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CERTIORARI TO THE UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
MR. JUSTICE CLARK,
dissenting. MR. JUSTICE FRANKFURTER,
concurring.
Petitioner 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 any committee thereof to refuse to answer any question "pertinent to the question under inquiry." Summoned to testify before a Subcommittee of the House of Representatives Committee on Un-American Activities, petitioner testified freely about his own activities and associations; but he refused to answer questions as to whether he had known certain other persons to have been members of the Communist Party. He based his refusal on the ground that those questions were outside of the proper scope of the Committee's activities and not relevant to its work. No clear understanding of the "question under inquiry" could be gleaned from the resolution authorizing the full Committee, the legislative history thereof, the Committee's practices thereunder, the action authorizing the Subcommittee, the statement of the Chairman at the opening of the hearings or his statement in response to petitioner's protest. Held: Petitioner was not accorded a fair opportunity to determine whether he was within his rights in refusing to answer, and his conviction was invalid under the Due Process Clause of the Fifth Amendment. Pp. 181-216.
(a) The power of Congress to conduct investigations, inherent in the legislative process, is broad; but it is not unlimited. P. 187.
(b) Congress has no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress. P. 187.
(c) No inquiry is an end in itself; it must be related to, and in furtherance of, a legitimate task of Congress. P. 187.
(d) The Bill of Rights is applicable to congressional investigations, as it is to all forms of governmental action. P. 188.
(e) A congressional investigation is subject to the command that Congress shall make no law abridging freedom of speech or press or assembly. Pp. 196-197.
(f) When First Amendment rights are threatened, the delegation of power to a congressional committee must be clearly revealed in its charter. United States v. Rumely, 345 U.S. 41. P. 198.
(g) A congressional investigation into individual affairs is invalid if unrelated to any legislative purpose, because it is beyond the powers conferred upon Congress by the Constitution. Kilbourn v. Thompson, 103 U.S. 168. P. 198.
(h) It cannot simply be assumed that every congressional investigation is justified by a public need that overbalances any private rights affected, since to do so would be to abdicate the responsibility placed by the Constitution upon the judiciary to insure that Congress does not unjustifiably encroach upon an individual's right of privacy nor abridge his liberty of speech, press, religion or assembly. Pp. 198-199.
(i) There is no congressional power to expose for the sake of exposure where the predominant result can be only an invasion of the private rights of individuals. P. 200.
(j) In authorizing an investigation by a committee, it is essential that the Senate or House should spell out the committee's jurisdiction and purpose with sufficient particularity to insure that compulsory process is used only in furtherance of a legislative purpose. P. 201.
(k) The resolution authorizing the Un-American Activities Committee does not satisfy this requirement, especially when read in the light of the practices of the Committee and subsequent actions of the House of Representatives extending the life of the Committee. Pp. 201-205.
(l) Every reasonable indulgence of legality must be accorded to the actions of a coordinate branch of our Government; but such deference cannot yield to an unnecessary and unreasonable dissipation of precious constitutional freedoms. P. 204.
(m) Protected freedoms should not be placed in danger in the absence of a clear determination by the House or Senate that a particular inquiry is justified by specific legislative need. P. 205.
(n) Congressional investigating committees are restricted to the missions delegated to them -- to acquire certain data to be used by the House or Senate in coping with a problem that falls within its legislative sphere -- and no witness can be compelled to make disclosures on matters outside that area. P. 206.
(o) When the definition of jurisdictional pertinency is as uncertain and wavering as in the case of the Un-American Activities Committee, it becomes extremely difficult for the Committee to limit its inquiries to statutory pertinency. P. 206.
(p) The courts must accord to a defendant indicted under 2 U.S.C. § 192 every right which is guaranteed to defendants in all other criminal cases, including the right to have available information revealing the standard of criminality before the commission of the alleged offense. Pp.
207-208.
(q) Since the statute defines the crime as refusal to answer "any question pertinent to the question under inquiry," part of the standard of criminality is the pertinency of the questions propounded to the witness. P. 208.
(r) Due process requires that a witness before a congressional investigating committee should not be compelled to decide, at peril of criminal prosecution, whether to answer questions propounded to him without first knowing the "question under inquiry" with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense. Sinclair v. United States, 279 U.S. 263. Pp. 208-209.
(s) The authorizing resolution, the remarks of the chairman or members of the committee, or even the nature of the proceedings themselves, might make the "question under inquiry" sufficiently clear to avoid the "vice of vagueness"; but these sources often leave the matter in grave doubt. P. 209.
(t) In this case, it is not necessary to pass on the question whether the authorizing resolution defines the "question under inquiry" with sufficient clarity, since the Government does not contend that it could serve that purpose. P. 209.
(u) The opening statement of the Chairman at the outset of the hearings here involved is insufficient to serve that purpose, since it merely paraphrased the authorizing resolution and gave a very general sketch of the past efforts of the Committee. Pp. 209-210.
(v) Nor was that purpose served by the action of the full Committee in authorizing the creation of the Subcommittee before which petitioner appeared, since it merely authorized the Chairman to appoint subcommittees "for the purpose of performing any and all acts which the Committee as a whole is authorized to do." Pp. 211-212.
(w) On the record in this case, especially in view of the precise questions petitioner was charged with refusing to answer, it cannot be said that the "question under inquiry" was Communist infiltration into labor unions. Pp. 212-214.
(x) Unless the subject matter of the inquiry has been made to appear with undisputable clarity, it is the duty of the investigative body, upon objection of the witness on grounds of pertinency, to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto. Pp. 214-215.
(y) The Chairman's response, when petitioner objected to the questions on grounds of pertinency, was inadequate to convey sufficient information as to the pertinency of the questions to the "question under inquiry." Pp. 214-215.
98 U.S. App. D.C. 190, 233 F. 2d 681, reversed and remanded.
MR. CHIEF JUSTICE WARREN delivered the opinion of the Court.
This is a review by certiorari of a conviction
under 2 U.S.C. § 192 for "contempt of Congress."
The misdemeanor is alleged to have been committed during a hearing
before a congressional investigating committee. It is not the
case of a truculent or contumacious witness who refuses to answer
all questions or who, by boisterous or discourteous conduct, disturbs
the decorum of the committee room. Petitioner was prosecuted for
refusing to make certain disclosures which he asserted to be beyond
the authority of the committee to demand. The controversy thus
rests upon fundamental principles of the power of the Congress
and the limitations upon that power. We approach the questions
presented with conscious awareness of the far-reaching ramifications
that can follow from a decision of this nature.
On April 29, 1954, petitioner appeared as a
witness in compliance with a subpoena issued by a Subcommittee
of the Committee on Un-American Activities of the House of Representatives.
The Subcommittee elicited from petitioner a description of his
background in labor union activities. He had been an employee
of the International Harvester Company between 1935 and 1953.
During the last eleven of those years, he had been on leave of
absence to serve as an official of the Farm Equipment Workers
International Union, later merged into the United Electrical,
Radio and Machine Workers. He rose to the position of President
of District No. 2 of the Farm Equipment Workers, a district defined
geographically to include generally Canton and Rock Falls, Illinois,
and Dubuque, Iowa. In 1953, petitioner joined the United Automobile
Workers International Union as a labor organizer.
Petitioner's name had been mentioned by two
witnesses who testified before the Committee at prior hearings.
