has continued the life of the Committee by making the charter
provisions of the Act part of the House Rules for each new
Congress. H.Res. 5, 80th Cong., 1st Sess., 93 Cong.Rec. 38; H.Res.
5, 81st Cong., 1st Sess., 95 Cong.Rec. 10, 11; H.Res. 7, 82d Cong.,
1st Sess., 97 Cong.Rec. 9, 17, 19; H.Res. 5, 83d Cong., 1st Sess.,
99 Cong.Rec. 15, 18, 24; H.Res. 5, 84th Cong., 1st Sess., 101
Cong.Rec. 11; H.Res. 5, 85th Cong., 1st Sess., 103 Cong.Rec. 47;
H.Res. 7, 86th Cong., 1st Sess., Cong.Rec. Jan. 7, 1959, p. 13.
[
Footnote 16]
Hearings before House Special Committee on Un-American
Activities on H.Res. 282, 75th Cong., 3d Sess. 943-973.
[
Footnote 17]
Hearings before House Special Committee on Un-American
Activities on H.Res. 282, 76th Cong., 1st Sess. 6827-6911.
[
Footnote 18]
See Note 11
supra.
[
Footnote 19]
Defense area hearings at Detroit in 1952 involved inquiries into
Communist activities among the students and teachers in Michigan
schools and universities. H.R.Rep. No. 2516, 82d Cong., 2d Sess.
10. Similar investigations were conducted by the Committee the same
year in the Chicago defense area.
Id. at 28. In 1953, the
Committee investigated alleged Communist infiltration into the
public school systems in Philadelphia and New York, H.R.Rep. No.
1192, 83d Cong., 2d Sess. 2, 4.
[
Footnote 20]
In the course of that debate, a member of the Un-American
Activities Committee, Representative Jackson, commented:
"So far as education is concerned, if the American educators,
and, if the gentlemen who are objecting to the investigation of
communism and Communists in education will recognize a valid
distinction, I want to point out this is not a blunderbuss approach
to the problem of communism in education. We are not interested in
textbooks. We are not interested in the classroom operations of the
universities. We are interested instead in finding out who the
Communists are and what they are doing to further the Communist
conspiracy. I may say in that connection that we have sworn
testimony identifying individuals presently on the campuses of this
country, men who have been identified under oath as one-time
members of the Communist Party. Is there any Member of this body
who would say we should not investigate this situation?"
83d Cong., 1st Sess., 99 Cong.Rec. 1360.
[
Footnote 21]
"The citizen, when interrogated about his private affairs, has a
right before answering to know why the inquiry is made, and, if the
purpose disclosed is not a legitimate one, he may not be compelled
to answer."
298 U.S. at
298 U. S. 26.
[
Footnote 22]
Excerpts from the Chairman's statement at the opening of the
investigation on February 25, 1953, as to the nature of this
inquiry are set forth in
Note
31 infra.
[
Footnote 23]
Crowley immediately preceded petitioner on the witness stand. It
appears to be undisputed that petitioner was in the hearing room at
the time this statement was made and during Crowley's testimony. In
his own examination, petitioner acknowledged knowing Crowley.
[
Footnote 24]
The Chairman stated at the hearing, just before petitioner was
excused,
"that the evidence or information contained in the files of this
committee, some of them in the nature of evidence, shows clearly
that the witness has information about Communist activities in the
United States of America, particularly while he attended the
University of Michigan."
"That information which the witness has would be very valuable
to this committee and its work."
[
Footnote 25]
Because the sustaining of petitioner's conviction on any one of
the five Counts of the indictment suffices for affirmance of the
judgment under review, we state the constitutional issue only in
terms of petitioner's refusals to answer the questions involved in
Counts One and Two in order to sharpen discussion. However, we
consider his refusal to answer the question embraced in Count Four
would require the same constitutional result. As to Counts Three
and Five,
see p.
360 U. S. 115,
supra.
[
Footnote 26]
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances ."
[
Footnote 27]
See Legislative Recommendations by House Committee on
Un-American Activities, Subsequent Action Taken by Congress or
Executive Agencies (A Research Study by Legislative Reference
Service of the Library of Congress), Committee on Un-American
Activities, House of Representatives, 85th Cong., 2d Sess., June
1958.
[
Footnote 28]
See Subversive Activities Control Act of 1950, Title I
of the Internal Security Act of 1950, § 2, 64 Stat. 987-989.
See also Carlson v. Landon, 342 U.
S. 524,
342 U. S. 535,
n. 21.
[
Footnote 29]
The
amicus brief of the American Association of
University Professors states at page 24:
"The claims of academic freedom cannot be asserted
unqualifiedly. The social interest it embodies is but one of a
larger set within which the interest in national self-preservation
and in enlightened and well informed law-making also prominently
appear. When two major interests collide, as they do in the present
case, neither the one nor the other can claim
a priori
supremacy. But it is in the nature of our system of laws that there
must be demonstrable justification for an action by the Government
which endangers or denies a freedom guaranteed by the
Constitution."
[
Footnote 30]
54 Stat. 670, 18 U.S.C. § 2385.
[
Footnote 31]
The following are excerpts from that statement:
". . . In opening this hearing, it is well to make clear to you
and others just what the nature of this investigation is."
"From time to time, the committee has investigated Communists
and Communist activities within the entertainment, newspaper, and
labor fields, and also within the professions and the Government.
In no instance has the work of the committee taken on the character
of an investigation of entertainment organizations, newspapers,
labor unions, the professions, or the Government, as such, and it
is not now the purpose of this committee to investigate education
or educational institutions, as such. . . ."
"
* * * *"
"The purpose of the committee in investigating Communists and
Communist activities within the field of education is no greater
and no less than its purpose in investigating Communists and
Communist activities within the field of labor or any other
field."
"The committee is charged by the Congress with the
responsibility of investigating the extent, character, and objects
of un-American propaganda activities in the United States, the
diffusion within the United States of subversive and un-American
propaganda that is instigated from foreign countries or of a
domestic origin and attacks the principle of the form of government
as guaranteed by our Constitution, and all other questions in
relation thereto that would aid Congress in any necessary remedial
legislation."
"It has been fully established in testimony before congressional
committees and before the courts of our land that the Communist
Party of the United States is part of an international conspiracy
which is being used as a tool or weapon by a foreign power to
promote its own foreign policy and which has for its object the
overthrow of the governments of all non-Communist countries,
resorting to the use of force and violence, if necessary. . . .
Communism and Communist activities cannot be investigated in a
vacuum. The investigation must, of necessity, relate to
individuals, and, therefore, this morning, the committee is calling
you [one Davis] as a person known by this committee to have been at
one time a member of the Communist Party."
"
* * * *"
"The committee is equally concerned with the opportunities that
the Communist Party has to wield its influence upon members of the
teaching profession and students through Communists who are members
of the teaching profession. Therefore, the objective of this
investigation is to ascertain the character, extent and objects of
Communist Party activities when such activities are carried on by
members of the teaching profession who are subject to the
directives and discipline of the Communist Party."
The full statement is printed as the Appendix to the original
Court of Appeals opinion, 100 U.S.App.D.C. 22-24, 240 F.2d
884-886.
[
Footnote 32]
Thus, early in the investigation, one of the witnesses, Hicks,
testified in response to a question as to "the general purpose of
the Communist Party in endeavoring to organize a cell or unit among
the teaching profession" at the various universities that, contrary
to his original view:
". . . it is very obvious to me that the popular front
[Communist protection of democracy against Fascism] was simply a
dodge that happened in those particular years to serve the foreign
policy of the Soviet Union; so it seems to me that the party, in
organizing branches in the colleges, had two purposes. One was to
carry out the existing line which they wanted to make a show of
advancing, and then, of course, the other was to try to have a
corps of disciplined revolutionaries whom they could use for other
purposes when the time came."
[
Footnote 33]
We agree with the Court of Appeals that the one sentence
appearing in the Committee's report for 1954, upon which petitioner
largely predicates his exposure argument, bears little significance
when read in the context of the full report and in light of the
entire record. This sentence reads:
"The 1954 hearings were set up by the committee in order to
demonstrate to the people of Michigan the fields of concentration
of the Communist Party in the Michigan area, and the identity of
those individuals responsible for its success."
[
Footnote 34]
See p.
360 U. S. 124
and
Note 24
supra.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS concur, dissenting.
