# Braden v. United States/Dissent Douglas

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United States Supreme Court
365 U.S. 431
Braden v. United States
Argued: Nov. 17, 1960. --- Decided: Feb 27, 1961
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE, Mr. Justice BLACK and Mr. Justice BRENNAN concur, dissenting.
At the bottom of this case are this Court's decisions in Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640, holding that Congress did not entrust to the States protection of the Federal Government against sedition, and Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, holding that racial segregation of students in public schools is unconstitutional. I had supposed until today that one could agree or disagree with those decisions without being hounded for his belief and sent to jail for concluding that his belief was beyond the reach of government.
On June 17, 1957, we decided Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, defining and curtailing the authority of Congressional Committees who sought the aid of the courts in holding witnesses in contempt. We said in a six-to-one decision that 'when First Amendment rights are threatened, the delegation of power to the committee must be clearly revealed in its charter' (id., 354 U.S. at page 198, 77 S.Ct. at page 1184); that 'there is no congressional power to expose for the sake of exposure' (id., 354 U.S. at page 200, 77 S.Ct. at page 1185); that the meaning of 'un-American' in the Resolution defining the Committee's authority is so vague that it is 'difficult to imagine a less explicit authorizing resolution' (id., 354 U.S. at page 202, 77 S.Ct. at page 1187); that before a witness chooses between answering or not answering he is entitled 'to have knowledge of the subject to which the interrogation is deemed pertinent' (id., 354 U.S. at pages 208-209, 77 S.Ct. at page 1190); that in that case th Resolution and the statement of the Committee's chairman were 'woefully inadequate to convey sufficient information as to the pertinency of the questions to the subject under inquiry.' Id., 354 U.S. 215, 77 S.Ct. 1193.
Sweezy v. State of New Hampshire, 354 U.S. 234, 77 S.Ct. 1203, 1 L.Ed.2d 1311, decided the same day as the Watkins case, reversed a conviction arising out of a state investigation into 'subversive activities' where a teacher was asked questions concerning his relation to Marxism. The Chief Justice in his opinion stated:
'Equally manifest as a fundamental principle of a democratic society is political freedom of the individual. Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association. This right was enshrined in the First Amendment of the Bill of Rights. Exercise of these basic freedoms in America has traditionally been through the media of political associations. Any interference with the freedom of a party is simultaneously an interference with the freedom of its adherents. All political ideas cannot and should not be channeled into the programs of our two major parties. History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted. Mere unorthodoxy or dissent from the prevailing mores is not to be condemned. The absence of such voices would be a symptom of grave illness in our society.' Id., 354 U.S. 250-251, 77 S.Ct. 1212.
'Progress in the natural sciences is not remotely confined to findings made in the laboratory. Insights into the mysteries of nature are born of hypothesis and speculation. The more so is this true in the pursuit of understanding in the groping endeavors of what are called the social sciences, the concern of which is man and society. The problems that are the respective preoccupations of anthropology, economics, law, psychology, sociology and related areas of scholarship are merely departmentalized dealing, by way of manageable division of analysis, with interpenetrating aspects of holistic perplexities. For society's good-if understanding be an essential need of society-inquiries into these problems, speculations about them, stimulation in others of reflection upon them, must be left as unfettered as possible. Political power must abstain from intrusion into this activity of freedom, pursued in the interest of wise government and the people's well-being, except for reasons that are exigent and obviously compelling.' Id., 354 U.S. 261 262, 77 S.Ct. 1217.
On June 8, 1959-two years after the Watkins and Sweezy decisions-we decided Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115, where a divided Court gave only slight consideration to the type of pertinency claim that was raised in Watkins, Sweezy and the present case, in part because it could rely on the petitioner's failure to raise that objection before the Committee. See Barenblatt v. United States, supra, 360 U.S. 123-125, 79 S.Ct. 1091-1092.
Petitioner, who was called as a witness by the Committee in July 1958, which was even before Barenblatt was decided, refused to answer, relying on the Watkins and Sweezy decisions 'as they interpret the Constitution of the United States, protecting my right to private belief and association.'
I think he was entitled to rely on them. The Act under which he stands convicted states that a witness is guilty if he 'wilfully makes default, or who, having appeared, refuses to answer any question pertinent to the question under inquiry.' 2 U.S.C. § 192, 2 U.S.C.A. § 192. A refusal to answer was held in Sinclair v. United States, 279 U.S. 263, 299, 49 S.Ct. 268, 274, 73 L.Ed. 692, not to be justified because one acted in good faith, the Court saying, 'His mistaken view of the law is no defense.' Yet no issue concerning the First Amendment was involved in the Sinclair case. When it is involved, as it is here, the propriety of the question in terms of pertinency should be narrowly resolved.