In September 1952, one Donald O. Spencer admitted having been
a Communist from 1943 to 1946. He declared that he had been recruited
into the Party with the endorsement and prior approval of petitioner,
whom he identified as the then District Vice-President of the
Farm Equipment Workers. 1 Spencer
also mentioned that petitioner had attended meetings at which
only card-carrying Communists were admitted. A month before petitioner
testified, one Walter Rumsey stated that he had been recruited
into the Party by petitioner. 2
Rumsey added that he had paid Party dues to, and later collected
dues from, petitioner, who had assumed the name, Sam Brown. Rumsey
told the Committee that he left the Party in 1944.
Petitioner answered these allegations freely and without reservation. His attitude toward the inquiry is clearly revealed from the statement he made when the questioning turned to the subject of his past conduct, associations and predilections:
"I am not now nor have I ever been a card-carrying member of the Communist Party. Rumsey was wrong when he said I had recruited him into the party, that I had received his dues, that I paid dues to him, and that I had used the alias Sam Brown.
"Spencer was wrong when he termed any meetings which I attended as closed Communist Party meetings.
"I would like to make it clear that for a period of time from approximately 1942 to 1947 I cooperated with the Communist Party and participated in Communist activities to such a degree that some persons may honestly believe that I was a member of the party.
"I have made contributions upon occasions to Communist causes. I have signed petitions for Communist causes. I attended caucuses at an FE convention at which Communist Party officials were present.
"Since I freely cooperated with the Communist Party I have no motive for making the distinction between cooperation and membership except the simple fact that it is the truth. I never carried a Communist Party card. I never accepted discipline and indeed on several occasions I opposed their position.
"In a special convention held in the summer of 1947 I led the fight for compliance with the Taft-Hartley Act by the FE-CIO International Union. This fight became so bitter that it ended any possibility of future cooperation." 3
The character of petitioner's testimony on
these matters can perhaps best be summarized by the Government's
own appraisal in its brief:
"A more complete and candid statement
of his past political associations and activities (treating the
Communist Party for present purposes as a mere political party)
can hardly be imagined. Petitioner certainly was not attempting
to conceal or withhold from the Committee his own past political
associations, predilections, and preferences. Furthermore, petitioner
told the Committee that he was entirely willing to identify for
the Committee, and answer any questions it might have concerning,
'those persons whom I knew to be members of the Communist Party,'
provided that, 'to [his] best knowledge and belief,' they still
were members of the Party . . . ." 4
The Subcommittee, too, was apparently satisfied
with petitioner's disclosures. After some further discussion elaborating
on the statement, counsel for the Committee turned to another
aspect of Rumsey's testimony. Rumsey had identified a group of
persons whom he had known as members of the Communist Party, and
counsel began to read this list of names to petitioner. Petitioner
stated that he did not know several of the persons. Of those whom
he did know, he refused to tell whether he knew them to have been
members of the Communist Party. He explained to the Subcommittee
why he took such a position:
"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." 5
The Chairman of the Committee submitted a report
of petitioner's refusal to answer questions to the House of Representatives.
H.R. Rep. No. 1579, 83d Cong., 2d Sess. The House directed the
Speaker to certify the Committee's report to the United States
Attorney for initiation of criminal prosecution. H. Res. 534,
83d Cong., 2d Sess. 6 A seven-count
indictment was returned. 7
Petitioner waived his right to jury trial and was found guilty
on all counts by the court. The sentence, a fine of $ 100 and
one year in prison, was suspended, and petitioner was placed on
probation.
An appeal was taken to the Court of Appeals
for the District of Columbia. The conviction was reversed by a
three-judge panel, one member dissenting. Upon rehearing en banc,
the full bench affirmed the conviction with the judges of the
original majority in dissent. 98 U.S. App. D.C. 190, 233 F. 2d
681. We granted certiorari because of the very important questions
of constitutional law presented. 352 U.S. 822.
We start with several basic premises on which
there is general agreement. The power of the Congress to conduct
investigations is inherent in the legislative process. That power
is broad. It encompasses inquiries concerning the administration
of existing laws as well as proposed or possibly needed statutes.
It includes surveys of defects in our social, economic or political
system for the purpose of enabling the Congress to remedy them.
It comprehends probes into departments of the Federal Government
to expose corruption, inefficiency or waste. But, broad as is
this power of inquiry, it is not unlimited. There is no general
authority to expose the private affairs of individuals without
justification in terms of the functions of the Congress. This
was freely conceded by the Solicitor General in his argument of
this case. 8 Nor is the Congress
a law enforcement or trial agency. These are functions of the
executive and judicial departments of government. No inquiry is
an end in itself; it must be related to, and in furtherance of,
a legitimate task of the Congress. Investigations conducted solely
for the personal aggrandizement of the investigators or to "punish"
those investigated are indefensible.
It is unquestionably the duty of all citizens
to cooperate with the Congress in its efforts to obtain the facts
needed for intelligent legislative action. It is their unremitting
obligation to respond to subpoenas, to respect the dignity of
the Congress and its committees and to testify fully with respect
to matters within the province of proper investigation. This,
of course, assumes that the constitutional rights of witnesses
will be respected by the Congress as they are in a court of justice.
The Bill of Rights is applicable to investigations as to all forms
of governmental action. Witnesses cannot be compelled to give
evidence against themselves. They cannot be subjected to unreasonable
search and seizure. Nor can the First Amendment freedoms of speech,
press, religion, or political belief and association be abridged.
The rudiments of the power to punish for "contempt
of Congress" come to us from the pages of English history.
The origin of privileges and contempts extends back into the period
of the emergence of Parliament. The establishment of a legislative
body which could challenge the absolute power of the monarch is
a long and bitter story. In that struggle, Parliament made broad
and varied use of the contempt power. Almost from the beginning,
both the House of Commons and the House of Lords claimed absolute
and plenary authority over their privileges. This was an independent
body of law, described by Coke as lex parliamenti. 9
Only Parliament could declare what those privileges were or what
new privileges were occasioned, and only Parliament could judge
what conduct constituted a breach of privilege.
In particular, this exclusion of lex parliamenti
from the lex terrae, or law of the land, precluded judicial review
of the exercise of the contempt power or the assertion of privilege.
Parliament declared that no court had jurisdiction to consider
such questions. In the latter part of the seventeenth century,
an action for false imprisonment was brought by one Jay who had
been held in contempt. The defendant, the Serjeant-at-Arms of
the House of Commons, demurred that he had taken the plaintiff
into custody for breach of privilege. The Chief Justice, Pemberton,
overruled the demurrer. Summoned to the bar of the House, the
Chief Justice explained that he believed that the assertion of
privilege went to the merits of the action and did not preclude
jurisdiction. For his audacity, the Chief Justice was dispatched
to Newgate Prison. 10
It seems inevitable that the power claimed by Parliament would have been abused. Unquestionably it was. A few examples illustrate the way in which individual rights were infringed. During the seventeenth century, there was a violent upheaval, both religious and political. This was the time of the Reformation and the establishment of the Church of England. It was also the period when the Stuarts proclaimed that the royal prerogative was absolute. Ultimately there were two revolutions, one protracted and bloody, the second without bloodshed. Critical commentary of all kinds was treated as contempt of Parliament in these troubled days. Even clergymen were imprisoned for remarks made in their sermons. 11 Perhaps the outstanding case arose from the private conversation of one Floyd, a Catholic, in which he expressed pleasure over the misfortune of the King's Protestant son-in-law and his wife. Floyd was not a member of Parliament. None of the persons concerned was in any way connected with the House of Commons. Nevertheless, that body imposed an humiliating and cruel sentence upon Floyd for contempt. 12 The House of Lords intervened, rebuking the Commons for their extension of the privilege. The Commons acceded and transferred the record of the case to the Lords, who imposed substantially the same penalty. 13
Later in that century, during the reign of
Charles II, there was great unrest over the fact that the heir
apparent, James, had embraced Catholicism.
