Summoned to testify before a Subcommittee of the House of
Representatives Committee on Un-American Activities, which was
investigating Communist infiltration into basic industries in the
South and Communist Party propaganda activities in the South,
petitioner refused to answer many of the questions directed to him.
He did not claim his privilege against self-incrimination, but
contended that the questions were not pertinent to a question under
inquiry by the Subcommittee, and that its questioning violated his
rights under the First Amendment. For refusing to answer, 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.
Held: Petitioner's conviction is sustained. Pp.
365 U. S.
432-438.
1. On the record, the subjects under investigation by the
Subcommittee when petitioner was interrogated were Communist
infiltration into basic southern industries and Communist Party
propaganda activities in the South; the Subcommittee's
investigation of these subjects was authorized by Congress; the
interrogation was pertinent to a question under Subcommittee
inquiry; and petitioner was fully apprised of its pertinency.
Wilkinson v. United States, ante, p.
365 U. S. 399. Pp.
365 U. S.
432-433.
2. The Subcommittee's inquiry as to whether the petitioner had
been a member of the Communist Party at the instant when he affixed
his signature to a letter urging opposition to certain bills in
Congress did not violate his rights under the First Amendment.
Barenblatt v. United States, 360 U.
S. 109. Pp.
365 U. S.
433-435.
3. It was the province of the Court, and not of the jury, to
decide whether the questions asked by the Subcommittee were
pertinent to the subject under inquiry.
Sinclair v. United
States, 279 U. S. 263. Pp.
365 U. S.
436-437.
4. That, in refusing to answer the questions, petitioner relied
upon his understanding of previous decisions of this Court was no
defense.
Sinclair v. United States, supra. Pp.
365 U. S.
437-438.
272 F.2d 653 affirmed.
Page 365 U. S. 432
MR. JUSTICE STEWART delivered the opinion of the Court.
This case is a companion to
Wilkinson v. United States,
ante, p.
365 U. S. 399. The
petitioner was the witness immediately preceding Wilkinson at the
hearing of a subcommittee of the House Un-American Activities
Committee, in Atlanta, Georgia, on July 30, 1958. He refused to
answer many of the questions directed to him, basing his refusal
upon the grounds that the questions were not pertinent to a
question under inquiry by the subcommittee and that the
interrogation invaded his First Amendment rights. He was
subsequently indicted and, after a jury trial, convicted for having
violated 2 U.S.C. § 192 in refusing to answer six specific
questions which had been put to him by the subcommittee. [
Footnote 1] The Court of Appeals
affirmed, 272 F.2d 653, relying on
Barenblatt v. United
States, 360 U. S. 109, and
we granted certiorari, 362 U.S. 960.
The principal issues raised by the petitioner are substantially
identical to those considered in
Wilkinson, and extended
discussion is not required in resolving them. Based upon the same
record that was brought here in
Wilkinson, we conclude for
the reasons stated there that
Page 365 U. S. 433
the subjects under subcommittee investigation at the time the
petitioner was interrogated were Communist infiltration into basic
southern industry and Communist Party propaganda activities in the
southern part of the United States. We conclude for the same
reasons that the subcommittee's investigation of these subjects was
authorized by Congress, that the interrogation was pertinent to a
question under subcommittee inquiry, [
Footnote 2] and that the petitioner was fully apprised of
its pertinency. [
Footnote
3]
In asserting a violation of his First Amendment rights, the
petitioner here points out that he was asked not simply whether he
was or had been a Communist Party member,
Page 365 U. S. 434
as in
Wilkinson and
Barenblatt, supra, but
whether he was a member "the instant you affixed your signature to
that letter." The letter in question, which had admittedly been
signed by the petitioner and his wife, urged opposition to certain
bills in Congress. The petitioner emphasizes that the writing of
such a letter is not only legitimate, but constitutionally
protected activity, and points to other evidence in the record to
indicate that he had been active in other completely legitimate
causes. [
Footnote 4] Based upon
these circumstances, he argues that the subcommittee did not have a
proper legislative purpose in calling him before it, but that it
was bent, rather, on persecuting him for publicly opposing the
subcommittee's
Page 365 U. S. 435
activities. He contends that, under such circumstances, an
inquiry into his personal and associational conduct violated his
First Amendment freedoms. On these grounds, the petitioner would
differentiate the constitutional issues here from those that were
before the Court in
Barenblatt, supra.
But
Barenblatt did not confine congressional committee
investigation to overt criminal activity, nor did that case
determine that Congress can only investigate the Communist Party
itself. Rather, the decision upheld an investigation of Communist
activity in education. Education, too, is legitimate and protected
activity. Communist infiltration and propaganda in a given area of
the country, which were the subjects of the subcommittee
investigation here, are surely as much within its pervasive
authority as Communist activity in educational institutions. The
subcommittee had reason to believe that the petitioner was a member
of the Communist Party, and that he had been actively engaged in
propaganda efforts. It was making a legislative inquiry into
Communist Party propaganda activities in the southern States.
Information as to the extent to which the Communist Party was
utilizing legitimate organizations and causes in its propaganda
efforts in that region was surely not constitutionally beyond the
reach of the subcommittee's inquiry. Upon the reasoning and
authority of
Barenblatt, 360 U.S. at
360 U. S.
125-134, we hold that the judgment is not to be set
aside on First Amendment grounds.
The petitioner in this case raises two additional issues that
were not considered either in
Barenblatt, supra, or in
Wilkinson, supra. First, he says that it was error for the
trial court not to leave it for the jury to determine whether the
questions asked by the subcommittee were pertinent to the subject
under inquiry. Secondly, he asserts that
Page 365 U. S. 436
he could not properly be convicted, because, in refusing to
answer the subcommittee's questions, he relied upon his
understanding of the meaning of previous decisions of this Court.