The Resolution under which the Committee on Un-American Activities acted in this case is precisely the same as the one involved in Watkins v. United States, supra. We said concerning it, 'It would be difficult to imagine a less explicit authorizing resolution. Who can define the meaning of 'un-American'? What is that single, solitary 'principle of the form of government as guaranteed by our Constitution'? * * * At one time, perhaps, the resolution might have been read narrowly to confine the Committee to the subject of propaganda. The events that have transpired in the fifteen years before the interrogation of petitioner make such a construction impossible at this date.' 354 U.S. at page 202, 77 S.Ct. at page 1187, 1 L.Ed.2d 1273.
We emphasized the need, when First Amendment rights were implicated, to lay a foundation before probing that area. The authority of the Committee must then 'be clearly revealed in its charter.' Id., 354 U.S. at page 198, 77 S.Ct. at page 1184. The 'specific legislative need' must be disclosed. Id., 354 U.S. at page 205, 77 S.Ct. at page 1188. The pertinency of the questions and the subject matter under inquiry must be made known 'with the same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense.' Id., 354 U.S. at page 209, 77 S.Ct. at page 1190.
After Watkins anyone was entitled to rely on those propositions for protection of his First Amendment rights. The conditions and circumstances under which the questions were asked petitioner plainly did not satisfy the requirements specified in Watkins.
The setting of the six questions which were asked petitioner and which he refused to answer shows nothing more than an exercise by him of First Amendment rights of speech and press and of petition to Congress. It was not shown that these activities were part of a matrix for the overthrow of government. It was not shown-unless the bare word of the Committee is taken as gospel-that these constitutional activities had any relation whatever to communism, subversion, or illegal activity of any sort or kind. It was not shown where and how the Committee was ever granted the right to investigate those who petition Congress for redress of grievances.
Petitioner and his wife were field secretaries of an organization known as the Southern Conference Educational Fund. Prior to the committee hearing at Atlanta, Georgia, they wrote a letter on the letterhead of the Southern Conference urging people to write their Congressmen and Senators to oppose three bills pending before the Congress which would, to use their words, 'nullify' a decision of this Court 'declaring state sedition laws inoperative.' They added 'We are especially concerned about this because we know from our own experience how such laws can be used against people working to bring about integration in the South. Most of these state statutes are broad and loosely worded, and to the officials of many of our Southern states integration is sedition. You can imagine what may happen if every little prosecutor in the South is turned loose with a state sedition law.'
Also prior to the Committee hearing in Atlanta, a group of Negroes petitioned Congress against the proposed Atlanta investigation of the House Committee on Un-American Activities. That petition stated:
'We are informed that the Committee on Un-American Activities of the House of Representatives is planning to hold hearings in Atlanta, Georgia, at an early date.
'As Negroes residing in Southern states and the District of Columbia, all deeply involved in the struggle to secure full and equal rights for out people, we are very much concerned by this development.
'We are acutely aware of the fact that there is at the present time a shocking amount of un-American activity in our Southern states. To cite only a few examples, there are the bombings of the homes, schools, and houses of worship of not only Negroes but also of our Jewish citizens; the terror against Negroes in Dawson, Ga.; the continued refusal of boards of registrars in many Southern communities to allow Negroes to register and vote; and the activities of White Citizens Councils encouraging open defiance of the United States Supreme Court.
'However, there is nothing in the record of the House Committee on Un-American Activities to indicate that, if it comes South, it will investigate these things. On the contrary, all of its activities in recent years suggest that it is much more interested in harassing and labeling as 'subversive' any citizen who is inclined to be liberal or an independent thinker.
'For this reason, we are alarmed at the prospect of this committee coming South to follow the lead of Senator Eastland, as well as several state investigating committees, in trying to attach the 'subversive' label to any liberal white Southerner who dares to raise his voice in support of our democratic ideals.
'It was recently pointed out by four Negro leaders who met with President Eisenhower that one of our great needs in the South is to build lines of communication between Negro and white Southerners. Many people in the South are seeking to do this. But if white people who support integration are labeled 'subversive' by congressional committees, terror is spread among our white citizens and it becomes increasingly difficult to find white people who are willing to support our efforts for full citizenship. Southerners, white and Negro, who strive today for full democracy must work at best against tremendous odds. They need the support of every agency of our Federal Government. It is unthinkable that they should instead be harassed by committees of the United States Congress.
'We therefore urge you to use your influence to see that the House Committee on Un-American Activities stays out of the South-unless it can be persuaded to come to our region to help defend us against those subversives who oppose our Supreme Court, our Federal policy of civil rights for all, and our American ideals of equality and brotherhood.'