Anti-Catholic feeling ran high, spilling over
a few years later when the infamous rogue, Titus Oates, inflamed
the country with rumors of a "Popish Plot" to murder
the King. A committee of Parliament was appointed to learn the
sources of certain pamphlets that had been appearing. One was
entitled: The Grand Question Concerning the Prorogation of this
Parliament for a Year and Three Months Stated and Discussed. A
Doctor Carey admitted to the committee that he knew the author,
but refused to divulge his name. Brought to the bar of the House
of Lords, he persisted in this stand. The House imposed a fine
of L 1,000 and committed the witness to the Tower. 14
A hundred years later, George III had managed
to gain control of Parliament through his ministers. The King
could not silence the opposition, however, and one of the most
vocal was John Wilkes. This precipitated a struggle that lasted
for several years until Wilkes finally prevailed. One writer sums
up the case thus:
"He had won a victory for freedom of the press. He had directed popular attention to the royally-controlled House of Commons, and pointed out its unrepresentative character, and had shown how easily a claim of privilege might be used to sanction the arbitrary proceedings of ministers and Parliament, even when a fundamental right of the subject was concerned. It was one of life's little ironies that work of such magnitude had been reserved for one of the worst libertines and demagogues of all time." 15
- Even as late as 1835, the House of Commons
appointed a select committee to inquire into ". . . the origin,
nature, extent and tendency of the Orange Institutions."
This was a political-religious organization, vehemently Protestant
in religion and strongly in favor of the growth of the British
Empire. The committee summoned the Deputy Grand Secretary and
demanded that he produce all the records of the organization.
The witness refused to turn over a letter-book, which he admitted
contained his answers to many communications upon Orange business.
But it also contained, he said, records of private communications
with respect to Orangeism. Summoned to the bar of the House of
Commons, he remained adamant and was committed to Newgate Prison.
16
Modern times have seen a remarkable restraint
in the use by Parliament of its contempt power. Important investigations,
like those conducted in America by congressional committees, are
made by Royal Commissions of Inquiry. 17
These commissions are comprised of experts in the problem to be
studied. They are removed from the turbulent forces of politics
and partisan considerations. Seldom, if ever, have these commissions
been given the authority to compel the testimony of witnesses
or the production of documents 18
. Their success in fulfilling their fact-finding missions without
resort to coercive tactics is a tribute to the fairness of the
processes to the witnesses and their close adherence to the subject
matter committed to them.
The history of contempt of the legislature
in this country is notably different from that of England. In
the early days of the United States, there lingered the direct
knowledge of the evil effects of absolute power. Most of the instances
of use of compulsory process by the first Congresses concerned
matters affecting the qualification or integrity of their members
or came about in inquiries dealing with suspected corruption or
mismanagement of government officials. 19
Unlike the English practice, from the very outset the use of contempt
power by the legislature was deemed subject to judicial review.
20
There was very little use of the power of compulsory
process in early years to enable the Congress to obtain facts
pertinent to the enactment of new statutes or the administration
of existing laws. The first occasion for such an investigation
arose in 1827 when the House of Representatives was considering
a revision of the tariff laws. 21
In the Senate, there was no use of a fact-finding investigation
in aid of legislation until 1859. 22
In the Legislative Reorganization Act, the Committee on Un-American
Activities was the only standing committee of the House of Representatives
that was given the power to compel disclosures. 23
It is not surprising, from the fact that the
Houses of Congress so sparingly employed the power to conduct
investigations, that there have been few cases requiring judicial
review of the power. The Nation was almost one hundred years old
before the first case reached this Court to challenge the use
of compulsory process as a legislative device, rather than in
inquiries concerning the elections or privileges of Congressmen.
24 In Kilbourn v. Thompson,
103 U.S. 168, decided in 1881, an investigation had been authorized
by the House of Representatives to learn the circumstances surrounding
the bankruptcy of Jay Cooke & Company, in which the United
States had deposited funds. The committee became particularly
interested in a private real estate pool that was a part of the
financial structure. The Court found that the subject matter of
the inquiry was "in its nature clearly judicial and therefore
one in respect to which no valid legislation could be enacted."
The House had thereby exceeded the limits of its own authority.
Subsequent to the decision in Kilbourn, until
recent times, there were very few cases dealing with the investigative
power. 25 The matter came
to the fore again when the Senate undertook to study the corruption
in the handling of oil leases in the 1920's. In McGrain v. Daugherty,
273 U.S. 135, and Sinclair v. United States, 279 U.S. 263, the
Court applied the precepts of Kilbourn to uphold the authority
of the Congress to conduct the challenged investigations. The
Court recognized the danger to effective and honest conduct of
the Government if the legislature's power to probe corruption
in the executive branch were unduly hampered.
Following these important decisions, there
was another lull in judicial review of investigations. The absence
of challenge, however, was not indicative of the absence of inquiries.
To the contrary, there was vigorous use of the investigative process
by a Congress bent upon harnessing and directing the vast economic
and social forces of the times. Only one case came before this
Court, and the authority of the Congress was affirmed. 26
In the decade following World War II, there
appeared a new kind of congressional inquiry unknown in prior
periods of American history. Principally this was the result of
the various investigations into the threat of subversion of the
United States Government, but other subjects of congressional
interest also contributed to the changed scene. This new phase
of legislative inquiry involved a broad-scale intrusion into the
lives and affairs of private citizens. It brought before the courts
novel questions of the appropriate limits of congressional inquiry.
Prior cases, like Kilbourn, McGrain and Sinclair, had defined
the scope of investigative power in terms of the inherent limitations
of the sources of that power. In the more recent cases, the emphasis
shifted to problems of accommodating the interest of the Government
with the rights and privileges of individuals. The central theme
was the application of the Bill of Rights as a restraint upon
the assertion of governmental power in this form.
It was during this period that the Fifth Amendment
privilege against self-incrimination was frequently invoked and
recognized as a legal limit upon the authority of a committee
to require that a witness answer its questions. 27
Some early doubts as to the applicability of that privilege before
a legislative committee never matured. 28
When the matter reached this Court, the Government did not challenge
in any way that the Fifth Amendment protection was available to
the witness, and such a challenge could not have prevailed. It
confined its argument to the character of the answers sought and
to the adequacy of the claim of privilege. Quinn v. United States,
349 U.S. 155; Emspak v. United States, 349 U.S. 190; Bart v. United
States, 349 U.S. 219. 29
A far more difficult task evolved from the
claim by witnesses that the committees' interrogations were infringements
upon the freedoms of the First Amendment. 30
Clearly, an investigation is subject to the command that the Congress
shall make no law abridging freedom of speech or press or assembly.
While it is true that there is no statute to be reviewed, and
that an investigation is not a law, nevertheless an investigation
is part of law-making. It is justified solely as an adjunct to
the legislative process. The First Amendment may be invoked against
infringement of the protected freedoms by law or by lawmaking.
31
Abuses of the investigative process may imperceptibly
lead to abridgment of protected freedoms. The mere summoning of
a witness and compelling him to testify, against his will, about
his beliefs, expressions or associations is a measure of governmental
interference. And when those forced revelations concern matters
that are unorthodox, unpopular, or even hateful to the general
public, the reaction in the life of the witness may be disastrous.