We think that both of these contentions have been foreclosed by
Sinclair v. United States, 279 U.
S. 263.
At the trial, the district judge determined as a matter of law
that the questions were pertinent to a matter under inquiry by the
subcommittee, [
Footnote 5]
leaving to the jury the question whether the pertinence of the
questions had been brought home to the petitioner. It is to be
noted that counsel made no timely objection to this procedure, and,
indeed, affirmatively acquiesced in it. [
Footnote 6] But we need not base rejection of the
petitioner's contention here on that ground, for, in any event, it
was proper for the court to determine the question as a matter of
law. This is precisely what was held in
Sinclair v. United
States, where the Court said, at 279 U.S.
279 U. S.
299:
"The reasons for holding relevancy and materiality to be
questions of law . . .
Page 365 U. S. 437
apply with equal force to the determination of pertinency
arising under section 102 [the predecessor of 2 U.S.C. § 192]. The
matter for determination in this case was whether the facts called
for by the question were so related to the subjects covered by the
Senate's resolutions that such facts reasonably could be said to be
'pertinent to the question under inquiry.' It would be incongruous
and contrary to well established principles to leave the
determination of such a matter to a jury."
During his interrogation, the petitioner was asked:
"Now, do I understand that you have refused to answer the
question as to whether or not you are now a member of the Communist
Party solely upon the invocation of the provisions of the First
Amendment, but that you have not invoked the protection of the
Fifth Amendment to the Constitution. Is that correct?"
He gave the following answer:
"That is right, sir. I am standing on the
Watkins, Sweezy,
Konigsberg, and other decisions of the United States Supreme
Court which protect my right, and the Constitution as they
interpret the Constitution of the United States, protecting my
right to private belief and association."
It is now argued that, because he relied upon his understanding
of this Court's previous decisions, he could not be convicted under
the statute for failing to answer the questions. An almost
identical contention was also rejected in
Sinclair v. United
States, supra, at
279 U. S.
299:
"There is no merit in appellant's contention that he is entitled
to a new trial because the court excluded evidence that, in
refusing to answer, he acted in good faith on the advise of
competent counsel. The gist of the offense is refusal to answer
pertinent questions. No moral turpitude is involved. Intentional
violation is sufficient to constitute guilt. There was no
misapprehension as to what was called for. The refusal to answer
was deliberate.
Page 365 U. S. 438
The facts sought were pertinent as a matter of law, and section
102 made it appellant's duty to answer. He was bound rightly to
construe the statute. His mistaken view of the law is no defense.
[
Footnote 7]"
Here, as in
Sinclair, the refusal to answer was
deliberate and intentional.
Affirmed.
[
Footnote 1]
The indictment was in six counts, each count setting out a
specific question which the petitioner had refused to answer. He
was convicted on all six counts, and concurrent sentences were
imposed.
[
Footnote 2]
The questions which were the subjects of the six counts of the
indictment were as follows:
"And did you participate in a meeting here at that time?"
"Who solicited the quarters to be made available to the Southern
Conference Educational Fund?"
"Are you connected with the Emergency Civil Liberties
Committee?"
"Did you and Harvey O'Connor, in the course of your conference
there in Rhode Island, develop plans and strategies outlining work
schedules for the Emergency Civil Liberties Committee?"
"Were you a member of the Communist Party the instant you
affixed your signature to that letter?"
"I would just like to ask you whether or not you, being a
resident of Louisville, Kentucky, have anything to do there with
the Southern Newsletter?"
The full transcript of the petitioner's interrogation by the
subcommittee, introduced in the District Court, makes intelligible
the relevance of these questions. Since concurrent sentences were
imposed on the several counts, we need specifically consider here
only the question covered by the fifth count, going to the
petitioner's Communist Party membership.
See Barenblatt v.
United States, 360 U. S. 109,
360 U. S. 115;
Claassen v. United States, 142 U.
S. 140,
142 U. S.
147.
[
Footnote 3]
As in
Wilkinson, by the resolution authorizing the
subcommittee's investigation by the statements of the Chairman and
other members of the subcommittee, by the tenor of interrogation of
prior witnesses, and by a lengthy explanatory statement addressed
contemporaneously to the petitioner.
[
Footnote 4]
For example, the petitioner points out that the "Southern
Conference Educational Fund," with which he had been associated,
had been active in promoting racial integration in the South. The
transcript of the subcommittee hearings makes clear, however, that
these activities, as such, were not under investigation. As a
member of the subcommittee stated:
"What I am interested in is what are you doing on behalf of the
Communist Party? We are not going to be clouded, so far as I am
concerned, by talking about integration and segregation. This
committee is not concerned in that. This committee is concerned in
what you are doing in behalf of the Communist conspiracy."
At another point, the following colloquy occurred:
"Mr. Braden: Two hundred Negro leaders in the South petitioned
the Congress of the United States last week in connection with this
hearing in Atlanta."
"Mr. Jackson: After looking at some of the names on this list,
the letters went into the circular files of many members, because
it was quite obvious that a number of names on that letter were
names of those that had been closely associated with the Communist
Party. Their interest and major part does not lie with honest
integration. Their interest lies with the purposes of the Communist
Party. And that is what we are looking into, and let us not be
clouding this discussion and this hearing this morning by any more
nonsense that we are here as representatives of the United States
Government to further, or to destroy, or to have anything to do
with, integration."
[
Footnote 5]
"You will note that each count in the indictment alleges that
the refusal was with reference to a question pertinent to the
matter under inquiry. You will not concern yourselves with this
allegation, as it involves a matter of law which it is the Court's
duty to determine, and which has been determined. I have determined
as a matter of law that the committee had the right to ask these
questions and the defendant had the duty to answer these questions
under the conditions that I will later explain."