On May 28, 1954, petitioner Lloyd Barenblatt, then 31 years old
and a teacher of psychology at Vassar College, was summoned to
appear before a Subcommittee of the House Committee on Un-American
Activities. After service of the summons, but before Barenblatt
appeared on June 28, his four-year contract with Vassar expired and
was not renewed. He therefore came to the Committee as a private
citizen without a job. Earlier that day, the Committee's interest
in Barenblatt had been aroused by the testimony of an ex-Communist
named Crowley. When Crowley had first appeared before the
Un-American Activities Committee, he had steadfastly
Page 360 U. S. 135
refused to admit or deny Communist affiliations or to identify
others as Communists. After the House reported this refusal to the
United States Attorney for prosecution, Crowley "voluntarily"
returned and asked to testify. He was sworn in and interrogated,
but not before he was made aware by various Committee members of
Committee policy to "make an appropriate recommendation" to protect
any witness who "fully cooperates with the committee." He then
talked at length, identifying by name, address and occupation,
whenever possible, people he claimed had been Communists. One of
these was Barenblatt, who, according to Crowley, had been a
Communist during 1947-1950 while a graduate student and teaching
fellow at the University of Michigan. Though Crowley testified in
great detail about the small group of Communists who had been at
Michigan at that time, and though the Committee was very satisfied
with his testimony, it sought repetition of much of the information
from Barenblatt. Barenblatt, however, refused to answer their
questions and filed a long statement outlining his constitutional
objections. He asserted that the Committee was violating the
Constitution by abridging freedom of speech, thought, press, and
association, and by conducting legislative trials of known or
suspected Communists which trespassed on the exclusive power of the
judiciary. He argued that, however he answered questions relating
to membership in the Communist Party, his position in society and
his ability to earn a living would be seriously jeopardized; that
he would, in effect, be subjected to a bill of attainder despite
the twice-expressed constitutional mandate against such legislative
punishments. [
Footnote 2/1] This
would occur, he pointed out, even
Page 360 U. S. 136
if he did no more than invoke the protection of clearly
applicable provisions of the Bill of Rights as a reason for
refusing to answer.
He repeated these and other objections in the District Court as
a reason for dismissing an indictment for contempt of Congress. His
position, however, was rejected at the trial and in the Court of
Appeals for the District of Columbia Circuit over the strong
dissents of Chief Judge Edgerton and Judges Bazelon, Fahy and
Washington. The Court today affirms, and thereby sanctions the use
of the contempt power to enforce questioning by congressional
committees in the realm of speech and association. I cannot agree
with this disposition of the case, for I believe that the
resolution establishing the House Un-American Activities Committee
and the questions that Committee asked Barenblatt violate the
Constitution in several respects. (1) Rule XI, creating the
Committee, authorizes such a sweeping, unlimited, all-inclusive and
undiscriminating compulsory examination of witnesses in the field
of speech, press, petition and assembly that it violates the
procedural requirements of the Due Process Clause of the Fifth
Amendment. (2) Compelling an answer to the questions asked
Barenblatt abridges freedom of speech and association in
contravention of the First Amendment. (3) The Committee proceedings
were part of a legislative program to stigmatize and punish by
public identification and exposure all witnesses considered by the
Committee to be guilty of Communist affiliations, as well as all
witnesses who refused to answer Committee questions on
constitutional grounds; the Committee was thus improperly seeking
to try, convict, and punish suspects, a task which the Constitution
expressly denies to Congress and grants exclusively
Page 360 U. S. 137
to the courts, to be exercised by them only after indictment and
in full compliance with all the safeguards provided by the Bill of
Rights.
I
.
It goes without saying that a law, to be valid, must be clear
enough to make its commands understandable. For obvious reasons,
the standard of certainty required in criminal statutes is more
exacting than in noncriminal statutes. [
Footnote 2/2] This is simply because it would be
unthinkable to convict a man for violating a law he could not
understand. This Court has recognized that the stricter standard is
as much required in criminal contempt cases as in all other
criminal cases, [
Footnote 2/3] and
has emphasized that the "vice of vagueness" is especially
pernicious where legislative power over an area involving speech,
press, petition and assembly is involved. [
Footnote 2/4] In this area, the statement that a statute
is void if it "attempts to cover so much that it effectively covers
nothing,"
see Musser v. Utah, 333 U. S.
95,
333 U. S. 97,
takes on double significance. For a statute broad enough to support
infringement of speech, writings, thoughts and public assemblies
against the unequivocal command of the First Amendment necessarily
leaves all persons to guess just what the law really means to
cover, and fear of a wrong guess inevitably leads people to forego
the very rights the Constitution sought to protect above all
others. [
Footnote 2/5] Vagueness
becomes
Page 360 U. S. 138
even more intolerable in this area if one accepts, as the Court
today does, a balancing test to decide if First Amendment rights
shall be protected. It is difficult, at best, to make a man guess
-- at the penalty of imprisonment -- whether a court will consider
the State's need for certain information superior to society's
interest in unfettered freedom. It is unconscionable to make him
choose between the right to keep silent and the need to speak when
the statute supposedly establishing the "state's interest" is too
vague to give him guidance.
Cf. Scull v. Virginia,
359 U. S. 344.
Measured by the foregoing standards, Rule XI cannot support any
conviction for refusal to testify. In substance, it authorizes the
Committee to compel witnesses to give evidence about all
"un-American propaganda," whether instigated in this country or
abroad. [
Footnote 2/6] The word
"propaganda" seems to mean anything that people say, write, think
or associate together about. The term "un-American" is equally
vague. As was said in
Watkins v. United States,
354 U. S. 178,
354 U. S.
202,
"Who can define [its] meaning . . . ? What is that single,
solitary 'principle of the form of government as guaranteed by our
Constitution'?' I think it clear that the boundaries of the
Committee are, to say the least, 'nebulous.' Indeed, 'It would be
difficult to imagine a less explicit authorizing resolution.'
Ibid. "
Page 360 U. S. 139
The Court -- while not denying the vagueness of Rule XI --
nevertheless defends its application here because the questions
asked concerned communism, a subject of investigation which had
been reported to the House by the Committee on numerous occasions.
If the issue were merely whether Congress intended to allow an
investigation of communism, or even of communism in education, it
may well be that we could hold the data cited by the Court
sufficient to support a finding of intent. But that is expressly
not the issue. On the Court's own test, the issue is whether
Barenblatt can know with sufficient certainty, at the time of his
interrogation, that there is so compelling a need for his replies
that infringement of his rights of free association is justified.
The record does not disclose where Barenblatt can find what that
need is. There is certainly no clear congressional statement of it
in Rule XI. Perhaps if Barenblatt had had time to read all the
reports of the Committee to the House, and in addition had examined
the appropriations made to the Committee, he, like the Court, could
have discerned an intent by Congress to allow an investigation of
communism in education. Even so, he would be hard put to decide
what the need for this investigation is, since Congress expressed
it neither when it enacted Rule XI nor when it acquiesced in the
Committee's assertions of power. Yet it is knowledge of this need
-- what is wanted from him and why it is wanted -- that a witness
must have if he is to be in a position to comply with the Court's
rule that he balance individual rights against the requirements of
the State. I cannot see how that knowledge can exist under Rule
XI.
But even if Barenblatt could evaluate the importance to the
Government of the information sought, Rule XI would still be too
broad to support his conviction. For we are dealing here with
governmental procedures which the Court itself admits reach to the
very fringes of congressional
Page 360 U. S. 140
power. In such cases, more is required of legislatures than a
vague delegation to be filled in later by mute acquiescence.
[
Footnote 2/7] If Congress wants
ideas investigated, if it even wants them investigated in the field
of education, it must be prepared to say so expressly and
unequivocally. And it is not enough that a court, through
exhaustive research, can establish, even conclusively, that
Congress wished to allow the investigation. I can find no such
unequivocal statement here.
For all these reasons, I would hold that Rule XI is too broad to
be meaningful, and cannot support petitioner's conviction.
[
Footnote 2/8]
II
The First Amendment says in no equivocal language that Congress
shall pass no law abridging freedom of speech, press, assembly or
petition. [
Footnote 2/9] The
activities of
Page 360 U. S. 141
this Committee, authorized by Congress, do precisely that
through exposure, obloquy and public scorn.
See Watkins v.
United States, 354 U. S. 178,'
354 U. S.
197-198. The Court does not really deny this fact, but
relies on a combination of three reasons for permitting the
infringement: (A) the notion that, despite the First Amendment's
command, Congress can abridge speech and association if this Court
decides that the governmental interest in abridging speech is
greater than an individual's interest in exercising that freedom,
(B) the Government's right to "preserve itself,"(C) the fact that
the Committee is only after Communists or suspected Communists in
this investigation.
