Amicus Curiae Brief — United States ex rel. Eichenlaub v. Shaughnessy

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FEB 7 1949

Anited States Supreme

Ocroser Term, 1948

GERHARD EISLER,

Petitioner,

No, 255

agatnst

UNITED STATES OF AMERICA.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEAL FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION,

AS AMICUS CURIAE

AMERICAN Civi, Lipertizs Union

. 6

Amicus Curiae.

, AntHur GARFIELD Hays,

Counsel.

Osmonp K. FRAENKEL,

EMANUEL Gorpon,

of the New York Bar,

of Counsel.

a

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INDEX

PAGE

Tue LNrerest ov rue American Civit Lisertizrs Unton

IE ccaxicccuistiatataapieinigniciateadaainepeinilibiasiiialithalasiesiiiaiiasaaaeia tess

a a

pO ER EEE cea oe? Mar ACS

Pornt I—The First Amendment prohibits Congress

from: compelling revelation of opinions whose

expression it may not restrain —.......02.22..22....-0----

A. Freedom to be silent ...

B. The resolution establishing the Committee

must be tested on its face ....

Pornt I11—The First Amendment is violated because

A. Thelterms of reference are too vague.

B. The \ mandate authorizes investigations on

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matters beyond the powers of Congress to

I ar bat ellamads

=

Pony [11—Seection 192, as applied, violates the Fifth

FI sitenceniensiariainctacianblinitainianniasialiintnininiigs

ISSN eS BeY ide AES ESTs EBA We a aod

Table of Cases Cited

Adams v. United States, 250 U. S. 616, 630-631 (1919)

American Chicle Co. v. United States, 316 TS. 450

Carlson v. California, 310 U. S. 106, 111 (1940)........

Chaplinsky v. New Hampshire, 315 U. S. 568.200...

1

6

9

Douglas v. Comm’r, 322 U.S. 275 (1944) 000...

Hague vr. C.1.0., 307 U.S. 496, 516 (1939).

Herndon rv. Lowry, 301 U.S. 263 (1987)...

Kilbourn +. Thompson, 103 U.S. 168... faneidiedadaaal 13,19

Kraus & Bros. v. United States, 327 U.S. 614 (1946) 11

Lowell v. Griffin, 303 U.S. 444, 450 (1938) 8

PE 0, Ty GP Whe: ile OD ccectiicdnsiresdessinteristinisinneccs 18

Olmsted v. United States, 277 U. S. 438, 478 0 15

OU GS A SS 9

Schneider v. New Jersey, 308 U. S. 147, 163-165 (1929) 8

Stromberg v. California, 283 U. 8S. 359 (1981)............ 8

Thornhill v. Alabama, 310 U. S. 88, 97, 105 (1940)... 8

United States rv. C.1.0., 68 S. Ct. 1349000000. 9

West Virginia State Bd. of Education +. Barnette,

aid U.. 8. G36 (1963) ................... 7

Winters o. New York, 333 U. & G07 ...................-....... 1

Statutes Cited

2 U.S.C. 6192 (1946) sakided cena a

ys fg eee aneivinticommbddtattnudinke 2

United States Constitution:

First Amendment ................................. coveeseevectly Oy & 13, 15

Fifth Amendment 0.00... seciiiieiaititn eae 18

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iii

Miscellaneous, Publications, etc., Cited

PAGE

H. R. 5, 80th Cong. 2

H. R. 26, 75th Cong., Ist Session. . 10

H. R. 65, 78th Cong., Ist Sess., 89th Cong., Ist Sess. 10

H. R. 90, 77th Cong., Ist Sess. _... 10

H. R. 282, 75th Cong. -................ 5 a ee

H. R. 321, 76th Suan. ERR PE NE ae mee 10

H. R. 420, oo kt MD | eee eee 10

83 Cong. Ree. 7567-7686 (1938) oo ee ccceceeee- ee 10, 11

84 Cong. Ree. 1098, 1128 (1939) ................................ 10, 11

86 Cong. Ree. 572, 605 (1940) eee. ...10, 11

87 Cong. Rec. 886, 899 (1941) ccs ceeccececcee nee. 10, 11

88 Cong. Rec. 2282, 2297 (1942) ce ccccececneeneesee 10, 11

89 Cong. Ree. 721-730, 795-810 (1943) oe 11

91 Cong. Ree. 10, 15 (1945) vam ....10, 11

92 Cong. Ree. 7720-7728 (1946) one

Emerson and Helfeld ‘‘Loyalty a Government

Employees’’, 58 Yale Law Journal, 14

Presidential Proclamation 2526, dated pene 8,

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United States Supreme Court

Ocroper Term, 1948

GiekHARD Ers Ler,

2 ty .

Petitioner, No. 285

against

Uniren States or AMERICA,

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEAL FOR THE DISTRICT OF COLUMBIA

BRIEF OF AMERICAN CIVIL LIBERTIES UNION,

AS AMICUS CURIAE

The Interest of the American Civil Liberties Union

The American Civil Liberties Union is an organization

devoted to the protection and expansion of the guarantees

contained in the Bill of Rights. Beeause this proceeding

involves a member of the Communist Party, we believe

that it is pertinent to state our views regarding the

Communist Party. The American Civil Liberties Union

as a champion of civil liberties is opposed to any govern-

mental or economic system which denies fundamental civil

liberties and human rights. It is therefore opposed to any

form of the police state or to any single party state and

any movement in support of them, whether fascist,

Communist, or known by any other name. In opposing

these dictatorial or totalitarian systems, the Union takes

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no position on their economic, social, or political practices

or policies not affecting civil liberties.

From the inception of the House Committee on

Un-American Activities, the American Civil Liberties

Union has consistently opposed it both because its very

existence in our view constitutes a threat to freedom of

expression and association by the nature of its mandate,

and also because its procedure has been so arbitrary and

guided largely by personal whim and political prejudice.

We take the opportunity to file this brief because the

ease at bar presents for the first time for decision the issue

of whether the exercise of the powers said to have been

conferred upon the Committee is consistent with the

Constitution. This is the only question with which this

brief is concerned.

Statement

Petitioner was indicted for violating 2 U.S.C. $192

(1946) in that, having been summoned to testify before

the Committee on Un-American Activities of the House of

Representatives (hereinafter called the ‘*Committee’’)

created pursuant to Publie Law 601, $121, 79th Congress,

and House Resolution 5 of the House of Representatives,

80th Congress, upon matters of inquiry committed to said

Committee, he wilfully defaulted in that he refused to be

sworn when so directed (R. 214-215). Petitioner was

found guilty, and sentenced to imprisomment for one vear

and fined one thousand dollars (R. 229). The Court of

Appeals for the District of Columbia sustained the convic-

tion (R. 233), Judge Prettyman, dissenting (R. 241). A

petition for a writ of certiorari was granted November 8,

1948 (R. 253).

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The Facts

Petitioner, a political refugee, came to this country in

June, 1941 as an alien in transit to Mexico (R. 95, 114).

He offered to prove that he was admitted to the

United States on August 6, 1941 (R. 114), that he never

applied for, nor received, a change in status (R. 95). Peti-

tioner made repeated efforts to leave this country (R.

116), and offered to prove that his numerous applications

were denied (R. 97). He was a national of Austria, and

had never registered as an enemy alien (R. 87, 117).

A process server for the Committee telephoned peti-

tioner at his home on January 24, 1947 and informed him

that he had a subpoena to serve on petitioner for the

Committee requiring petitioner’s presence on February 6,

1947; petitioner arranged to await the process server at

his home and to accept service (R. 24, 120). Thereafter,

petitioner arranged for his appearance before the

Committee by preparing a written statement to be read

after he was sworn (R. 111, 122, 131, 139), consulting coun-

sel (R. 122), purchasing railroad tickets to Washington

(R. 111, 122), and reserved hotel rooms in Washington

(R. 122).