[
Footnote 6]
In his opening statement to the jury, counsel for the petitioner
said:
"As the counsel for the government has properly stated, the
question of whether or not those questions were pertinent to the
subject matter under inquiry has been ruled to be a question of law
for the Court. But whether or not the defendant Carl Braden, at the
time he refused to answer those questions, knew that they were
pertinent to the subject matter under inquiry is a question of fact
which will be submitted by the Court to you gentlemen."
Not until after the concluding arguments and the instructions to
the jury did counsel claim for the first time that the question of
actual pertinency was not for the court to decide.
[
Footnote 7]
This was reaffirmed in
United States v. Murdock,
290 U. S. 389,
290 U. S. 397,
where it was said:
"The applicable statute did not make a bad purpose or evil
intent an element of the misdemeanor of refusing to answer, but
conditioned guilt or innocence solely upon the relevancy of the
question propounded. Sinclair was either right or wrong in his
refusal to answer, and, if wrong, he took the risk of becoming
liable to the prescribed penalty."
See also Watkins v. United States, 354 U.
S. 178,
354 U. S.
208.
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE
DOUGLAS concur, dissenting.
The petitioner in this case, as is shown by the facts set forth
in the dissenting opinion of MR. JUSTICE DOUGLAS, in which I
concur, has for some time been at odds with strong sentiment
favoring racial segregation in his home State of Kentucky. A white
man himself, the petitioner has nonetheless spoken out strongly
against that sentiment. This activity, which once before resulted
in his being charged with a serious crime, [
Footnote 2/1] seems also to have
Page 365 U. S. 439
been the primary reason for his being called before the
Un-American Activities Committee. For the occasion of that
Committee's compelling petitioner to go from Rhode Island, where he
was vacationing, to Atlanta for questioning appears from the record
to have been the circulation of two letters, both in the nature of
petitions to Congress, urging that certain legislative action be
taken which, in the view of the signers of the petitions, would
help those working against segregation. One of these petitions,
signed by petitioner and his wife, asked those who read it to urge
their representatives in Congress to vote against proposed
legislation which would have empowered the States to enact
anti-sedition statutes because, in the view of the signers, those
statutes could too readily be used against citizens working for
integration. The other petition, bearing the signature of 200
southern Negroes, was sent directly to the House of
Representatives, and requested that body not to allow the
Un-American Activities Committee to conduct hearings in the South
because, so the petition charged,
"all of its [the Committee's] activities in recent years suggest
that it is much more interested in harassing and labeling as
'subversive' any citizen who is inclined to be liberal or an
independent thinker."
The record shows that the Committee apparently believed that
petitioner had drafted both of these petitions, and that he had
circulated them, not -- as would appear from the face of the
petitions -- for the purpose of furthering the cause of
integration, but for the purpose of furthering the interests of the
Communist Party, of which the Committee claimed to have information
that he was a member, [
Footnote
2/2] by fomenting racial strife and interfering
Page 365 U. S. 440
with the investigations of the Un-American Activities
Committee.
When petitioner appeared in response to this subpoena, he was
asked a number of questions regarding his personal beliefs and
associations, culminating in the question of whether he was a
member of the Communist Party at "the instant" he affixed his
signature to the petition urging defeat of the statute authorizing
state anti-sedition laws. Petitioner refused to answer these
questions on the grounds, first, that the Committee had no power to
ask the questions it put to him, and, secondly, that he could
properly refuse to answer such questions under the First Amendment.
For this refusal to answer, he, like Frank Wilkinson, who followed
him on the witness stand at the Atlanta hearing, [
Footnote 2/3] was convicted under 2 U.S.C. § 192
and sentenced to 12 months in jail. [
Footnote 2/4] And, as was the case with the conviction
of Wilkinson, the majority here affirms petitioner's conviction
"[u]pon the reasoning and authority" of
Barenblatt v. United
States. [
Footnote 2/5]
Again I must agree with the majority that, insofar as the
conviction is attacked on constitutional grounds, [
Footnote 2/6] the
Page 365 U. S. 441
decision in
Barenblatt constitutes ample authority for
its action, even though it cannot be denied that the Committee's
conduct constitutes a direct abridgment of the right of petition.
Indeed, I think the majority might well have, with equal
justification, relied upon a much earlier decision of this Court,
that in
Beauharnais v. Illinois. [
Footnote 2/7] For it was there that a majority of this
Court first applied to the right of petition the flexible
constitutional rule upon which the decision in this case is based
-- the rule that the right of petition, though guaranteed in
precise and mandatory terms by the First Amendment, may be
abandoned at any time Government can offer a reason for doing so
that a majority of this Court finds sufficiently compelling.
Ironically, the need there asserted by the State of Illinois and
accepted by a majority of this Court as sufficiently compelling to
warrant abridgment of the right of petition was the need to protect
Negroes against what was subsequently labeled "libel . . . of a
racial group," [
Footnote 2/8]
although it was actually nothing more than the circulation of a
petition seeking governmental and public support for a program of
racial segregation. [
Footnote 2/9]
Thus, the decision in
Beauharnais had all the outward
appearances of being one which would aid the underprivileged Negro
minority. [
Footnote 2/10] This
decision, however, is a dramatic illustration of the
shortsightedness of such an interpretation of that case. For the
very constitutional philosophy that
Page 365 U. S. 442
gave birth to
Beauharnais today gives birth to a
decision which may well strip the Negro of the aid of many of the
white people who have been willing to speak up in his behalf. If
the House Un-American Activities Committee is to have the power to
interrogate everyone who is called a Communist, [
Footnote 2/11] there is one thing certain beyond
the peradventure of a doubt -- no legislative committee, state or
federal, will have trouble finding cause to subpoena all persons
anywhere who take a public stand for or against segregation. The
lesson to be learned from these two cases is, to my mind, clear.
