*1 honestly sick found that he was amply malingering, which a conclusion Avnet, Baltimore, (Mit- I. Duke Md. shall accord- sustained record. We Dubow, Baltimore, by the Md., chell A. on the per $504, being ingly sum brief), $3-50 add the appellant. day awarded days, amount Baltimore, Grimes, William A. Md. making judge, the total amount trial (Bernard Flynn, C. Ross Atty., U. S. J- $893.66; and appellant awarded the sum Atty., Ober, McKenrick, U. S. Asst. appealed from as so modified the decree Williams, Stinson, Balti- & all of Grimes will be affirmed. more, Md., appellee. brief), on the Modified affirmed. PÁRKER, DOBIE, Before SOPER and Judges. Circuit
PER CURIAM. appeal is an in a suit
This
admiralty instituted a seaman to re Act, damages UNITED cover v. JOSEPHSON. STATES Jones n 91, Docket 20790. No. judge trial 688- denied U.S.C.A. recovery awarded under that act but libel Appeals, Circuit Court Circuit. Second sum of and cure lant maintenance Dec. appealed. Appellant $389.66, he 16, 1948. Writ of Certiorari Denied Feb. steamship; his was chief cook S.Ct. 609. negligence allegation of is that the vessel ' adequate second provide failed him
cook, over a result whereof he was breakdown and suffered
worked nervous him for work for a incapacitated period. judge, who The trial
considerable witnesses, held saw heard negligence. For
appellant on the issue .of judge in stated adequately reasons n opinion, think his conclusions on we Certainly say right. we cannot
issue wrong; they are is well clearly accept them unless we that we must settled Co., 4 Hodges v. Oil Standard so find. Nichiyo Maru, Cir., 123 F.2d 542; Chesapeake Light Cir., 89 F.2d Copper v. Baltimore
erage Towing Co. & Cir., Co., Smelting 40 F.2d Rolling & however, appel think,
We been awarded should have maintenance lant until Nov. instead cure 14th, as allowed
merely until June
Bá *3 City Eyck, York Ten New Barent City, York
(Samuel Neuburger, New A. Grand, Counsel; Jr., of New Gordon City, brief), York defendant- on appellant. McGohey, Atty., of F. X. U. S. John Schachnér,
New City (Bruno Sam- York Attys., Rudykoff, uel Asst. U. S. both counsel), appellee. New City, York Silverman, Washington, Arthur D. G. C., for Liberties Committee Constitutional Lawyers Guild, amicus the-National curiae. Goldman, Fabricant, & Rogge, Gordon
Wolf, Popper, & Wolf and Ross Osmond Fraenkel, City (Her- K. New York all of Goldman, Fabricant, bert Robert H. J. Levin, M. Murray A. and Lester Gordon City, brief), all of New York on the Committee, Refugee Anti-Fascist Joint amicus curiae. CLARK, SWAN, Before CHASE and Judges. Circuit CHASE, Judge. Circuit appellant guilty jury was found after in the District a trial Court on an reading indictment as follows: Law 79th Public “(1) Pursuant House Congress, 60 Resolu- Stat. Congress, January 80th dated tion including there- the Rules amended, Rep- adopted and House empowered to did resentatives was create the Committee on Un-American Ac- tivities, powers having duties and set in said forth Resolution. day. March, 1947,
“(2) 5th On the at York, District of Leon Southern New witness, by Josephson was summoned as' Representatives authority House of Sub-Committee the Commit- through its CLARK, dissenting. Activities, to be Judge, Circuit tee on Un-American sworn com- authorizing the tionality Sub-Com- the law the said testify before and to on joined investigate. mittee He is inquiry committed mittee on matters of filed point' last two who amici said Committee. briefs leave of court. appear before did “(3) Josephson Leon Sub-Committee, pursuant sub- the said con quoted above indictment poena upon him, its session served 7(c), requirements of Rule forms to the Building, District Southern Court Federal Procedure, 18 Federal Rules Criminal York, but then of New March following section U.S.C.A. give and to sworn and there refused rightly sufficient. and was held *4 (Title any testimony said Committee before plain, Indeed, example “a good a it is 2, Code, 192).” Section States statement and written concise definite constituting the essential facts the offense The named statute under which above charged.” appellant un provides pres- he in as It the to was so far indicted enabled accusation, gave person derstand the nature the ently pertinent “Every that: who prepare him the needed information to having been as a summoned witness defense, authority possible Congress and made it for him to House of to of either plead give judgment pros in of another testimony produce papers upon bar or to any inquiry matter under ecution offense oc either should same * ** That, House, any doing casion for we or committee of as so arise. held, enough Congress, willfully either House of often is to an in makes make default, who, Fried, appeared, good. dictment 2 having or refuses United States Cir., question 1011, denied, pertinent answer 149 F.2d certiorari 326 to the question 756, inquiry, 97, under 66 S.Ct. 90 shall be deemed * * Wodiska, guilty misdemeanor, Cir., of a States v. *.” Rev. 147 F.2d amended, Achtner, Cir., Stat. United States v. 144 F.2d Stat. 2 U. § S.C.A. 192. 49. § Un-American Activ- The Committee on em statute, U.S.C.A. The under duly authorized ities has been See United States two offenses. braces
Legislative Reorganization
1946 to
Act of
389, 397, 54
Murdock,
extent,
investigations
“of (i)
conduct
will
first consists
The
L.Ed. 381.
character,
objects of un-American
and
summoned
who has been
ful
one
default
States,
propaganda
the United
activities in
offense,
may
obviously,
a witness.
This
(ii)
within the
the diffusion
United States
refraining,
willfully
with
be committed
propaganda
and un-American
subversive
in
excuse,
appearing
from
adequate
out
foreign
instigated
from
is
countries
and it
response
a lawful
summons
origin
prin-
a
and
domestic
attacks the
appearing
then
also be committed
and
ciple
government
as guar-
the form of
be
willfully
attendance before
terminating
Constitution,
(iii)
anteed
all
ing
Townsend v. United
excused.
questions in relation
other
thereto that
App.D.C.
F.2d
certiorari
any necessary
would aid
in
rem-
L.
denied
legislation.”
edial
Stat.
Perhaps
equiv
whatever is the
Ed. 1121.
provisions
incorporated
of this statute were
may, if
of an unexcused withdrawal
alent
in
Representatives
the rules
of the House
willfully, be a termination of attend
done
Eightieth Congress by
House Reso-
part
of this
ance
violation
and a
January
lution
charged
As willfulness was
statute.
indictment,
correctly
judge
trial
motions to
After
set aside
the verdict
denied,
appellant
not on
judgment
arrest
held that
was
trial
had
-
imposed
appearance
sentence
a
attendance.
appeal
default
was
however, that,
all,
argued,
guilty
if
judgment.
final
appellant
questions
guilty
raises
a willful default and that it
sufficiency
as to the
he
is.
indictment;
properly
he
in
error to
was
sufficiency
proof
hold
support
verdict;
of the second
for a violation
branch
trial court’s in- dicted
jury;
branch makes
of the statute.
second
structions
the constitu-
committee, to
investigator
question
refusal to
chief
for the
answer
refused,
again
inquiry
under
misdemeanor
and be
stand
sworn
“willfulness,”
right,
“the
saying
but does
however
he contested
not include
me.”
committee,
examine
defined,
legality of
be
as an element of the'of
attorney
Murdock,
had been
su
appellant’s
fense. See
United States
After
pra,
submitted
and had
identified and heard
U.S. at
that,
had
statement,
Stripling
Mr.
381. The
contention
written
answer
proved
regarding
be
though a
called
refusal to answer
attention
the situation
support
subpoenas
their service
willful
a con
sufficient to
be
issuance of
default,
following
occurred:
appellant,
viction
for a
on an indictment
States, supra, it
Townsend v. United
does
you
Josephson,
“The
will
Chairman: Mr.
follow
refusal
answer
same
I
Josephson:
sworn? Mr.
stand
prosecuted
may not
under the second
will not
sworn.
say,
branch of
statute.