Thereafter, petitioner was arrested on a presidential

warrant as an enemy alien by two Security Officers under

Presidential Proclamation 2526, dated December 8, 1941

as ‘‘dangerous to public peace and s”-ty of the public

peace’’ (R. 82, 89, 91, 123).

It is petitioner’s claim th. his arrest was solely to

effectuate his appearance before the Committee (R. 89,

100, 213).

At the hearing petitioner offered to prove that the Com-

mittee brought him before it to harass and punish him for

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his political beliefs and not to interrogate him upon any

matter relevant to the inquiry committed to the Committee

by Congress (R. 101-102, 119, 134, 135). The proffer was

rejected. He also offered to prove that the Committee

practice was to permit counsel to confer with his client

but not to permit the attorney to speak (R. 107).

When called upon to be sworn, petitioner stated that he

desired to make a three minute statement before taking the

oath (R. 43-45). The transcript of the record before the

Committee reveals that petitioner said at first ‘‘l am not

going to take the stand’* (R. 43). However he claimed that

he was interrupted and intended to complete the statement

by adding ‘‘before | make a few remarks’’ (R. 129).

Although the claim of interruption was disputed by the

Committee's investigator (R. 151), the latter failed to

indicate how he could determine whether petitioner had

completed his answer. At any rate, within the succeeding

few seconds, petitioner stated no less than five times that

he would take the oath upon making his three minute

statement (R, 43-47).

Petitioner offered to prove that he was advised by

counsel to make his objections to being sworn before he

took the oath (R. 149-150). The Chairman of the Com-

mittee testified that this was the proper procedure (R. 49).

Petitioner had made some notes on his alleged illegal

arrest and the improper action of the Committee (R, 112,

127). He had these notes in his hand and intended to use

them to object to the legality of his being sworn (R. 137-

138). Petitioner offered to prove that his objections to

the legality of his being sworn were based upon his un-

lawful arrest, detention and transportation to Washington

for a purpose not within the scope of the inquiry which

the Committee was authorized to conduct, that he had

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insufficient opportunity to consult counsel and desired an

adjournment to do so, and that the Committee had sub-

poenaed petitioner to harass and punish him for his politi-

cal beliefs and to prevent his departure from this country

(R. 73, 134-135).

The Chairman of the Committee did not know what peti-

tioner was going to state in his three minute statement and

did not inquire (R. 50). Petitioner intended only to state

his objections to being sworn (R. 133), and offered to

prove the content of his objections for the purpose of

proving his intent to be sworn and to testify after stating

his objections (R. 72, 133, 135).

The Issue

The sole issue with which this brief #s concerned is the

constitutionality of the mandate of the House Committee

on Un-American Activities. It is our contention that the

broad powers given to the Committee to inquire in.o

opinions, beliefs, and associations are precisely those the

framers of the Constitution intended to prohibit by the

First Amendment. Furthermore, the terms of reference

are so vague and meaningless as to require condemnation

on those general principles which have heretofore com-

pelled the courts to strike down dragnet statutes.

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for)

POINT |

The First Amendment prohibits Congress from com-

pelling revelation of opinions whose expression it may

not restrain.

Before reaching the discussion of the attack upon the

mandate of the Committee on its face, we wish to note

that we are not raising the question of the standing of

the petitioner to raise this issue, nor whether the peti-

tioner was called to punish and harass him for his political

beliefs. It is our view that the existence of the power to

inquire into opinions gives standing to challenge the

Committee by anyone called before it.

A. Freedom to be silent.

The freedom of speech protected by the First Amend-

ment is more than an abstract right to speak how and

when the spirit moves. [It is a function of the philosophy

which knows no absolute standard for what is right and

wrong, and which relies in the search for wisdom upon

the ability of an idea to obtain acceptance after competi-

tion with others in the marketplace of public opinion.