Liberty, to be secure for any, must be secure for all -- even for
the most miserable merchants of hated and unpopular ideas.
Both
Barenblatt and
Beauharnais are offspring
of a constitutional doctrine that is steadily sacrificing
individual freedom of religion, speech, press, assembly and
petition to governmental control. There have been many other such
decisions, and the indications are that this number will continue
to grow at an alarming rate. For the presently prevailing
constitutional doctrine, which treats the First Amendment as a mere
admonition, leaves the liberty-giving freedoms which were intended
to be protected by that Amendment completely at the mercy of
Congress and this Court whenever a majority of this Court
concludes, on the basis of any of the several judicially created
"tests" now in vogue, [
Footnote
2/12] that abridgment
Page 365 U. S. 443
of these freedoms is more desirable than freedom itself. Only a
few days ago, the application of this constitutional doctrine wiped
out the rule forbidding prior censorship of movies in an opinion
that leaves the door wide open to, if indeed it does not actually
invite, prior censorship of other means of publication. [
Footnote 2/13] And the Blackstonian
condemnation of prior censorship had long been thought, even by
those whose ideas of First Amendment liberties have been most
restricted, to be the absolute minimum of the protection demanded
by that Amendment. [
Footnote
2/14]
I once more deny, as I have found it repeatedly necessary to do
in other cases, that this Nation's ability to preserve itself
depends upon suppression of the freedoms of religion, speech,
press, assembly and petition. [
Footnote 2/15] But I do believe that the noble-sounding
slogan of "self-preservation" [
Footnote 2/16] rests upon a premise that can itself
destroy any
Page 365 U. S. 444
democratic nation by a slow process of eating away at the
liberties that are indispensable to its healthy growth. The very
foundation of a true democracy and the foundation upon which this
Nation was built is the fact that government is responsive to the
views of its citizens, and no nation can continue to exist on such
a foundation unless its citizens are wholly free to speak out
fearlessly for or against their officials and their laws. When it
begins to send its dissenters, such as Barenblatt, Uphaus,
Wilkinson, and now Braden, to jail, the liberties indispensable to
its existence must be fast disappearing. If self-preservation is to
be the issue that decides these cases, I firmly believe they must
be decided the other way. Only by a dedicated preservation of the
freedoms of the First Amendment can we hope to preserve our Nation
and its traditional way of life.
It is already past the time when people who recognize and
cherish the life-giving and life-preserving qualities of the
freedoms protected by the Bill of Rights can afford to sit
complacently by while those freedoms are being destroyed by
sophistry and dialectics. For at least 11 years, since the decision
of this Court in
American Communications Assn. v. Douds,
[
Footnote 2/17] the forces of
destruction have been hard at work. Much damage has already been
done. If this dangerous trend is not stopped now, it may be an
impossible task to stop it at all. The area set off for individual
freedom by the Bill of Rights was marked by boundaries precisely
defined. It is my belief that the area so set off provides an
adequate minimum protection for the freedoms indispensable to
individual liberty.
Page 365 U. S. 445
Thus, we have only to observe faithfully the boundaries already
marked for us. For the present, however, the two cases decided by
this Court today and the many others like them that have been
decided in the past 11 years have all but obliterated those
boundaries. [
Footnote 2/18] There
are now no limits to congressional encroachment in this field
except such as a majority of this Court may choose to set by a
value-weighing process on a case-by-case basis.
I cannot accept such a process. As I understand it, this Court's
duty to guard constitutional liberties is to guard those liberties
the Constitution defined, not those that may be defined from case
to case on the basis of this Court's judgment as to the relative
importance of individual liberty and governmental power. The
majority's approach makes the First Amendment not the rigid
protection of liberty its language imports, but a poor flexible
imitation. This weak substitute for the First Amendment is, to my
mind, totally unacceptable, for I believe that Amendment forbids,
among other things, any agency of the Federal Government -- be it
legislative, executive or judicial -- to harass or punish people
for their beliefs, or for their speech about, or public criticism
of, laws and public officials. The Founders of this Nation were not
then willing to trust the definition of First Amendment freedoms to
Congress or this Court, nor am I now. History and the affairs of
the present day show that the Founders were right. There are grim
reminders all
Page 365 U. S. 446
around this world that the distance between individual liberty
and firing squads is not always as far as it seems. I would
overrule
Barenblatt, its forerunners and its progeny, and
return to the language of the Bill of Rights. The new and different
course the Court is following is too dangerous.
[
Footnote 2/1]
In 1954, petitioner and his wife were indicted and petitioner
was convicted of sedition by the State of Kentucky, for which he
received a sentence of imprisonment for 15 years. This prosecution
grew out of events surrounding petitioner's helping a Negro family
to purchase a home in an all-white suburb of Louisville. The
charges against petitioner and his wife were eventually dismissed
following this Court's decision in
Pennsylvania v. Nelson,
350 U. S. 497.
See Braden v. Commonwealth of Kentucky, 291
S.W.2d 843. For the prosecution's version of this case,
see the testimony of the State Attorney General and the
Commonwealth Attorney for Louisville (the latter having served as
prosecutor in the case) before the Subcommittee to Investigate the
Administration of the Internal Security Act and other Internal
Security Laws of the Senate Committee on the Judiciary, 85th Cong.,
1st Sess., pp. 2-23. For the Bradens' version of the case,
see Anne Braden, The Wall Between.