(A) I do not agree that laws directly abridging First Amendment
freedoms can be justified by a congressional or judicial balancing
process. There are, of course, cases suggesting that a law which
primarily regulates conduct but which might also indirectly affect
speech can be upheld if the effect on speech is minor in relation
to the need for control of the conduct. With these cases I agree.
Typical of them are
Cantwell v. Connecticut, 310 U.
S. 296, and
Schneider v. Irvington,
308 U. S. 147.
Both of these involved the right of a city to control its streets.
In
Cantwell, a man had been convicted of breach of the
peace for playing a phonograph on the street. He defended on the
ground that he was disseminating religious views, and could not,
therefore, be stopped. We upheld his defense, but, in so doing, we
pointed out that the city did have substantial power over conduct
on the streets even where this power might to some extent affect
speech. A State, we said, might,
"by general and nondiscriminatory legislation,
Page 360 U. S. 142
regulate the times, the places, and the manner of soliciting
upon its streets and holding meetings thereon."
310 U.S. at
310 U. S. 304.
But even such laws governing conduct, we emphasized, must be
tested, though only by a balancing process, if they indirectly
affect ideas. On one side of the balance, we pointed out, is the
interest of the United States in seeing that its fundamental law
protecting freedom of communication is not abridged; on the other,
the obvious interest of the State to regulate conduct within its
boundaries. In
Cantwell, we held that the need to control
the streets could not justify the restriction made on speech. We
stressed the fact that, where a man had a right to be on a street,
"he had a right peacefully to impart his views to others." 310 U.S.
at
310 U. S. 308.
Similar views were expressed in
Schneider, which concerned
ordinances prohibiting the distribution of handbills to prevent
littering. We forbade application of such ordinances when they
affected literature designed to spread ideas. There were other
ways, we said, to protect the city from littering which would not
sacrifice the right of the people to be informed. In so holding,
we, of course, found it necessary to "weigh the circumstances." 308
U.S. at
308 U. S. 161.
But we did not in
Schneider, any more than in
Cantwell, even remotely suggest that a law directly aimed
at curtailing speech and political persuasion could be saved
through a balancing process. Neither these cases nor any others can
be read as allowing legislative bodies to pass laws abridging
freedom of speech, press and association merely because of
hostility to views peacefully expressed in a place where the
speaker had a right to be. Rule XI, on its face and as here
applied, since it attempts inquiry into beliefs, not action --
ideas and associations, not conduct -- does just that. [
Footnote 2/10]
Page 360 U. S. 143
To apply the Court's balancing test under such circumstances is
to read the First Amendment to say
"Congress shall pass no law abridging freedom of speech, press,
assembly and petition, unless Congress and the Supreme Court reach
the joint conclusion that, on balance, the interest of the
Government in stifling these freedoms is greater than the interest
of the people in having them exercised."
This is closely akin to the notion that neither the First
Amendment nor any other provision of the Bill of Rights should be
enforced unless the Court believes it is
reasonable to do
so. Not only does this violate the genius of our
written
Constitution, but it runs expressly counter to the injunction to
Court and Congress made by Madison when he introduced the Bill of
Rights.
"If they [the first ten amendments] are incorporated into the
Constitution, independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those rights; they
will be an impenetrable bulwark against
every assumption
of power in the Legislative or Executive; they will be naturally
led to resist
every encroachment upon rights expressly
stipulated for in the Constitution by the declaration of rights.
[
Footnote 2/11]"
Unless we return to this view of our judicial function, unless
we once again accept the notion that the Bill of Rights means what
it
Page 360 U. S. 144
says and that this Court must enforce that meaning, I am of the
opinion that our great charter of liberty will be more honored in
the breach than in the observance.
But even assuming what I cannot assume, that some balancing is
proper in this case, I feel that the Court after stating the test
ignores it completely. At most, it balances the right of the
Government to preserve itself, against Barenblatt's right to
refrain from revealing Communist affiliations. Such a balance,
however, mistakes the factors to be weighed. In the first place, it
completely leaves out the real interest in Barenblatt's silence,
the interest of the people as a whole in being able to join
organizations, advocate causes and make political "mistakes"
without later being subjected to governmental penalties for having
dared to think for themselves. It is this right, the right to err
politically, which keeps us strong as a Nation. For no number of
laws against communism can have as much effect as the personal
conviction which comes from having heard its arguments and rejected
them, or from having once accepted its tenets and later recognized
their worthlessness. Instead, the obloquy which results from
investigations such as this not only stifles "mistakes," but
prevents all but the most courageous from hazarding any views which
might at some later time become disfavored. This result, whose
importance cannot be overestimated, is doubly crucial when it
affects the universities, on which we must largely rely for the
experimentation and development of new ideas essential to our
country's welfare. It is these interests of society, rather than
Barenblatt's own right to silence, which I think the Court should
put on the balance against the demands of the Government, if any
balancing process is to be tolerated. Instead they are not
mentioned, while, on the other side, the demands of the Government
are vastly overstated, and called "self-preservation." It is
admitted that this Committee can only seek
Page 360 U. S. 145
information for the purpose of suggesting laws, and that
Congress' power to make laws in the realm of speech and association
is quite limited, even on the Court's test. Its interest in making
such laws in the field of education, primarily a state function, is
clearly narrower still. Yet the Court styles this attenuated
interest self-preservation, and allows it to overcome the need our
country has to let us all think, speak, and associate politically
as we like, and without fear of reprisal. Such a result reduces
"balancing" to a mere play on words, and is completely inconsistent
with the rules this Court has previously given for applying a
"balancing test," where it is proper:
"[T]he courts should be
astute to examine the effect of
the challenged legislation. Mere
legislative preferences or
beliefs . . . may well support regulation directed at other
personal activities, but be insufficient to justify such as
diminishes the exercise of rights so vital to the maintenance of
democratic institutions."
Schneider v. Irvington, 308 U.
S. 147,
308 U. S. 161.
(Italics supplied.)
(B) Moreover, I cannot agree with the Court's notion that First
Amendment freedoms must be abridged in order to "preserve" our
country. That notion rests on the unarticulated premise that this
Nation's security hangs upon its power to punish people because of
what they think, speak or write about, or because of those with
whom they associate for political purposes. The Government, in its
brief, virtually admits this position when it speaks of the
"communication of unlawful ideas." I challenge this premise, and
deny that ideas can be proscribed under our Constitution. I agree
that despotic governments cannot exist without stifling the voice
of opposition to their oppressive practices. The First Amendment
means to me, however, that the only constitutional way our
Government can preserve itself is to leave its people the fullest
possible freedom to praise, criticize or discuss, as they see fit,
all governmental policies and to suggest, if they desire,
Page 360 U. S. 146
that even its most fundamental postulates are bad, and should be
changed; "Therein lies the security of the Republic, the very
foundation of constitutional government." [
Footnote 2/12] On that premise this land was created,
and on that premise it has grown to greatness. Our Constitution
assumes that the common sense of the people and their attachment to
our country will enable them, after free discussion, to withstand
ideas that are wrong. To say that our patriotism must be protected
against false ideas by means other than these is, I think, to make
a baseless charge. Unless we can rely on these qualities -- if, in
short, we begin to punish speech -- we cannot honestly proclaim
ourselves to be a free Nation, and we have lost what the Founders
of this land risked their lives and their sacred honor to
defend.
(C) The Court implies, however, that the ordinary rules and
requirements of the Constitution do not apply because the Committee
is merely after Communists, and they do not constitute a political
party, but only a criminal gang. "[T]he long and widely accepted
view," the Court says, is "that the tenets of the Communist Party
include the ultimate overthrow of the Government of the United
States by force and violence." [
Footnote 2/13] This justifies the
Page 360 U. S. 147
investigation undertaken. By accepting this charge and allowing
it to support treatment of the Communist Party and its members
which would violate the Constitution if applied to other groups,
the Court, in effect, declares that Party outlawed. It has been
only a few years since there was a practically unanimous feeling
throughout the country and in our courts that this could not be
done in our free land. Of course, it has always been recognized
that members of the Party who, either individually or in
combination, commit acts in violation of valid laws can be
prosecuted. But the Party as a whole and innocent members of it
could not be attainted merely because it had some illegal aims and
because some of its members were lawbreakers. Thus, in
De Jonge
v. Oregon, 299 U. S. 353,
299 U. S. 357
(1937), on stipulated facts that the Communist Party advocated
criminal syndicalism --
"crime, physical violence, sabotage or any unlawful acts or
methods as a means of accomplishing or effecting industrial or
political change or revolution"
-- a unanimous Court, speaking through Chief Justice Hughes,
held that a Communist addressing a Communist rally could be found
guilty of no offense so long as no violence or crime was urged at
the meeting. The Court absolutely refused to concede that either De
Jonge or the Communist Party forfeited the protections of the First
and Fourteenth Amendments because one of the Party's purposes was
to effect a violent change of government.