That
Mr.
stand?
Stripling:
you
“Mr.
Will
question pertinent
refusal
to answer
to Josephson: I will stand.
inquiry
matter
violation
*5
(Mr. Josephson stands.)
the second branch of the
as much
statute
Stripling:
you
“Mr.
refuse to be
Do
when the refusal is
as
“willful”
when it
I
be
Josephson:
sworn?
refuse to
Mr.
is not.
sworn.
being
The indictment
sufficient
“Mr. Stripling:
give
refuse to
testi-
You
properly
upon
and
based
the second branch mony
this
Mm
before
sub-committee?
statute,
of the
the
next issue whether Josephson:
opportun-
I
Until have had
enough
there was
support
evidence to
the
to
ity
determine through the
courts
In
noted,
verdict.
this connection is to
legality of this committee.
appellant
and the
rightly concedes,
at
sworn,
“The Chairman: You refuse to be
regards
least as
the second branch of the
you
give
and
refuse to
before
testimony
appearance
statute whether or not
be
hearing
committee at
today?
this
Mr.
fore
response
the sub-committee
was
Josephson: Yes.”
subpoena
lawfully
to
lawful
served is
appellant
The
subject
was then excused
immaterial.
language
Supreme
The
to call
by the
either
sub-committee or
Court
even
broader:
'“Section 102 [of
full committee.
Statutes,
the Revised
now
sec.
U.S.C.A.
refusal of the
appearance and the
The
plainly
per
extends to case
where a
192]
testify
before
sub-com-
appellant' to
voluntarily appears
son
with
as witness
shown,
jury had evi-
being
mittee thus
being
out
summoned as well as
the case
to
find, as its
which it could
dence
required
of one
to attend.” Sinclair v.
re-
did,
appellant
shows it
verdict
States, United
to.
any
pertinent
question
to answer
fused
268, 271,
charged
appellant
having
submit
err in
with
been
jury.
appearing
as witness” and
of service
“summoned
“pursuant
subpoena” may
regarded
ques- 828,
powers
setting
duties and
he
determined not to answer
forth the
was
under
Activities.
subject matter
on Un-American
concerning
tions
the Committee
5, January
effect
Any argument
copy
A
investigation.
of House Resolution
rules
refused to
incorporating
that it was not
he
that Act into the
shown that
Representatives
be re-
reply
questions
of the House of
can
therefore,
specious.
Eightieth
in evi-
garded,
wholly
Congress, was
as
admitted
met,
suffic-
prosecution
then,
requirement
objection.
dence without
This was
pages
supra,
Sinclair
at
ient evidence
some
under
matter was
S.Ct.,
U.S.,
inquiry
and that
page
297 of 279
sub-committee
at
enough
question
objection.
“plead
that it
broad
and show that
meet this
pertained
investiga-
to some matter under
All prior questions having
decided
been
pleading
ap-
tion” by
showing
appellant, we have next to de-
pellant
refused to
all
answer
termine what
issues
to the constitution-
pertinent questions.
ality
authorizing
resolu-
statute and
appellant
raise,
he
pass
tion
and then to
some
contention
makes
appellant’s arguments
those.
effect
are
that there was a
of fact
sev-
eral
give any
to whether he “had
and will
be considered
turn.
refused
all,
testimony
irrespective
being
that,
first claims
He
Section
since
sworn,
merely
give
had
refused
sworn
192does
provide
itself
an ex
testimony, never having
intelligibly
plicit guide
conduct,
e.,
i.
set forth what
give
testimony,”
invited to
unsworn
questions
the matter
“question”
properly
never
*6
inquiry,
requires
but
au
reference
jury.
submitted to the
Section
his
thorizing act,
latter
purposes
is
the
argument runs,
not make
does
it a crime
penal
this case a
statute. Cf. M. Kraus &
sworn,
to
be
refuse to
and this committee
Bros.,
States,
Inc.
v. United
327 U.S.
fact,
in
as he states he
per-
show if
621, 622,
S.Ct.
L.Ed.