[
Footnote 2/2]
So far as appears from the record, the evidence relied upon by
the Committee to substantiate its claim that petitioner is or has
been a member of the Communist Party is no stronger here than it
was in
Wilkinson v. United States, the companion case
decided today,
ante, p.
365 U. S. 399.
Here, as there, the Committee appears to have been relying upon a
flat conclusory statement made by an informant, this time before a
Senate Internal Security Subcommittee.
See Hearings before
the Subcommittee,
op. cit. supra, 365
U.S. 431fn2/1|>n. 1, at 37.
[
Footnote 2/3]
See Wilkinson v. United States, decided today,
ante, p.
365 U. S. 399.
[
Footnote 2/4]
Petitioner was convicted on six counts and given concurrent
sentences on each, but the majority, properly I think, states that
"we need specifically consider here only the question covered by
the fifth count. . . ." The fifth count related to the question
referred to above dealing with petitioner's possible Communist
Party membership at "the instant" he affixed his signature to the
petition urging defeat of the statute authorizing state
anti-sedition laws.
[
Footnote 2/5]
360 U. S. 360 U.S.
109.
[
Footnote 2/6]
As indicated by my concurrence in the dissent of MR. JUSTICE
DOUGLAS, noted above, I think the issue of the pertinency of the
questions asked here should be controlled by the decision in
Watkins v. United States, 354 U.
S. 178, rather than by the decision in
Barenblatt v.
United States, 360 U. S. 109.
[
Footnote 2/7]
343 U. S. 343 U.S.
250.
[
Footnote 2/8]
Id. at
343 U. S.
263.
[
Footnote 2/9]
See the petition itself, reprinted as an Appendix to my
dissenting opinion in that case.
Id. at
343 U. S.
276.
[
Footnote 2/10]
MR. JUSTICE DOUGLAS and I did not think so.
See id. at
343 U. S.
275:
"If there be minority groups who hail this holding as their
victory, they might consider the possible relevancy of this ancient
remark:"
"Another such victory and I an undone."
[
Footnote 2/11]
And I think the decision in this case, as well as that in
Wilkinson v. United States, also decided today,
ante, p.
365 U. S. 399,
demonstrates conclusively that the Committee is to have at least
that much power.
[
Footnote 2/12]
These "tests" include whether the law in question "shocks the
conscience," offends "a sense of justice," runs counter to the
"decencies of civilized conduct," is inconsistent with "an ordered
concept of liberty," offends "traditional notions of fair play and
substantial justice," is contrary to "the notions of justice of
English-speaking peoples," or is unjustified "on balance."
See
Rochin v. California, 342 U. S. 165,
342 U. S.
175-176 (concurring opinion);
Uphaus v. Wyman,
364 U. S. 388,
364 U. S.
392-393 (dissenting opinion). Significantly, in none of
these "tests" does the result to be obtained depend upon the
question whether there has been an abridgment of rights protected
by the plain language of the Bill of Rights.
[
Footnote 2/13]
Times Film Corp. v. City of Chicago, 365 U. S.
43.
[
Footnote 2/14]
See, e.g., Levy, Legacy of Suppression at 13-15, 173,
185, 186, 190, 202-220, 241, 248, 258, 262, 263, 283, 288, 289,
293, 307 and 309.
[
Footnote 2/15]
See, e.g., American Communications Assn, v. Douds,
339 U. S. 382,
339 U. S.
452-453 (dissenting opinion);
Dennis v. United
States, 341 U. S. 494,
341 U. S. 580
(dissenting opinion);
Barenblatt v. United States,
360 U. S. 109,
360 U. S.
145-153,
360 U. S. 162
(dissenting opinion);
Flemming v. Nestor, 363 U.
S. 603,
363 U. S. 628
(dissenting opinion);
Uphaus v. Wyman, 364 U.
S. 388,
364 U. S.
400-401 (dissenting opinion).
[
Footnote 2/16]
The use of this slogan is becoming commonplace in the opinions
of this Court. Thus, in
Dennis v. United States,
341 U. S. 494, at
341 U. S. 509,
it was said:
"Overthrow of the Government by force and violence is certainly
a substantial enough interest for the Government to limit speech.
Indeed, this is the ultimate value of any society, for, if a
society cannot protect its very structure from armed internal
attack, it must follow that no subordinate value can be
protected."
Then, in
Barenblatt v. United States, 360 U.
S. 109, at
360 U. S.
127-128, we are told: "In the last analysis, this power
rests on the right of self-preservation,
the ultimate value of
any society,'" a statement which is reiterated today in
Wilkinson v. United States, ante, p. 365 U. S.
399.
[
Footnote 2/17]
339 U. S. 339 U.S.
382, decided in 1950.
And see Uphaus v. Wyman,
364 U. S. 388,
364 U. S. 392
(dissenting opinion).
[
Footnote 2/18]
See, e.g., American Communication Assn. v. Douds,
339 U. S. 382;
Dennis v. United States, 341 U. S. 494;
Garner v. Board of Public Works of City of Los Angeles,
341 U. S. 716;
Adler v. Board of Education of New York City, 342 U.
S. 485;
Beauharnais v. Illinois, 343 U.
S. 250;
Galvan v. Press, 347 U.
S. 522;
Yates v. United States, 354 U.
S. 298;
Uphaus v. Wyman, 360 U. S.
72;
Barenblatt v. United States, 360 U.
S. 109;
Nelson v. County of Los Angeles,
362 U. S. 1;
Flemming v. Nestor, 363 U. S. 603;
Uphaus v. Wyman, 364 U. S. 388; and
Times Film Corp. v. City of Chicago, 365 U. S.
43.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE, MR. JUSTICE
BLACK and MR. JUSTICE BRENNAN concur, dissenting.