See also Herndon v.
Lowry, 301 U. S. 242.
Later, in 1948, when various bills were proposed in the House
and Senate to handicap or outlaw the Communist Party, leaders of
the Bar who had been asked to give their views rose up to contest
the constitutionality of the measures. The late Charles Evans
Hughes, Jr., questioned the validity under both the First and Fifth
Amendments of one of these bills, which in effect outlawed the
Party. The late John W. Davis attacked it
Page 360 U. S. 148
as lacking an ascertainable standard of guilt under many of this
Court's cases. [
Footnote 2/14]
And the Attorney General of the United States not only indicated
that such a measure would be unconstitutional, but declared it to
be unwise even if valid. He buttressed his position by citing a
statement by J. Edgar Hoover, Director of the Federal Bureau of
Investigation, and the declaration of this Court in
West
Virginia Board of Education v. Barnette, 319 U.
S. 624,
319 U. S. 642,
that:
"If there is any fixed star in our constitutional constellation,
it is that no official, high or petty, can prescribe what shall be
orthodox in politics, nationalism, religion, or other matters of
opinion or force citizens to confess by word or act their faith
therein. [
Footnote 2/15]"
Even the proponent of the bill disclaimed any aim to outlaw the
Communist Party and pointed out the "disadvantages" of such a move
by stating that "the Communist Party was illegal and outlawed in
Russia when it took over control of the Soviet Union." [
Footnote 2/16] Again, when the
Page 360 U. S. 149
Attorney General testified on a proposal to bar the Communist
Party from the ballot, he said,
"an organized group, whether you call it political or not, could
hardly be barred from the ballot without jeopardizing the
constitutional guarantees of all other political groups and
parties. [
Footnote 2/17]"
All these statements indicate quite clearly that, no matter how
often or how quickly we repeat the claim that the Communist Party
is not a political party, we cannot outlaw it, as a group, without
endangering the liberty of all of us. The reason is not hard to
find, for mixed among those aims of communism which are illegal are
perfectly normal political and social goals. And muddled with its
revolutionary tenets is a drive to achieve power through the
ballot, if it can be done. These things necessarily make it a
political party whatever other, illegal, aims it may have.
Cf.
Gerende v. Board of Supervisors, 341 U. S.
56. Significantly, until recently, the Communist Party
was on the ballot in many States. When that was so, many Communists
undoubtedly hoped to accomplish
Page 360 U. S. 150
its lawful goals through support of Communist candidates. Even
now, some such may still remain. [
Footnote 2/18] To attribute to them, and to those who
have left the Party, the taint of the group is to ignore both our
traditions that guilt, like belief, is "personal, and not a matter
of mere association," and the obvious fact that
"men adhering to a political party or other organization
notoriously do not subscribe unqualifiedly to all of its platforms
or asserted principles."
Schneiderman v. United States, 320 U.
S. 118,
320 U. S. 136.
See also Dennis v. United States, 341 U.
S. 494,
341 U. S. 579,
341 U. S. 581
(dissenting opinions).
The fact is that, once we allow any group which has some
political aims or ideas to be driven from the ballot and from the
battle for men's minds because some of its members are bad and some
of its tenets are illegal, no group is safe. Today we deal with
Communists or suspected Communists. In 1920, instead, the New York
Assembly suspended duly elected legislators on the ground that,
being Socialists, they were disloyal to the country's principles.
[
Footnote 2/19] In the 1830's,
the Masons were hunted as outlaws and subversives, and
abolitionists were considered revolutionaries of the most dangerous
kind in both North and South. [
Footnote 2/20] Earlier still, at the time of the
universally
Page 360 U. S. 151
unlamented alien and sedition laws, Thomas Jefferson's party was
attacked and its members were derisively called "Jacobins." Fisher
Ames described the party as a "French faction" guilty of
"subversion" and "officered, regimented and formed to
subordination." Its members, he claimed, intended to "take arms
against the laws as soon as they dare." [
Footnote 2/21] History should teach us then, that, in
times of high emotional excitement, minority parties and groups
which advocate extremely unpopular social or governmental
innovations will always be typed as criminal gangs, and attempts
will always be made to drive them out. [
Footnote 2/22] It was knowledge of this fact, and of
its great dangers, that caused the Founders of our land to enact
the First Amendment as a guarantee that neither Congress nor the
people would do anything to hinder or destroy the capacity of
individuals and groups to seek converts and votes for any cause,
however radical or unpalatable their principles might seem under
the accepted notions of the time. Whatever the States were left
free to do, the First Amendment sought to leave Congress devoid of
any kind or quality of power to direct any type of national laws
against the freedom of individuals to think what they please,
advocate whatever policy they choose, and join with others to bring
about the social, religious, political and governmental changes
which seem best to them. [
Footnote
2/23] Today's holding, in my judgment, marks
Page 360 U. S. 152
another major step in the progressively increasing retreat from
the safeguards of the First Amendment.
It is, sadly, no answer to say that this Court will not allow
the trend to overwhelm us; that today's holding will be strictly
confined to "Communists," as the Court's language implies. This
decision can no more be contained than could the holding in
American Communications Assn. v. Douds, 339 U.
S. 382. In that case, the Court sustained as an exercise
of the commerce power an Act which required labor union officials
to take an oath that they were not members of the Communist Party.
The Court rejected the idea that the
Douds holding meant
that the Party and all its members could be attainted because of
their Communist beliefs. It went to great lengths to explain that
the Act held valid
"touches only a relative handful of persons, leaving the great
majority of persons of the identified affiliations and beliefs
completely free from restraint."
"[W]hile this Court sits," the Court proclaimed, no wholesale
proscription of Communists or their Party can occur. 339 U.S. at
339 U. S. 404,
339 U. S. 410.
I dissented and said:
"Under such circumstances, restrictions imposed on proscribed
groups are seldom static, even though the rate of expansion may not
move in geometric progression from discrimination to arm-band to
ghetto and worse. Thus, I cannot regard the Court's holding as one
which merely bars Communists from holding union office, and nothing
more. For its reasoning would apply just as forcibly to statutes
barring Communists and their respective sympathizers from election
to political office, mere membership
Page 360 U. S. 153
in unions, and, in fact, from getting or holding any job whereby
they could earn a living."
339 U.S. at
339 U. S. 449.
My prediction was all too accurate. Today, Communists or suspected
Communists have been denied an opportunity to work as government
employees, lawyers, doctors, teachers, pharmacists, veterinarians,
subway conductors, industrial workers and in just about any other
job.
See Speiser v. Randall, 357 U.
S. 513,
357 U. S. 531
(concurring opinion).
Cf. Barsky v. Board of Regents,
347 U. S. 442,
347 U. S. 456,
347 U. S. 467,
347 U. S. 472
(dissenting opinions). In today's holding, they are singled out
and, as a class, are subjected to inquisitions which the Court
suggests would be unconstitutional but for the fact of "Communism."
Nevertheless, this Court still sits! [
Footnote 2/24]
III
Finally, I think Barenblatt's conviction violates the
Constitution because the chief aim, purpose and practice of the
House Un-American Activities Committee, as disclosed by its many
reports, is to try witnesses and punish them because they are or
have been Communists or because they refuse to admit or deny
Communist affiliations. The punishment imposed is generally
punishment by humiliation and public shame. There is nothing
strange or novel about this kind of punishment. It is, in
Page 360 U. S. 154
fact, one of the oldest forms of governmental punishment known
to mankind; branding, the pillory, ostracism and subjection to
public hatred being but a few examples of it. [
Footnote 2/25] Nor is there anything strange about
a court's reviewing the power of a congressional committee to
inflict punishment. In 1880, this Court nullified the action of the
House of Representatives in sentencing a witness to jail for
failing to answer questions of a congressional committee.