This effect is even more harsh when it is past beliefs, expressions
or associations that are disclosed and judged by current standards
rather than those contemporary with the matters exposed. Nor does
the witness alone suffer the consequences. Those who are identified
by witnesses and thereby placed in the same glare of publicity
are equally subject to public stigma, scorn and obloquy. Beyond
that, there is the more subtle and immeasurable effect upon those
who tend to adhere to the most orthodox and uncontroversial views
and associations in order to avoid a similar fate at some future
time. That this impact is partly the result of non-governmental
activity by private persons cannot relieve the investigators of
their responsibility for initiating the reaction.
The Court recognized the restraints of the
Bill of Rights upon congressional investigations in United States
v. Rumely, 345 U.S. 41. The magnitude and complexity of the problem
of applying the First Amendment to that case led the Court to
construe narrowly the resolution describing the committee's authority.
It was concluded that, when First Amendment rights are threatened,
the delegation of power to the committee must be clearly revealed
in its charter.
Accommodation of the congressional need for
particular information with the individual and personal interest
in privacy is an arduous and delicate task for any court. We do
not underestimate the difficulties that would attend such an undertaking.
It is manifest that despite the adverse effects which follow upon
compelled disclosure of private matters, not all such inquiries
are barred. Kilbourn v. Thompson teaches that such an investigation
into individual affairs is invalid if unrelated to any legislative
purpose. That is beyond the powers conferred upon the Congress
in the Constitution. United States v. Rumely makes it plain that
the mere semblance of legislative purpose would not justify an
inquiry in the face of the Bill of Rights. The critical element
is the existence of, and the weight to be ascribed to, the interest
of the Congress in demanding disclosures from an unwilling witness.
We cannot simply assume, however, that every congressional investigation
is justified by a public need that overbalances any private rights
affected. To do so would be to abdicate the responsibility placed
by the Constitution upon the judiciary to insure that the Congress
does not unjustifiably encroach upon an individual's right to
privacy nor abridge his liberty of speech, press, religion or
assembly.
Petitioner has earnestly suggested that the
difficult questions of protecting these rights from infringement
by legislative inquiries can be surmounted in this case because
there was no public purpose served in his interrogation. His conclusion
is based upon the thesis that the Subcommittee was engaged in
a program of exposure for the sake of exposure. The sole purpose
of the inquiry, he contends, was to bring down upon himself and
others the violence of public reaction because of their past beliefs,
expressions and associations. In support of this argument, petitioner
has marshalled an impressive array of evidence that some Congressmen
have believed that such was their duty, or part of it. 32
We have no doubt that there is no congressional
power to expose for the sake of exposure. The public is, of course,
entitled to be informed concerning the workings of its government.
33 That cannot be inflated
into a general power to expose where the predominant result can
only be an invasion of the private rights of individuals. But
a solution to our problem is not to be found in testing the motives
of committee members for this purpose. Such is not our function.
Their motives alone would not vitiate an investigation which had
been instituted by a House of Congress if that assembly's legislative
purpose is being served. 34
Petitioner's contentions do point to a situation
of particular significance from the standpoint of the constitutional
limitations upon congressional investigations. The theory of a
committee inquiry is that the committee members are serving as
the representatives of the parent assembly in collecting information
for a legislative purpose. Their function is to act as the eyes
and ears of the Congress in obtaining facts upon which the full
legislature can act. To carry out this mission, committees and
subcommittees, sometimes one Congressman, are endowed with the
full power of the Congress to compel testimony. In this case,
only two men exercised that authority in demanding information
over petitioner's protest.
An essential premise in this situation is that
the House or Senate shall have instructed the committee members
on what they are to do with the power delegated to them. It is
the responsibility of the Congress, in the first instance, to
insure that compulsory process is used only in furtherance of
a legislative purpose. That requires that the instructions to
an investigating committee spell out that group's jurisdiction
and purpose with sufficient particularity. Those instructions
are embodied in the authorizing resolution. That document is the
committee's charter. Broadly drafted and loosely worded, however,
such resolutions can leave tremendous latitude to the discretion
of the investigators. The more vague the committee's charter is,
the greater becomes the possibility that the committee's specific
actions are not in conformity with the will of the parent House
of Congress.
The authorizing resolution of the Un-American Activities Committee was adopted in 1938 when a select committee, under the chairmanship of Representative Dies, was created. 35 Several years later, the Committee was made a standing organ of the House with the same mandate. 36 It defines the Committee's authority as follows:
"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." 37
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"? 38
There is no need to dwell upon the language, however. At one time,
perhaps, the resolution might have been read narrowly to confine
the Committee to the subject of propaganda. 39
The events that have transpired in the fifteen years before the
interrogation of petitioner make such a construction impossible
at this date.
The members of the Committee have clearly demonstrated
that they did not feel themselves restricted in any way to propaganda
in the narrow sense of the word. 40
Unquestionably the Committee conceived of its
task in the grand view of its name. Un-American activities were
its target, no matter how or where manifested. Notwithstanding
the broad purview of the Committee's experience, the House of
Representatives repeatedly approved its continuation. Five times
it extended the life of the special committee. 41
Then it made the group a standing committee of the House. 42
A year later, the Committee's charter was embodied in the Legislative
Reorganization Act. 43 On
five occasions, at the beginning of sessions of Congress, it has
made the authorizing resolution part of the rules of the House.
44 On innumerable occasions,
it has passed appropriation bills to allow the Committee to continue
its efforts.
Combining the language of the resolution with
the construction it has been given, it is evident that the preliminary
control of the Committee exercised by the House of Representatives
is slight or non-existent. No one could reasonably deduce from
the charter the kind of investigation that the Committee was directed
to make. As a result, we are asked to engage in a process of retroactive
rationalization. Looking backward from the events that transpired,
we are asked to uphold the Committee's actions unless it appears
that they were clearly not authorized by the charter. As a corollary
to this inverse approach, the Government urges that we must view
the matter hospitably to the power of the Congress -- that if
there is any legislative purpose which might have been furthered
by the kind of disclosure sought, the witness must be punished
for withholding it. No doubt every reasonable indulgence of legality
must be accorded to the actions of a coordinate branch of our
Government. But such deference cannot yield to an unnecessary
and unreasonable dissipation of precious constitutional freedoms.
The Government contends that the public interest
at the core of the investigations of the Un-American Activities
Committee is the need by the Congress to be informed of efforts
to overthrow the Government by force and violence so that adequate
legislative safeguards can be erected. From this core, however,
the Committee can radiate outward infinitely to any topic thought
to be related in some way to armed insurrection. The outer reaches
of this domain are known only by the content of "un-American
activities." Remoteness of subject can be aggravated by a
probe for a depth of detail even farther removed from any basis
of legislative action. A third dimension is added when the investigators
turn their attention to the past to collect minutiae on remote
topics, on the hypothesis that the past may reflect upon the present.
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.
More important and more fundamental than that,
however, it insulates the House that has authorized the investigation
from the witnesses who are subjected to the sanctions of compulsory
process. There is a wide gulf between the responsibility for the
use of investigative power and the actual exercise of that power.
This is an especially vital consideration in assuring respect
for constitutional liberties. Protected freedoms should not be
placed in danger in the absence of a clear determination by the
House or the Senate that a particular inquiry is justified by
a specific legislative need.
