Earl Warren: Number 175, Paul M. Sweezy versus State of New Hampshire by Louis C. Wyman, Attorney General. Mr. Emerson.
Thomas I. Emerson: May it please the Court. This is an appeal from a decision of the Supreme Court of New Hampshire upholding appellant's conviction of contempt in Court. The contempt arose out of appellant's refusal to answer certain questions which were propounded to him by the Attorney General of New Hampshire acting in the capacity of a legislative investigating committee which was investigating subversive activities in New Hampshire. Appellant answered all the questions with regard to the user advocacy of force or violence to overthrow Government and also all questions with respect to membership or influence of the Communist Party. But he refused to answer certain questions as to the contents of a lecture on socialism which he had given at the University of New Hampshire and also, on the activities of his wife and two others in the formation and operation of the progressive party in New Hampshire. The basic issue is whether appellant can be forced by a state legislative investigating committee to answer questions which go beyond the area of force and violence and Communist activity and would seek to probe into the area of academic discussion and lawful political organization. There are three issues on the merits. First Amendment issue, a due process issue, and the question whether federal legislation has preempted the field under the Pennsylvania against Nelson case. There is also a jurisdictional issue and the Court postponed consideration of jurisdiction until argument on the merits. Since that order of the Court was issued, I think the jurisdictional question has been pretty well settled by a certificate issued by the Supreme Court of New Hampshire which appears on the last page of our brief. There was never any issue with respect to the First Amendment. That issue was raised from the beginning, pressed through out and passed upon by the New Hampshire Supreme Court. The due process issue if I -- I'm -- I should say that when I refer to First Amendment, I -- I mean of course the First Amendment as made applicable to the States under the Fourteenth Amendment. The due process issue was presented to the New Hampshire Supreme Court and passed upon it in its original opinion. The only question arose with respect to the preemption issue. This question for reasons which I need not go into here was not presented to the New Hampshire Supreme Court until a second motion for rehearing which was denied by the New Hampshire Supreme Court without opinion. It was in that state of the record that the jurisdictional statement was filed. Since then, however, the Supreme Court of New Hampshire has issued the certificate which appears on Page 78, the last page of our brief in which they say they certify that they considered on the merits the second petition for rehearing and unanimously denied it because the Court was not satisfied that Pennsylvania against Nelson purported to preclude a state legislative investigation of subversive activities. In light of the Rosenberg against California and similar cases, I think it is clear that the New Hampshire Supreme Court did pass upon the federal question and passed exclusive and rested its decision in fact exclusively on the federal question. And that therefore, the jurisdictional issue is disposed off. I might add that the position of the Supreme Court of New Hampshire with respect to this preemption question was considered in a case subsequent to the Sweezy case in Kahn against Wyman which is printed in our brief at page 76. And that in this case, a per curiam opinion, they did consider in a such -- such detail as I wish to give it the preemption issue. The Attorney General of New Hampshire raises no question with respect to jurisdiction. Now, getting to the merits then, it would be necessary for me to develop further the facts with respect to this inquiry. There are two New Hampshire statutes involved.One is the Subversive Activities act of 1951 which is reprinted in our brief beginning at page 62. This statute is in two parts, a Sedition Act and a loyalty program.Let me summarize it briefly without attempting the full refinement of the legislation. It provides that it shall be a felony punishable up to 20 years in prison to do three things, commit any act intended to overthrow or alter the constitutional form of government of the United States for the State of New Hampshire by force or violence. Two, to advocate or cage by any means, any person to commit or assist in the commission of such an act or violence. And third, to assist in the formation or participate in the management or contribute to the support of any -- of any subversive organization and a subversive organization is defined as one that has engaged in the prohibited acts of violence or in the prohibited advocacy or teaching. Now, for our purposes, the -- the key provision of the statute is the definition of subversive person which appears on page 63. A subversive person is defined as anyone who commits any of the prohibited acts or engages in the prohibited advocacy or teaching or is a member of the subversive organization or including a foreign subversive organization. The chief significance of the definition of subversive person as it appeared in the original statute here was in relation to the loyalty program, no subversive person could be employed in the state government but the definition gave -- added significance from the second statute which I will -- that I'll mention. The loyalty program simply provided that no person who was a subversive person could hold public office or be employed in New Hampshire and was enforced -- enforced through investigatory procedures and loyalty oaths. Now, the second statute is entitled a joint resolution relating to the investigation of subversive activities was passed two years later in 1953. There were no prosecutions, as I understand it, under the 1951 Sedition Act. But in 1953, the legislature passed a joint resolution of investigation and this authorized and directed the Attorney General to investigate two things. One, to make a full and complete investigation with respect to violations of the Subversive Activities Act of 1951, that is investigate violations of the 1951 Act. And two, to determine whether subversive persons as defined in that Act are presently located within the State. The authority to investigate subversive persons was no longer limited to state employees, but included any person within the State. The Attorney General was given the subpoena power, but it was enforceable only by application to the Superior Court of New Hampshire for a court order. Now, the two statutes have been interpreted by the New Hampshire Supreme Court in a decision prior to the Sweezy decision involving another witness before the Attorney General, known as Nelson against 199 New Hampshire 33. The interpretation was that the -- the 1953 Act, the resolution of investigation, delegated to the Attorney General of New Hampshire the legislative power of investigation. In other words, that he was not conducting the investigation acting as an executive official but acting as a legislative investigating committee. The other interpretation was this, that whereas under the first Act, no felony would be involved without knowledge and willfulness, so far as the definition of subversive person was concerned. A person could be a subversive -- a subversive person whether or not his action or advocacy or teaching or membership was knowing and willful. In other words, an innocent member of an organization would come within the definition of subversive person and therefore, be subject to investigation, so much for the statutes. Now, appellant was a resident of New Hampshire.He was a graduate of Harvard and obtained his doctor's degree in economics at Harvard in 1937. He taught on the Harvard Faculty for eight years until the outbreak of the war.He went into military service and at the end of military service, became a resident of New Hampshire and had since engaged in research and writing. He is a co-editor of the Journal of Opinion, Monthly Review. Dr. Sweezy is a distinguished economist and a well-known authority on socialism. He's the author of a standard text on socialism, as well as some other books on capitalism, socialism and Marxism. In political orientation, he is a Marxist and a socialist. Dr. Sweezy was called before the Attorney -- Attorney General on two occasions, in January and June 1954. In an opening statement on the first occasion, Dr. Sweezy made clear to the Committee his position with respect to the interrogation. After giving his reasons, he stated that he would answer certain questions about himself, although not conceding the right to ask them. And he also said that he would answer questions with respect to force and violence to overthrow the Government but not other conduct which he considered to be lawful or protected by the First Amendment. Appellant adhered to this position throughout the two hearings at least so far as -- as a witness under those circumstances consistently could. He answered a number of questions in line with this pattern. He answered all questions dealing with the use or advocacy or force and violence. He testified that he had never used or advocated force or violence or assisted any group which advocated force or violence or knew any person in New Hampshire or any group which advocated force or violence. He also answered questions with respect to the Communist Party. The 1951 statute had contained legislative findings of fact that the Communist Party engaged in acts of violence and other similar acts. And in order to eliminate the question of the relationship of the Communist Party to use of force and violence, appellant answered questions that related to the Communist Party. He testified that he was never a member of the Communist Party, was not at the time a member, had never attended any meetings, made any contributions and did not know any persons in New Hampshire to be members of the Communist Party. He likewise testified with respect to questions concerning Communist Party influence on the Progressive Party, saying, he did not know of any such influence. Appellant also answered a number of questions with respect to himself. He testified that he was a member or had been associated in some ways such as writing or making speeches for a number of organizations listed by the Committee on Un-American Activities and a number listed by the Attorney General of the United States. He testified that at the time of the hear -- that at the time of the hearing, he was not a member of any organization on the Attorney General's list. Now, the Attorney General of New Hampshire apparently disagrees with some of these statements of fact I have made with respect to what the record shows as to the testimony. He contends that my statement that appellant testified with respect to matters concerning force and violence and with respect to advocacy, membership and influence of the Communist Party is incorrect. Without -- I -- he submits no specified portions of the record in -- to support his statement, except these two. One, a question which was asked, “Do you believe in Communist?” Which appellant refused to answer on First Amendment grounds, although he later answered in part. That is a question of belief and is not involved here. The other question was, “Were Communist --
Felix Frankfurter: May I interrupt? When you say, “It's not involved,” the Attorney General did not press that question?
Thomas I. Emerson: The New Hampshire Courts have eliminated by saying he didn't have to answer those questions.
Felix Frankfurter: Those questions, what questions?
Thomas I. Emerson: Questions with respect to -- to opinion and belief including which would include this question.
Felix Frankfurter: Are those questions grouped anywhere, Mr. Emerson?
Thomas I. Emerson: No, they're not, because they had not been an issue and you have to read the whole --
Felix Frankfurter: How many -- But this was part of his testimony. These are --
Thomas I. Emerson: Yes.
Felix Frankfurter: -- some questions that he refused to answer and the -- and the New Hampshire Court sustained the refusal?
Thomas I. Emerson: That's right.
Felix Frankfurter: Now, where can I find the questions that were pressed by the Attorney General but rejected by the Supreme Court of New Hampshire?
Thomas I. Emerson: On pages 11 and -- beginning on page 11 of our brief. I'll -- I'll indicate that in a moment. I -- I merely want to clear up this question or fact because this seems to me is a -- is a crucial, the crucial element of the case. The other point that the Attorney General cites as -- as disputing my statement with respect to the facts is the question, “Were Communists active in the Progressive Party in the State?” Which on page 98 of the record, appellant refused to answer, but on page 99 did answer, saying, “No, I don't know of my own knowledge of Communist in New Hampshire.” So, that question was answered later. I therefore stand on my statement of the facts that all questions with respect to the use or advocacy of force and violence were answered. And all questions except belief, questions of belief with respect to the Communist Party were answered. Now, the question is not answered. It involved as I have said first, certain ones of opinion and belief which the Superior Court in New Hampshire held it was not necessary for appellant to answer and which are no longer subject of controversy here.