He
so,
to
mitted
do
has taken unsworn testi-
argues
true,
that,
then
this be
if
statute
the
mony. The evidence which we have in
vague
sois
and indefinite as to
uncon
be
part
shows,
plainly
however,
recited above
stitutional,
relying
New
Lanzetta v.
appellant
that the
refused both to be sworn
451, 453,
306 U.S.
S.Ct.
Jersey,
and,
separate
matter,
as a
distinct
L.Ed.
Lowry,
Herndon v.
give any testimony
I have had
“until
an
242, 261,
S.Ct.
opportunity
through
to determine
the courts
other
point
similar cases. But
not
is
the legality of this committee.” Conse-
available to
appellant. By
the
refusing
quently this so-called
fact
is il-
issue
testify
any
all
he refused to answer
lusory at best and we need not decide
questions
pertinent
that were
as well as
whether a refusal to be sworn would alone
those that were
not
thus
not
he was
have
the
violated
statute.
argues
he
not
put to
could
the decision
appellant
viz.,
made,
any
further claims
that
whether or not
been
have
prejudiced
judge’s
pertinent.
trial
question
was
re
We
particular
he
was
jury
“that no evidence may, therefore, put
fusal to instruct
aside his
that
contention
that
language
authorizing
adduced
show
matter
statute is
inquiry
vague that a
the commit
was under
before the sub-com
witness before
so
has no criteria
indicate in
March
1947.” This refusal
tee
doubtful
on
.mittee
proper
questions
court
asked
was
error.
trial
would have
without
cases-what
Legislative requisite pertinence.2
enough
of the
ly
judicial notice
Here
took
concedes,
appellant
as
Reorganization
812, say,
Act of
much
Stat.
and the
as
oft-quot
degree.
judgment
Mr.
But
Justice Holmes’
matter of
If his
see
wrong,
may
in Nash
not
ed statement
he incur
fine or
imprisonment,
here;
short
as
S.Ct.
he
“ * * *
penalty
that:
the law is
death.”
also
incur
Holmes, J.,
where man’s fate de
full-
pends
instances
States v.
Wurz
rightly,
is,
bach,
estimating
that
jury subsequently
it,
as a
estimates
some
law. But Ed. 492. sub- subjecting poena tecum duces court is Qerk House of Department, duty Government fice Representatives, Secretary they may so; be resolved Congress to do statutes Senate —all of' various one of the these under that when it remembered about required —are information itself was to collect very the Constitution purposes of opin public danger attempt from those who to influence protect country indeed, And, 52-53).” (Pp. ion one without. within as well as Federalist, Surely, recommendations matters committee’s several Nos. II-X.6 “The enactment strengthen very survival civil liberties is which potentially affect legislatures Congress the state of our no means Government are which personal legislation groups, at purely requiring one. And all concern of tempt opinion, to public dis investigations matters in influence into such are quiries personal about themselves relating affairs close facts through systematic only registration procedures extent that individuals , part (P. 164).” But those we have no occasion now individuals are the Gov- Congressional ernment as a Kil to decide whether investi whole. doctrine of is, Thompson, supra, then, gation exposure principal bourn v. when, may.8 goal ever, here if a statute It involved. Sinclair United States, supra, page say authorizing is sufficient to S.Ct. at stat page ute Congress contains declaration sought legis that the information is for a appellant contends, however, purpose lative that fact estab thus investigations committee’s are us, Barry lished for States v. United ex made not remedial, for any Cunningham, rel. 49 S. purposes, “expose in order to the1 Ct. Daugh McGrain v. political beliefs and affiliations individ 176-180, erty, groups.” uals and We are told these regardless A.L.R. inquiries imposition upon “an in or its members the Committee statement dividual investigated” or group contrary. The fact intimating the “notoriety an effective method silenc “exposure” incidental to the may be ing and discrediting political opponent.” free inquiry goes only to this, however, In contrast be com below. we discuss speech, dom pared recently published Report of the is, settled that course, well Rights on Civil President’s Committee investigations aid make Printing 1947) Office where {Government Daugherty, E.g., McGrain legislation. principle stated that “The of dis is, appropriate believe, way 273 U.S. closure we *8 Norris, States 580, to deal those who would subvert our 50 A.L.R. with 535, 81 democracy by by encourag 573, 57 S.Ct. revolution or 300 U.S. past in that the ing destroying the disunity rights civil And it immaterial and proposed has (P. 52).” pointed particular groups some It committee . realm, legislation v. United the Townsend political out that “In Federal little the page Commission, App.D.C. at States, supra, 68 the Post Of- Communications 6 E.g., (John Jay): “Among the source reference where citi- No. II may many groups objects find infor- and