# Braden v. United States/Dissent Black

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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 BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.
The petitioner in this case, as is shown by the facts set forth in the dissenting opinion of Mr. Justice DOUGLAS, in which I concur, has for some time been at odds with strong sentiment favoring racial segregation in his home State of Kentucky. A white man himself, the petitioner has nonetheless spoken out strongly against that sentiment. This activity, which once before resulted in his being charged with a serious crime, seems also to have been the primary reason for his being called before the Un-American Activities Committee. For the occasion of that Committee's compelling petitioner to go from Rhode Island, where he was vacationing, to Atlanta for questioning appears from the record to have been the circulation of two letters, both in the nature of petitions to Congress, urging that certain legislative action be taken which, in the view of the signers of the petitions, would help those working against segregation. One of these petitions, signed by petitioner and his wife, asked those who read it to urge their representatives in Congress to vote against proposed legislation which would have empowered the States to enact antisedition statutes because, in the view of the signers, those statutes could too readily be used against citizens working for integration. The other petition, bearing the signature of 200 southern Negroes, was sent directly to the House of Representatives and requested that body not to allow the Un-American Activities Committee to conduct hearings in the South because, so the petition charged, 'all of its (the Committee's) activities in recent years suggest that it is much more interested in harassing and labeling as 'subversive' any citizen who is inclined to be liberal or an independent thinker.' The record shows that the Committee apparently believed that petitioner had drafted both of these petitions and that he had circulated them, not-as would appear from the face of the petitions-for the purpose of furthering the cause of integration, but for the purpose of furthering the interests of the Communist Party, of which the Committee claimed to have information that he was a member, by fomenting racial strife and interfering with the investigations of the Un-American Activities Committee.
When petitioner appeared in response to this subpoena, he was asked a number of questions regarding his personal beliefs and associations, culminating in the question of whether he was a member of the Communist Party at 'the instant' he affixed his signature to the petition urging defeat of the statute authorizing state antisedition laws. Petitioner refused to answer these questions on the grounds, first, that the Committee had no power to ask the questions it put to him, and, secondly, that he could properly refuse to answer such questions under the First Amendment. For this refusal to answer he, like Frank Wilkinson who followed him on the witness stand at the Atlanta hearing, was convicted under 2 U.S.C. § 192, 2 U.S.C.A. § 192 and sentenced to 12 months in jail. And, as was the case with the conviction of Wilkinson, the majority here affirms petitioner's conviction '(u)pon the reasoning and authority' of Barenblatt v. United States.
Again I must agree with the majority that insofar as the conviction is attacked on constitutional grounds, the decision in Barenblatt constitutes ample authority for its action, even though it cannot be denied that the Committee's conduct constitutes a direct abridgment of the right of petition. Indeed, I think the majority might well have, with equal justification, relied upon a much earlier decision of this Court, that in Beauharnais v. People of State of Illinois. For it was there that a majority of this Court first applied to the right of petition the flexible constitutional rule upon which the decision in this case is based-the rule that the right of petition, though guaranteed in precise and mandatory terms by the First Amendment, may be abandoned at any time Government can offer a reason for doing so that a majority of this Court finds sufficiently compelling. Ironically, the need there asserted by the State of Illinois and accepted by a majority of this Court as sufficiently compelling to warrant abridgment of the right of petition was the need to protect Negroes against what was subsequently labeled 'libel * * * of a racial group,' although it was actually nothing more than the circulation of a petition seeking governmental and public support for a program of racial segregation. Thus, the decision in Beauharnais had all the outward appearances of being one which would aid the underprivileged Negro minority. This decision, however, is a dramatic illustration of the shortsightedness of such an interpretation of that case. For the very constitutional philosophy that gave birth to Beauharnais today gives birth to a decision which may well strip the Negro of the aid of many of the white people who have been willing to speak up in his behalf. If the House Un-American Activities Committee is to have the power to interrogate everyone who is called a Communist, there is one thing certain beyond the peradventure of a doubt-no legislative committee, state or federal, will have trouble finding cause to subpoena all persons anywhere who take a public stand for or against segregation. The lesson to be learned from these two cases is, to my mind, clear. Liberty, to be secure for any, must be secure for all-even for the most miserable merchants of hated and unpopular ideas.
Both Barenblatt and Beauharnais are offspring of a constitutional doctrine that is steadily sacrificing individual freedom of religion, speech, press, assembly and petition to governmental control. There have been many other such decisions and the indications are that this number will continue to grow at an alarming rate. For the presently prevailing constitutional doctrine, which treats the First Amendment as a mere admonition, leaves the liberty-giving freedoms which were intended to be protected by that Amendment completely at the mercy of Congress and this Court whenever a majority of this Court concludes, on the basis of any of the several judicially created 'tests' now in vogue, that abridgment of these freedoms is more desirable than freedom itself. Only a few days ago, the application of this constitutional doctrine wiped out the rule forbidding prior censorship of movies in an opinion that leaves the door wide open to, if indeed it does not actually invite, prior censorship of other means of publication. And the Blackstonian condemnation of prior censorship had long been thought, even by those whose ideas of First Amendment liberties have been most restricted, to be the absolute minimum of the protection demanded by that Amendment.