(Holmes, J., dissenting in Abrams v. United States, 250

U. S. 616, 630-631 (1919)). The First Amendment there-

fore establishes procedural rules consistent with this

philosophy for the moulding of publie opinion and of

legislation itself. Those rules protect expressions of

opinion on matters of public concern from governmental

interference in the absence of an immediate likelihood

that these expressions will themselves produce serious

substantive evils.

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The compulsory enunciation of orthodox views is pro-

scribed as a complete negation of free speech, which is a

mechanism for obtaining the expression and comparison

of conflicting opinions. West Virginia State Bd. of Edu-

cation Vv. Barnette, 319 U. S. 624 (1943). Not only previous

censorship, but subsequent punishment is prohibited, where

the speech in question relates to matters of public concern,

for punishment and the threat of punishment operate to

restrain the free expression of views. By the same prin-

ciples, the revelation under governmental compulsion of

opinions and ideas concerning publie policies violates the

First Amendment.

Much wisdom has emanated from brave leaders, but the

world’s wisdom and the nation’s progress owe something

to the timid too. Where public matters are in issue, the

transitory majority provides no insurance of ultimate

truth, and final acceptance has often been achieved by

ideas hesitantly advanced, initially ridiculed or even

brutally suppressed. The world of ideas would be im-

poverished indeed if dissenters could not limit their voices

to their immediate circle of friends, their own organization

or whatever group they select for audience; if the unpopu-

lar could be required to account publicly for their private

views, or to express themselves before a wider and hostile

audience. For these reasons, forced confession burdens

and restrains freedom of expression, and the free cireula-

tion of ideas.

The rights protected by the First Amendment run

against the Federal Government and all of its organs.

A Committee of the Congress is a governmental hody,

its action is that of the government, and its activity is

subject to the limitations of the First Amendment as is

that of any other Federal body. Cf. West Virginia State

Board of Education v. Barnette, supra.

B. The resolution establishing the Committee must be

tested on its face.

There are no doubt certain limited areas within which

the Federal Government may constitutionally restrain

speech falling within the scope of the First Amendment.

Congress may not, however, enact legislation which in-

cludes, but goes beyond, the constitutionally permissible

restraints. And when Congress has ig so, by statute,

a party affected thereby may challenge the statute on its

face, and is not required to demonstrate that Congress

could not, by a statute more narrowly drawn, impose the

same restraint complained of in the particular cireum-

stances of his case. Thornhill vy. Alabama, 310 U. 8. 88,

97, 105 (1940); Carlson v. California, 310 U. S. 106, 111

(1940); Schneider v. New Jersey, 308 U. S. 147, 163-165—,

(1939) ; Hague v. C.I.0., 307 U. 8. 496, 516 (1939); Lowell

v. Griffin, 303 U. S. 444, 450 (1938); Herndon v. Lowry,

301 U. S. 263 (1937); Stromberg v. California, 283 U. 8.

359 (1931). The reasons of policy which operate to free

persons complaining of the violation of their rights under

the First Amendment from the procedural limitations of

their own cases are as applicable to the Resolution con-

stituting the Committee as in any of the cases in which

the doctrine has been enunciated and applied.

The reasoning of the cases just cited derives from the

fact that restrictive legislation, carrying criminal penal-

ties, has a power to coerce compliance by its very presence

on the books. Legislation purporting to restrict speech

which cannot constitutionally be restrained may be an

efficient muffler, though unconstitutional. It is a funetion

of our natural desire to be let alone that not all of us

are anxious or willing to be test cases. Unless statutes

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imposing excessive restraints are declared invalid irre-

spective of their application in particular cases, the legis-

lature has little reason to limit restraining laws to con-

stitutionally permissible perimeters.