zens and accurate to which wise free activities, sponsorship, people necessary it direct their mation about find background attention, providing active of those who are for and their ” * * * safety opinion place public first. market seems to in be the Report says: (P. 53).” further ulti- “The Publishing countering responsibility Mor- Co. v. for total- But cf. Lewis mate rests, kinds, always, gan, 57 L.Ed. itarians all good (upholding with mass democratic Amer- 37 Stat. required ap- icans, organizations and their their lead- U.S.C.A. mailing privi- government plicants ers. for second-class The federal must set leges setting example forth sworn file statements an highest careful adherence editors, guaranteeing of their and addresses in free- names standards etc.). stockholders, expression opinion publishers, dom and its em- ployees. Beyond ought provide informa- gained topics. Similarly such numerable page 355. Information F.2d at funds.” nature, provided may helpful its tion in appropriating by a of this committee purposes,, Though ample for may be frustrated list is truth search other and newspapers em as those added that obstructive tactics statements publish periodicals ployed by might aid file appellant, well must ownership- management and Congress performing showing in du their its privileges, mailing ties, public viz., wel to obtain deciding in that the second-class foreign agents- 233; and required passage fare of new statutes U.S.C.A. § Attorney General register must changes existing or ones that it with in or did activity, 22 U.S- Landis, they engage if supra, political in pages not. Cf. 208-10. seq. imposed C.A. Some of these duties are et §§ principle that the Government shall argued in be it is Despite all this preserve itself, but, course, by express Amend First appellant half of this provisions among the Constitution. Thus information gathering ment forbids Constitution, purposes of the as ex com Congressional duly authorized pressed Preamble, are to “insure prop regarding sub-committee mittee Tranquility,” “provide domestic for the true, Con If this aganda activities. defense,” “promote general common immunity from dis provides stitution itself welfare,” Blessings “secure the those who restraint covery lawful Liberty.” gives Art. Congress sec. 8 theory to be seems it. destroy would power “provide for the common De Un-American that the jj' fense,” Armies,” support “to raise and “to way impairs in some [subversive propaganda provide and Navy,” maintain a “to make expression freedom entirely clear the ¡¡not Rules for the Regulation Government and Rights. Bill of ¿guaranteed Forces,” of the land and naval and to “make appellant whether this be doubtful all Laws necessary prop which shall be show more to without the issue raise er for carrying into Execution the fore rights free exercise going IV, Powers.” provides Art. Sec. 4 way. And the stat impaired in some that “The United guarantee States shall the dissemina to license purporting ute not every State in Republican this Union a Thorn ideas, seems unlike case tion of Government, Form of protect and shall hill’s, each of them Invasion” not be difficult would perhaps application “against Violence.” domestic ground on the our decision to rest us specifically, Judge More Holtzoff said chal standing to appellant has no D.D.C., Bryan, in United States v. 72 F. face. We shall re lenge on its statute Supp. subject 62: “That of un appellant, in favor solve this doubt American subversive is with activities ben however, give him the full order power investigating Congress of the- exceed being to contest this efit able Conceivably, is obvious. information in important point. ingly legislat aid this field appellant argument ing concerning many matters, any one of amici is that the Committee’s in substance correspondence foreign gov such as with by Congress’ investigate limited *9 to is 18, (U.S.C.A. 5); ernments Title sed § power prohibited legislate; Congress to is 6) ; conspiracy (Id. prohibition itious § legislating upon thought, from matters of undermining the morale of the armed forc speech, opinion; ergo, empow a or statute suppression (Id. 9); advocacy Congressional es ering committee investi § to of the (Id. 10); overthrow Government gate such matters is unconstitutional. organizations carrying registration syllogism of this is mere statement sufficient propaganda (Id. types of 14 Congress certain can obviously on it. use to refute §§ entering ; qualifications gathered for this Committee 15) re information legislation encroaching upon service; pass not to Government maining in the au liberties, appel above as noted. The radio civil thorization Governmental broad therefore, necessarily, countries; argument lant’s foreign and other in- to casts
91
danger
to
exists
that be
ascertain whether such
proposition
reduced to the absurd
quarters
Com
from these
or
others.