It is, of course, not the function of this
Court to prescribe rigid rules for the Congress to follow in drafting
resolutions establishing investigating committees. That is a matter
peculiarly within the realm of the legislature, and its decisions
will be accepted by the courts up to the point where their own
duty to enforce the constitutionally protected rights of individuals
is affected. An excessively broad charter, like that of the House
Un-American Activities Committee, places the courts in an untenable
position if they are to strike a balance between the public need
for a particular interrogation and the right of citizens to carry
on their affairs free from unnecessary governmental interference.
It is impossible in such a situation to ascertain whether any
legislative purpose justifies the disclosures sought and, if so,
the importance of that information to the Congress in furtherance
of its legislative function. The reason no court can make this
critical judgment is that the House of Representatives itself
has never made it. Only the legislative assembly initiating an
investigation can assay the relative necessity of specific disclosures.
Absence of the qualitative consideration of
petitioner's questioning by the House of Representatives aggravates
a serious problem, revealed in this case, in the relationship
of congressional investigating committees and the witnesses who
appear before them. Plainly these committees are restricted to
the missions delegated to them, i.e., to acquire certain data
to be used by the House or the Senate in coping with a problem
that falls within its legislative sphere. No witness can be compelled
to make disclosures on matters outside that area. This is a jurisdictional
concept of pertinency drawn from the nature of a congressional
committee's source of authority. It is not wholly different from
nor unrelated to the element of pertinency embodied in the criminal
statute under which petitioner was prosecuted. When the definition
of jurisdictional pertinency is as uncertain and wavering as in
the case of the Un-American Activities Committee, it becomes extremely
difficult for the Committee to limit its inquiries to statutory
pertinency.
Since World War II, the Congress has practically
abandoned its original practice of utilizing the coercive sanction
of contempt proceedings at the bar of the House. The sanction
there imposed is imprisonment by the House until the recalcitrant
witness agrees to testify or disclose the matters sought, provided
that the incarceration does not extend beyond adjournment. The
Congress has instead invoked the aid of the federal judicial system
in protecting itself against contumacious conduct. It has become
customary to refer these matters to the United States Attorneys
for prosecution under criminal law.
The appropriate statute is found in 2 U.S.C.
§ 192. It provides:
"Every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before either House, or any joint committee established by a joint or concurrent resolution of the two Houses of Congress, or any committee of either House of Congress, willfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry, shall be deemed guilty of a misdemeanor, punishable by a fine of not more than $ 1,000 nor less than $ 100 and imprisonment in a common jail for not less than one month nor more than twelve months." 45
In fulfillment of their obligation under this
statute, the courts must accord to the defendants every right
which is guaranteed to defendants in all other criminal cases.
Among these is the right to have available, through a sufficiently
precise statute, information revealing the standard of criminality
before the commission of the alleged offense. 46
Applied to persons prosecuted under § 192, this raises a
special problem in that the statute defines the crime as refusal
to answer "any question pertinent to the question under inquiry."
Part of the standard of criminality, therefore, is the pertinency
of the questions propounded to the witness. 47
The problem attains proportion when viewed
from the standpoint of the witness who appears before a congressional
committee. He must decide at the time the questions are propounded
whether or not to answer. As the Court said in Sinclair v. United
States, 279 U.S. 263, the witness acts at his peril. He is ".
. . bound rightly to construe the statute." Id., at 299.
An erroneous determination on his part, even if made in the utmost
good faith, does not exculpate him if the court should later rule
that the questions were pertinent to the question under inquiry.
It is obvious that a person compelled to make
this choice is entitled to have knowledge of the subject to which
the interrogation is deemed pertinent. That knowledge must be
available with the same degree of explicitness and clarity that
the Due Process Clause requires in the expression of any element
of a criminal offense. The "vice of vagueness" 48
must be avoided here as in all other crimes. There are several
sources that can outline the "question under inquiry"
in such a way that the rules against vagueness are satisfied.
The authorizing resolution, the remarks of the chairman or members
of the committee, or even the nature of the proceedings themselves,
might sometimes make the topic clear. This case demonstrates,
however, that these sources often leave the matter in grave doubt.
The first possibility is that the authorizing
resolution itself will so clearly declare the "question under
inquiry" that a witness can understand the pertinency of
questions asked him. The Government does not contend that the
authorizing resolution of the Un-American Activities Committee
could serve such a purpose. Its confusing breadth is amply illustrated
by the innumerable and diverse questions into which the Committee
has inquired under this charter since 1938. If the "question
under inquiry" were stated with such sweeping and uncertain
scope, we doubt that it would withstand an attack on the ground
of vagueness.
That issue is not before us, however, in light
of the Government's position that the immediate subject under
inquiry before the Subcommittee interviewing petitioner was only
one aspect of the Committee's authority to investigate un-American
activities. Distilling that single topic from the broad field
is an extremely difficult task upon the record before us. There
was an opening statement by the Committee Chairman at the outset
of the hearing, but this gives us no guidance. In this statement,
the Chairman did no more than paraphrase the authorizing resolution
and give a very general sketch of the past efforts of the Committee.
49
No aid is given as to the "question under
inquiry" in the action of the full Committee that authorized
the creation of the Subcommittee before which petitioner appeared.
The Committee adopted a formal resolution giving the Chairman
the power to appoint subcommittees ". . . for the purpose
of performing any and all acts which the Committee as a whole
is authorized to do." 50
In effect, this was a device to enable the investigations to proceed
with a quorum of one or two members and sheds no light on the
relevancy of the questions asked of petitioner. 51
The Government believes that the topic of inquiry
before the Subcommittee concerned Communist infiltration in labor.
In his introductory remarks, the Chairman made reference to a
bill, then pending before the Committee, n52 which would have
penalized labor unions controlled or dominated by persons who
were, or had been, members of a "Communist-action" organization,
as defined in the Internal Security Act of 1950. The Subcommittee,
it is contended, might have been endeavoring to determine the
extent of such a problem. 52
This view is corroborated somewhat by the witnesses
who preceded and followed petitioner before the Subcommittee.
Looking at the entire hearings, however, there is strong reason
to doubt that the subject revolved about labor matters. The published
transcript is entitled: Investigation of Communist Activities
in the Chicago Area, and six of the nine witnesses had no connection
with labor at all. 53
The most serious doubts as to the Subcommittee's
"question under inquiry," however, stem from the precise
questions that petitioner has been charged with refusing to answer.
Under the terms of the statute, after all, it is these which must
be proved pertinent. Petitioner is charged with refusing to tell
the Subcommittee whether or not he knew that certain named persons
had been members of the Communist Party in the past. The Subcommittee's
counsel read the list from the testimony of a previous witness
who had identified them as Communists. Although this former witness
was identified with labor, he had not stated that the persons
he named were involved in union affairs. Of the thirty names propounded
to petitioner, seven were completely unconnected with organized
labor. One operated a beauty parlor. Another was a watchmaker.
Several were identified as "just citizens" or "only
Communists." When almost a quarter of the persons on the
list are not labor people, the inference becomes strong that the
subject before the Subcommittee was not defined in terms of Communism
in labor.
The final source of evidence as to the "question
under inquiry" is the Chairman's response when petitioner
objected to the questions on the grounds of lack of pertinency.
The Chairman then announced that the Subcommittee was investigating
"subversion and subversive propaganda." 54
This is a subject at least as broad and indefinite as the authorizing
resolution of the Committee, if not more so.