Speaker: Was there any Fifth Amendment claims or --
Thomas I. Emerson: No, there was no Fifth Amendment.
Speaker: (Voice Overlap) -- stage?
Thomas I. Emerson: No, no stage with the Fifth Amendment claims. Now, the -- the questions as I've said related first to the lectures and then to the Progressive Party. The lecture was a lecture given at the University of New Hampshire in the humanities course. A regular course there to which appellant had been invited for three years to lecture on question of socialism. Appellant was not a state employee or otherwise connected with the University of New Hampshire. He was a guest lecturer on the question of socialism at the humanities course. Now, he testified that he had neither in his lecture nor in any of the time had he advocated or in any way furthered the aim of overthrowing constitutional government by force and violence. And he also testified that he had not advocated Communism in his lecture. The questions which he refused to answer as set forth on page 11 and 12 were these. What was the subject of your lecture? Did you tell the class that socialism was inevitable in this country? Did you advocate Marxism at any time? Did you espouse the theory of dialectical materials? Those were the questions that he refused to answer with respect to the lectures. Now, with respect to the Progressive Party, the --
Felix Frankfurter: When was it, Mr. Emerson? I'm looking at page 11 of your brief, 11 and 12.
Thomas I. Emerson: Yes.
Felix Frankfurter: Q-A, Q-A. The first Q was refused and its refusal was not sustained by the Supreme Court of New Hampshire.
Thomas I. Emerson: None of these were sustained.
Felix Frankfurter: None of these.
Thomas I. Emerson: None of them.
Felix Frankfurter: Well, then, all these one, two, three he skips them I think and all of these are questions that were pressed. While he was asked to answer, refused to answer and the Supreme Court says, should answer and the --
Thomas I. Emerson: Yes.
Felix Frankfurter: -- power of the State to ask these questions is now before us?
Thomas I. Emerson: That's right, yes.
Felix Frankfurter: All the questions from 11 through down the middle 12, is that right?
Thomas I. Emerson: Yes, correct.
Felix Frankfurter: Now, are those all of the questions we have before us?
Thomas I. Emerson: Those all deal with the lecture. There's also a second set to deal with the Progressive Party which are on page 13 and 14. The -- the Progressive Citizens of America was before run-over the Progressive Party and I will refer to them both as the Progressive Party. Appellant testified that he did not know any Communist in the Progressive Party and that to his knowledge, the Progressive Party had not been manipulated or influenced by the Communist Party. There was no allegation that the Progressive Party was a subversive organization, although the Attorney General says that's one of the questions he is investigating but there was no evidence in the record that it was subversive or in anyway unlawful. Now, the questions with respect to the Progressive Party that appellant refused to answer are set forth on 13 and 14 and they were these. “Was Nancy Sweezy, your wife, active in the formation of the Progressive Citizens of America? Was Charles Beebe active in forming the Progressive Citizens of America?” A question with respect to whether appellant had had a conversation with Abraham Walenko about the Progressive Party.And the fourth question, “Was Charles Beebe active in the Progressive Party in New Hampshire?” Those were the questions that he refused to answer. Now, I can dispose of the subsequent proceeding as I think rather quickly. The Attorney General --
Felix Frankfurter: Then the questions -- I'm sorry to be pestering you. The -- the questions -- and -- and the questions on pages 11 and 12 and again on 13 or 14 are all the questions?
Thomas I. Emerson: Yes.
Felix Frankfurter: That's -- that comprehends them all. That's the line?
Thomas I. Emerson: That's right.
Felix Frankfurter: All right.
William J. Brennan, Jr.: To get over some, Mr. Emerson, was that because they've dropped out or what?
Thomas I. Emerson: That's because they were sort of double questions relating to the same problem. I don't think -- with the exception of one, Your Honor, on page 13, there was a question. “Was Nancy Sweezy then working with individuals who are members of the Communist Party?” I attest over that because as I explained in the footnote, he had answered that in another place and I take there's no objection to answering again if your asked it.
William J. Brennan, Jr.: You don't understand that the State disagrees with you that these are the only questions at all?
Thomas I. Emerson: No, that's -- they agreed that these are the only questions, sir. The Attorney General of New Hampshire then petitioned the Superior Court of New Hampshire for an order to compel appellant to answer the questions. A hearing was held before the Superior Court and the Superior Court rule as I have said that he need not answer questions relating to opinion and beliefs but that he must answer the questions set forth in -- in the brief with respect to the lecture and the Progressive Party. Appellant refused or continued his refusal to answer the questions and the Superior Court then ordered him to be held in contempt and confined to the county jail until he did answer the questions. He was admitted to bail. An appeal was taken to the New -- New Hampshire Supreme Court. The New Hampshire Supreme Court ruled that the questions involved were relevant under the New Hampshire statutes. And two, that they did not violate appellant's rights under the First Amendment or the Due Process Clause or motions for rehearing which as I have said, raised the -- the preemption point. Now, that brings me to the merits in my argument on the First Amendment. Briefly, my argument on the First Amendment is this. The First Amendment is applicable as a limitation on the power of state legislative investigating committees. And the standard by which the amendment is to be applied is the standard set forth in the Quinn case, namely that a legislative committee may not investigate in an area where it may not legislate. And thirdly, that in this case, the Attorney General has intruded in areas which would be foreclosed to state control by the First Amendment. And that therefore, the -- the appellant was justified in refusing to answer the questions because they went beyond an area in which the Attorney General of New Hampshire was constitutionally authorized to investigate. Now, let me develop the argument a little further and then attempt to answer my appellant's contention. I take it that it is unnecessary to deal at any length with the impact upon freedom of political expression in actual fact of the operation of legislative investigating committees. It seems to me that experience has made quite clear that the power to call a witness before a committee to subject him to a series of questions by skilled interrogators and then to publish what amount to official government findings with respect to his conduct or actions or associations, clearly, impose sanctions upon freedom of speech and freedom of expression and freedom of association, which can be and in this area are most devastating.
Harold Burton: These are hearings for public hearings?
Thomas I. Emerson: No, Your Honor. This -- this was -- initially, this was a private hearing, an executive session. However, Attorney General had power to make public after the hearings a transcript to the testimony. And of course transcript of -- of this testimony is public because it was entered as part of the record in the Superior Court. In addition to that, the Attorney General issued a full report to the legislature which was made public which dealt in attempt, purported to summarize his testimony. That repost is not in the record, it was -- but I take it it's an official document.
Harold Burton: Appellant does in integrity but not public hearing though?
Thomas I. Emerson: No, no, but I take it. Justice -- Mr. Justice Harlan's point was that if they were private hearings, this impact would not result, but I -- I think, Your Honor that even though the hearings may be initially private, much of the impact remains. It was well known and it cannot help but be well known that investigations of this sort are going on and the testimony did become public and would inevitably become public. Now, it's -- it's clear that there were this sort of an impact in this case. In fact, the Supreme Court of New Hampshire expressly stated in its opinion that the inquiries undoubtedly interfered with defendant's free exercise and celebrities guaranteed by the Federal Constitution. And the impact was -- here occurred in particularly delicate fields of political expression, the field of academic discussion and field of political organization. I have set out in the brief at -- at length that the -- my argument with respect to this question of the impact upon freedom of expression of legislative investigations and I won't elaborate it further at this time. Now, under these circumstances, it is clear that the First Amendment as a legal matter does operate as a limitation upon activity of this sort, and this I think was clearly held in the Rumely case and was reiterated in the Quinn case and has been consistently so held in a number of lower federal courts in which the issue has come up.
Felix Frankfurter: You go -- I gather from your argument that you established in a compendious way that asking these questions has an adverse effect upon freedom of expression and therefore, it's fair.I should suppose the real question was in -- was in a territory in which -- where it has any impact or not. Inquiry can be foreclosed rather than going to debating whether it does or doesn't cramp your style.
Thomas I. Emerson: Well --
Felix Frankfurter: If they have no business to ask it, it's immaterial whether it cramps your style?
Thomas I. Emerson: Well, that's true, Your Honor, but if it also interferes with freedom of expression, then it brings into the picture the First Amendment and that may cut off the -- the inquiry at an earlier point than the mere question of relevancy. That -- that's why I think it's significant that the First Amendment is applicable.
Felix Frankfurter: All right. Of course, it can inquire apart from question of relevance because it may be shut off by the freedom protected by the Fourteenth Amendment. If it does, I should think that's an end of the matter. I just wonder you prove that it comes within the Fifth Amendment.
Thomas I. Emerson: Well, but --
Felix Frankfurter: Whatever is infused into the Fourteenth Amendment by the First, I don't have to get at it that way --
Thomas I. Emerson: In this case --
Felix Frankfurter: -- rather than the other way around.
Thomas I. Emerson: In this case --
Felix Frankfurter: If this is an area -- if this is an area which cannot -- about which there can be no legislation and there can be no enquiry. Why do I have to weigh whether Professor McKee was right or Sydney Hawk is right but it doesn't, does it?
Thomas I. Emerson: Yes, it's quite correct, Your Honor. If this had been a case involving a federal committee. But if here, the -- this was a state legislative investigation in which the Court --
Felix Frankfurter: Is the area any different between state and federal so far as freedom of speech is concerned?
Thomas I. Emerson: No, Your Honor, but maybe with respect to relevancy. And in any event --
Felix Frankfurter: Well, would permit as to the relevance, I suppose we take the word of the New Hampshire Supreme Court.