Kilbourn v. Thompson, 103 U. S. 168. The
Court held that the Committee, in its investigation of the Jay
Cooke bankruptcy, was seeking to exercise judicial power, and this,
it emphatically said, no committee could do. It seems to me that
the proof that the Un-American Activities Committee is here
undertaking a purely judicial function is overwhelming, far
stronger, in fact, than it was in the Jay Cooke investigation
which, moreover, concerned only business transactions, not freedom
of association.
The Un-American Activities Committee was created in 1938. It
immediately conceived of its function on a grand scale as one of
ferreting out "subversives," and especially of having them removed
from government jobs. [
Footnote
2/26] It made many reports to the House urging removal
Page 360 U. S. 155
of such employees. [
Footnote
2/27] Finally, at the instigation of the Committee, the House
put a rider on an appropriation bill to bar three government
workers from collecting their salaries. [
Footnote 2/28] The House action was based on Committee
findings that each of the three employees was a member of, or
associated with, organizations deemed undesirable, and that the
"views and philosophies" of these workers,
"as expressed in various statements and writings, constitute
subversive activity within the definition adopted by your
committee, and that [they are] therefore unfit for the present to
continue in Government employment. [
Footnote 2/29]"
The Senate and the President agreed
Page 360 U. S. 156
to the rider, though not without protest. We held that statute
void as a bill of attainder in
United States v. Lovett,
328 U. S. 303
(1946), stating that its "effect was to inflict punishment without
the safeguards of a judicial trial," and that this "cannot be done
either by a State or by the United States." 328 U.S. at
328 U. S.
316-317.
Even after our
Lovett holding, however, the Committee
continued to view itself as the "only agency of government that has
the power of exposure," and to work unceasingly and sincerely to
identify and expose all suspected Communists and "subversives" in
order to eliminate them from virtually all fields of employment.
[
Footnote 2/30] How well it has
succeeded in its declared program of "pitiless publicity and
exposure" is a matter of public record. It is enough to cite the
experience of a man who masqueraded as a Communist for the F.B.I.
and who reported to this same Committee that, since 1952, when his
"membership" became known, he has been unable to hold any job.
[
Footnote 2/31] To
Page 360 U. S. 157
accomplish this kind of result, the Committee has called
witnesses who are suspected of Communist affiliation, has subjected
them to severe questioning, and has insisted that each tell the
name of every person he has ever known at any time to have been a
Communist, and, if possible, to give the addresses and occupations
of the people named. These names are then indexed, published, and
reported to Congress, and often to the press. [
Footnote 2/32] The same technique is employed to
cripple the job opportunities of those who strongly criticize the
Committee or take other actions it deems undesirable. [
Footnote 2/33] Thus, in 1949, the
Committee
Page 360 U. S. 158
reported that it had indexed and printed some 335,000 names of
people who had signed "Communist" petitions of one kind or another.
[
Footnote 2/34] All this the
Committee did and does to punish by exposure the many phases of
"un-American" activities that it reports cannot be reached by
legislation, by administrative action, or by any other agency of
Government, which, of course, includes the courts.
The same intent to expose and punish is manifest in the
Committee's investigation which led to Barenblatt's conviction. The
declared purpose of the investigation was to identify to the people
of Michigan the individuals responsible for the, alleged, Communist
success there. [
Footnote 2/35]
The Committee claimed that its investigation "uncovered" members of
the Communist Party holding positions in the school systems in
Michigan; that most of the teachers subpoenaed before the Committee
refused to answer questions on the ground that to do so might
result in
Page 360 U. S. 159
self-incrimination, and that most of these teachers had lost
their jobs. It then stated that "the Committee on Un-American
Activities approves of this action." [
Footnote 2/36]
Similarly, as a result of its Michigan investigation, the
Committee called upon American labor unions to amend their
constitutions, if necessary, in order to deny membership to any
Communist Party member. [
Footnote
2/37] This would, of course, prevent many workers from getting
or holding the only kind of jobs their particular skills qualified
them for. The Court, today, barely mentions these statements,
which, especially when read in the context of past reports by the
Committee, show unmistakably what the Committee was doing. I cannot
understand why these reports are deemed relevant to a determination
of a congressional intent to investigate communism in education,
but irrelevant to any finding of congressional intent to bring
about exposure for its own sake or for the purposes of
punishment.
I do not question the Committee's patriotism and sincerity in
doing all this. [
Footnote 2/38] I
merely feel that it cannot be done by Congress under our
Constitution. For, even assuming that the Federal Government can
compel witnesses to testify as to Communist affiliations in order
to subject them to ridicule and social and economic retaliation, I
cannot agree that this is a legislative function. Such publicity is
clearly punishment, and the Constitution
Page 360 U. S. 160
allows only one way in which people can be convicted and
punished. As we said in
Lovett,
"Those who wrote our Constitution well knew the danger inherent
in special legislative acts which take away the life, liberty or
property of particular named persons because the legislature thinks
them guilty of conduct which deserves punishment.
They intended
to safeguard the people of this country from punishment without
trial by duly constituted courts."
328 U.S. at
328 U. S. 317.
(Italics added.) Thus, if communism is to be made a crime, and
Communists are to be subjected to "pains and penalties," I would
still hold this conviction bad, for the crime of communism, like
all others, can be punished only by court and jury, after a trial
with all judicial safeguards.
It is no answer to all this to suggest that legislative
committees should be allowed to punish if they grant the accused
some rules of courtesy or allow him counsel. For the Constitution
proscribes
all bills of attainder by State or Nation, not
merely those which lack counsel or courtesy. It does this because
the Founders believed that punishment was too serious a matter to
be entrusted to any group other than an independent judiciary and a
jury of twelve men acting on previously passed, unambiguous laws,
with all the procedural safeguards they put in the Constitution as
essential to a fair trial -- safeguards which included the right to
counsel, compulsory process for witnesses, specific indictments,
confrontation of accusers, as well as protection against
self-incrimination, double jeopardy and cruel and unusual
punishment -- in short, due process of law.
Cf. Chambers v.
Florida, 309 U. S. 227.
They believed this because, not long before, worthy men had been
deprived of their liberties, and indeed their lives, through
parliamentary trials without these safeguards. The memory of one of
these, John Lilburne -- banished and disgraced by a
parliamentary
Page 360 U. S. 161
committee on penalty of death if he returned to his country --
was particularly vivid when our Constitution was written. His
attack on trials by such committees and his warning that "what is
done unto any one may be done unto every one" [
Footnote 2/39] were part of the history of the
times
Page 360 U. S. 162
which moved those who wrote our Constitution to determine that
no such arbitrary punishments should ever occur here. It is the
protection from arbitrary punishments through the right to a
judicial trial with all these safeguards which, over the years, has
distinguished America from lands where drumhead courts and other
similar "tribunals" deprive the weak and the unorthodox of life,
liberty and property without due process of law. It is this same
right which is denied to Barenblatt, because the Court today fails
to see what is here for all to see -- that exposure and punishment
is the aim of this Committee and the reason for its existence. To
deny this is to ignore the Committee's own claims and the reports
it has issued ever since it was established. I cannot believe that
the nature of our judicial office requires us to be so blind, and
must conclude that the Un-American Activities Committee's
"identification" and "exposure" of Communists and suspected
Communists, like the activities of the Committee in
Kilbourn v.
Thompson, amount to an encroachment on the judiciary which
bodes ill for the liberties of the people of this land.
Ultimately, all the questions in this case really boil down to
one -- whether we as a people will try fearfully and futilely to
preserve democracy by adopting totalitarian methods or whether, in
accordance with our traditions and our Constitution, we will have
the confidence and courage to be free.
I would reverse this conviction.
Page 360 U. S. 163
[
Footnote 2/1]
Bills of attainder are among the few measures explicitly
forbidden to both State and Federal Governments by the body of the
Constitution itself. U.S.Const., Art. I, § 9, cl. 3, states "No
Bill of Attainder or ex post facto Law shall be passed."
U.S.Const., Art. I, § 10, cl. 1, reads in part "No State shall . .
. pass any Bill of Attainder [or] ex post facto Law. . . ."
[
Footnote 2/2]
E.g., Lanzetta v. New Jersey, 306 U.
S. 451;
Winters v. New York, 333 U.
S. 507,
333 U. S. 515;
Jordan v. De George, 341 U. S. 223,
341 U. S.
230-231.
[
Footnote 2/3]
E.g., Watkins v. United States, 354 U.