Having exhausted the several possible indicia
of the "question under inquiry," we remain unenlightened
as to the subject to which the questions asked petitioner were
pertinent. Certainly, if the point is that obscure after trial
and appeal, it was not adequately revealed to petitioner when
he had to decide at his peril whether or not to answer. Fundamental
fairness demands that no witness be compelled to make such a determination
with so little guidance. Unless the subject matter has been made
to appear with undisputable clarity, it is the duty of the investigative
body, upon objection of the witness on grounds of pertinency,
to state for the record the subject under inquiry at that time
and the manner in which the propounded questions are pertinent
thereto. 55 To be meaningful,
the explanation must describe what the topic under inquiry is
and the connective reasoning whereby the precise questions asked
relate to it.
The statement of the Committee Chairman in
this case, in response to petitioner's protest, was woefully inadequate
to convey sufficient information as to the pertinency of the questions
to the subject under inquiry. Petitioner was thus not accorded
a fair opportunity to determine whether he was within his rights
in refusing to answer, and his conviction is necessarily invalid
under the Due Process Clause of the Fifth Amendment.
We are mindful of the complexities of modern
government and the ample scope that must be left to the Congress
as the sole constitutional depository of legislative power. Equally
mindful are we of the indispensable function, in the exercise
of that power, of congressional investigations. The conclusions
we have reached in this case will not prevent the Congress, through
its committees, from obtaining any information it needs for the
proper fulfillment of its role in our scheme of government. The
legislature is free to determine the kinds of data that should
be collected. It is only those investigations that are conducted
by use of compulsory process that give rise to a need to protect
the rights of individuals against illegal encroachment. That protection
can be readily achieved through procedures which prevent the separation
of power from responsibility and which provide the constitutional
requisites of fairness for witnesses. A measure of added care
on the part of the House and the Senate in authorizing the use
of compulsory process and by their committees in exercising that
power would suffice.
That is a small price to pay if it serves to
uphold the principles of limited, constitutional government without
constricting the power of the Congress to inform itself.
The judgment of the Court of Appeals is reversed,
and the case is remanded to the District Court with instructions
to dismiss the indictment.
It is so ordered.
MR. JUSTICE BURTON and MR. JUSTICE WHITTAKER
took no part in the consideration or decision of this case.
---- Begin EndNotes ----
1 R. 153-163; Hearings before the House of Representatives Committee on Un-American Activities on Communist Activities in the Chicago Area -- Part 1, 82d Cong., 2d Sess. 3737-3752.
2 R. 135-149; Hearings before the House of Representatives Committee on Un-American Activities on Investigation of Communist Activities in the Chicago Area -- Part 2, 83d Cong., 2d Sess. 4243-4260.
3 R. 75; Hearings, supra, note 2, Part 3, at 4268.
4 Brief for Respondent, pp. 59-60.
5 R. 85-86; Hearings, supra, note 2, Part 3, at 4275.
6 There
were nine citations of contempt voted at the same time. Petitioner's
case was the second to be acted upon. There was no debate other
than a statement by Representative Javits on a proposal to consolidate
the legislative bodies investigating subversion. 100 Cong. Rec.
6382-6386. The resolution to prosecute petitioner passed by a
voice vote.
There was lengthier discussion and a recorded vote on the first case considered by the House. Id., at 6375-6382. In none of the cases was there any debate on the merits of the witnesses' conduct. Id., at 6375-6401.
7 The counts of the indictment were patterned from the sequence of the questioning by the Committee. Petitioner was asked separately about six persons, and these are the basis of the first six counts. The last count comprises the omnibus question that gave a list of twenty-five names for petitioner to identify. With two exceptions, the questions asked for knowledge of past membership in the Communist Party. The context of the interrogation indicates that the Committee's concern was with such past conduct. Petitioner agreed to and did disclose his knowledge of those he believed to be present members.
8 "Now, we don't claim on behalf of the Government that there is any right to expose for the purposes of exposure. And I don't know that Congress has ever claimed any such right. But we do say, in the same breath, that there is a right to inform the public at the same time you inform the Congress."
9 Coke, Fourth Institute, 15.
10 H. Comm. J. (1688-1693) 227; Jay v. Topham, 12 How. St. Tr. 822.
11 Proceedings against Richard Thompson, 8 How. St. Tr. 2; Wittke, The History of English Parliamentary Privilege, 50.
12 "Floyd, for uttering a few contemptible expressions, was degraded from his gentility, and to be held an infamous person; his testimony not to be received; to ride from the Fleet to Cheapside on horseback, without a saddle, with his face to the horse's tail, and the tail in his hand, and then to stand two hours in the pillory, and to be branded in the forehead with the letter K; to ride four days afterwards in the same manner to Westminster, and then to stand two hours more in the pillory, with words on a paper in his hat showing his offence; to be whipped at the cart's tail from the Fleet to Westminster Hall; to pay a fine of 5000l.; and to be a prisoner in Newgate during his life." 1 De Lolme, The Rise and Progress of the English Constitution, 348.
13 H.L.J. (1620-1628) 110-111, 113, 116, 124, 125, 127, 132, 133-134, 183; Wittke, 76-77. See also Kelke, Constitutional Law and Cases, 155-156.
14 H.L.J. (1675-1681) 54-55.
15 Wittke, 122-123. With all his knavery, Wilkes was long a hero with certain persecuted groups in England. Here, streets and other public places have been named for him and his writings.
16 H. Comm. J. (1835) 533, 564-565, 571, 575.
17 Finer, Congressional Investigations: The British System, 18 U. of Chi. L. Rev. 521, 554-561; Smelser, Legislative Investigations: Safeguards for Witnesses: The Problem in Historical Perspective, 29 Notre Dame Law. 163, 167; Clokie & Robinson, Royal Commissions of Inquiry.
18 Finer, 559; Smelser, 167; Clokie & Robinson, 186-187.
19 See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 168-191; Potts, Power of Legislative Bodies to Punish for Contempt, 74 U. of Pa. L. Rev. 691, 719-725.
20 The first case to reach this Court was Anderson v. Dunn, 6 Wheat.204, which upheld the power of the House of Representatives to reprimand a person for attempting to bribe a member of the House.
21 On December 31, 1827, the House Committee on Manufacturers was given the task of inquiring into the effect that the proposed upward revision in the tariff schedules would have upon domestic manufacturers. The power of the House to authorize a fact-finding inquiry in aid of legislation was seriously challenged. After full debate the investigation was authorized by a vote of 102 to 88. 4 Cong. Deb. 889.
22 The subject matter of the select committee was ". . . the late invasion and seizure of the armory and arsenal of the United States at Harper's Ferry, in Virginia, by a band of armed men . . . . And that said committee [shall] report whether any and what legislation may, in their opinion, be necessary, on the part of the United States, for the future preservation of the peace of the country, or for the safety of the public property; and that said committee [shall] have power to send for persons and papers." Cong. Globe, 36th Cong., 1st Sess. 141 (1859).
23 60 Stat. 828-829. All standing committees in the Senate were invested with the power of compulsory process. 60 Stat. 830-831. During the 83d Congress, two other standing committees in the House of Representatives, the Appropriations and Government Operations Committees, possessed that power. 99 Cong. Rec. 16-19.
24 The first court that was called upon to review the constitutional validity of a legislative inquiry was the New York Court of Common Pleas. The case arose out of the inquiry by the Common Council of New York into the conduct of the Police Department in 1855. Judge Charles Patrick Daly upheld the investigative power as implicit in the functions of a legislature, but ruled that the examination of witnesses must be confined to the subject under investigation. Applying this standard, he ruled that questions directed to the national origin of policemen were improper under the investigators' authorizing resolution. Briggs v. Mackeller, 2 Abbott's Practice Reports 30 (N.Y. Common Pleas 1855).