Thomas I. Emerson: Yes, exactly and these questions are relevant. So, if that's all that's involved, I'm finished. But I say I'm -- I'm not because the First Amendment operating through the Fourteenth operates as a limitation. Now, a -- a word or two with respect to the legal standard or doctrine by which the First Amendment limitation becomes applicable. There are various theories of this but I will discuss only the one which was most recently stated by this Court in the Quinn case where the Court said that the power of talking there of congressional legislative investigation does not extend to an area in which Congress is forbidden to legislate. This was in line with Mr. Chief Justice Hughes' opinion in Electric Bond & Share case where he also had said that information bearing on activities which are within the range of congressional power may be subject to either legislative or administrative investigation. The standard applies also to the States, certainly, where the States purport to enter an area that is forbidden to them by the Federal Constitution. I think the rule is a sound one for -- for a number of reasons. Let me just state this. The process of investigation itself as I've just indicate operates as a restriction or a regulation particularly in the field of First Amendment pointer, a field of political expression. And since it operates as a restriction or a legislation, it should be told by the same rules with respect to formal legislation. Furthermore, the power of investigation is a subsidiary or ancillary power to be exercised only in aid of legislation. And therefore, the lesser power of investigating should not be allowed to expand beyond the greater power of legislative. Now, that brings me to the question of the application of this area standard to this case. I am willing to concede that there may be cases in which the question can be difficult, but I submit it is not so here. First with respect to the lecture. As I have said, the appellant answered questions with regard to use or advocacy of force or violence, advocacy of Communism. The other -- other testimony in the record indecently supports appellant's testimony on this point. The questions with regard to force and violence, having thus been answered, the Attorney General went on and asked. “Well, what did you say? What was the subject of your lecture? Did you say that socialism was inevitable? Did you discuss dialectical materialism?” And so on. He thereby stepped over the boundary of the area in which the State had authority to legislate and proceeded into an area in which the State had no authority because it was dealing with academic discussion. The State has authority to prohibit force and violence, and under the doctrine of the Dennis case to prohibit the advocacy of force and violence under certain conditions, but it has no power to limit academic discussion of -- of -- along peaceful lines. And this was the area in which these questions intrude. Now, let me make one subsidiary point here before I pass to the Attorney General's answer. This was not an investigation of the curriculum at the University of New Hamsphire or the manner of teaching. It was an investigation into subversive activities. Now, true, teachers could be investigated if they were engaged in subversive activities as well as anyone else but I want to emphasize that this does not involve the power of the State to make rules with respect to the curriculum. It doesn't involve the question of whether New Hamsphire wants socialism taught in its schools or -- or to discuss in its schools and from the point of view, whether that's sound educational policy. That the Attorney General had no power in that field and the Supreme Court of New Hamsphire expressly recognized so.This is a question of his power with respect to subversive activity. Now, the Attorney General has two arguments in answer to the position I have just expressed. The first is that appellant's writings and associations for such action justify a further pro. The argument as I understand it is that appellant is the kind of a person as shown by his writings and associations that he has a propensity to advocate force and violence and therefore, you can inquire further about what he said. Now, I -- I will not discuss this in any detail. I think I would simply say that there is no basis in either fact or theory for this argument. There is nothing in appellant's writings which indicate in anyway that he ever engaged or thought to engage in advocacy of force or violence with respect to the United States Government.
Felix Frankfurter: I don't quite follow, the Attorney General leaving after he made the disavowal. The Attorney General didn't say, “Doctor Sweezy, I hold in my hand a pamphlet published by XYZ and I read the following under your name. Did you ever write that? Would you deny to do that? Justice is the credibility, the reliability of the disavowal?
Thomas I. Emerson: If -- if the --
Felix Frankfurter: That is what happened, did it or did it?
Thomas I. Emerson: No, not quite in that way. The appellant answered questions as to what he had --
Felix Frankfurter: Yes.
Thomas I. Emerson: -- had it written and what his associations were. He refused to answer questions all with respect to what he had said at the lecture.
Felix Frankfurter: Well, he was asked what he'd said. I mean, that's why it seemed to me so important to pin down as you did, as you have done, exactly what questions -- to what questions were there a refusal? And he did ask him what he said in his lecture, but would you agree or disagree? Would you deny that he could actually confront him with a prior document, which would -- it could have a tendency to contradict the disavowal he just made? We haven't got that case, haven't we?
Thomas I. Emerson: We don't have that case.
Felix Frankfurter: All right.
Thomas I. Emerson: And I would -- and I post that for -- not necessary to the window. I would say, "No I'm not so delighted to force and violence. (Voice Overlap) --
Felix Frankfurter: Well, I'm assuming that. I'm assuming that. I'm assuming --
Thomas I. Emerson: Oh, yes, yes. I would agree then if it -- if it contained evidence of force or violence.
Felix Frankfurter: For something that's argued for?
Thomas I. Emerson: Yes.
Felix Frankfurter: In other words, there's an area of testing the credibility of the witness so long as it's done with the usual -- under the usual rules?
Thomas I. Emerson: Well, there's an area in which he contest the credibility of the witness.I -- I agree to that point. And that brings me to my -- my second point as to the Attorney General's argument here. His -- his position is that he contest the witness' credibility by any questions which are relevant regardless of whether they go into First Amendment areas or not. And as he says, the mere trace of relevancy under the New Hampshire statutes authorizes his investigation and that takes precedence over any protection of the First Amendment. Now, my position is that that is incorrect, that the rule of the area test is that when you cross the boundary into a protected area, you must start whether it's relevant or not. And that here, when he had asked the questions with respect to advocacy of -- of force or violence, he could not go on and then say, “Well, what did you say?” Because that is so clear within the area of protected freedoms that -- that to -- to hold that you can go into that area, simply nullifies any limitation on the First Amendment. Now --
Felix Frankfurter: We haven't even got a situation. I think my -- my point of view of the -- on that better go very warily in this business, that is at large. This isn't even a case where the Attorney General asked the witness after appropriate foundation. Is it or is it not a fact that in a lecture in the University of New Hampshire on January 22, 1952, you said the following and then quoted. “I'll make a --
Thomas I. Emerson: No.
Felix Frankfurter: -- wild hypothesis.” You then quote, supplying for him in citing -- that's a bad word, a plan for his utterance merely saying there comes a time when you can resort to violence. We haven't got that kind of a situation.
Thomas I. Emerson: No, no. We have a case where the --
Felix Frankfurter: Will you ask him to tell him what he said?
Thomas I. Emerson: Yes, based -- and the witness says, “There was no advocacy of force or violence, no advocacy of Communism.” There are certain other testimony in the record which supports this position. The Attorney General then says, “Well, if you didn't -- well, in order to test this, I must ask you, what did he say? What were the contents of the lecture? “That is the -- is the question. Now, I say --
Earl Warren: Were any of the questions were -- were not permitted by the Court, questions of his opinion about what he meant by his lecture?Is there anything in there to that effect?
Thomas I. Emerson: There was -- there were some questions not what he meant about his lecture but what he -- what his views about socialism were and -- and --
Earl Warren: What he intended to convey to the students, was there anything of that kind in there?
Thomas I. Emerson: Well, only this -- only these questions, in effect what contents.
Earl Warren: Only these that are here, on these pages.
Thomas I. Emerson: Yes. Now, let me just make one or two further points with -- with respect to this. Even if you assume that the Attorney General had some leeway to cross the boundary in order to get at something that might show some light on the permitted area. Even if you assume that, which I think the area of theory is not. Nevertheless, the Attorney General went much too far in this case. And I say that the interest of the State of New Hampshire in cross examining appellant with respect to these matters as an aid to legislation on this questions was far outweighed by the damage that was done. If the Attorney General wanted to prove that appellant's answers were wrong, he had the possibility of a perjury of prosecution. And the perjury prosecution should -- could establish the integrity of a legislative investigation in this sort of a situation if it were called for. Furthermore, the kind of questions which this type of cross examination would -- would -- are involved are not the kind that are normally necessary to a legislative committee investigating in aid of legislation. These are questions which go to the details of particular cases which might be relevant in an adjudicatory or an administrative proceeding dealing with particular facts, but where a legislation -- a legislature is dealing with the broad facts upon which to establish broad legislative policy, it's much less necessary to go into the particular individual facts of -- of a -- of a particular case involving cross examination to test the answers and so on.
Hugo L. Black: Why do you continue to say cross examination?
Thomas I. Emerson: Well, that's --
Hugo L. Black: Was this cross examination?
Thomas I. Emerson: That's the -- the Attorney General's argument that was in the nature of cross examination to test the validity of the answer of that, the appellant was given.
Hugo L. Black: Did somebody -- had somebody else put him up as a witness?
Thomas I. Emerson: No. It was not cross examination in the -- in the accepted sense, Your Honor. I -- it was merely cross examination. I mean, it's merely an analogy to cross examination.
Hugo L. Black: Is it very analogous?
Thomas I. Emerson: I think -- I think not, Your Honor, because I -- I don't think that this is a kind of situation where the normal rules of cross examination applicable and in a -- in a case before a Court dealing with an adjudicatory problem, would necessary prevail. Now, the -- the questions with respect to the Progressive Party, I think stand on the -- on the same footing and I think I can and will have to dispose of them fairly briefly. Appellant answered all questions as to force and violence, as to the presence of Communist Party members in the Progressive Party, as to the influence of the Communist Party on the Progressive Party. He thereby illuminated or -- or answered questions that dealt with the area of -- use or advocacy of force or violence. It was not asserted. He -- he -- well, he refused to answer these questions as to whether Mrs. Sweezy and two others had been active in the Progressive Party. It was not asserted that any one of those three were members of the Communist Party or were subversive persons.There was nothing in the record which indicated that they were. Therefore, the questions he asked dealt with ordinary members of a political party and with their ordinary activities in political organization and consequently, where in an area that is denied to the State. Now, the Attorney General makes the same argument that these questions that -- well, he makes the argument that he had in his possession information that certain Communist Party members were active in the Progressive Party. And therefore, he can ask as to whether so and so was active and later perhaps tied up with his knowledge about someone being in the Communist Party and therefore, find out whether there were Communists in Progressive Party. But on that theory, if the Court please, the Attorney General could call anyone before him, ask a State that he had in his possession that there were some members of the Republican Party or the Democratic Party or the Americans for Democratic Action or any organization who are members of the Communist Party and then say, “How about so and so? What did he do in this organization? Was he a member? How active was he?” Now, that sort of -- of extension seems to me clearly goes beyond any area of the First Amendment. Now, with respect to the due process issue, I have to say only this. Our point there is that the resolution was so vague and so uncertain that a person called before the Attorney General could be called before the Attorney General and subjected to investigation and labeled a subversive person without knowing what his rights were and would not know at what point he could stop talking before the Attorney General. And that therefore, it violates due process of law.