S. 178,
354 U. S.
207-208;
Flaxer v. United States, 358 U.
S. 147;
Scull v. Virginia, 359 U.
S. 344.
[
Footnote 2/4]
See, e.g., Herndon v. Lowry, 301 U.
S. 242;
Winters v. New York, 333 U.
S. 507;
Watkins v. United States, 354 U.
S. 178;
Scull v. Virginia, 359 U.
S. 344.
[
Footnote 2/5]
Thornhill v. Alabama, 310 U. S. 88,
310 U. S. 97-98.
Cf. Herndon v. Lowry, 301 U. S. 242.
[
Footnote 2/6]
Rule XI in relevant part reads,
"The Committee on Un-American Activities, as a whole or by
subcommittee, is authorized to make from time to time
investigations of (1) the extent, character, and objects of
un-American propaganda activities in the United States, (2) the
diffusion within the United States of subversive and un-American
propaganda that is instigated from foreign countries or of a
domestic origin and attacks the principle of the form of government
as guaranteed by our Constitution, and (3) all other questions in
relation thereto that would aid Congress in any necessary remedial
legislation."
H.Res. 5, 83d Cong., 1st Sess., 99 Cong.Rec. 15, 18, 24.
See
also H.Res. 7, 86th Cong., 1st Sess., Cong.Rec. Jan. 7, 1959,
p. 13.
[
Footnote 2/7]
See, e.g., Panama Refining Co. v. Ryan, 293 U.
S. 388;
Schechter Poultry Corp. v. United
States, 295 U. S. 495;
id. at
295 U. S. 551
(concurring opinion);
Berra v. United States, 351 U.
S. 131,
351 U. S. 135
(dissenting opinion);
Watkins v. United States,
354 U. S. 178,
354 U. S.
203-205;
Sweezy v. New Hampshire, 354 U.
S. 234.
Cf. United States v. Rumely,
345 U. S. 41;
Kent v. Dulles, 357 U. S. 116.
These cases show that, when this Court considered that the
legislative measures involved were of doubtful constitutionality
substantively, it required explicit delegations of power.
[
Footnote 2/8]
It is, of course, no answer to Barenblatt's claim that Rule XI
is too vague to say that, if it had been too vague, it would have
been so held in
Watkins v. United States, 354 U.
S. 178. It would be a strange rule indeed which would
imply the invalidity of a broad ground of decision from the fact
that this Court decided an earlier case on a narrower basis.
[
Footnote 2/9]
The First Amendment reads:
"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof; or abridging
the freedom of speech, or of the press; or the right of the people
peaceably to assemble, and to petition the Government for a redress
of grievances."
There can be no doubt that the same Amendment protects the right
to keep silent.
See West Virginia Board of Education v.
Barnette, 319 U. S. 624;
NAACP v. Alabama, 357 U. S. 449,
357 U. S.
460-466;
Sweezy v. New Hampshire, 354 U.
S. 234,
354 U. S. 255
(concurring opinion);
Watkins v. United States,
354 U. S. 178;
Scull v. Virginia, 359 U. S. 344.
Cf. United States v. Rumely, 345 U. S.
41.
[
Footnote 2/10]
I do not understand the Court's opinion in
Watkins v. United
States, 354 U. S. 178,
354 U. S. 198,
to approve the type of balancing process adopted in the Court's
opinion here. We did discuss in that case "the weight to be
ascribed to . . . the interest of the Congress in demanding
disclosures from an unwilling witness." As I read, and still read,
the Court's discussion of this problem in
Watkins, it was
referring to the problems raised by
Kilbourn v. Thompson,
103 U. S. 168,
which held that legislative committees could not make roving
inquiries into the private business affairs of witnesses. The Court
in
Kilbourn held that the courts must be careful to insure
that, on balance, Congress did not unjustifiably encroach on an
individual's private business affairs. Needless to say, an
individual's right to silence in such matters is quite a different
thing from the public's interest in freedom of speech, and the test
applicable to one has little, if anything, to do with the test
applicable to the other.
[
Footnote 2/11]
1 Annals of Cong. 439 (1789). (Italics supplied.)
[
Footnote 2/12]
"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."
De Jonge v. Oregon, 299 U. S. 353,
299 U. S.
365.
[
Footnote 2/13]
Cf. statement of Sir Richard Nagle presenting a bill of
attainder against between two and three thousand persons for
political offenses,
"'Many of the persons here attainted,' said he, 'have been
proved traitors by such evidence as satisfies us. As to the rest,
we have followed common fame.'"
Cited in
Joint Anti-Fascist Committee v. McGrath,
341 U. S. 123,
341 U. S. 142,
341 U. S. 148
(concurring opinion).
[
Footnote 2/14]
See Hearings, Senate Committee on the Judiciary on H.R.
5852, 80th Cong., 2d Sess. 415-420, 420-422.
[
Footnote 2/15]
Id. at 422-425.
See also Hearings,
Subcommittee on Legislation of the House Committee on Un-American
Activities on H.R. 4422, H.R. 4581, 80th Cong., 2d Sess. 16-37.
[
Footnote 2/16]
Hearings, Subcommittee on Legislation of the Committee on
Un-American Activities on H.R. 4422, H.R. 4581, 80th Cong., 2d
Sess. 13. This statement was relied on by the Honorable Thomas E.
Dewey, then a candidate for the presidency of the United States, in
a speech given in Portland, Oregon, in May, 1948. Mr. Dewey went on
to say, in opposing outlawry of the Communist Party:
"I am against it because it is a violation of the Constitution
of the United States and of the Bill of Rights, and clearly so. I
am against it because it is immoral, and nothing but
totalitarianism itself. I am against it because I know from a great
many years' experience in the enforcement of the law that the
proposal wouldn't work, and instead it would rapidly advance the
cause of communism in the United States and all over the
world."
"
* * * *"
"There is an American way to do this job, a perfectly simple
American way . . . , outlawing every conceivable
act of
subversion against the United States. . . ."
"Now, times are too grave to try any expedients and fail. This
expedient has failed, this expedient of outlawing has failed in
Russia. It failed in Europe, it failed in Italy, it failed in
Canada. . . ."
"
* * * *"
"Let us not make such a terrific blunder in the United States. .
. . Let us go forward as Free Americans. Let us have the courage to
be free."
XIV Vital Speeches of the Day, 486-487. (Italics supplied.)
[
Footnote 2/17]
Hearings, Subcommittee on Legislation of the Committee on
Un-American Activities on H.R. 4422, H.R. 4581, 80th Cong., 2d
Sess. 20.
Compare statement of John Lilburne, "what is
done unto any one may be done unto every one."
360
U.S. 109fn2/39|>Note 39
infra.
[
Footnote 2/18]
S.Doc. No. 97, 85th Cong., 2d Sess. 149, lists the States with
laws relating to the Communist Party and the ballot.
See
also Fund For The Republic, Digest of the Public Record of
Communism in the United States, 324-343. For a discussion of state
laws requiring a minimum percentage of the votes cast to remain on
the ballot,
see Note, 57 Yale L.J. 1276.
[
Footnote 2/19]
See O'Brian, Loyalty Tests and Guilt by Association, 61
Harv.L.Rev. 592, 593. Significantly, the action of the New York
Assembly was strongly condemned by Charles Evans Hughes, then a
former Associate Justice of this Court, and later its Chief
Justice.
[
Footnote 2/20]
See generally McCarthy, The Anti-masonic Party: A Study
of Political Anti-masonry in the United States, 1827-1840. H.R.Doc.
No. 461, 57th Cong., 2d Sess. 365. Nye, William Lloyd Garrison,
88-105; Korngold, Two Friends of Man, 82-104.
Cf. St.
George Tucker, Appendix, 1 Blackstone (Tucker ed. 1803) 315,
discussing English laws "for suppressing assemblies of free-masons"
and pointing out that similar laws cannot be enacted under our
Constitution.
[
Footnote 2/21]
Ames, Laocoon, printed in Works of Fisher Ames (1809 ed.), 94,
97, 101, 106.
See also American Communications Assn. v.
Douds, 339 U. S. 382,
339 U. S. 445
(dissenting opinion).
[
Footnote 2/22]
Cf. Mill, On Liberty (1885 ed.), 30 (criticizing laws
restricting the right to advocate tyrannicide).
[
Footnote 2/23]
Cf. St. George Tucker, Appendix, 1 Blackstone
Commentaries (Tucker ed. 1803) 299.
