Carl BRADEN, Petitioner, v. United States
Carl BRADEN, Petitioner, v. United States
Carl BRADEN, Petitioner, v. United States
431
81 S.Ct. 584
5 L.Ed.2d 653
This case is a companion to Wilkinson v. United States, 365 U.S. 399, 81 S.Ct.
567, 5 L.Ed.2d 633. 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, 2 U.S.C.A. 192 in refusing to answer six specific
questions which had been put to him by the subcommittee.1 The Court of
Appeals affirmed, 5 Cir., 272 F.2d 653, relying on Barenblatt v. United States,
360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115, and we granted certiorari, 362
U.S. 960, 80 S.Ct. 878, 4 L.Ed.2d 876.
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 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,2 and that the petitioner was fully apprised of its
pertinency.3
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, 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.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 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.
hold that the judgment is not to be set aside on First Amendment grounds.
5
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 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, 49 S.Ct. 268, 73 L.Ed. 692.
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,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.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. 299, 49 S.Ct. 273: 'The reasons for holding relevancy and
materiality to be questions of law * * * apply with equal force to the
determination of pertinency arising under section 102 (the predecessor of 2
U.S.C. 192, 2 U.S.C.A. 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
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.'7
10
11
Affirmed.
12
Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice
DOUGLAS concur, dissenting.
13
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,1 seems also to have 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 antisedition 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
15
Again I must agree with the majority that insofar as the conviction is attacked
on constitutional grounds,6 the 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. People of State of Illinois.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,'8 although it was actually
nothing more than the circulation of a petition seeking governmental and public
support for a program of racial segregation.9 Thus, the decision in Beauharnais
had all the outward appearances of being one which would aid the
underprivileged Negro minority.10 This decision, however, is a dramatic
illustration of the shortsightedness of such an interpretation of that case. For the
very constitutional philosophy that 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 UnAmerican Activities Committee is to have the power to interrogate everyone
who is called a Communist,11 there is one thing certain beyond the
peradventure of a doubtno 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 alleven for
the most miserable merchants of hated and unpopular ideas.
16
17
It is already past the time when people who recognize and cherish the lifegiving 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 Ass'n, C.I.O. v. Douds,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. 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.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.
19
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 Governmentbe it legislative, executive or judicialto 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 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.
20
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice
BLACK and Mr. Justice BRENNAN concur, dissenting.
21
22
On June 17, 1957, we decided Watkins v. United States, 354 U.S. 178, 77 S.Ct.
1173, 1 L.Ed.2d 1273, defining and curtailing the authority of Congressional
Committees who sought the aid of the courts in holding witnesses in contempt.1
We said in a 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., 354 U.S. at page 198, 77 S.Ct. at page 1184); that 'there is no
congressional power to expose for the sake of exposure' (id., 354 U.S. at page
200, 77 S.Ct. at page 1185); 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., 354 U.S. at page 202, 77
S.Ct. at page 1187); 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., 354 U.S. at pages 208209, 77 S.Ct. at
page 1190); that in that case th 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, 77
S.Ct. 1193.
23
Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d
1311, 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:
24
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. 250251, 77 S.Ct. 1212.
The concurring opinion stated:
25
26
27
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.'
28
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, 2 U.S.C.A. 192. A refusal to answer was held in
Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 274, 73 L.Ed. 692,
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.
29
30
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., 354 U.S. at page 198, 77 S.Ct. at
page 1184. The 'specific legislative need' must be disclosed. Id., 354 U.S. at
page 205, 77 S.Ct. at page 1188. 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., 354 U.S. at page 209, 77 S.Ct. at page
1190.
31
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.
32
The setting of the six questions 3 which were asked petitioner and which he
refused to answer shows nothing more 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 shownunless the bare word of the Committee is taken
as gospelthat 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.
33
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 letter4 on the letterhead of the 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.'
34
35
'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.
36
'As Negroes residing in Southern states and the District of Columbia, all deeply
involved in the struggle to secure full and equal rights for out people, we are
very much concerned by this development.
37
'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.
38
'However, there is nothing in the record of the House Committee on UnAmerican 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.
39
'For this reason, we are alarmed at the prospect of this committee coming South
'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 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.
41
'We therefore urge you to use your influence to see that the House Committee
on Un-American Activities stays out of the Southunless 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.'
42
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 * * *.'