At the bottom of this case are this Court's decisions in
Pennsylvania v. Nelson, 350 U. S. 497,
holding that Congress did not entrust to the States protection of
the Federal Government against sedition, and
Brown v. Board of
Education, 347 U. S. 483,
holding that racial segregation of students in public schools is
unconstitutional. I had supposed until today that one could agree
or disagree with those decisions without being hounded for his
belief and sent to jail for concluding that his belief was beyond
the reach of government.
On June 17, 1957, we decided
Watkins v. United States,
354 U. S. 178,
defining and curtailing the authority of Congressional Committees
who sought the aid of the courts in holding witnesses in contempt.
[
Footnote 3/1] We said in a
Page 365 U. S. 447
six-to-one decision that "when First Amendment rights are
threatened, the delegation of power to the committee must be
clearly revealed in its charter" (
id. at
354 U. S.
198); that "there is no congressional power to expose
for the sake of exposure" (
id. at
354 U. S.
200); that the meaning of "un-American" in the
Resolution defining the Committee's authority is so vague that it
is "difficult to imagine a less explicit authorizing resolution"
(
id. at
354 U. S.
202); that, before a witness chooses between answering
or not answering he is entitled "to have knowledge of the subject
to which the interrogation is deemed pertinent" (
id. at
354 U. S.
208-209); that, in that case, the Resolution and the
statement of the Committee's chairman were "woefully inadequate to
convey sufficient information as to the pertinency of the questions
to the subject under inquiry."
Id., 354 U. S.
215.
Sweezy v. New Hampshire, 354 U.
S. 234, decided the same day as the
Watkins
case, reversed a conviction arising out of a state investigation
into "subversive activities" where a teacher was asked questions
concerning his relation to Marxism. THE CHIEF JUSTICE, in his
opinion, stated:
"Equally manifest as a fundamental principle of a democratic
society is political freedom of the individual. Our form of
government is built on the premise that every citizen shall have
the right to engage in political expression and association.
This
Page 365 U. S. 448
right was enshrined in the First Amendment of the Bill of
Rights. Exercise of these basic freedoms in America has
traditionally been through the media of political associations. Any
interference with the freedom of a party is simultaneously an
interference with the freedom of its adherents. All political ideas
cannot and should not be channeled into the programs of our two
major parties. History has amply proved the virtue of political
activity by minority, dissident groups, who innumerable times have
been in the vanguard of democratic thought and whose programs were
ultimately accepted. Mere unorthodoxy or dissent from the
prevailing mores is not to be condemned. The absence of such voices
would be a symptom of grave illness in our society."
Id., 354 U. S.
250-251.
The concurring opinion stated:
"Progress in the natural sciences is not remotely confined to
findings made in the laboratory. Insights into the mysteries of
nature are born of hypothesis and speculation. The more so is this
true in the pursuit of understanding in the groping endeavors of
what are called the social sciences, the concern of which is man
and society. The problems that are the respective preoccupations of
anthropology, economics, law, psychology, sociology, and related
areas of scholarship are merely departmentalized dealing, by way of
manageable division of analysis, with interpenetrating aspects of
holistic perplexities. For society's good -- if understanding be an
essential need of society -- inquiries into these problems,
speculations about them, stimulation in others of reflection upon
them, must be left as unfettered as possible. Political power must
abstain from intrusion into this activity of freedom, pursued in
the interest of wise
Page 365 U. S. 449
government and the people's wellbeing, except for reasons that
are exigent and obviously compelling."
Id., 354 U. S.
261-262.
On June 8, 1959 -- two years after the
Watkins and
Sweezy decisions -- we decided
Barenblatt v. United
States, 360 U. S. 109,
where a divided Court gave only slight consideration to the type of
pertinency claim that was raised in
Watkins, Sweezy, and
the present case, in part because it could rely on the petitioner's
failure to raise that objection before the Committee.
See
Barenblatt v. United States, supra, 360 U. S.
123-125.
Petitioner, who was called as a witness by the Committee in
July, 1958, which was even before
Barenblatt was decided,
refused to answer, relying on the
Watkins and
Sweezy decisions "as they interpret the Constitution of
the United States, protecting my right to private belief and
association."
I think he was entitled to rely on them. The Act under which he
stands convicted states that a witness is guilty if he "wilfully
makes default, or who, having appeared, refuses to answer any
question pertinent to the question under inquiry." 2 U.S.C. § 192.
A refusal to answer was held, in
Sinclair v. United
States, 279 U. S. 263,
279 U. S. 299,
not to be justified because one acted in good faith, the Court
saying, "His mistaken view of the law is no defense." Yet no issue
concerning the First Amendment was involved in the
Sinclair case. When it is involved, as it is here, the
propriety of the question in terms of pertinency should be narrowly
resolved.
The Resolution under which the Committee on Un-American
Activities acted in this case [
Footnote
3/2] is precisely the
Page 365 U. S. 450
same as the one involved in
Watkins v. United States,
supra. We said concerning it,
"It would be difficult to imagine a less explicit authorizing
resolution. Who can define the meaning of 'un-American'? What is
that single, solitary 'principle of the form of government as
guaranteed by our Constitution'? . . . At one time, perhaps, the
resolution might have been read narrowly to confine the Committee
to the subject of propaganda. The events that have transpired in
the fifteen years before the interrogation of petitioner make such
a construction impossible at this date."
354 U.S. at
354 U. S.
202.
We emphasized the need, when First Amendment rights were
implicated, to lay a foundation before probing that area. The
authority of the Committee must then "be clearly revealed in its
charter."
Id. at
354 U. S. 198.
The "specific legislative need" must be disclosed.