I once more deny, as I have found it repeatedly necessary to do in other cases, that this Nation's ability to preserve itself depends upon suppression of the freedoms of religion, speech, press, assembly and petition. But I do believe that the noble-sounding slogan of 'self-preservation' rests upon a premise that can itself destroy any democratic nation by a slow process of eating away at the liberties that are indispensable to its healthy growth. The very foundation of a true democracy and the foundation upon which this Nation was built is the fact that government is responsive to the views of its citizens, and no nation can continue to exist on such a foundation unless its citizens are wholly free to speak out fearlessly for or against their officials and their laws. When it begins to send its dissenters, such as Barenblatt, Uphaus, Wilkinson, and now Braden, to jail, the liberties indispensable to its existence must be fast disappearing. If self-preservation is o be the issue that decides these cases, I firmly believe they must be decided the other way. Only by a dedicated preservation of the freedoms of the First Amendment can we hope to preserve our Nation and its traditional way of life.
It is already past the time when people who recognize and cherish the life-giving and life-preserving qualities of the freedoms protected by the Bill of Rights can afford to sit complacently by while those freedoms are being destroyed by sophistry and dialectics. For at least 11 years, since the decision of this Court in American Communications Ass'n, C.I.O. v. Douds, the forces of destruction have been hard at work. Much damage has already been done. If this dangerous trend is not stopped now, it may be an impossible task to stop it at all. The area set off for individual freedom by the Bill of Rights was marked by boundaries precisely defined. It is my belief that the area so set off provides an adequate minimum protection for the freedoms indispensable to individual liberty. Thus we have only to observe faithfully the boundaries already marked for us. For the present, however, the two cases decided by this Court today and the many others like them that have been decided in the past 11 years have all but obliterated those boundaries. There are now no limits to congressional encroachment in this field except such as a majority of this Court may choose to set by a value-weighing process on a case-by-case basis.
I cannot accept such a process. As I understand it, this Court's duty to guard constitutional liberties is to guard those liberties the Constitution defined, not those that may be defined from case to case on the basis of this Court's judgment as to the relative importance of individual liberty and governmental power. The majority's approach makes the First Amendment, not the rigid protection of liberty its language imports, but a poor flexible imitation. This weak substitute for the First Amendment is, to my mind, totally unacceptable for I believe that Amendment forbids, among other things, any agency of the Federal Government-be it legislative, executive or judicial-to harass or punish people for their beliefs, or for their speech about, or public criticism of, laws and public officials. The Founders of this Nation were not then willing to trust the definition of First Amendment freedoms to Congress or this Court, nor am I now. History and the affairs of the present day show that the Founders were right. There are grim reminders all around this world that the distance between individual liberty and firing squads is not always as far as it seems. I would overrule Barenblatt, its forerunners and its progeny, and return to the language of the Bill of Rights. The new and different course the Court is following is too dangerous.

## Notes

* ↑ In 1954 petitioner and his wife were indicted and petitioner was convicted of sedition by the State of Kentucky, for which he received a sentence of imprisonment for 15 years. This prosecution grew out of events surrounding petitioner's helping a Negro family to purchase a home in an all-white suburb of Louisville. The charges against petitioner and his wife were eventually dismissed following this Court's decision in Commonwealth of Pennsylvania v. Nelson, 350 U.S. 497, 76 S.Ct. 477, 100 L.Ed. 640. See Braden v. Commonwealth of Kentucky, Ky., 291 S.W.2d 843. For the prosecution's version of this case, see the testimony of the State Attorney General and the Commonwealth Attorney for Louisville (the latter having served as prosecutor in the case) before the Subcommittee to Investigate the Administration of the Internal Security Act and other Internal Security Laws of the Senate Committee on the Judiciary, 85th Cong., 1st Sess., pp. 2-23. For the Bradens' version of the case, see Anne Braden, The Wall Between.
* ↑ So far as appears from the record, the evidence relied upon by the Committee to substantiate its claim that petitioner is or has been a member of the Communist Party is no stronger here than it was in Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633, the companion case. Here, as there, the Committee appears to have been relying upon a flat conclusory statement made by an informant, this time before a Senate Internal Security Subcommittee. See Hearings before the Subcommittee, op. cit., supra, n. 1, at 37.
* ↑ See Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633.