43
44
A fifth question which petitioner refused to answer related to the letter I have
previously mentioned5 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?'
46
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.'
47
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 he had written,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
Commonwealth of Pennsylvania v. Nelson, supra. This Court, passing on the
pertinency issue in Barenblatt v. United States, supra, 360 U.S. 123125, 79
S.Ct. 10911092, 3 L.Ed.2d 1115, 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.
48
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.7 If Watkins and Sweezy decided
anything, they decided that before inroads in the First Amendment domain may
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.
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, 115, 79 S.Ct. 1081, 1087, 3 L.Ed.2d 1115;
Claassen v. United States, 142 U.S. 140, 147, 12 S.Ct. 169, 170, 35 L.Ed. 966.
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.'
'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.'
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.
7
This was reaffirmed in United States v. Murdock, 290 U.S. 389, 397, 54 S.Ct.
223, 226, 78 L.Ed. 381, 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, 208, 77 S.Ct. 1173,
1189, 1 L.Ed.2d 1273.
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 Commonwealth of Pennsylvania v.
Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. See Braden v.
Commonwealth of Kentucky, Ky., 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. 223. For the Bradens' version of
the case, see Anne Braden, The Wall Between.
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,
365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633, the companion case. 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, n. 1, at
37.
See Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633.
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
10
Mr. Justice DOUGLAS and I did not think so. See, id., 343 U.S. at page 275, 72
S.Ct. at page 740: '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."
11
And I think the decision in this case, as well as that in Wilkinson v. United
States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633, demonstrates conclusively
that the Committee is to have at least that much power.
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. People
of State of California, 342 U.S. 165, 175176, 72 S.Ct. 205, 211, 96 L.Ed. 183
(concurring opinion); Uphaus v. Wyman, 364 U.S. 388, 392393, 81 S.Ct.
153, 159160, 5 L.Ed.2d 148 (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.
13
Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391.
14
See, e.g., Levy, Legacy of Suppression, at 1315, 173, 185, 186, 190, 202
220, 241, 248, 258, 262, 263, 283, 288, 289, 293, 307 and 309.
15
See, e.g., American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 452
453, 70 S.Ct. 674, 710711, 94 L.Ed. 925 (dissenting opinion); Dennis v.
United States, 341 U.S. 494, 580, 71 S.Ct. 857, 902, 95 L.Ed. 1137 (dissenting
opinion); Barenblatt v. United States, 360 U.S. 109, 145153, 162, 79 S.Ct.
1081, 1102 1107, 1111, 3 L.Ed.2d 1115 (dissenting opinion); Flemming v.
Nestor, 363 U.S. 603, 628, 80 S.Ct. 1367, 1382, 4 L.Ed.2d 1435 (dissenting
opinion); Uphaus v. Wyman, 364 U.S. 388, 400401, 81 S.Ct. 153, 154, 5
L.Ed.2d 148 (dissenting opinion).
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 509, 71 S.Ct. 857, at page
867, 95 L.Ed. 1137, 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 pages 127128, 79 S.Ct. 1081, at page 1093, 3 L.Ed.2d 1115, 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, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633.
17
339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, decided in 1950. And see Uphaus v.
Wyman, 364 U.S. 388, 392, 81 S.Ct. 153, 159, 5 L.Ed.2d 148 (dissenting
opinion).
18
See, e.g., American Communication Ass'n, C.I.O. v. Douds, 339 U.S. 382, 70
S.Ct. 674, 94 L.Ed. 925; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857,
95 L.Ed. 1137; Garner v. Board of Public Works of City of Los Angeles, 341
U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education of New
York City, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Beauharnais v. People of
State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Galvan v. Press, 347
U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Yates v. United States, 354 U.S. 298, 77
S.Ct. 1064, 1 L.Ed.2d 1356; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3
L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3
L.Ed.2d 1115; Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4
L.Ed.2d 494; Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d
1435; Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; and
Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391.
In that case the witness testified freely about himself but balked at talking about
others:
'I am not goint 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.'
2
'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
(Commonwealth of 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 writeand get others to write
immediately as the bills may come up at any time.
'Cordially yours,
'Carl and Anne Braden,
'Field Secretaries.'
5
Supra, note 4.
'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 (345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770). The
Committee is allowed, in essence, to define its own authority, to choose the
direction and focus of its activites. 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 page 204, 77 S.Ct. at page
1188.