Id. at
354 U. S. 205.
The pertinency of the questions and the subject matter under
inquiry must be made known
"with the same degree of explicitness and clarity that the Due
Process Clause requires in the expression of any element of a
criminal offense."
Id. at
354 U. S.
209.
After
Watkins, anyone was entitled to rely on those
propositions for protection of his First Amendment rights. The
conditions and circumstances under which the questions were asked
petitioner plainly did not satisfy the requirements specified in
Watkins.
The setting of the six questions [
Footnote 3/3] which were asked petitioner and which he
refused to answer shows nothing more
Page 365 U. S. 451
than an exercise by him of First Amendment rights of speech and
press and of petition to Congress. It was not shown that these
activities were part of a matrix for the overthrow of government.
It was not shown -- unless the bare word of the Committee is taken
as gospel -- that these constitutional activities had any relation
whatever to communism, subversion, or illegal activity of any sort
or kind. It was not shown where and how the Committee was ever
granted the right to investigate those who petition Congress for
redress of grievances.
Petitioner and his wife were field secretaries of an
organization known as the Southern Conference Educational Fund.
Prior to the committee hearing at Atlanta, Georgia, they wrote a
letter [
Footnote 3/4] on the
letterhead of the
Page 365 U. S. 452
Southern Conference urging people to write their Congressmen and
Senators to oppose three bills pending before the Congress which
would, to use their words, "nullify" a decision of this Court
"declaring state sedition laws inoperative." They added
"We are especially concerned about this because we know from our
own experience how such laws can be used against people working to
bring about integration in the South. Most of these state statutes
are broad and loosely worded, and, to the officials of many of our
Southern states, integration is sedition. You can imagine what may
happen if every little prosecutor in the South is turned loose with
a state sedition law."
Also prior to the Committee hearing in Atlanta, a group of
Negroes petitioned Congress against the proposed Atlanta
investigation of the House Committee on Un-American Activities.
That petition stated:
"We are informed that the Committee on Un-American Activities of
the House of Representatives is planning to hold hearings in
Atlanta, Georgia, at an early date."
"As Negroes residing in Southern states and the District of
Columbia, all deeply involved in the
Page 365 U. S. 453
struggle to secure full and equal rights for out people, we are
very much concerned by this development."
"We are acutely aware of the fact that there is, at the present
time, a shocking amount of un-American activity in our Southern
states. To cite only a few examples, there are the bombings of the
homes, schools, and houses of worship of not only Negroes, but also
of our Jewish citizens; the terror against Negroes in Dawson, Ga.;
the continued refusal of boards of registrars in many Southern
communities to allow Negroes to register and vote; and the
activities of White Citizens Councils encouraging open defiance of
the United States Supreme Court."
"However, there is nothing in the record of the House Committee
on Un-American Activities to indicate that, if it comes South, it
will investigate these things. On the contrary, all of its
activities in recent years suggest that it is much more interested
in harassing and labeling as 'subversive' any citizen who is
inclined to be liberal or an independent thinker."
"For this reason, we are alarmed at the prospect of this
committee coming South to follow the lead of Senator Eastland, as
well as several state investigating committees, in trying to attach
the 'subversive' label to any liberal white Southerner who dares to
raise his voice in support of our democratic ideals."
"It was recently pointed out by four Negro leaders who met with
President Eisenhower that one of our great needs in the South is to
build lines of communication between Negro and white Southerners.
Many people in the South are seeking to do this. But if white
people who support integration are labeled 'subversive' by
congressional committees, terror is spread among our white
citizens, and it becomes increasingly difficult to find white
people who are
Page 365 U. S. 454
willing to support our efforts for full citizenship.
Southerners, white and Negro, who strive today for full democracy
must work at best against tremendous odds. They need the support of
every agency of our Federal Government. It is unthinkable that they
should, instead, be harassed by committees of the United States
Congress."
"We therefore urge you to use your influence to see that the
House Committee on Un-American Activities stays out of the South --
unless it can be persuaded to come to our region to help defend us
against those subversives who oppose our Supreme Court, our Federal
policy of civil rights for all, and our American ideals of equality
and brotherhood."
Petitioner was charged by the Committee with preparing that
petition; counsel for the Committee later stated that the purpose
of the petition was "precluding or attempting to preclude or
softening the very hearings which we proposed to have here." The
Committee said that it was not concerned with integration. It said
that
"A number of names on that letter were names of those who had
been closely associated with the Communist Party. Their interest
and major part does not lie with honest integration. Their interest
lies with the purposes of the Communist Party. And that is what we
are looking into. . . ."
Two of the questions which petitioner refused to answer
pertained to the Southern Conference, the first one being "Did you
participate in a meeting here at that time?" And the second one was
"Who solicited quarters to be made available to the Southern
Conference Educational Fund?"
Two other questions which petitioner refused to answer related
to the Emergency Civil Liberties Committee. The first of these was
"Are you connected with the Emergency Civil Liberties Committee?"
The second one was
"Did you and Harvey O'Connor in the course of your conferences
there in Rhode Island, develop plans and strategy outlining work
schedules for the Emergency
Page 365 U. S. 455
Civil Liberties Committee?"
The Committee counsel charged that Mr. O'Connor was "a hard-core
member of the communist conspiracy, head of the Emergency Civil
Liberties Committee."
A fifth question which petitioner refused to answer related to
the letter I have previously mentioned [
Footnote 3/5] which he and his wife sent to the people
urging them to write their Senators and Congressmen opposing three
bills that would reinstate state sedition laws. The question
relating to this letter was "Were you a member of the Communist
Party the instant you affixed your signature to that letter?"