* ↑ Petitioner was convicted on six counts and given concurrent sentences on each, but the majority, properly I think, states that 'we need specifically consider here only the question covered by the fifth count * * *.' The fifth count related to the question referred to above dealing with petitioner's possible Communist Party membership at 'the instant' he affixed his signature to the petition urging defeat of the statute authorizing state antisedition laws.
* ↑ 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.
* ↑ As indicated by my concurrence in the dissent of Mr. Justice DOUGLAS noted above, I think the issue of the pertinency of the questions asked here should be controlled by the decision in Watkins v. United States, 354 U.S. 178, 77 S.Ct. 1173, 1 L.Ed.2d 1273, rather than by the decision in Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115.
* ↑ 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919.
* ↑ Id., 343 U.S. at page 263, 72 S.Ct. at page 734.
* ↑ See the petition itself, reprinted as an Appendix to my dissenting opinion in that case. Id., 343 U.S. at page 276, 72 S.Ct. at page 740.
* ↑ Mr. Justice DOUGLAS and I did not think so. See, id., 343 U.S. at page 275, 72 S.Ct. at page 740: 'If there be minority groups who hail this holding as their victory, they might consider the possible relevancy of this ancient remark:
* ↑ And I think the decision in this case, as well as that in Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633, demonstrates conclusively that the Committee is to have at least that much power.
* ↑ These 'tests' include whether the law in question 'shocks the conscience,' offends 'a sense of justice,' runs counter to the 'decencies of civilized conduct,' is inconsistent with 'an ordered concept of liberty,' offends 'traditional notions of fair play and substantial justice,' is contrary to 'the notions of justice of English-speaking peoples,' or is unjustified 'on balance.' See Rochin v. People of State of California, 342 U.S. 165, 175-176, 72 S.Ct. 205, 211, 96 L.Ed. 183 (concurring opinion); Uphaus v. Wyman, 364 U.S. 388, 392-393, 81 S.Ct. 153, 159-160, 5 L.Ed.2d 148 (dissenting opinion). Significantly, in none of these 'tests' does the result to be obtained depend upon the question whether there has been an abridgment of rights protected by the plain language of the Bill of Rights.
* ↑ Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391.
* ↑ See, e.g., Levy, Legacy of Suppression, at 13-15, 173, 185, 186, 190, 202-220, 241, 248, 258, 262, 263, 283, 288, 289, 293, 307 and 309.
* ↑ See, e.g., American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 452-453, 70 S.Ct. 674, 710-711, 94 L.Ed. 925 (dissenting opinion); Dennis v. United States, 341 U.S. 494, 580, 71 S.Ct. 857, 902, 95 L.Ed. 1137 (dissenting opinion); Barenblatt v. United States, 360 U.S. 109, 145-153, 162, 79 S.Ct. 1081, 1102 1107, 1111, 3 L.Ed.2d 1115 (dissenting opinion); Flemming v. Nestor, 363 U.S. 603, 628, 80 S.Ct. 1367, 1382, 4 L.Ed.2d 1435 (dissenting opinion); Uphaus v. Wyman, 364 U.S. 388, 400-401, 81 S.Ct. 153, 154, 5 L.Ed.2d 148 (dissenting opinion).
* ↑ The use of this slogan is becoming commonplace in the opinions of this Court. Thus, in Dennis v. United States, 341 U.S. 494, at 509, 71 S.Ct. 857, at page 867, 95 L.Ed. 1137, it was said: 'Overthrow of the Government by force and violence is certainly a substantial enough interest for the Government to limit speech. Indeed, this is the ultimate value of any society, for if a society cannot protect its very structure from armed internal attack, it must follow that no subordinate value can be protected.' Then, in Barenblatt v. United States, 360 U.S. 109, at pages 127-128, 79 S.Ct. 1081, at page 1093, 3 L.Ed.2d 1115, we are told: 'In the last analysis this power rests on the right of self-preservation, 'the ultimate value of any society," a statement which is reiterated today in Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633.
* ↑ 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925, decided in 1950. And see Uphaus v. Wyman, 364 U.S. 388, 392, 81 S.Ct. 153, 159, 5 L.Ed.2d 148 (dissenting opinion).
* ↑ See, e.g., American Communication Ass'n, C.I.O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925; Dennis v. United States, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137; Garner v. Board of Public Works of City of Los Angeles, 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317; Adler v. Board of Education of New York City, 342 U.S. 485, 72 S.Ct. 380, 96 L.Ed. 517; Beauharnais v. People of State of Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919; Galvan v. Press, 347 U.S. 522, 74 S.Ct. 737, 98 L.Ed. 911; Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356; Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090; Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115; Nelson v. County of Los Angeles, 362 U.S. 1, 80 S.Ct. 527, 4 L.Ed.2d 494; Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435; Uphaus v. Wyman, 364 U.S. 388, 81 S.Ct. 153, 5 L.Ed.2d 148; and Times Film Corp. v. City of Chicago, 365 U.S. 43, 81 S.Ct. 391.
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