25 In re Chapman, 166 U.S. 661 (upheld conviction under R.S. § 102, forerunner of 2 U.S.C. § 192, for refusal to answer questions in inquiry into charges of corruption among certain Senators with respect to pending bill on sugar tariff); cf. Marshall v. Gordon, 243 U.S. 521.
26 Jurney v. MacCracken, 294 U.S. 125 (upheld power of Senate to punish as a contempt the action of a witness in allowing the destruction and removal of papers subject to the subpoena of a Senate committee; held that enactment of 2 U.S.C. § 192 did not impair contempt power of Houses of Congress).
27 The first reported case in which the claim of the privilege against self-incrimination was allowed in a congressional inquiry proceeding was United States v. Yukio Abe, 95 F. Supp. 991. Prior thereto, several state courts had held that legislative investigations were subject to the witness' privilege not to accuse himself under state constitutions. Emery's Case, 107 Mass. 172, decided in 1871 is the earliest. See also Ex parte Johnson, 187 S.C. 1, 196 S.E. 164.
28 E.G., Excerpts from Hearings before the House of Representatives Committee on Un-American Activities -- Regarding Investigation of Communist Activities in Connection with the Atom Bomb, 80th Cong., 2d Sess. 5; N.Y. Herald Tribune, Sept. 6, 1948, p. 3, col. 6-7.
29 Appropriateness of the privilege has been upheld without question in many cases arising out of congressional inquiry. See, e.g., Starkovich v. United States, 231 F. 2d 411; Aiuppa v. United States, 201 F. 2d 287; United States v. Costello, 198 F. 2d 200; Marcello v. United States, 196 F. 2d 437; United States v. Di Carlo, 102 F. Supp. 597; United States v. Licavoli, 102 F. Supp. 607; United States v. Cohen, 101 F. Supp. 906; United States v. Jaffe, 98 F. Supp. 191; United States v. Fitzpatrick, 96 F. Supp. 491; United States v. Raley, 96 F. Supp. 495; United States v. Yukio Abe, 95 F. Supp. 991.
30 The first reported decision, made in 1947, grew out of the inquiry of the Un-American Activities Committee into certain organizations suspected of subversive actions. Subpoenas duces tecum had been issued calling for the correspondence and other records of these organizations. Refusals to comply were followed by prosecutions under 2 U.S.C.§ 192. The District Court denied motions to dismiss the indictments in United States v. Bryan, 72 F. Supp. 58. The decision with respect to the First Amendment was affirmed in Barsky v. United States, 167 F. 2d 241.
31 See United States v. Rumely, 345 U.S. 41, 43-44; Lawson v. United States, 176 F. 2d 49, 51-52; Barsky v. United States, 167 F. 2d 241, 244-250; United States v. Josephson, 165 F. 2d 82, 90-92.
32 In
a report to the House, the Committee declared:
"While Congress does not have the power
to deny to citizens the right to believe in, teach, or advocate,
communism, fascism, and naziism, it does have the right to focus
the spotlight of publicity upon their activities . . . ."
H.R. Rep. No. 2, 76th Cong., 1st Sess. 13.
A year later, the Committee reported that ".
. . investigation to inform the American people . . . is the real
purpose of the House Committee." H.R. Rep. No. 1476, 76th
Cong., 3d Sess. 1-2.
A pamphlet issued by the Committee in 1951
stated that: "Exposure in a systematic way began with the
formation of the House Committee on Un-American Activities, May
26, 1938." The Committee believed itself commanded ".
. . to expose people and organizations attempting to destroy this
country. That is still its job and to that job it sticks."
100 Things You Should Know About Communism, H.R. Doc. No. 136,
82d Cong., 1st Sess. 19, 67.
In its annual reports, the Committee has devoted a large part of its information to a public listing of names along with a summary of their activities. ". . . [T]he committee feels that the Congress and the American people will have a much clearer and fuller picture of the success and scope of communism in the United States by having set forth the names and, where possible, the positions occupied by individuals who have been identified as Communists, or former Communists, during the past year." H.R. Rep. No. 2516, 82d Cong., 2d Sess. 6-7.
33 We are not concerned with the power of the Congress to inquire into and publicize corruption, maladministration or inefficiency in agencies of the Government. That was the only kind of activity described by Woodrow Wilson in Congressional Government when he wrote: "The informing function of Congress should be preferred even to its legislative function." Id., at 303. From the earliest times in its history, the Congress has assiduously performed an "informing function" of this nature. See Landis, Constitutional Limitations on the Congressional Power of Investigation, 40 Harv. L. Rev. 153, 168-194.
34 Compare the treatment of this point in Barenblatt v. United States, 240 F. 2d 875, 880-881; Morford v. United States, 176 F. 2d 54, 58; Eisler v. United States, 170 F. 2d 273, 278-279; United States v. Josephson, 165 F. 2d 82, 89; and United States v. Kamin, 136 F. Supp. 791, 800-801.
35 H. Res. 282, 75th Cong., 3d Sess., 83 Cong. Rec. 7568, 7586.
36 H. Res. 5, 79th Cong., 1st Sess., 91 Cong. Rec. 10, 15.
37 H. Res. 5, 83d Cong., 1st Sess., 99 Cong. Rec. 18, 24.
38 For contrasting views, see Morford v. United States, 176 F. 2d 54, 57-58, and Barsky v. United States, 167 F. 2d 241, 247-248.
39 The language of the resolution was obviously taken from the Dickstein resolution, which established the McCormack Committee in 1934 to study Nazi and other propaganda sent into the United States from foreign countries. H. Res. 198, 73d Cong., 2d Sess., 78 Cong. Rec. 4934, 4949.
40 In 1947, Judge Charles E. Clark, now Chief Judge of the Court of Appeals for the Second Circuit, wrote about the Committee: "Suffice it to say here that its range of activity has covered all varieties of organizations, including the American Civil Liberties Union, the C.I.O., the National Catholic Welfare Conference, the Farmer-Labor party, the Federal Theatre Project, consumers' organizations, various publications from the magazine 'Time' to the 'Daily Worker,' and varying forms and types of industry, of which the recent investigation of the movie industry is fresh in the public mind. While it has avoided specific definition of what it is seeking, it has repeatedly inquired as to membership in the Communist party and in other organizations which it regards as communist controlled or affected." United States v. Josephson, 165 F. 2d 82, 95 (dissent). See also the dissenting opinion of Judge Henry W. Edgerton, now Chief Judge of the Court of Appeals for the District of Columbia Circuit, in Barsky v. United States, 83 U.S. App. D.C. 127, at 143, 167 F. 2d 241, at 257.
41 H. Res. 26, 76th Cong., 1st Sess., 84 Cong. Rec. 1098, 1127-1128; H. Res. 321, 76th Cong., 3d Sess., 86 Cong. Rec. 572, 604-605; H. Res. 90, 77th Cong., 1st Sess., 87 Cong. Rec. 886, 899; H. Res. 420, 77th Cong., 2d Sess., 88 Cong. Rec. 2282, 2297; H. Res. 65, 78th Cong., 1st Sess., 89 Cong. Rec. 795, 809-810.
42 91 Cong. Rec. 10, 15.
43 60 Stat. 812, 828.
