# Uphaus v. Wyman (364 U.S. 388)/Dissent Douglas

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* Dissenting Opinions Black Douglas
United States Supreme Court
364 U.S. 388
Uphaus v. Wyman
Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.
I would note jurisdiction in this case for several reasons.
First. Dr. Uphaus is in prison for civil contempt for failure to deliver to a state investigating agency lists which he claims are constitutionally protected from disclosure. On June 8, 1959, we affirmed his conviction in the state courts of New Hampshire by a divided vote. Uphaus v. Wyman, 360 U.S. 72, 79 S.Ct. 1040, 3 L.Ed.2d 1090. Following the remand in that case, Uphaus was given a further hearing at which questions never before presented to us were raised. The law under which Uphaus is committed was N.H.Laws 1953, c. 307; N.H.Laws 1955, c. 197, c. 340, directing the Attorney General 'to determine whether subversive persons * * * are presently located within this state.' That law, however, no longer exists. For in 1957 the authority of the Attorney General of New Hampshire was limited to making investigations of violations of law. N.H.Laws 1957, c. 178. As respects this change in legislation, the New Hampshire Supreme Court on June 27, 1960, said:
'Our opinion of March 31, 1960, did not turn upon any holding that RSA 588:8-a provided an extension of the legislative investigation first authorized in 1953. The plaintiff stands committed for refusal, while Laws 1955, c. 197, was still in effect, to comply with an order entered prior to enactment of RSA 588:8-a.'
The majority conclude that this is a ruling on local law only and therefore presents no federal question. That plainly would be right if this were a commitment for criminal contempt and if it may be constitutionally imposed. The expiration of a law normally would be no defense to violations committed while it was in force. But this is a case of civil contempt used for its coercive authority to make the defendant produce the documents which were demanded. In such a case the defendant carries the keys to freedom in his own pocket, as pointed out in Uphaus v. Wyman, supra, 360 U.S. at page 81, 79 S.Ct. at page 1046. But the requirement to produce assumes that their production is relevant to some interest of the State. As stated in Uphaus v. Wyman, supra, 360 U.S. at page 78, 79 S.Ct. at page 1045:
'What was the interest of the State? The Attorney General was commissioned to determine if there were any subversive persons within New Hampshire. The obvious starting point of such an inquiry was to learn what persons were within the State. It is therefore clear that the requests relate directly to the Legislature's area of interest, i.e., the presence of subversives in the State, as announced in its resolution.' That interest no longer exists, by reason of the statutory change that I have noted. The Supreme Court of New Hampshire in its opinion of June 27, 1960, quoted above, concedes that it does not rely on 'an extension of the legislative investigation first authorized in 1953.' 102 N.H. at page 518, 162 A.2d at page 612. In other words, the Attorney General is no longer authorized to investigate whether 'subversive persons' are present in the State. That is to say, the answers are no longer relevant to any existing legislative project.
Thus a new and important question is presented in this second appeal which is now filed with us. May a person be incarcerated for civil contempt for failure to produce documents to a legislative committee when the committee is no longer authorized to investigate the matter? If, of course, the 1957 Act extended this authority respecting pending cases, the conclusion of the majority that the question is a local, nonfederal one, so far as the contempt issue is concerned, would obviously be correct. But the opinion of the Supreme Court of New Hampshire rendered June 27, 1960, rejects that construction of the New Hampshire statutes. It treats the offense as completed while the earlier Act was in force. I can read its opinion of June 27, 1960, to mean only that it considered the case as if it involved criminal rather than civil contempt. For the criteria it considered relevant have no apparent pertinency when an issue of civil contempt is tendered.
Are the principles announced in Uphaus v. Wyman, supra, applicable to criminal as well as to civil contempt? Perhaps so. But the careful delineation of the issues in that case made by my Brother CLARK, who wrote for the majority, restricts the case to civil contempt. As appellant states in his brief, the conditional nature of a civil contempt order 'makes tolerable the omission, from civil contempt proceedings, of many of the procedural safeguards with which criminal proceedings are hedged about * * *.' Are the due process problems no different when the prisoner, who invokes the First Amendment, can go to prison for 10 years or for life and when he has the keys to the prison in his own pocket? If the two cases are not different, then local law questions decide the case. But we should not decide without argument that there is no difference in due process terms between the two cases.
The Supreme Court of New Hampshire in its June 27, 1960, opinion stresses that the point now pressed was 'not presented in the pending proceedings at any time, until first advanced before the Superior Court on December 14, 1959, the day on which the order of committal was entered.' 102 N.H. at page 518, 162 A.2d at page 612. That seems to be true. But no waiver of the point appears to have been made. It is true that at the hearing counsel for Uphaus stated that his client had a legal duty to comply.
'Your Honor please, it is not our purpose to deny that Willard Uphaus is under legal obligation to answer the question which has been propounded to him. We have explained to him his legal obligation, and he understands it. It is our contention that this is a real matter of conscience; that he feels bound to a higher obligation even than the direction of the court * * *. We are not contending at all that he is not obligated to answer the question.'