Of course, testing a statute on its face merely means

that its constitutionality must be determined by its possible

applications and not necessarily its application to the

facts of the case in which the constitutional issue is

raised. The statute must still be interpreted, and it is

the wording of the statute as interpreted by the Court

which is tested on its face. Chaplinsky vy. New Hampshire,

315 U. S. 568. In the case of a Federal statute, the

United States Supreme Court not only makes the final

determination as to constitutionality, but also as to inter-

pretation. And the Court has strained to interpret

Federal statutes so as to render them constitutional to

the extent of disregarding statements on the floor of the

Senate made by the Committee Chairman who was in

charge of the bill and a co-author of it, United States v.

C1.0., 68 8S. Ct. 1349, although such extrinsic aids are

deemed to constitute authoritative guides to Congressional

intent when a constitutional issue is not involved. Riggs

v. Del Drago, 317 U. S. 95; American Chicle Co. v. United

States, 316 U.S. 450.

The authoritativeness of such extrinsic aids as state-

ments by the Chairman of the Committee reporting a

bill and by the person in charge of a bill on the floor rest

upon the assumed reliance by members of Congress upon

those statements in voting upon the bill. No doubt, a

certain amount of fiction and convention enters into that

assumption, but it appears to be a reasonable one, and

one better calculated to arrive at the intent of the indi-

vidual members of the legislature who voted for the bill

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than the subjective predilections of the judges interpreting

it without such an aid. When a constitutional issue is

raised, however, comity between the branches of govern-

ment has led the Court to prefer the fiction that Congress

intended the statute to be constitutional to the semi-fietion

that the members of Congress relied upon the explanation

of the Committee Chairman and floor leader.

But how far can this Court carry such fictions as the

former in the interests of comity? In the instant case the

House Resolution authorizing the inquiry did so in broad,

undefined terms which permitted the Committee to roam

at will in the field of social, religious and political beliefs,

and the Committee did so. The Committee's abuses did not

go unnoticed, but, on the contrary, were subjected to wide

publie debate, to scholarly inquiry and to many debates

on the floor of Congress during the course of reenactment

of the Resolutions. Yet, the resolutions were reenacted

without change. That Congress actually approved the

Committee’s interpretation as evidenced by its conduct is

not a fiction. It is the reality which arises from years of

struggle, and it cannot be tossed aside as a fiction in favor

of a more compelling fiction. The Resolution and _ its

history will now be detailed briefly.

The Special Committee on Un-American Activities (here-

inafter referred to as the ‘‘Committee’’) was established

by House Resolution 282, 75th Cong., 83 Cong. Ree, 7568"

for the purpose of conducting an investigation of

* This Resolution has heen re-enacted without change as H.R. 26,

76th Cong., Ist Sess., 84 Cong. Rec. 1098, 1128 (1939); H.R. 321,

76th Cong., 3rd Sess., 86 Cong. Rec. 572, 605 (1940) ; H.R. 90, 77th

Cong., Ist Sess. ; 87 Cong. Rec. 886, 899 (1941) ; H.R. 420, 77th Cong.

2nd Sess., 88 Cong. Rec. 2282, 2297 (1942); H.R. 65, 78th Cong.

Ist Sess., 89 Cong. Ist Sess., 91 Cong. Rec. 10,15 (1945), These are

hereinafter referred to as the “Resolution”.

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“(1) the extent, character. and objects of an-

American propaganda activities in the United States,

(2) the diffusion within the United States of sub-

versive and un-American propaganda that is insti-

gated from foreign countries or of a domestic origin

and attacks the principle of the form of government

as guaranteed by our Constitution.”’

A refusal to answer any question or produce any paper

relevant to the inquiry is rendered a criminal offense by

the statute under which the petitioner was convicted. See

Kraus & Bros. v. United States, 327 U.S. 614 (1946).

In the course of debate on re-enactment, the Committee's

investigation was criticized as having been excessively

broad, and attempts were made to limit the breadth of the

resolution.* The re-enactments without change must

therefore be deemed to constitute an approval of, and

ratification by, the Congress of the Committee’s interpre-

tation of the permissible scope of its investigations.