resulting from
cause the facts
conceivably
also
investigations
mittee’s
runs
appellant’s
argument
im
legislation
as
basis
utilized
very purpose
counter to
First
of the
expression, the statute
pairing freedom of
power
Congress
Amendment. The
to
authorizing
investigations must be
gather
public
facts
most
intense
clearly Congress
held
void. But
concern,
these,
such as
is not diminished
legislate
freedom9
should
curtail
this
to
unchallenged right
of individuals
pres
at
least
there is a “clear
where
speak their
within
limits.
minds
lawful
would,
danger”
ent
that its exercise
speech,
propaganda,
When
or what
attack, imperil
armed rebellion or external
called,
ever it
the moment be
clear
at
system,
country
and its Constitutional
presents
ly
danger
to national
immediate
amended,
peaceful pro
including, until
security,
protection
Amend
First
cess of amendment.
v.
Schenck
United
Congress
ment
legislate.
ceases.
can then
States,
47,
247,
52,
249 U.S.
39 S.Ct.
63
deciding
do, however, may
In
what
legislation might
L.Ed. 470. Such
ulti
with the difficult
necessarily be confronted
preserva
only means for
mately be the
complex
determining how far
task
again
To draw
tion of
freedom.
this
transgresses
boun
go
it can
before it
Report
Committee
of the President’s
by the Constitution.
daries established
“The
threat
Rights,
Civil
most immediate
equally
has
been said is
What
elsewhere
opinion
right
freedom of
and ex
Congress
applicable
power
“The
here:
pression”
groups,
consists of two
Com
pool
exercise
real estate
control' over
Fascists,
which
“often
munists' and
both
speculation but
for abstract
is not matter
symbols
democracy
use
words
only after an exhaus
one to be determined
But
tactics.
their
mask their totalitarian
problem. Relation
tive examination
always
rights
concern
civil
limited
ships,
probabilities,
their
determine
and not
willing
Both
power.
themselves.
to lie about
Congressional
Con
the extent of
stitutionality depends
their
such disclos
political views when it
convenient.
presence,
They
ures. Their
whether determina
obligation
feel no
to come before the
judicial power,
can
tive
public
they
openly
say
who
are and
(cid:127)
Landis,
guesswork.”
relegated
really
48).”10
what
At
(P.
want
supra
page
say,
217. Needless
this
has
time,
yet Congress
not deter
same
apt
all the more
statement
where
present
is such a clear and
mined that
subject
Congress
about
is contem
groups
danger
their
from these
free
plating legislation
abuse
public
attempt
to influence the
dom to
par
monopoly
particular
but at least
adopt
abridged,11
should be
their views
matter
free
tially
delicate
concerns the
so,
ever,
Congress validly
if
does
until
speech.
zealously guarded.
that freedom should be
added,
mean that
surely
But
does not
it is not
And it
facts
would
courts
in advance
Con-
collect
enable it
to assume
cannot
legislated. E.g.,
660,
9
10,
denied
40
L.
indeed
250
S.Ct.
63
And
U.S.
217,
1194;
States,
Cir.,
1917,
Equi
Espionage
Act of
Stat.
Ed.
United
53,
constitutionality
261 F.
denied 251
31-42.
certiorari
U.S.
§§
U.S.C.A.
upheld
in Frohwerk
act was
S.Ct.
L.Ed.
States,
Act,
also the
Activities
Subversive
Stat.