Speaker: He's given a counsel though.
Thomas I. Emerson: Yes. Actually, at the first hearing, he did not -- he had a -- he did not have counsel because his counsel was busy somewhere else, but he waived that he had counsel. I really want to call the Court's particular attention --
Hugo L. Black: Which section are you attacking on the ground of vagueness?
Thomas I. Emerson: I'm sorry?
Hugo L. Black: Which section are you attacking on the ground of vagueness and which part of it?
Thomas I. Emerson: I'm attacking -- mainly, the definition of subversive persons but -- which is on page 63.
Hugo L. Black: Of your brief?
Thomas I. Emerson: Of my brief, yes. No, wait a minute, 64. Now, the Court -- the New Hamsphire Court has interpreted this definition of subversive person to include persons who were -- who committed, who engaged in the advocacy or teaching that's involved or with members of organizations wholly innocent. That is it's -- it -- it has been interpreted in the way that the loyalty oath was interpreted in Wieman against Updegraff, namely, that it included innocent none-knowing, non-willful action within the definition of subversive person. And we say that that both gives the Attorney General and a fluent unconfined power to investigate into -- into numerous areas, virtually without limitation. And that it also results in the arbitrary application of sanctions of the investigatory process to innocent membership, that is to say that just as Wieman against Updegraff held that it is a violation of due process to deny government employment to an innocent member of this -- of an organization. So here, it's a denial of due process to apply the sanctions of an investigating process.
Hugo L. Black: Suppose you were right in your attack on that section, what effect would that have on the right of the State to ask these questions that it asked?
Thomas I. Emerson: Well, then -- then -- since the power, Your Honor, to investigate is the power to -- is -- is based upon these provisions.If those provisions were unconstitutional, then there would be no power to investigate.
Felix Frankfurter: Aren't you really saying on your due process point and the vague -- because of vagueness, aren't you really saying that the freedoms that are protected that are -- that are covered and protected by the Due Process Clause as to the States are necessarily -- they're not defined, they're indefinable, that they involve ultimately in a conflict between or accommodation between the vast powers of the State that belong to it by way of legislation in the auxiliary power to investigate before you legislate or against the limitation that is implied from freedom of expression of association that is -- that's the qualification upon that and that is not ascertainable in advance, that's a difficult and delicate subject in -- in the realm of -- ultimately of judgment of those who have the last say and therefore inherently, this is so vague and nobody can tell in advance.
Thomas I. Emerson: Yes, yes, Your Honor.
Felix Frankfurter: Isn't that what you're saying?
Thomas I. Emerson: Yes, I think --
Felix Frankfurter: In effect?
Thomas I. Emerson: I think that --
Felix Frankfurter: In other words, what you're saying is that the limitations which the freedoms guaranteed by the Fourteenth Amendment apply, supply are insufficient?
Thomas I. Emerson: No, no, Your Honor.
Felix Frankfurter: Upon the subject of it, determine what they are?
Thomas I. Emerson: No. That -- that's -- that added into it, but -- but I'm saying that there could be. I'm -- I'm certainly not saying that there couldn't be legislation which would be sufficiently definite so that it could be judged at least reasonably.
Felix Frankfurter: You would have a hard job even with you skill unfavorably.
Thomas I. Emerson: It would be difficult, yes, but -- but this is impossible, this -- his one.
Felix Frankfurter: Suppose they could amend all this power of investigation conferred upon the Attorney General, is of course subject to the limitations which the Fourteenth Amendment places upon inquiry and further his subject with the hospitable attitude that should be taken in construing such limitations.
Thomas I. Emerson: I don't think --
Felix Frankfurter: It would be quality with that, would you?
Thomas I. Emerson: I -- I don't think that would help me in advising a -- a client before the Attorney General.
Felix Frankfurter: I don't think you could help him anymore than you have helped him, no matter what you helped.
Thomas I. Emerson: Now, I just want to say a final word about my last point, the -- the preemption point. There are two aspects to this without going into this again in any detail.Our position is that the validity of the resolution of investigation depends upon the validity of the 1951 Act. I won't develop the argument for that is in my brief. I would simply say that I think both the New Hampshire Supreme Court and the Attorney General agree that the -- the statute authorizing the investigation is based upon, predicated upon and depends upon the validity of the 1951 Act. Therefore, the first question under this aspect to the argument is whether or not those provisions with respect to sedition in the 1951 Act under which the investigation was conducted are valid under the doctrine of Pennsylvania against Nelson. Now, on that, there is no distinction on Pennsylvania against Nelson. The -- the provisions were relatively the same. They -- they dealt with the question of sedition involving the National Government, the Federal Government.All of the inquiry involved here related to questions of -- of sedition on a nationwide scale. And consequently, those provisions of the Act of the New Hampshire statute which were involved, and the investigation conducted under them fall squarely within Pennsylvania against Nelson and no further extension of that doctrine is necessary here. I say further that even if the resolution does not depend upon the validity of the prior statute, it is invalid under Pennsylvania against Nelson because it is in aid of legislation. Its only -- its -- its only sanction, its only power arises from the fact that it's in aid of legislation. But this legislation under Pennsylvania against Nelson is invalid. Therefore, the investigating resolution falls also. If you say it has some purpose other than in aid of legislation, then it's a regulation and likewise falls within Pennsylvania against Nelson. Your Honor, I'd like to reserve such time as I had left to -- for rebuttal.
Earl Warren: You may. Attorney General Wyman.
Louis C. Wyman: May it please the Court. I feel that this case here is a very simple case, essentially. We have a -- a situation which requires a good deal of clarification as to the facts, I think, before it's possible to realize just exactly what the issues are. I think that it's important to remember here that first of, the position of Mr. Sweezy before the Committee and I would like to refer to the Attorney General for the purpose of the investigation as a committee rather than as the Attorney General, so as to avoid possibility of misunderstanding as to the various aspects of separation of powers in view of the decision of the New Hamsphire Supreme Court referring constantly to the function of the Committee as a fact finding committee in the person, the Attorney General. He was a witness before the Committee. He was not a defendant. The testimony which was taken in this case was taken in private sessions. It was not taken in public. The position of Mr. Sweezy never became that of a defendant, until after in private session represented by counsel. He had declined to answer questions not claiming his privilege against self-incrimination, and none under the practice which we have in New Hampshire. It was necessary for the administrative official given the power to subpoena to transfer the matter to the Superior Court and to ask the Superior Court to go on with matter just as though it had been commenced initially in the Superior Court. That's the law in New Hampshire. There's no such thing as a direct contempt of an administrative official without the insulation of a court hearing. And in this case, after the private sessions and with no publicity whatever, there was filed with the Superior Court a petition, asking for the Court's help. And in the process of trying to find out whether or not these questions were relevant, the Superior Court in the State of New Hampshire spent two and a half days of argument in which two counsel, very confident counsel in our State were involved, before the court determined and ruled that the questions were relevant. And then, the Court went ahead and directed Mr. Sweezy to answer the questions. And Mr. Sweezy then continued to refuse to answer in Court, and the Court's finding then was that he was in contempt and he was released on bail and the case went up to the Supreme Court of New Hamsphire and is reported at page 210 of the transcript in this case in full.
Speaker: Apart from the court hearings that you just referred to, was there a public report made of the testimony of Mr. Sweezy to the -- either to the legislature or to the press or --
Louis C. Wyman: There was no statement made by me to the press, Your Honor. Mr. Sweezy himself made public that he had appeared and talked to the press right outside the hall in my office when he came in. Now, I would like to --
William O. Douglas: What is -- what is the relevancy of it, of the secrecy rather than the public hearing?
Louis C. Wyman: I would like to answer that directly by saying that in New Hamsphire, this whole business of investigating to see if there were any subversive activities in the State was passed by our legislature in 1953. It was at a time when there was a good deal of confusion about this whole subject and there had been some abuses. And before we went ahead, we drafted in New Hamsphire the rules of procedure which are set forth in our brief in this case at Page 51. Those rules of procedure were adopted with the view to getting away from just such sort of difficulties that had happened in the past. And they specifically provide that all testimony will be taken and I refer at page 52, the rule one. "Insofar as possible examination of witnesses," and I'm quoting, “will be conducted in executive session. Hearings will not be held in public unless requested by the witness."
William O. Douglas: But if a question violates the First Amendment, it still violates about the hearings, executive session are public.
Louis C. Wyman: That's right, Your Honor.
William O. Douglas: Is that right?
Louis C. Wyman: Yes, sir, and the reason I referred to it is that a very excellent law review article quoted by appellant in his brief in 65 Yale L.J. makes a good deal of the point that the only application of the First Amendment to this type of situation that's meritorious can apply if a person is hauled into a public session and the matter is -- gone into -- to the extent of reaching an abuse of his privacy and his rights of privacy. And I merely wanted to point out that in the rules of procedure which is applied in New Hampshire and which specifically applied to this case, there has been no such pushing of witnesses around. I hope that before a decision is ultimately made in this case that both of the transcripts on the questioning of this witness which appear in full in the transcript and before the Court will be read to get the general sense of the situation that existed. This would be the relationship between the witness and the persons asking the questions.
William J. Brennan, Jr.: I don't follow that, Mr. Attorney General. Didn't you just answer Mr. Justice Douglas that it was unimportant in terms of the issue under the First Amendment, whether the hearing was public or private?
Louis C. Wyman: I believe, Your Honor, it's unimportant. There are others who have said in law review journals that there is some appointments to be attached to it and I think what they're really talking about is a matter of method as distinct from a general rule, a matter of method as to whether you proceed in public hearing for reasons somewhat unconcerned with, perhaps just investigating and perhaps connected with political activity.
Felix Frankfurter: The other way around too, Attorney. If these questions won't be denied power of -- to be answered. It's made by -- by a legislative committee on the score of constitutionality, not on the score of relevance under the order.
Louis C. Wyman: Yes, sir.
Felix Frankfurter: But if they were barred because of constitutionality, they wouldn't be the less barred although ordered to be answered by a court.