Douglas v. Comm’ r, 322 U.S. 275 (1944). The Committee’s

work has already been subject to scholarly serutiny, and it

stffices to quote from one of these studies to obtain light

on the seope of the investigation authorized :

The work of the Committee, in its nine vears of

existence, offers very little indication that the Com-

mittee itself had any clear idea about the seope of

its authority. Its reports have commented on the

meaning of ‘Americanism’, but the meanings sug-

gested have varied greatly, and they were never put

forth as standards controlling its inquiries. The

*83 Cong. Rec. 7567-7686 (1938); 84 Cong. Rec. 1098-1128

(1939): 86 Cong. Rec. 572-605 (1940); 87 Cong. Rec. 886-900

(1941); 88 Cong. Ree, 2282-2297 (1942); 89 Cong. Rec, 721-730,

795-810 (1943) ; 91 Cong. Rec. 10-14 (1945) ; 92 Cong. Rec. 7720-

7728 (1946).

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first emphasis was on ‘Americanism’ as the recog-

nition of ‘the existence of a God and the all-

important fact that the rights of man are derived

from God * * *.’ The next report concentrated on

groups which ‘seek to change the policies and form

of Government of the United States in accordance

with the wishes of * * * foreign governments.’

(Note, 47 Columbia Law Rev. 418).

**A later report said that the Committee’s en-

deavor was ‘to determine whether the persons under

investigation have the interest of the United States

Government at heart * * *.’ Other criteria which

the Committee or its agents have from time to time

suggested as indicative of activity within the scope

of its inquiries are: opposition to ‘the American

system of checks and balances,’ opposition to the

protection of property rights, belief in dictatorship,

opposition to the Franco government of Spain,

opposition to General MacArthur, advocacy of a

world state, advocacy of the dissolution of the

British Empire, criticism of members of Congress,

and criticism of the Committee on Un-American

Activities.’’ (Id. pp. 422, 423).

Thus the Congress has authorized the Committee to re-

quire the disclosure on pain of criminal punishment, of

opinions on such diverse matters as the existence of God,

protection of property rights, the Franco government of

Spain, General MacArthur, the British Empire, and of

members of Congress. Free expression and exchange of

ideas with respect to all of them is guaranteed by the First

Amendment.

As we have said, compulsory revelation of opinion be-

fore the Committee, particularly where the opinions are

unpopular, burdens the free expression of such opinions,

and statutes restricting constitutionally protected speech,

though invalid, exercise coercive powers by their appear-

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ance of authority. To the extent that the Resolution pur-

ports to authorize a compulsory revelation of political

opinion having no relation to clear and present danger of

substantive evils such as would warrant restrictions on

their expression, it restrains and burdens the expression

of such opinions outside the Committee room in violation

of the First Amendment. Moreover, since the Resolution

does not define the investigation in terms of expressed

powers of Congress, and since the witness may refuse

to answer if the matter is not pertinent to an inquiry Con-

gress may lawfully authorize in aid of one or another of

its legislative powers, Kilbourn v. Thompson, 103 U. S.

168, the witness is put te the task of determining, whether

the evidence demanded is pertinent to any possible exer-

cise of Congressional power. The witness is thus required

to assume the burden of mental review of all of those

powers, and to assume the risk of contempt, if the evi-

dence demanded is, in one sense or other, pertinent to any

one of them. Because this is so, the witness, rather than

risk prosecution may disclose information which the Com-

mittee has no right to exact. Since such compulsory dis-

closure is threatened by the Resolution itself, the Resolu-

tion in this way, too, operates to burden speech. For as

we have said, the dissenter who may be called to account

before a hostile audience may prefer silence altogether.

A nation which relies in its search for truth upon the free

circulation of ideas cannot afford to put the price of dis-

sent so high.

14

POINT Il

The First Amendment is violated because the reso-

lution provides improper standards.