The sixth and final question which petitioner refused to answer
concerned the Southern Newsletter. Counsel asked if petitioner had
"anything to do" with that letter. Petitioner replied
"I think you are now invading freedom of the press. . . . I
object to your invasion of the freedom of the press, and I also
decline to answer the questions on the same grounds. You are not
only attacking integrationists, you are attacking the press."
There is nothing in the record to show that the Southern
Conference or the Emergency Civil Liberties Committee or the
Southern Newsletter had the remotest connection with the Communist
Party. There is only the charge of the Committee that there was
such a connection. That charge amounts to little more than
innuendo. This is particularly clear with respect to the question
relating to petitioner's membership in the Communist Party. Having
drawn petitioner's attention to the letter
Page 365 U. S. 456
he had written, [
Footnote 3/6]
counsel for the Committee demanded to know if petitioner was a
Communist "the instant you affixed your signature to that letter."
No foundation at all had been laid for that question, and, from the
record, no purpose for it appears, save the hope of the Committee
to link communism with that letter which supported this Court's
decision in
Pennsylvania v. Nelson, supra. This Court,
passing on the pertinency issue in
Barenblatt v. United States,
supra, 360 U. S.
123-125, was careful to emphasize that Barenblatt
"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. . . ."
(Emphasis added.) No such foundation was ever laid here.
One would be wholly warranted in saying, I think, in light of
the
Watkins and
Sweezy decisions, that a
Committee's undisclosed information or unsupported surmise would
not justify an investigation into matters that, on their face,
seemed well within the First Amendment. [
Footnote 3/7] If
Watkins and
Sweezy
decided anything, they decided that
Page 365 U. S. 457
before inroads in the First Amendment domain may be made, some
demonstrable connection with communism must first be established,
and the matter be plainly shown to be within the scope of the
Committee's authority. Otherwise, the Committee may roam at will,
requiring any individual to disclose his association with any group
or with any publication which is unpopular with the Committee and
which it can discredit by calling it communistic.
[
Footnote 3/1]
In that case, the witness testified freely about himself, but
balked at talking about others:
"I am not going to plead the Fifth Amendment, but I refuse to
answer certain questions that I believe are outside the proper
scope of your committee's activities. I will answer any questions
which this committee puts to me about myself. I will also answer
questions about those persons whom I knew to be members of the
Communist Party and whom I believe still are. I will not, however,
answer any questions with respect to others with whom I associated
in the past. I do not believe that any law in this country requires
me to testify about persons who may in the past have been Communist
Party members or otherwise engaged in Communist Party activity, but
who, to my best knowledge and belief, have long since removed
themselves from the Communist movement."
"I do not believe that such questions are relevant to the work
of this committee, nor do I believe that this committee has the
right to undertake the public exposure of persons because of their
past activities. I may be wrong, and the committee may have this
power, but until and unless a court of law so holds and directs me
to answer, I most firmly refuse to discuss the political activities
of my past associates."
[
Footnote 3/2]
The Resolution provides in relevant part:
"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."
[
Footnote 3/3]
Petitioner was convicted on each of six counts of an indictment
and sentenced to serve 12 months on each count, the sentences to
run concurrently. Therefore, if any one of the counts can be
sustained, an affirmance would be necessary.
See Claassen v.
United States, 142 U. S. 140,
142 U. S.
147.
[
Footnote 3/4]
"Dear Friend:"
"We are writing to you because of your interest in the Kentucky
'sedition' cases, which were thrown out of Court on the basis of a
Supreme Court decision [
Pennsylvania v. Nelson, supra]
declaring state sedition laws inoperative."
"There are now pending in both houses of Congress bills that
would nullify this decision. We understand there is real danger
that these bills will pass."
"We are especially concerned about this because we know from our
own experience how such laws can be used against people working to
bring about integration in the South. Most of these state statutes
are broad and loosely worded, and, to the officials of many of our
Southern states, integration is sedition. You can imagine what may
happen if every little local prosecutor in the South is turned
loose with a state sedition law."
"It is small comfort to realize that such cases would probably
eventually be thrown out by the Supreme Court. Before such a case
reaches the Supreme Court, the human beings involved have spent
several years of their lives fighting off the attack, their time
and talents have been diverted from the positive struggle for
integration, and money needed for that struggle has been spent in a
defensive battle."
"It should also be pointed out that these bills to validate
state sedition laws are only a part of a sweeping attack on the
U.S. Supreme Court. The real and ultimate target is the Court
decisions outlawing segregation. Won't you write your two senators
and your congressman asking them to oppose S. 654, S. 2646, and
H.R. 977. Also ask them to stand firm against all efforts to curb
the Supreme Court. It is important that you write -- and get others
to write -- immediately as the bills may come up at any time."
"Cordially yours,"
"Carl and Anne Braden"
"Field Secretaries"
[
Footnote 3/5]
Supra, 365
U.S. 431fn3/4|>note 4.
[
Footnote 3/6]
See supra, 365
U.S. 431fn3/4|>note 4.
[
Footnote 3/7]
"The consequences that flow from this situation are manifold. In
the first place, a reviewing court is unable to make the kind of
judgment made by the Court in
United States v. Rumely,
supra. The Committee is allowed, in essence, to define its own
authority, to choose the direction and focus of its activities. In
deciding what to do with the power that has been conferred upon
them, members of the Committee may act pursuant to motives that
seem to them to be the highest. Their decisions, nevertheless, can
lead to ruthless exposure of private lives in order to gather data
that is neither desired by the Congress nor useful to it. Yet it is
impossible in this circumstance, with constitutional freedoms in
jeopardy, to declare that the Committee has ranged beyond the area
committed to it by its parent assembly because the boundaries are
so nebulous."
354 U.S. at
354 U. S.
204.