Louis C. Wyman: No. They wouldn't, except that in this case before the witness was found to be in contempt, a court had to pass on the question of relevancy.
Felix Frankfurter: Well, there might be. I understand that, but if -- if it found it's relevant but limited by the -- if it were to be found to be irrelevant but denied response because of the constitutional limitation of the Fourteenth Amendment, it would by you or by a committee of your legislature on that ground. That hurdle couldn't be cleared by a court.
Louis C. Wyman: No, Your Honor, it couldn't and that of course, objection was made in this case, before the Court. It was argued before the Supreme Court in New Hampshire and disposed of contrary to the position of appellant before that Court on the first (Voice Overlap) --
Felix Frankfurter: There might be -- there might some -- be some questions, procedural due process that might be involved, secrecy and absence of counsel. I'm not saying there are, there could be which would be taken care of if done the way you did it in New Hamsphire based on the original proceeding in the Branson case of the Interstate Commerce Act.
Louis C. Wyman: That's -- that's right, Your Honor and that's --
Felix Frankfurter: That's what this is based on?
Louis C. Wyman: That's correct and that's why before going further here, I would like again to call the attention of the Court to the rules of procedure which applied in New Hampshire, which require that a copy of the rules of procedure should be furnished to each witness before he comes in to testify, that he has a right to counsel, that he has a right to participation of counsel. That in the event of a public hearing, no one is to mention any names in a defamatory way or in a way which might reflect adversely on other people without first discussing them in private session. That any witness is entitled to have a transcript of his testimony and that on television and radio, there will be no television and no radio unless the witness requested it. That is one of the --
William O. Douglas: Where -- where is that?
Louis C. Wyman: This, Your Honor, is at page 52 of our brief, 51 and 52, the rules of procedure which have applied throughout in New Hampshire and applied specifically to this case.
Felix Frankfurter: You haven't brought to another difficulty, have you, that you -- this is -- this is an incursion on the field of press, how can you deny them, TV and everything else? That's not by our trouble, but you haven't had that trouble. You might --
Louis C. Wyman: No, we haven't, Your Honor, not yet.
William O. Douglas: Was hearing on television and radio?
Louis C. Wyman: None, whatever.
Felix Frankfurter: None?
Louis C. Wyman: This hearing was in my office in one room and no one was present except the witness and his counsel and myself and on one occasion, two assistant Attorney's General.
Felix Frankfurter: It reflected the normal New Hampshire (Inaudible)
Louis C. Wyman: Perhaps so, Your Honor. As we see it in this case, there are just two issues, one whether your decision in Commonwealth versus Steve Nelson supersedes the right of a State to investigate or perhaps in a corollary sense, the right of a State to make it a crime to overthrow a state government as distinct from overthrow of the Federal Government. And second, whether free speech generally speaking is abridged in the First Amendment sense by a legislative inquiry which is always subject to rules of pertinence. Mr. Emerson, Professor Emerson has made a lot here of so-called sanctions all through his brief. It is implicit that the sanctions of the legislative process of investigation are something which are a burden which a citizen does not and should not have to bear, because of the First Amendment, even though the questions which are asked of the witness are relevant and pertinent to a fact finding investigation in aid of legislation. I am unable personally to quite see what those sanctions are or what they can be, particularly when one realizes that any abuse of method or any abuse of a witness is always subject to -- to judicial review. And all such cases can readily be set aside in the event that legitimate private rights have been abused in the way which the Court abuses and violated of due process of law. If the method is fair, if the questioning is courteous without any clink lights, if it's relevant and so found by a court, then I think there is no room if you're going to have intelligent legislation. There's no room to apply the First Amendment to prevent that type of question. In Rumely versus U.S. where they had a lobbying investigation. And in De Jong versus Oregon, with questions of membership in a party meeting as distinct from membership in a party. All in many of these cases where you have investigations not into subversive activities, it is well settled that the play of freedom of speech is much broader than it is in the field of subversion. In Dennis versus U.S., the decision of this Court in an exhaustive sense brought so much to bear upon the application of the First Amendment to this case. And since that decision, there have been numerous decisions in the Circuit Courts and in the District Courts, which has specifically ruled on the question which is involved here now and which have found certiorari denied. I refer particularly for example to U.S. versus Josephson which is cited in our brief and to which certiorari was denied in which the majority very explicitly dealt with the application of the First Amendment to questioning otherwise relevant in investigation by the House Committee on Un-American Activities. As far as one thing and I've read a good many of the very cogent reasons which have been advanced by some members of this Court in these cases which deal with civil liberties, civil rights, private rights.One thing that I think is important to remember here is that this isn't a question of asking a man how he voted. This isn't the question of calling somebody a First Amendment Communist or calling somebody a Fifth Amendment Communist, or doing anything which is entirely inept and has resulted in a good deal of unfortunate confusion relating to this whole subject. This is a case where it's important to remember the reasons on the record for questioning this witness. And this witness gave ample reasons had you been in the same position for questioning him concerning what in fact he said at this lecture at the University of New Hamsphire. Referring to the record itself, the witness at page 82 testified that he considered himself a Marxist. Now, when I say page 82, Your Honors, I'm referring to the transcripts of testimony which were before the Court at the time that the Court was asked to continue with the questioning.
Harold Burton: Was this lecture unavailable in any form except through his testimonies?
Louis C. Wyman: The lecture was not available to me except that there was another witness which was called -- who was called in the joint hearing before the Court, named Professor Gwynne Daggett at the University of New Hamsphire and eventually, he was directed to answer by the Court and he did answer and we did go on in private session at some length. But in his answers as the transcript will show and as this transcript shows as applied to Sweezy, the answers were less than candid to put it mildly. Mr. Sweezy, after this investigation was over, furnished the transcript of what he purported he said in his lecture but declined to do it to the Court in compliance with its order.
Felix Frankfurter: Furnished -- has furnished to whom?
Louis C. Wyman: Just furnished -- didn't furnish it to me, Your Honor. He furnished it generally, publicly, issued it --
Felix Frankfurter: Speaking of public figures.
Louis C. Wyman: Issued it publicly.
Felix Frankfurter: Printed somewhere?
Louis C. Wyman: That's correct. And the -- the matter became one of what I considered at the time was aggravated contempt, but I file no further petitions with the Court because the matter was before the Supreme Court of New Hampshire. When you come further into the record, you find that there were two transcripts that were taken in questioning this witness, one was in January 1954. And in between the January questioning and the June questioning, the witness gave a lecture at the University of New Hampshire. I learned about the lecture and because of the matters which appear in the transcript in which I'm now going to refer to, the witness was recalled in private session and questioned further about just what he said in the lecture. At page 74 and 75 of the record, the witness was inquired or was asked concerning a translation of Principles of Communism by Frederick Engels which he had prepared. Mr. Justice Frankfurter asked whether or not this case involved a reading on something to a witness and then asking the witness, “Did you say this in your lecture?” And the answer to that question, Your Honor, is yes that's exactly what this case involves. And while I'm on that point, sir, I'd like to say further that the trial court in this case directed the witness to answer the question of whether he believed in Communism on the authority of Lawson versus U.S. And the Supreme Court, on that particular issue, ordered the witness to answer just that question. That appears in the record at page 193 and 194 where the issues are dealt with by the Court and the witness is directed to answer just those questions.
Hugo L. Black: Where -- where is that question where you directed answer as to what he believes?
Louis C. Wyman: At page 205, Your Honor. And in order to avoid getting into the questions of just what questions were asked, the actual transcript of the actual proceedings before the Court begins at page 201. And the questions which were asked and refused and the reasons assigned in the Court appear at pages 201 to 209.And the question on belief in Communism at page 205 and I'm reading a question, line -- about line 10. “And now, do you believe in Communism?” Answer, “If the definition and characterization of Communism are those presented in the preamble of the 1951 Act, the answer to that is no. Beyond that however, I decline to answer the question on the advice of counsel and for reasons given by counsel." And at page 208, Your Honor, in line 3. The Court, “All right, you are ordered to answer the questions which you have declined to answer.”
Felix Frankfurter: Mr. Attorney General, in the interest of convenience, I wonder if you do this. Mr. Emerson, if I did not misunderstand him and I thought he was clear, told us that the question in dispute, the questions that were asked and to which answers refused, are those set forth in his brief, pages 11 and 12, one set, and pages 13 and 14, another set. I have looked at your brief any more than I read his brief. Did you mess the questions that --
Louis C. Wyman: I did not mess the questions, Your Honor. I referred --
Felix Frankfurter: -- that are before us. We all give two layers likely, if I may say, ought to be able to agree what questions were asked and that were asked.
Louis C. Wyman: I referred to the transcript in the court proceedings which appears in the record as --
Felix Frankfurter: In 201 to 209, you just read.
Louis C. Wyman: That's right, Your Honor, and those are the questions.
Felix Frankfurter: So the -- the Court -- the -- your court, Supreme Court certainly didn't mess into the Superior Courts?
Louis C. Wyman: No, Your Honor, because in the petition which I filed with the Superior Court under our practice which was just referred to, I had to set forth the questions which we wanted the Court to answer and -- to order answered, and the answers which the witness had given. And that is exactly what happened and it's important, I believe in the original transcript which this Court has to know that paragraph 3 of the prayer of the original petition was that, and I quote, “In the event, the respondent elects to proceed to answer the questions put that this Honorable Court direct respondent to appear before petitioner in private session and resume further questioning,” but the only questions appear at record 201.
Felix Frankfurter: Well, as I also understood it, unless I'm corrected, some questions are disallowed by your Supreme Court, is that correct?
Louis C. Wyman: All questions, yes, Your Honor. All questions --
Felix Frankfurter: Well now, so that raises a question. What questions fall under that ban?
Louis C. Wyman: The decision --
Felix Frankfurter: Would you mind -- would you mind if the Chief Justice's agreement to -- could you do that without trouble, actually set forth, seriated the questions that you think have been ordered to be answered by your court and that are none -- scrutiny by this Court?
Louis C. Wyman: I think I can, Your Honor. All questions relating to opinion and belief were disallowed by how a Supreme Court except the single question, “Do you believe in Communism?” That appears in the decision of the trial court in the order of the trial court in this case which was in this sense affirmed by the Supreme Court in its opinion.