A. The terms of reference are too vague.

At the outset the terms of reference under which the

Committee has been directed to operate are so vague as to

authorize any action which prejudice may inspire. What

is ‘* Un-American”’ and ‘‘subversive’’ is so debatable that

no fixed meaning can be ascribed to those words. We do

not think we need to quote the multitude of articles

appearing in many magazines and law journals which give

color to our views. Certainly from the variety of investi-

gations undertaken by the Committee as noted on page

, supra, it is quite clear that Congress itself could

fix no area for such variable terms.

We also call the Court’s attention to a recent article

which points up the dangers inherent in governmental

activity in the field of opinion and association where the

terms of reference are vague and indefinite. Emerson and

Helfeld, ‘‘Loyalty Among Government Employees’’, 58

Yale Law Journal, 1.

B. The mandate authorizes investigations on matters

beyond the powers of Congress to investigate.

The resolution of the very basic problem posed by this

case will depend on an accommodation of conflicting societal

interests, both very real and very pressing. We assert, on

the one hand, ‘‘the right to be let alone—the most compre-

hensive of rights and the right most valued by civilized

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men.’ (Brandeis, J. dissenting, Olmstead v. United States,

277 +U. S. 438, 478). The Government will assert the

importance of the right of Congress freely to ascertain any

and all facts relevant to its legislative function. Both sides

may concede the importance of the right asserted by the

other, but both will deny it countervailing weight. We have

asserted that if there is conflict between the two, the rights

of the individual must prevail within the area of opinion.

Beyond this, we believe that a determination in this case

that the Constitution does not permit petitioner’s convie-

tion to stand will safeguard the constitutional rights of

individuals without impairing in any significant respect

the legitimate power of Congress to educate itself to the

nation’s needs, |

We may assume arguendo that the right of silence differs

in some degree from the right to speak as guaranteed by the

First Amendment, and that the restraint imposed on speech

hy compelling speech may be justified as an incident of

the inquisitional power when the information sought is

desired in connection with a legitimate Congressional

inquiry. But if this Court should so hold, it could do so

only after striking a balance of competing considerations-

the legislature's need for information on the one side, and

the interest in having speech free from restraint, direct, or

indirect, on the other. We submit that in making that

judgment in this case, the failure of the Resolution to

limit the scope of the inquiry to such matters as might be

relevant to Congress’ power to legislate requires the bal-

ance to be struck in favor of freedom, and not in favor of

authority. We maintain, in other words, that if the justi-

fication for burdening speech is to be found in Congress’

power to inquire in aid of legislation, then that justification

fails where not even minimum precautions have been taken

to insure that the inquiry is indeed conducted for that

purpose.

The Resolution carves out an area of human activity—

and specifically the area of speaking, writing, and public

assembly on political issues—and launches a general inves-

tigation in that area. The area is one in which Congress’

competence to legislate is highly limited, and in which the

opportunities and temptations for inquisitorial abuses are

many (as the Committee’s history shows). The Resolu-

tion does not direct the investigators to assemble such

facts as might be relevant to some or any legislative

power. It does not direct the Committee to determine

whether there exists a political movement for violent over-

throw of the Government, or whether the morale in the

armed forces is being undermined. On the contrary, the

Resolution, in terms and effect, authorizes an investigation

into a large segment of American life without any attempt

to limit the investigators to paths of inquiry consistent

with the limited powers of Congress in the area under

scrutiny.

It will be said that we must presume that the House

authorized the inquiry for the purpose of collecting infor-

mation it desired in aid of its legislative function. We

may assume this to have been the purpose without con-

ceding that the Resolution as drafted limits the Committee

to the effectuation of that purpose. Need we presume

also that the Committee, in execution of its authority

under the Resolution, limits its investigation to the dis-

covery of such information as might be helpful in legis-

lation? We think not, not merely because that would be

contrary to fact, but rather because the Resolution directs

the Committee to undertake a general investigation with-

out imposing any such limitation.