44 H. Res. 5, 80th Cong., 1st Sess., 93 Cong. Rec. 38; H. Res. 5, 81st Cong., 1st Sess., 95 Cong. Rec. 10; H. Res. 7, 82d Cong., 1st Sess., 97 Cong. Rec. 17, 19; H. Res. 5, 83d Cong., 1st Sess., 99 Cong. Rec. 15; H. Res. 5, 84th Cong., 1st Sess., 101 Cong. Rec. 11.
45 This
statute was passed in 1857 as a direct result of an incident which
caused the Congress to feel that it needed more severe sanctions
to compel disclosures than were available in the historical procedure
of summoning the recalcitrant witness before the bar of either
House of Congress and ordering him held in custody until he agreed
to testify. Such imprisonment is valid only so long as the House
remains in session. See Anderson v. Dunn, 6 Wheat. 204, 231; Eberling,
Congressional Investigations, 180-184.
The immediate cause for adoption of the statute was an accusation by one J. W. Simonton, a newspaperman, that certain unnamed Congressmen were soliciting bribes on a matter pending before the legislature. Simonton was cited before the House of Representatives and refused to divulge the names of those implicated. In the course of that episode, the forerunner of 2 U.S.C. § 192 was passed in order ". . . to inflict a greater punishment than the committee believe the House possesses the power to inflict." Cong. Globe, 34th Cong., 3d Sess. 405. See also id., at 403-413, 426-433, 434-445. Thereafter, having been in custody more than two weeks, Simonton testified to the satisfaction of the committee and was discharged. 3 Hinds' Precedents § 1669
46 United States v. Harriss, 347 U.S. 612; United States v. Cardiff, 344 U.S. 174; Winters v. New York, 333 U.S. 507; Musser v. Utah, 333 U.S. 95; Lanzetta v. New Jersey, 306 U.S. 451.
47 United States v. Orman, 207 F. 2d 148; Bowers v. United States, 202 F. 2d 447; United States v. Kamin, 135 F. Supp. 382, 136 F. Supp. 791.
48 United States v. Josephson, 165 F. 2d 82, 88.
49 "The
committee will be in order. I should like to make an opening statement
regarding our work here in the city of Chicago. The Congress of
the United States, realizing that there are individuals and elements
in this country whose aim it is to subvert our constitutional
form of government, has established the House Committee on Un-American
Activities. In establishing this committee, the Congress has directed
that we must investigate and hold hearings, either by the full
committee or by a subcommittee, to ascertain the extent and success
of subversive activities directed against these United States.
"On the basis of these investigations
and hearings, the Committee on Un-American Activities reports
its findings to the Congress and makes recommendations from these
investigations and hearings for new legislation. As a result of
this committee's investigations and hearings, the Internal Security
Act of 1950 was enacted.
"Over the past fifteen years this committee
has been in existence, both as a special and permanent committee,
it has made forty-seven recommendations to the Congress to insure
proper security against subversion. I am proud to be able to state
that of these forty-seven recommendations, all but eight have
been acted upon in one way or another. Among these recommendations
which the Congress has not acted upon are those which provide
that witnesses appearing before congressional committees be granted
immunity from prosecution on the information they furnish.
"The committee has also recommended that
evidence secured from confidential devices be admissible in cases
involving the national security. The executive branch of Government
has now also asked the Congress for such legislation. A study
is now being made of various bills dealing with this matter.
"The Congress has also referred to the
House Committee on Un-American Activities a bill which would amend
the National Security Act of 1950. This bill, if enacted into
law, would provide that the Subversive Activities Control Board
should, after suitable hearings and procedures, be empowered to
find if certain labor organizations are in fact Communist-controlled
action groups. Following this action, such labor groups would
not have available the use of the National Labor Relations Board
as they now have under the provisions of the Labor-Management
Relations Act of 1947.
"During the first session of this 83rd
Congress, the House Un-American Activities Committee has held
hearings in Los Angeles and San Francisco, California; Albany
and New York City, New York; Philadelphia, Pennsylvania, and Columbus,
Ohio. We are here in Chicago, Illinois, realizing that this is
the center of the great midwestern area of the United States.
"It cannot be said that subversive infiltration
has had a greater nor a lesser success in infiltrating this important
area. The hearings today are the culmination of an investigation
that has been conducted by the committee's competent staff and
is a part of the committee's intention for holding hearings in
various parts of the country.
"The committee has found that by conducting its investigations and holding hearings in various parts of the country, it has been able to secure a fuller and more comprehensive picture of subversive efforts throughout our nation. Every witness who has been subpoenaed to appear before the committee here in Chicago, as in all hearings conducted by this committee, are [sic] known to possess information which will assist the committee in performing its directed function to the Congress of the United States." (R. 43-44; Hearing, supra, note 2, Part 1, at 4165-4166.)
50 The
Committee convened in executive session on January 22, 1953, and
adopted the following resolution:
"BE IT RESOLVED, that the Chairman shall have authority from time to time to appoint subcommittees composed of one or more members of the Committee on Un-American Activities for the purpose of performing any and all acts which the Committee as a whole is authorized to do." (R. 91.)
51 The
original resolution authorizing subcommittees was amended on March
3, 1954, to require any subcommittee to consist of at least three
members, two of whom could constitute a quorum. (R. 92.)
Petitioner appeared before a subcommittee composed at the outset of four members. After a recess in the course of his testimony, only two committeemen were present. It was during this latter phase of his testimony that petitioner refused to answer the questions involved in this case.
52 The
bill pending at the time of the Chairman's remarks, March 15,
1954, and when petitioner testified a month later was H.R. 7487,
100 Cong. Rec. 763. No action was ever taken on this proposal.
Introduced by Representative Velde, it would have withdrawn the
rights, privileges and benefits under the National Labor Relations
Act of any labor organization which was substantially directed,
dominated or controlled by persons who were or ever had been members
of a "Communist-action organization," as that phrase
is used in the Internal Security Act.
On July 6, 1954, after extensive hearings, the Senate Judiciary Committee reported favorably on S. 3706, a bill drafted by that committee to amend the Internal Security Act. Two days later, Representative Velde introduced H.R. 9838, which was identical to S. 3706. These bills eventually became law. 68 Stat. 775. The Act created the concept of a "Communist infiltrated organization," and part of its provisions declared that a labor union that came within that definition should be barred from the rights, privileges and benefits of the National Labor Relations Act. The same sanctions were applied to a labor group that was a "Communist-action" or "Communist-front organization" under the original Internal Security Act.
53 The first four witnesses testified principally about the Communist Party activities of an employee of the National Cancer Institute of the United States Public Health Service. A Chicago attorney related to the Subcommittee his experiences with Communist youth organizations during his college days. The sixth witness told of her work as a district organizer for the Communist Party in Montana, Wyoming, Idaho and the Dakotas during the 1930's.
54 "This
committee is set up by the House of Representatives to investigate
subversion and subversive propaganda and to report to the House
of Representatives for the purpose of remedial legislation.
"The House of Representatives has by a very clear majority, a very large majority, directed us to engage in that type of work, and so we do, as a committee of the House of Representatives, have the authority, the jurisdiction, to ask you concerning your activities in the Communist Party, concerning your knowledge of any other persons who are members of the Communist Party or who have been members of the Communist Party, and so, Mr. Watkins, you are directed to answer the question propounded to you by counsel." (R. 86; Hearings, supra, note 2, Part 3, at 4275-4276.)
55 Cf.
United States v. Kamin, 136 F. Supp. 791, 800.
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