Hugo L. Black: Then the question that you referred to on page 205 where you'd asked, “Do you believe in Communism?” He declined to answer, was recognized by the Supreme Court, your State Supreme Court as one of the grounds for sentencing him for contempt. Is that right?
Louis C. Wyman: I believe that is correct, but that is the only one, Your Honor.
Felix Frankfurter: Could you -- could you do that before you go back to your --
Louis C. Wyman: I will --
Felix Frankfurter: -- as the record states.
Louis C. Wyman: Yes, sir, of course.
William O. Douglas: You don't think that Mr. Emerson's list of questions is complete?
Louis C. Wyman: No, I do not. I think that the list appearing in the transcript at page 201 is the only list that can possibly be referred to here, Your Honor.
William O. Douglas: Well, he -- he's -- works on the same record that you work on and he's got his questions from the same record that you get your questions from?
Louis C. Wyman: Well, I understand that, Your Honor, except that in this matter of, ”Do you believe in Communism,” which is the only question of belief involved and which was cited on authority of the Lawson. I do not see that at pages 11 and 12 of his brief, he has considered it.
William O. Douglas: I see. Is that the only one that he considered?
Louis C. Wyman: I believe it's the only one.
Harold Burton: Well, rather than that, if we --
William O. Douglas: Apart from that, then his list this accurate.
Louis C. Wyman: I think his list is accurate, Your Honor, but I --
William O. Douglas: But apart from that one.
Louis C. Wyman: Yes, I think his list is accurate so far as I can observe apart from that one, except that if the list in his brief is looked at in the form that the questions there appear without looking at the exchanges between the Court and the questioner which appeared in Court and which appear in the record at page 201, you get a decidedly different flavor to the whole proceeding. And for that reason, I felt that the best review of what actually happened was the actual transcript of what actually happened.
William J. Brennan, Jr.: What's the -- what -- what's the differences, Mr. Attorney General?
Louis C. Wyman: Some of the questions were disallowed by the Court.Some of the questions were withdrawn by the questioner and rephrased in different form in order to meet the convenience of the witness and in order to avoid confusion. The questions as they appear in appellant's brief in naked form look a little bit like bulldozing, Your Honor. And I think if you look at the transcript, you'll see that there was none of that in this case. In the record back at 74 and 75 on this translation of Principles of Communism by Frederick Engels by Mr. Sweezy who has written several books on the subject in socialism and other subject, Mr. Sweezy is asked the question and I'm quoting. I will not quote very long. Reading from his translation referring to Engels having a master's touch in focusing the readers' attention and quote, “In getting across the central message of a new society in the making,” Sweezy says and I quote. “And this was asked in the form of a question this is no scholarly track that selects, emphasizes and exaggerates. As such, it is that expression relevant today as it was more than 100 years ago. The revolutions of 1848 proved supportive and the greatest period of capitalist expansion was still in the future." Much that Engels wrote at that time was inevitably premature, but this only means that it is all the more relevant for us at a time when the tide of World Revolution has already swirled over a large part of the earth and is daily rising higher despite the frantic demands of our 20th Century canoes.” Then --
William O. Douglas: That may mean no more than we better -- better find out what this thing of Communism is.
Louis C. Wyman: I agree, Your Honor, and that's exactly --
William O. Douglas: Is that a -- a subject that New Hampshire could regulate or control?
Louis C. Wyman: Well, I haven't quite finished, if I could --
William O. Douglas: I'm sorry.
Louis C. Wyman: -- in respect of what was asking. And then, going on in the literal rephrasing of the question, quote. “If the oppressed proletariat is finally driven to the revolution, then we Communist,” this is a quotation from the extract, “will defend interest of the proletarians with this as we now defend them with words.”
Felix Frankfurter: Where are you reading from now?
Louis C. Wyman: I'm reading from 75, Your Honor, the record at 75 above line 18 at the bottom of the quotation.
Felix Frankfurter: This lasting and (Inaudible) word, where is that?
Louis C. Wyman: In the middle of thepPage 75.
Felix Frankfurter: Oh, yes. That's his answer?
Louis C. Wyman: No, that's not his answer. That was a part of his translation. And then he was asked this question --
Felix Frankfurter: Go ahead, yes I see.
Louis C. Wyman: By that question and by that answer in your translation. “Did you mean to imply directly or indirectly that if the oppressed proletariat is finely driven to revolution, thereby, that the interest of the proletariat would be defended with deeds as now with words?” The witness, “By that, I meant -- I simply meant to present the ideas Engels foot forward. You can interpret it as you like it.” Now, going on --
William J. Brennan, Jr.: Well, what's the objection to that, Mr. Attorney General?
Louis C. Wyman: None whatever objection in the sensorial sense, Your Honor, none whatever. There was then asked whether or not these translations and these views were advocated to the students, but I, if I could, would like to touch some other things that came in between the January 1954 hearing and the June 1954.
Felix Frankfurter: As I understand what you are doing now, is it or is it not, namely, that you -- you -- as you indicated that the questions must be read in the context of things that aren't objectionable questions?
Louis C. Wyman: That's right, Your Honor, exactly.
Felix Frankfurter: That's your -- that's what you are saying.
Louis C. Wyman: That's right.
Felix Frankfurter: That's the line your argument as taken.
Louis C. Wyman: Well, if I could be -- if I can sum this all up in just a little -- a little phrase. At 42 of the record, at 42 of the record, you'll see that Mr. Sweezy is asked the question in the middle of the page. “Isn't it true, Mr. Sweezy, that the socialism you have been advocating exist only in Communist countries today?" Answer, Mr. Sweezy, “Yes, that is true. Written, hasn't actually succeeded yet in establishing a socialist system.” Now, that then tied into a question which later appears in the transcript, at least we thought it did. “Did you tell the class that socialism in America was inevitable?" And the answer to that eventually through a series of hearings was, “Yes.” But then, when the question proceeded further into exactly what else was said and what was advocated, the witness declined to discuss even the subject of his lecture or what he took into the lecture room or anything else that happened there, and we still don't know what went on in that lecture, not in an effort for one minute to tell this witness that he couldn't say anything that was lawful, but only for the purpose of seeking to find out whether or not in conformity with the legislative mandate, there had actually been advocacy of subversion as that phrase is used in the basic act.
Felix Frankfurter: Now that --
Hugo L. Black: You -- you think when you have a secret -- forbid anyone to say that they thought socialism was inevitable?
Louis C. Wyman: No, I do not, Your Honor. I do not at all. I do think, however, that when one considers the testimony that the witness considers himself a Marxist and that the socialism which he has in mind and I'm not in authority on this, is a socialism which can only exist in Communist countries.
Felix Frankfurter: Not can but does.
Louis C. Wyman: Does, that's -- that's correct. And then when one looks at the writing which appears at page 82 and 83 of this witness which was written in the Monthly Review and in which -- well, I do not wish to read the whole thing. I feel that I must take the time to at least read a summary for the reason that I consider and we consider this alone beyond anything else to warrant the questioning of the witness as to the lecture. I'm not and I don't have the time here to go into all the other excerpts that appear in the transcript of organizations that appeared on any Attorney General's list. To that matter, I might consider -- might be considered relevancy for asking somebody about associations with persons on the list or not depending upon the point of view of a committee. But here --
Earl Warren: General, how many -- how many student were in this --
Louis C. Wyman: 100.
Earl Warren: Well --
Louis C. Wyman: Approximately 100, Your Honor and --
Earl Warren: And you couldn't find anybody to testify what -- what this lecture was?
Louis C. Wyman: I did not summon students to be informers on their teacher, Your Honor. That was my decision.
Earl Warren: Oh.
Louis C. Wyman: I didn't try to do that.
Earl Warren: Why?
Louis C. Wyman: I can only say because I felt that that was something that I wanted to avoid at least as far as my decision was concerned.
Earl Warren: So, you would rather probe a man's mind for -- for what he might have meant than to -- than to probe the situation to find out what he said.
Louis C. Wyman: I thought that there was a ground for questioning him in as much as the excerpt which appears at page 82, was finished to me by the witness himself. And in as much as I had a letter from a professor at the University of New Hampshire which appears in the record and about which the witness was questioned to the effect that his lecture consisted of a thinly-glass older version of the dialectic material.Of -- another words, of the third facet of that elements -- of those elements in Marxism, surplus value ,class struggle and dialectical materialism which appeared to involve at least a part of the penance here of Communism. Whether they involve or include in a particular individual case advocacy of overthrow to the Government by force and violence, we don't know. That's --
Felix Frankfurter: That's the heart your added subversion policy, isn't it?
Louis C. Wyman: That --
Felix Frankfurter: Force and violence, is that right?
Louis C. Wyman: That is -- that is correct.
William O. Douglas: But I don't think that he disavowed that.
Louis C. Wyman: He disavowed it in this way, Your Honor. He said in his lecture, “I didn't advocate force and violence."
William J. Brennan, Jr.: No, but --
Louis C. Wyman: "I am not a communist.”
William O. Douglas: No, on page 205. If the definition and characterization of Communism or those presented in the preamble of the 1951 Act, the answer to that is “No.”
Louis C. Wyman: That is correct. He disavowed that and then he said that, “I don't -- I am not a Communist. I've never been a Communist. Beyond this, I'm not talking. I am not answering your questions.”
Felix Frankfurter: The difficulties of -- if you let me say so.
Louis C. Wyman: Yes, sir.
Felix Frankfurter: Difficulties about this kind of question, I don't mean constitutional difficulties about this. But when he says, Russia, the Communist country, only one that have Communism in the sense that I talk about. Difficulties is that a man -- maybe, he may have meant for all I know or when maybe economic aspect of Communism and not, he operate as a coercion, the denial of civil liberties because the -- the present leader of the opposition, Great Britain says, “He is a socialist. He is a Marxist,” as he believe in the body of economic doctrine which may or may not be valid, which may not -- not come to pass. But to make a prophecy that they will come to pass would be outside as I understand it, your -- your policy --
Louis C. Wyman: That's correct.