"[T]he judicial courts of the respective states are open to all
persons alike, for the redress of injuries of this nature [libel];
. . . But the genius of our government will not permit the federal
legislature to interfere with the subject, and the federal courts
are, I presume, equally restrained by the principles of the
constitution, and the amendments which have since been
adopted."
[
Footnote 2/24]
The record in this very case indicates how easily such
restrictions spread. During the testimony of one witness, an
organization known as the Americans for Democratic Action was
mentioned. Despite testimony that this organization did not admit
Communists, one member of the Committee insisted that it was a
Communist front because "it followed a party line, almost identical
in many particulars with the Communist Party line." Presumably, if
this accusation were repeated frequently and loudly enough, that
organization, or any other, would also be called a "criminal gang."
Cf. Feiner v. New York, 340 U. S. 315,
340 U. S. 321,
340 U. S. 329
(dissenting opinions).
[
Footnote 2/25]
See generally XII Encyclopedia of the Social Sciences
714; Barnes, The Story of Punishment, 62-64; Lowie, Primitive
Society, 398; Andrews, Old-Time Punishments (1890 ed.), 1-145,
164-187; IV Plutarch's Lives (Clough, New Nat. ed.1914) 43-44.
[
Footnote 2/26]
In its very first report, it stated,
"The committee has felt that it is its sworn duty and solemn
obligation to the people of this country to focus the spotlight of
publicity upon every individual and organization engaged in
subversive activities, regardless of politics or partisanship."
It further claimed that,
"While Congress does not have the power to deny to citizens the
right to believe in, teach, or advocate, communism, fascism, and
nazism, it does have the right to focus the spotlight of publicity
upon their activities. . . ."
H.R.Rep. No. 2, 76th Cong., 1st Sess. 9-10, 13.
See
also the statement of the Committee's first Chairman,
"I am not in a position to say whether we can legislate
effectively in reference to this matter, but I do know that
exposure in a democracy of subversive activities is the most
effective weapon that we have in our possession."
83 Cong.Rec. 7570 (1938).
[
Footnote 2/27]
See, e.g., H.R.Rep. No. 2748, 77th Cong., 2d Sess.
5.
"On September 6, 1941, the chairman of this committee wrote the
President a letter, accompanied by 43 exhibits, detailing the
Communist affiliation and background of the following officials . .
. and suggested that they be dismissed from their positions."
"On November 28, 1941 . . . the chairman called the attention of
the members to the case of [the] principal economist in the
Department of Agriculture;"
"On January 15, 1942, the chairman of the committee . . . called
attention to . . . one Malcolm Cowley. . . . Several weeks later,
Mr. Cowley resigned his position with the Federal Government;"
"On March 28, 1942, the chairman wrote a letter to the . . .
Chairman of the Board of Economic Welfare, and called attention to
. . . eight of its employees and made particular reference to one
Maurice Parmelee. . . . The following week, Mr. Parmelee was
dismissed. . . ."
Id. at 6.
"In the Chairman's speech of September 24, [1942,] he also
presented to the House the names of 19 officials of the Government.
. . . Yet, to the committee's knowledge, no action has been taken
in the cases of the 19 officials."
Id. at 8.
[
Footnote 2/28]
Section 304 of the Urgent Deficiency Appropriation Act, 1943, 57
Stat. 431, 450. The history of this rider is detailed in
United
States v. Lovett, 328 U. S. 303.
[
Footnote 2/29]
See, e.g., H.R.Rep. No. 448, 78th Cong., 1st Sess. 6,
8. The Un-American Activities Committee did not actually undertake
the trials of these government employees. That task fell to a
special Subcommittee of the Committee on Appropriations which was
created in response to a speech by the Chairman of the Un-American
Activities Committee.
Id. at 3.
[
Footnote 2/30]
Virtually every report of the Committee emphasizes that its
principal function is exposure, and that, once exposed, subversives
must be driven out. Space, however, prevents listing more than a
random sampling of statements by the Committee. These are given in
an Appendix to this opinion,
post, p.
360 U. S. 163.
For other similar statements by the Committee and its members
see, e.g., notes
360
U.S. 109fn2/26|>26,
360
U.S. 109fn2/27|>27, supra;
360
U.S. 109fn2/31|>31-37,
infra; Watkins v. United
States, 354 U. S. 178;
United States v. Josephson, 165 F.2d 82, 93 (dissenting
opinion);
Barsky v. United States, 83 U.S.App.D.C. 127,
138, 167 F.2d 241, 252 (dissenting opinion).
[
Footnote 2/31]
This evidence was given before the Committee on May 7, 1959, in
Chicago, Ill. It has not yet been published.
Even those the Committee does not wish to injure are often hurt
by its tactics, so all-pervasive is the effect of its
investigations.
"It has been brought to the attention of the committee that many
persons so subpoenaed . . . have been subjected to ridicule and
discrimination as a result of having received such subpoenas;"
"The committee . . . has met with many obstacles and
difficulties. Not the least of these has been the reluctance of
former Communists to give testimony before the committee which
might bring upon them public censure and economic retaliation;"
"To deny to these
cooperative witnesses a full
opportunity for social, economic, and political rehabilitation . .
. will . . . render more difficult the obtaining of authentic . . .
information."
H.R.Rep. No. 2431, 82d Cong., 2d Sess. 5. (Italics added.)
"While the American people . . . were fortunate to have this
testimony, some of the witnesses themselves were not. Instances
have come to the committee's attention where several of these
witnesses have been forced from gainful employment after
testifying. Some have been released from the employment which they
competently held for years prior to their testimony."
H.R.Rep. No. 2516, 82d Cong., 2d Sess. 3.
[
Footnote 2/32]
Descriptions of the size and availability of Committee's files
as well as the efficiency of its cross-indexing system can be found
in most of its reports.
See, e.g., H.R.Rep. No. 2742, 79th
Cong., 2d Sess. 16-17; H.R.Rep. No.1950, 81st Cong., 2d Sess.
18-23; H.R.Rep. No. 2431, 82d Cong., 2d Sess. 24-28.
[
Footnote 2/33]
It is impossible even to begin to catalogue people who have been
stigmatized by the Committee for criticizing it. In 1942, the
Committee reported "Henry Luce's Time magazine has been drawn
sucker-fashion into this movement to alter our form of government.
. . ." H.R.Rep. No. 2277, 77th Cong., 2d Sess. 2. In 1946, Harold
Laski and socialists generally were attacked for their
"impertinence in suggesting that the United States should trade its
system of free economy for some brand of Socialism." The Committee
deemed it "imperative" that it ascertain the "methods used to
enable Mr. Laski to broadcast to [a] rally." H.R.Rep. No. 2233,
79th Cong., 2d Sess. 46-47. In 1951, a full report was issued on a
"communist lobby" -- committee formed to urge defeat of a communist
control bill before Congress. Among the distinguished sponsors of
the group listed by the committee was the late Prof. Zechariah
Chafee. The Committee, nevertheless, advised
"the American public that individuals who knowingly and actively
support such a propaganda outlet . . . are actually aiding and
abetting the Communist program in the United States."
H.R.Rep. No. 3248, 81st Cong., 2d Sess. 1, 11-12, 15.
See
also Gellhorn, Report on a Report of the House Committee on
Un-American Activities, 60 Harv.L.Rev. 1193.
[
Footnote 2/34]
H.R.Rep. No.1950, 81st Cong., 2d Sess.19.
[
Footnote 2/35]
"The 1954 hearings were set up by the committee in order to
demonstrate to the people of Michigan the fields of concentration
of the Communist Party in the Michigan area, and the identity of
those individuals responsible for its success."
H.R.Rep. No. 57, 84th Cong., 1st Sess. 15.
[
Footnote 2/36]
Id. at 17
[
Footnote 2/37]
"[T]he Committee on Un-American Activities calls upon the
American labor movement . . . to amend its constitutions, where
necessary, in order to deny membership to a member of the Communist
Party or any other group which dedicates itself to the destruction
of America's way of life."
Ibid.
[
Footnote 2/38]
Sincerity and patriotism do not, unfortunately, insure against
unconstitutional acts. Indeed, some of the most lamentable and
tragic deaths of history were instigated by able, patriotic and
sincere men.
See generally Mill, On Liberty (1885 ed.),
43-48.