Petitioner was charged by the Committee with preparing that petition; counsel for the Committee later stated that the purpose of the petition was 'precluding or attempting to preclude or softening the very hearings which we proposed to have here.' The Committee said that it was not concerned with integration. It said that 'A number of names on that letter were names of those who had been closely associated with the Communist Party. Their interest and major part does not lie with honest integration. Their interest lies with the purposes of the Communist Party. And that is what we are looking into * * *.'
Two of the questions which petitioner refused to answer pertained to the Southern Conference, the first one being 'Did you participate in a meeting here at that time?' And the second one was 'Who solicited quarters to be made available to the Southern Conference Educational Fund?'
Two other questions which petitioner refused to answer related to the Emergency Civil Liberties Committee. The first of these was 'Are you connected with the Emergency Civil Liberties Committee?' The second one was 'Did you and Harvey O'Connor in the course of your conferences there in Rhode Island, develop plans and strategy outlining work schedules for the Emergency Civil Liberties Committee?' The Committee counsel charged that Mr. O'Connor was 'a hard-core member of the communist conspiracy, head of the Emergency Civil Liberties Committee.'
A fifth question which petitioner refused to answer related to the letter I have previously mentioned which he and his wife sent to the people urging them to write their Senators and Congressmen opposing three bills that would reinstate state sedition laws. The question relating to this letter was 'Were you a member of the Communist Party the instant you affixed your signature to that letter?'
The sixth and final question which petitioner refused to answer concerned the Southern Newsletter. Counsel asked if petitioner had 'anything to do' with that letter. Petitioner replied 'I think you are now invading freedom of the press * * *. I object to your invasion of the freedom of the press, and I also decline to answer the questions on the same grounds. You are not only attacking integrationists, you are attacking the press.'
There is nothing in the record to show that the Southern Conference or the Emergency Civil Liberties Committee or the Southern Newsletter had the remotest connection with the Communist Party. There is only the charge of the Committee that there was such a connection. That charge amounts to little more than innuendo. This is particularly clear with respect to the question relating to petitioner's membership in the Communist Party. Having drawn petitioner's attention to the letter he had written, counsel for the Committee demanded to know if petitioner was a Communist 'the instant you affixed your signature to that letter.' No foundation at all had been laid for that question, and from the record no purpose for it appears, save the hope of the Committee to link communism with that letter which supported this Court's decision in Commonwealth of Pennsylvania v. Nelson, supra. This Court, passing on the pertinency issue in Barenblatt v. United States, supra, 360 U.S. 123-125, 79 S.Ct. 1091-1092, 3 L.Ed.2d 1115, was careful to emphasize that Barenblatt 'had heard the Subcommittee interrogate the witness Crowley along the same lines as he, petitioner, was evidently to be questioned, and had listened to Crowley's testimony identifying him as a former member of an alleged Communist student organization * * *.' (Emphasis added.) No such foundation was ever laid here.
One would be wholly warranted in saying, I think, in light of the Watkins and Sweezy decisions that a Committee's undisclosed information or unsupported surmise would not justify an investigation into matters that on their face seemed well within the First Amendment. If Watkins and Sweezy decided anything, they decided that before inroads in the First Amendment domain may be made, some demonstrable connection with communism must first be established and the matter be plainly shown to be within the scope of the Committee's authority. Otherwise the Committee may roam at will, requiring any individual to disclose his association with any group or with any publication which is unpopular with the Committee and which it can discredit by calling it communistic.

## Notes

* ↑ In that case the witness testified freely about himself but balked at talking about others:
* ↑ The Resolution provides in relevant part:
* ↑ Petitioner was convicted on each of six counts of an indictment and sentenced to serve 12 months on each count, the sentences to run concurrently. Therefore if any one of the counts can be sustained an affirmance would be necessary. See Claassen v. United States, 142 U.S. 140, 147, 12 S.Ct. 169, 170, 35 L.Ed. 966.
* ↑ 'Dear Friend:
* ↑ Supra, note 4.
* ↑ See supra, note 4.
* ↑ 'The consequences that flow from this situation are manifold. In the first place, a reviewing court is unable to make the kind of judgment made by the Court in United States v. Rumely, supra (345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770). The Committee is allowed, in essence, to define its own authority, to choose the direction and focus of its activites. In deciding what to do with the power that has been conferred upon them, members of the Committee may act pursuant to motives that seem to them to be the highest. Their decisions, nevertheless, can lead to ruthless exposure of private lives in order to gather data that is neither desired by the Congress nor useful to it. Yet it is impossible in this circumstance, with constitutional freedoms in jeopardy, to declare that the Committee has ranged beyond the area committed to it by its parent assembly because the boundaries are so nebulous.' 354 U.S. at page 204, 77 S.Ct. at page 1188.
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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