But the transcript makes clear that the attorneys for Uphaus made two separate points. First, they argued that the 1957 amendment to the statute deprived the Attorney General of his power to investigate the presence of 'subversive persons' in New Hampshire and therefore that commitment for civil contempt was no longer permissible. A motion to dismiss on that ground was argued and denied, an exception being noted. As a second and separate point, evidence was offered and argument made concerning the duration of the sentence. It was during the presentation of this point that the statement, now claimed to be a waiver, was made. Whether imprisonment for civil contempt can constitutionally be imposed in light of the statutory changes affecting the 'area of interest' of the legislature, Uphaus v. Wyman, supra, 360 U.S. at page 78, 79 S.Ct. at page 1045, and the Attorney General's powers is a question which never had been waived. It is earnestly pressed. Moreover, if there is now no basis for civil contempt, is criminal contempt constitutionally available? These are substantial questions never resolved, as far as I know, in any of our prior decisions.
Second. Recently, when Alabama asked the National Association for the Advancement of Colored People to disclose its membership list, we held that disclosure was not required because, if compelled, it might well abridge the rights of members to engage in lawful association in support of their common beliefs. We said in National A.A.C.P. v. State of Alabama, 357 U.S. 449, 462, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488:
'It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy way constitute as effective a restraint on freedom of association as the forms of governmental action in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. When referring to the varied forms of governmental action which might interfere with freedom as assembly, it said in American Communications Assn. v. Douds, 339 U.S. 382, at 402, (70 S.Ct. 674, at page 686, 94 L.Ed.2d 925): 'A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands for example, is obviously of this nature.' Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order.
Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. Cf. United States v. Rumely, (345 U.S. 41), at 56-58 (73 S.Ct. 543, at pages 550-551, 97 L.Ed. 770) (concurring opinion).'
What we there said was not designed, as I understood it, as a rule for Negroes only. The Constitution favors no racial group no political or social group. The group, with which Dr. Uphaus was associated and whose membership list he refused to disclose is entitled under the First Amendment to the same protection as the N.A.A.C.P. No groundwork whatever was laid in any of the records before us that World Fellowship, Inc., was at any time engaged in any conduct that could be called unlawful.
We had National A.A.C.P. v. State of Alabama, supra, before us when the Uphaus case was decided. It involved rights of the organization itself to defy those who wanted its membership lists. Not until later, however, did we have the case where as individual who possessed membership lists challenged the right of government to demand their production. In Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480, decided after we handed down our decision in the Uphaus case, we reversed a state conviction of custodians of the records of local branches of N.A.A.C.P. for refusing to disclose its membership lists to city officials. We said:
'On this record it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the National Association for the Advancement of Colored People would work a significant interference with the freedom of association of their members. There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm.
There was also evidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and pressures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members' names. N.A.A.C.P. v. Alabama, 357 U.S., at 463, (78 S.Ct. at page 1172). Thus, the threat of substantial government encroachment upon important and traditional aspects of individual freedom is neither speculative nor remote.' Id., 361 U.S. at pages 523-524, 80 S.Ct. at page 417.
Can there by any doubt that harassment of members of World Fellowship, Inc., in the climate prevailing among New Hampshire's law-enforcement officials will likewise be severe? Can there be any doubt that its members will be as closely pursued as might be members of N.A.A.C.P. in some communities? If either N.A.A.C.P. or World Fellowship were engaged in criminal activity, we would have a different problem. But neither is shown to be. World Fellowship, so far as this record shows, is as law-abiding as N.A.A.C.P. The members of one are entitled to the same freedom of speech, of press, of assembly, and of association as the members of the other. These rights extend even to Communists, as a unanimous Court held in De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278.
What is an unconstitutional invasion of freedom of association in Alabama or in Arkansas should be unconstitutional in New Hampshire. All groups-white or colored-engaged in lawful conduct are entitled to the same protection against harassment as the N.A.A.C.P. enjoys. Since we allowed in the Bates case the protection we deny here and since Bates was decided after we decided Uphaus' case, we should reconsider our earlier decision in this case. The Bates case and the Uphaus case put into focus for the first time the responsibility of an individual to make disclosure of membership lists. We cannot administer justice with an even hand if we allow Bates to go free and Uphaus to languish in prison.
For these reasons, as well as those advanced by Mr. Justice BLACK, which I wholly share, I would note probable jurisdiction of this appeal. And Dr. Uphaus should, of course, be released on bail pending resolution of the questions by the Court.

## Notes

* ↑ Uphaus v. Wyman, 102 N.H. 517, 518, 162 A.2d 611, 612.
* ↑ Wyman v. Uphaus, 102 N.H. 461, 159 A.2d 160.
* ↑ The Attorney General of New Hampshire in the motion to dismiss in this case states, 'Those who voluntarily and knowingly appear with, consult with, confer with, attend functions with and otherwise act in concert with Communists or former Communists in America cannot possibly have any reasonable right of privacy in regard to such activities * * *.'
* ↑ Chief Justice Hughes wrote for the Court in that case:
'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.
'It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.' 299 U.S. at page 365, 57 S.Ct. at page 260.
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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