Felix Frankfurter: -- and that that is subversion. Isn't that true?
Louis C. Wyman: That is correct.
Felix Frankfurter: And so, these -- these words to the vantage about are so -- are so -- what shall I say, have so many meanings. It is so ambiguous.
Louis C. Wyman: And that's what we thought --
Felix Frankfurter: That when a man says, "I'm a Communist in -- in a sense in which I mean it, Communists exists in Communist countries." He may be as passionate about the civil liberties as -- as to say that delayed professional asking wasn't -- he got in himself as a less being socialist.
Louis C. Wyman: Well, he may, Your Honor. And at this point, I feel that all I can do is read this which appears in the transcript at page 82. And I'm quoting now for something which Mr. Sweezy wrote with Leo Huberman in the Monthly Review. And in the transcript at page 108, reaffirmed today, namely on June 4th, 1954. It expresses my opinions, yes. Quote, “In which country within the last few months did the presidential candidate promise peace, and immediately upon taking office, said about spreading war?” And as regards to leaders of the two camps --
Earl Warren: Where is that? Where is that --
Louis C. Wyman: In the center of the page, Your Honor, record 82.
Earl Warren: Oh, oh, page 82. Thank you.
Louis C. Wyman: “And as regards to leaders of the two camps that are certain that in the last eight years, the United States has been responsible for killing a vastly greater number of human beings than has the Soviet Union. We would not argue however that the quantitative question even if it were possible to answer it with precision is the crucial one. In the last analysis, those who hate violence must judge it by an entirely different standard. They must ask whether violence is used to perpetuate the state of affairs in which violence is inevitable or whether it is used in the interest of creating a truly human society from which it will be possible at long last to banish violence altogether. So far as the United States and its allies are concerned, there is unfortunately no doubt about the answer. Our country is preparing to practice violence on a hitherto undreamed-of scale to preserve a social order which in the space of four decades has already produced the greatest orgy of violence in the whole long and violent history of the human race. Capitalism, the organization of society according to the barbaric principle of private profit, is the scourge of mankind.And violence designed to preserve it is doubly damned, once for itself and once for its purpose. Those of us who have socialism in our bones, will believe that a truly human society can be erected only on the basis of common ownership and economic planning, must necessarily judge the violence of the socialist countries differently. We hate it as we hate all violence. We would have vastly preferred to have the building of the new economy take place peacefully and painlessly as it could have at the advance countries that led the way. But history which as Frederick Engels once said is a most cruel goddess, decreed that the economic foundations of the society of the future must be laid in backward countries, not only without the assistance of the advanced countries but against their ruthless and implacable resistance. It was thereby rendered inevitable that the process should be difficult, painful and violent. But the process does go forward. Of that, the majestic successes of the Soviet economy despite all the strains and trials to which it has been subject within these years of hot and cold wars is irrefutable proof. And the hopes of mankind for a better future go with it. For the first time in history, we can say that violence is being used to protect regimes which are doing their utmost to create a society which will be able to dispense with violence. That makes all the difference. ”Well, when that -- when we had that in an investigation which in the last analysis is justifiable in relation to this aspect of First Amendment and freedom of speech issues, only because of this, the necessity of a State or the Federal Government to look into the question of whether there are people around seeking to overthrow the Government by force and violence. I felt that it was necessary to question the witness concerning what terms he used and what he actually said. It is our State University. We do support it with tax money. We do feel that if we want to find burglar for example which you approved in this Court in Adler versus Board of Education, we might wish to make recommendations concerning legislation of that type in New Hampshire. I don't say that it's necessary at all. I don't know. One can't know until at least the witness is directed to answer relevant questions. As far as the witness was concerned, he simply declined to answer. He didn't claim the privilege against self-incrimination. And now, the position here apparently is that even if questions are relevant and on that point, the decision of the Highest Court in New Hampshire is that they were irrelevant. Even if they are relevant that there is some sort of a road block of the First Amendment which ought to be inserted to bar questioning. As a practical matter, it's a little difficult to know just where one would draw the line, if there is to be a road block of that type. But assuming that a line could be drawn, then the question becomes hardly abuses, hardly invasions of freedom of speech in its absolute sense, as such a menace to the security and welfare of America that the First Amendment ought to be used in this type of situation. We -- we submit that they are not. We submit that the First Amendment does not apply here. We submit that the test must be its state legislatures or the Congress of the United States as to be intelligently informed. The test must be, one, that there must be a -- a law which is constitutional, a resolution which is tied to it which is clear and which reasonably informs as Mr. Justice Frankfurter has said, "The charter of the investigating committee, what its powers are." We then maintain that the questions asked under that charter must be relevant to the subject matter. As is said in U.S. versus Ullmann, what that means is directed to a -- in a possible answer, a possible answer which would have to do with the main object of the investigation.
Earl Warren: General, I noticed -- I noticed that on page 108, there are -- there are questions and answers that interpret this -- this quotation that you have just read to us. Mr. Nelson, "Do you advocate the United States including New Hampshire to be a socialist state?” “Yes, I have said that many times. It is on the record. It is in all my writings over the years. It is no -- the great discovery, I am a socialist. This is true.” Mr. Nelson, "Do you advocate that the United States including this State a socialist state, be integrated with the Union of Soviet Socialist Republics?” The witness, “No. I never have so advocated.” Attorney General Wyman, "Do you consider and do you take the position in you writings which are available and are read in this State that the transition from a capitalist economy to a socialist economy is possible without force and violence?” Witness, “Yes.” So, it isn't quite as broad as -- as just the quotation that you read would indicate, is it?
Louis C. Wyman: Oh, no. It isn't anywhere as near as broad as that in the sense that they are not --
Earl Warren: Well, what did you need it for? I thought that's what you read it for to --
Louis C. Wyman: I read it, Your Honor, to try to show that a writing such as that from a person in these times, reaffirmed by that person, together with membership or association or affiliation with organizations that were supposed to be in the opinion of some people were controlled by a Communist, together with a number of other aspects which have been referred to, affords grounds for questioning, the witness in regard to what he said to students and they require the course at a state university. Not in an effort to central what he said at all but in an effort to inform the legislature as to whether there was advocacy of subversive conduct as defined in the statute.
William O. Douglas: Well, so far as -- so far as the -- as tactics go, it seems to be whatever he may think of the end results, seem fairly mild because on page 109, he says he's in favor of compensation for all privately-owned means of production. I mean, this is not a program of confiscation that he's promoting.
Louis C. Wyman: Your Honor, I haven't criticized the witness. I haven't called the witness a Communist. I don't know what the witness really is. I -- I'm not and offered them expert in the field to know. All I know is that we ran up against the point of which the witness declined to answer and the issue which is basically involved here is whether or not the classrooms of America, if the matter is to become broad enough, are to be impervious from fact finding investigation, construct -- conducted in a restraint and reasonable manner in private session under rules of relevancy.
William J. Brennan, Jr.: Where is it? Mr. Attorney General, I noticed at page 83, and read there after what you read to us. Those are question. “Did you have this with you at the University of New Hampshire?” And the answer, “I don't think so.”
Louis C. Wyman: That's right, Your Honor and that, I referred to and meant to refer to in relation to what Mr. Justice Frankfurter asked Mr. Emerson because just that sort of thing did happen here. He was questioned concerning documents which were involved and the, “I don't think so” or “I refuse to answer” or “I don't remember,” appears in the first transcript. “I don't,” how many times but more than 24 times in the second transcript.
William J. Brennan, Jr.: Well, are your -- are you suggesting a question whether that was truthful answer when he said “I don't think so?”
Louis C. Wyman: I don't know, Your Honor. I don't know. I don't want to make a suggestion or be construed as making a suggestion that any witness has committed perjury.
William J. Brennan, Jr.: Well then the next -- his next question was, by this writing which I recognize speaks for itself. Well, this was your question. ”Do you thereby advocate that violence in favor of our support to Soviet Union is justified that this answers the record, does it?” “No, certainly not.”
Louis C. Wyman: That is right , Your Honor, but when it came to asking him what he said, what he advocated or what he said if you will in the lecture, he wouldn't answer.
Felix Frankfurter: He shed some light -- I thought I could believe as I keep on reading your record. There's a colloquy with you. Because he answers to you on page 85. it seem to be almost forthcoming, particularly when you asked him these questions and tells you what it is and relies on -- but let's assume (Inaudible) of interesting reliance from that also or from Dr. Sweezy's outlook? But they're not (Inaudible) He defined what he means by inevitable. That that's just what he -- that's a point of view. That's a belief that students aren't stupid. Would you like to testify to that, Mr. Attorney General?
Louis C. Wyman: Well, only that that's what he said, Your Honor. As I say, what we were -- what we were trying to find out was whether or not there was teaching here or advocacy. I'd like to point out if I may that the first recommendation in the report which Mr. Emerson has referred to here to the general court of New Hampshire which was made as a result of these investigations, and these two transcripts were a part of this were, and I'm quoting. “Without attempting to set out exact language of a resolution, it is respectfully recommended that there'll be enacted in New Hampshire, some expression of legislative approval of forces designed to objectively teach youth throughout New Hampshire the true nature and meaning, method and purpose of Communism in relation to American Constitutional Government. It is believed to be of genuine importance that our youths should be taught these facts so that they may be able to understand the truth and help to protect our system against Communist cancer of the mind," and there is more on that. There has never been any attempt to suppress and there is none implicit in proceedings such as this, freedom of thought or freedom of expression, but we do believe that we are entitled to investigate to determine whether there has been advocacy or whether it has just been teaching in the object of sense.
Felix Frankfurter: Well, I -- I get the impression more than the identical serious impression that the witness rarely wanted to raise a general proposition, namely -- namely, may the State of New Hampshire, even for the purposes -- for the purposes of anything, may it, as a teacher, whether he's a permanent teacher or just lecturer. May it ask him to tell an investigating committee, and I -- by the same token, I think the Court -- "What did you tell your class yesterday?" He rarely wanted to raise in a way that -- that general question, isn't that true?