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It may be argued that Resolution is not too broad, and

that the House could have determined that any and all

information within the scope of the investigation author-

ized would or might be relevant to some one of its powers

to legislate. We have already indicated that we do not

helieve this to be so, but making allowance for possible

error, we will concede this point too for the moment. But

in that view, hardly any aspect of life within the

United States, however private, would he without some

hearing, however slight, on some power of Congress. It

may well be, therefore, that there is nothing so sacred

or so private as to he beyond Congress’ power to inquire.

The difficulty here would then lie not in any lack of rele-

vance in the subject-matter of the inquiry to some possible

exercise of legislative power, but in the failure to provide

standards which would provide some measure of insur-

ance that the inquiry into that subject matter is being

conducted for a legitimate purpose.

No Congressional investigation can or will ever dis-

cover and catalogue all of the minutiae of American life.

Congressional investigations are, or should he, the work

of practical men, seeking solution to practical problems,

not adventures in curiosity into the merely interesting or

remotely relevant. Investigation is necessarily a selective

process, and selection necessarily implies criteria. The

general course which the investigators will take, even the

specific questions they address to witnesses, will be deter-

mined in large part by the standards of selection provided.

If those standards are not rooted in some more or less

specifie power to legislate, especially where that power

is highly limited in the area of the investigation, and that

area is as broad as in this case, the investigators must

needs proceed along the lines indicated by their ecommis-

sions. without reference to the deficiencies of power. And

Is

that, we may remark, is precisely what this Committee has

done.

We have already stated that the Committee, in requiring

witnesses to profess their political affiliations and beliefs,

burdens the free expression of political ideas. If the First

Amendment permits this when the burden is a practical

concomitant of the legislative process, we do not believe

that it does so when no such relationship exists. And, we

submit, inasmuch as the Resolution does not direct the

investigation to proceed in terms of the limited competence

of Congress in the area of investigation, no constitutional

justification exists for the burden imposed on the rights

of free speech, press and public assembly.

POINT Ill

Section 192, as applied, violates the Fifth Amend-

ment.

The statute petitioners were convicted of violating

makes it a crime to refuse to produce evidence before a

Congressional Committee ‘‘upon any matter pertinent to

the inquiry.’’ The matter under inquiry before the Com-

mittee was defined only by the Resolution. We submit

that the vagueness of the language used in the Resolution

to define the scope of the inquiry make it next to impos-

sible for the witness to determine whether matter de-

manded is or is not pertinent to the inquiry. To the

extent that Section 192 incorporates the terms of the Reso-

lution, as it must, it provides no reasonably ascertainable

standard of guilt, and conviction thereunder constitutes

a violation of the due process clause of the Fifth Amend-

ment. Musser v. Utah, 333 U.S. 95; Winters v. New York,

333 U.S. 507.

In addition to the problem of determining whether par-

ticular matter is pertinent to the inquiry as defined by the

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Resolution, the witness, from the Government’s point of

view, has the additional task, already remarked upon, of

determining whether the matter demanded is pertinent to

any inquiry Congress might constitutionally authorize.

The witness may lawfully refuse to answer if the matter

is not pertinent to an inquiry Congress may lawfully

authorize in aid of one or another of its legislative powers,

Nilbourn v. Thompson, 103 U. S. 168. In making his deei-

sion to answer or to refuse to do so from this viewpoint,

the witness finds no help in the Resolution, which refers

lim to no specific power in Congress as the basis for the

investigation. Evidence within the scope of the investi-

gation as defined by the Resolution may or may not be

pertinent as regards any or all of those powers, but the

witness is made liable to fine and imprisonment if his

mental search fails to detect the pertinency of the matter

demanded of him to one of any number of undisclosed

powers of Congress. In this respect too, Section 192, as

applied, does not provide standards of guilt sufficient to

satisfy due process.

CONCLUSION

We respectfully urge that this Court declare uncon-

stitutional the mandate of the House Un-American

Activities Committee.

Respectfully submitted,

American Civi, Linerties Union,

Amicus Curiae.

Artuur Garrietp Hays,

Counsel.

Osmonp K. FRAeNKEL,

EMANUEL Gorpox,

of the New York Bar,

of Counsel.