[
Footnote 2/39]
"For certainly it cannot be denied, but if he be really an
offender, he is such by the breach of some law, made and published
before the fact, and ought by due process of law, and verdict of 12
men, to be thereof convict, and found guilty of such crime; unto
which the law also hath prescribed such a punishment agreeable to
that our fundamental liberty; which enjoineth that no freeman of
England should be adjudged of life, limb, liberty, or estate, but
by Juries; a freedom which parliaments in all ages contended to
preserve from violation; as the birthright and chief inheritance of
the people, as may appear most remarkably in the Petition of Right,
which you have stiled that most excellent law."
"And therefore we trust upon second thoughts, being the
parliament of England, you will be so far from bereaving us, who
have never forfeited our right, of this our native right, and way
of Trials by Juries (for what is done unto any one, may be done
unto every one), that you will preserve them entire to us, and to
posterity, from the encroachments of any that would innovate upon
them. . . ."
"And it is believed, that . . . had [the cause] at any time
either at first or last been admitted to a trial at law, and had
passed any way by verdict of twelve sworn men: all the trouble and
inconveniences arising thereupon had been prevented: the way of
determination by major votes of committees, being neither so
certain nor so satisfactory in any case as by way of Juries, the
benefit of challenges and exceptions, and unanimous consent, being
all essential privileges in the latter; whereas committees are tied
to no such rules, but are at liberty to be present or absent at
pleasure. Besides, Juries being birthright, and the other but new
and temporary, men do not, nor, as we humbly conceive, ever will
acquiesce in the one as in the other; from whence it is not
altogether so much to be wondered at if, upon dissatisfactions,
there have been such frequent printing of men's cases, and dealings
of Committees, as there have been, and such harsh and inordinate
heats and expressions between parties interested, such sudden and
importunate appeals to your authority, being indeed all alike out
of the true English road, and leading into nothing but trouble and
perplexity, breeding hatred and enmities between worthy families,
affronts and disgust between persons of the same public affection
and interest, and to the rejoicing of none but public adversaries.
All which, and many more inconveniences, can only be avoided, by
referring all such cases to the usual Trials and final
determinations of law."
Howell's State Trials 411-412, Statement of John Lilburne
(1653).
APPENDIX TO OPINION OF MR. JUSTICE BLACK,
DISSENTING
RANDOM SELECTION OF STATEMENTS BY THE HOUSE
UN-AMERICAN ACTIVITIES COMMITTEE ON EXPOSURE
AND PUNISHMENT OF "SUBVERSIVES"
"[T]o inform the American people of the activities of any such
organizations . . . is the real purpose of the House
Committee."
"The purpose of this committee is the task of protecting our
constitutional democracy by turning the light of pitiless publicity
on [these] organizations."
H.R.Rep. No. 1476, 76th Cong., 3d Sess. 1-2, 24.
"The very first exposure which our committee undertook in the
summer of 1938 was that of the German-American Bund."
"Other organizations . . . have been greatly crippled . . . as a
result of our exposures. The American Youth Congress once enjoyed a
very considerable prestige. . . . Today, many of its distinguished
former sponsors refuse to be found in its company. . . . We kept
the spotlight of publicity focused upon the American Youth
Congress, and today it is clear to all that, in spite of a degree
of participation in its activities by many fine young people, it
was never, at its core, anything less than a tool of Moscow."
"This committee is the only agency of Government that has the
power of exposure. . . . There are many phases of un-American
activities that cannot be reached by legislation or administrative
action. We believe that the committee has shown that fearless
exposure . . . is the . . . answer."
H.R.Rep. No. 1, 77th Cong., 1st Sess. 21-22, 24.
"Our investigation has shown that a steady barrage against
Congress comes . . . from the New Republic, one of whose editors .
. . was recently forced out of an $8,000
Page 360 U. S. 164
Government job by the exposure of his Communist activities."
H.R.Rep. No. 2277, 77th Cong., 2d Sess. 3.
"[T]he House Committee on Un-American Activities is empowered to
explore and expose activities by un-American individuals and
organizations which, while sometimes being legal, are nonetheless
inimical to our American concepts."
The Committee recommends that Congress "discharge . . . any
employee or official of the Federal Government whose loyalty to the
United States is found to be in doubt." H.R.Rep. No. 2742, 79th
Cong., 2d Sess. 16, 17.
"Index of Persons and Organizations." (Six pages of names
follow.) H.R.Rep. No. 2233, 79th Cong., 2d Sess. III-VIII.
"Early in 1947, the committee adopted the following eight point
program. . . ."
"1. To expose and ferret out the Communists and Communist
sympathizers in the Federal Government."
"2. To spotlight the spectacle of . . . Communists . . . in
American labor."
"In a sense, the storm of opposition to the activities of the
committee is a tribute to its achievements in the field of
exposure. . . ." Report of the Committee on Un-American Activities
to the United States House of Representatives, 80th Cong., 2d
Sess., Dec. 31, 1948, 2, 3 (Committee print).
"The committee would like to remind the Congress that its work
is part of an 11-year continuity of effort that began . . . in
August, 1938. The committee would also like to recall that at no
time in those 11 years has it ever wavered from a relentless
pursuit and exposure."
"In the course of its investigations . . . , the committee has
made available a large, completely indexed, and readily accessible
reference collection of lists of signers of Communist Party
election petitions."
H.R.Rep. No.1950, 81st Cong., 2d Sess. 15, 19.
Page 360 U. S. 165
"To conduct the expose . . . , it was necessary for the
investigative staff to interview over 100 persons. . . ."
"The same tedious investigation of details was necessary prior
to the successful exposure . . . in the Territory of Hawaii."
"As a result of the investigation and hearings held by the
committee, Dolivet's contract with the United Nations has not been
renewed, and it is the committee's understanding that he was
removed from editorship of the United Nations World."
H.R.Rep. No. 3249, 81st Cong., 2d Sess. 4, 5.
"During 1951, the committee's hearings disclosed the positive
identification of more individuals . . . than during any preceding
year."
"If communism in Hollywood is now mythical, it is only because
this committee conducted three investigations to bring it about.
The industry itself certainly did not accomplish this."
"The committee's investigation . . . was concerned almost
entirely with the problem of exposure of the actual members of the
Communist Party, and did not deal, except in a few instances, with
. . . fellow travelers."
"On the question of fellow travelers, suffice it to say . . . ,
The time has come now when even the fellow traveler must get
out.'" "Dr. Struik was identified as a Communist teacher. . . .
Nevertheless, he was permitted to teach . . . until this
year."
"With individuals like . . . Struik . . . teaching in our
leading universities, your committee wonders who the Professor
Struiks were . . . who led Alger Hiss along the road of
communism."
H.R.Rep. No. 2431, 82d Cong., 2d Sess. 6, 8-9, 16-17.
"In this annual report, the committee feels that the Congress
and the American people will have a much clearer and fuller picture
. . . by having set forth the names and, where possible, the
positions occupied by individuals who have been identified as
Communists, or former Communists, during the past year."
"The committee considers the failure of certain trade unionists
to
Page 360 U. S. 166
rid themselves of Communists to be a national disgrace." "The
following persons were identified." (Approximately fifty pages of
names follow.) H.R.Rep. No. 2516, 82d Cong., 2d Sess. 6-7, 12-27,
28-34, 36-40, 41-56, 58-67 (similar lists can be found in various
other reports).
"The focal point of the investigation into the general area of
education was to the individual who had been identified."
"The question has been asked as to what purpose is served by the
disclosure of the names of individuals who may long ago have left
the conspiracy."
"The committee has no way of knowing the status of his
membership at present until he is placed under oath and the
information is sought to be elicited."
H.R.Rep. No. 1192, 83d Cong., 2d Sess. 1, 7
MR. JUSTICE BRENNAN, dissenting.
I would reverse this conviction. It is sufficient that I state
my complete agreement with my Brother BLACK that no purpose for the
investigation of Barenblatt is revealed by the record except
exposure purely for the sake of exposure. This is not a purpose to
which Barenblatt's rights under the First Amendment can validly be
subordinated. An investigation in which the processes of lawmaking
and law-evaluating are submerged entirely in exposure of individual
behavior -- in adjudication, of a sort, through the exposure
process -- is outside the constitutional pale of congressional
inquiry.
Watkins v. United States, 354 U.
S. 178,
354 U. S. 187,
354 U. S. 200;
see also Sweezy v. New Hampshire, 354 U.
S. 234;
NAACP v. Alabama, 357 U.
S. 449;
Uphaus v. Wyman, ante, p.
360 U. S. 82
(dissenting opinion).