Louis C. Wyman: I think that's right, Your Honor and I think --
Felix Frankfurter: It's clearly what it is?
Louis C. Wyman: I think that's right. And also, of course, one of the reasons why no objection was made to the question of jurisdiction here was, that we would like to find out if we could just exactly how far the Steve Nelson decision goes on this matter of legislation. I want to touch -- I only have a few minutes left upon one thing here. There has been some mention of the fact that as interpreted by the Supreme Court of New Hampshire, the definition of subversive person includes a person who is a member of an organization that actually is subversive, although innocently so, not knowing it could be such. I'd like to point out first that there are no criminal sanctions attached to innocent membership and that the principle case's decision is very clear to point that out. Second, that no element of loyalty oath is involved in this case. In Wieman versus Updegraff, a very different situation apply where people were required to execute affidavits of non-membership in subversive organizations or organizations on the Attorney General's list, even though there was no requirement that they were knowingly members of those organizations and this Court struck that down. An examination of the record in that case indicates that they offered to execute an affidavit inserting the words "not knowingly a member," but that was refused by the local officials. In this case, I want to make the same statement to this Court if there should be any part of confusion on that issue, in this particular problem here that -- that the Attorney General of Maryland made to this Court in Gerende verus Board of Supervisors in which you approved this basic type of legislation in that respect on his assurance that he would advice appropriate state officials that they should accept the affidavits which insert the word "knowingly" before any such comment. That certainly would apply in New Hampshire. But in Nelson versus Wyman in 99 N.H. 33 and in the principle case, we have no issue here of any loyalty oath. That's not involved. The only real issues here are whether the Steve Nelson decision eliminates from the States the rights to make it a crime basically to overthrow state government as distinct from the Federal Government. And this First Amendment issue of whether there is to be a First Amendment road block added to the basic other formula for governing fact finding investigations that they allegedly --
Felix Frankfurter: Was the resolution on -- the resolution under which you are operating by your legislature, did that -- was that the record towards inquiry whether there was a danger of subversion to the Government of United States and the Government of New Hampshire?Was that it?
Louis C. Wyman: Yes, Your Honor.
Felix Frankfurter: Well, the Government of United States was mentioned too.
Louis C. Wyman: Yes, Your Honor, in this sense. The resolution under which we have been operating, both since 1953 and as renewed by the general court in New Hampshire in 1955, the record of the Attorney General as a committee for the legislature to investigate whether there had been violations of the Subversive Activities Act and to make recommendations for legislation if any.
Felix Frankfurter: Your subversive activities --
Louis C. Wyman: That's right.
Felix Frankfurter: And that referred both subversion against the United States and the Supreme Court?
Louis C. Wyman: Yes, Your Honor, with a Separability Clause which is explicit. On that subject, I'd like to say and to invite your attention to the fact that our subversive activities law in New Hampshire is not an original matter with us. It was a part of the patent of subversive activities law which were based on the Maryland Act. And in Shub versus Simpson which was the Circuit Court case prior to Gerende versus Board of Supervisors, this whole question was carefully considered and the appeal was dismissed by this Court in 41 Supreme Court.
Felix Frankfurter: What is your view of the -- the effect of this Court's decision in Nelson upon your legislation?
Louis C. Wyman: My view of it is this. I think what you -- I don't -- I don't want to be presumptuous. I think what you said --
Felix Frankfurter: Well, you're not because we are in to it.
Louis C. Wyman: I think what you said was that state sedition acts are suspended as to enforceability for so long as the Smith Act is on the books, that both paramount interest and other -- of the reasons assigned mean that the States should not go into this field. There should be a federal field in a sense of prosecution, and that we can't prosecute. I don't think it follows from that that our legislation is completely voided. I think it is suspended as to enforceability, pending the period of the Smith Act being on the books. That has been our position and I would like to say that the Supreme Court of New Hampshire, two days -- three days ago in Wyman versus Uphaus, Number 4533, considered this point again and with some apparent additional authority disclosed to the -- in the same manner by saying that this was investigation and not prosecution. And an investigation on no theory was outlawed by the -- by the basic Steve Nelson decision. On that point --
Harold Burton: And they're not limited on that investigation to the state sedition that appellants will state federal. He may just impose that --
Louis C. Wyman: It -- it can -- it covers both state and federal, Your Honor, but there is some question of course. We have taken the position all along that it's impossible to seek to overthrow the Federal Government without including the States. And as far as investigation is concerned, we claim under the Tenth Amendment that if anybody is around really trying to overthrow the Government of the United States of America that each State does have an interest in it. And at least as far as fact finding investigation is concerned, we'd like to help.
Felix Frankfurter: One of your view as left in the light of the Nelson decision as you've stated it, I think fairly. That's the defense you've stated. What is there left on which New Hampshire could legislate so long as the Nelson case stands --
Louis C. Wyman: I think New Hampshire can --
Felix Frankfurter: -- and requested by congressional act?
Louis C. Wyman: I think New Hampshire can legislate as it has and this is on the books to make it a crime to advocate the overthrow of the state government by force and violence.
Felix Frankfurter: Yes, but inquiry -- inquiry has at least the ultimate aim of some legislation, doesn't it?
Louis C. Wyman: That's right. I think it could legislate a Feinberg law in respect to the University of New Hampshire if it wished to in the State of New Hampshire which I mean is setting up the Board to give organizations opportunity to have notice and hearing and so forth and then making requirements as to teachers, I think it could make amendments to the present law. I think it might enact immunity statutes on the state level if it wished to or amendments to immunity acts. We have one now which is on the books. I think it might seek to make some revisions to the loyalty oath and affidavit. And I shall certainly recommend that we amend our act just as soon as I get back in New Hampshire to insert the words "knowingly" before the definition of subversive person even though they exist in the formula which this Court has approved. And I think that we should have them in there so as to clarify that point and not leave it just to judicial decisions.
Felix Frankfurter: Yours, but I understand you to say that your loyalty oath act, who has to take that, state officials, teachers?
Louis C. Wyman: The Secretary of State, state officials.Of course, under the law, it doesn't quite fit.
Felix Frankfurter: And Is that -- is that apart from the Maryland Act as you say?
Louis C. Wyman: That is patented exactly on the Maryland Act. Before I sit down, I -- I would like to point out the decision here and -- or the help that we gave or tried to give to a federal committee on this whole relation of federal-state partnership in an investigation. These were carried as to the white hearings by the Senate Internal Security Committee and incorporated many papers which we took on search warrant in New Hampshire at the request of the Internal Security Committee in the exercise of our function and in partnership with the federal authorities. We feel that this matter of investigation is one which could be helped by restrain, careful, protected investigation without -- as I've tried to say blunt language, Your Honor, pushing anybody around and we hope that the clear decision of the Supreme Court in New Hampshire make -- meet the approval of this Court in the review of this case.
Hugo L. Black: May I ask you what you understand this to mean and yours -- such as to finding felony. I just read a part of it. "It shall be a felony for any person knowing and willfully to commit any act intended to alter the constitutional form of the Government of the United States or the State of New Hampshire."
Louis C. Wyman: I think there is added to it, Your Honor, by force and violence.
Hugo L. Black: What is there to destroy or alter? I don't --
Louis C. Wyman: By force and violence does apply there in the definition. Without the force and violence, without the unlawful means, Mr. Justice Black.
Hugo L. Black: It seems you do but I don't -- I mean it's not.
Louis C. Wyman: No, it must be in there. If it's not in there, it's not valid.
Hugo L. Black: Well, you have the words of -- but you have the permit -- attempt to permit or aid in the Commission of any act intended to overthrow and destroy our Government. And you would -- you would limit that to the course involved?
Louis C. Wyman: Oh yes, Your Honor, definitely so.
Earl Warren: Mr. Emerson.
Thomas I. Emerson: May I just make three short points. First, with respect to the publicity issue, the report of the Attorney General appropriately read as of the matter, contains more than 20 pages summarized in the testimony in the hearings involving the appellant in this case, and that was made public in New Hampshire. Now, Your Honor, if I may attempt to clear up this question of the -- whether the question, “Do you believe in Communism?” Should have been included among the unanswered questions. The situation there refers -- it was asked by the Attorney General before the Court. “Now, do you believe in Communism?” Appellant answered, “If Communism is defined as in the New Hampshire Act, no, otherwise I won't discuss it.” It was never pressed beyond that point. Then the decision of the Supreme Court of New Hampshire --
Felix Frankfurter: Do you mean the statute was dropped there?
Thomas I. Emerson: Then he went on to another question.
Felix Frankfurter: Yes, go ahead.
Thomas I. Emerson: The -- the New Hampshire Supreme Court in its decision says, “After inquiries which related to opinion and beliefs and answers to hypothetical questions,” the court, meaning the lower court, ruled that these were not relevant. Other questions were being relevant and then they went ahead and discussed only the lecture questions and the Progressive Party questions which are included in my brief.On -- it was on that basis that I assume that the belief question had dropped out. However, if -- and this is the first time the Attorney General has suggested that the belief question is back in. If so, I -- my position to that would be the same as with respect to the other questions kept more -- even more clearly, it seemed to me, the question as to belief in Communism is -- is within the protection of the First Amendment and outside the area of legitimate state investigation. May I add just one other thing? The appellant in this case attempted to draw a line between those areas in which the State had an interest in legislating with respect to political expression, and those areas where the State must stay out. That is the line which seems to me extremely important for this Court to recognize and -- and confirm so far as it can be made clear because the -- the whole development of political expression in times like this depends upon that kind of distinction and not apart and -- and the danger of blurring over that distinction.
Felix Frankfurter: Would you mind repeating what distinction you suggest to the Court?
Thomas I. Emerson: The distinction between what a State may legitimately infringe upon or interfere or control in the field of political expression and what it may not. The distinction specifically in this case being the distinction between force and violence or advocacy of force or violence and academic discussion or lawful political organization.
Felix Frankfurter: The trouble is, Attorney General that agreed with you on that.
Thomas I. Emerson: He agreed. Yes, sir.
Felix Frankfurter: He agrees with that proposition.
Thomas I. Emerson: He agreed, but agrees with us in theory, not in facts.