39 S.Ct.
561;
9-13, upheld
States,
in Dunne
§§
Debs v. United
U.S.C.A.
States,
Cir.,
138 F.2d
v. United
certiorari
denied 320
Schenck
rehearing
88 L.Ed.
denied
Pierce v.
*10
260,
239,
814,
States,
205,
252
n
constitutionality
question has
pellant,
presumption
there
no
that
the statute in
is
See,
that
discriminately
where
been
administered
it
civil liberties are
so
concerned.
516, 529,
unconstitutional,
Hop
Collins,
citing Yick
v.
g.,
e.
Wo
v.
323 U.S.
Thomas
1064,
430;
kins,
356, 373, 374,
65
118
S.Ct.
U.S.
89 L.Ed.
Schneider
is,
course,
State,
30
appellant
84 L.
L.Ed.
308 U.S.
220.
155;
that,
Note,
arguing
although
correct in
Ed.
531. But
Yick Wo
Col.L.Rev.
Hopkins, supra,
though
regards v.
cases are
well be
and similar
true as
already
primarily
“equal pro
legislation,
concerned with the
certainly
enacted
does
mean,
appellant
not
tection
under
Four
as the
of the laws”
would
clause
effect
believe,
Amendment,
have
teenth
are
consider
the discriminations
us
that we
to
prohibited
legislation
yet passed
presump
by
that
that clause also violate tho
not
Amendment,
tively
they
Fifth
Rather,
where
amount to
unconstitutional.
the courts
presume,
process-.
Hirabayashi
are
a denial of
contrary appears,
due
until
81, 100,
Congress
v. United
obligation
will fulfill
S.Ct.
its
preserve
alleged
defend and
93
established,
legis-
exercising
prime
when
function
it
That
is established.
carry-
lating.
from
case,
abun-
when it
Only
seems
refrains
of this
purposes
least
ing its
cli-
to their
activities
constitutional
dantly clear.
exempt
it,
alone,
max will
it
Judgment affirmed.
of all
respecting
most
cherished
accept
privileges.
democratic
I
cannot
with
CLARK,
Judge, dissents
Circuit
consequence
express
and hence must
separate opinion.
I
why
best
I
this re-
the reasons
think
sult is invalid.
CLARK,
Judge (dissenting).
Circuit
indicated,
I
precedents
As
have
re
easy
pleasant to dis
I
it
nor
find
neither
quiring judicial scrutiny
legislative
more mo
issue,
agree on this
one of
activity
question;
beyond
are
and conflict
Des
before us.
mentous
has come
which
only
proper
view
arise
as to
hoary
public satisfaction
pite
precedents,
outcome
scrutiny
particular
in a
judicial
acts has
with
review
leading
case. The
case
v.
is Kilbourn
to embark
judges
to invite
such as
not been
Thompson,
377,
168, 190,
26 L.Ed.
Even in'the
willingly.
hastily or
thereon
where the Court held
investiga
invalid an
admon
we are
rights, where
of civil
field
judicial
tion of a
possible
nature into the
in fa
ordinary presumption
ished
losses of the United States on the failure
constitutionality
faint or
either
vor of
Jay
upheld an
Cooke & Co.
action
yet
that
nonexisting,1
is not
clear
imprisonment brought
for false
re
accomplish permanent changes
courts can
Sergeant-at-
calcitrant witness
ways
thinking. Yet
of men’s
Representatives.2
Arms of the House of
precedents compelling
precise
scrutiny
Speaking
court,
for a unanimous
Justice
presence
pointed,
us
survey
Miller in the
historical
course of an
prob
deprived
liberty
one citizen
of his
trenchantly
sure
stated that “we are
that no
ably of
it im
his
livelihood makes
future
person
punished
contumacy
can
possible
judicial responsibility
to evade
House,
a witness before either
unless
refuge”
serve as
“haven
which
testimony
required in
into
matter
which
minority.
courts
must offer
dissident
jurisdiction
inquire,
House
Florida,
Chambers
309
60
U.S.
we feel equally sure that neither of these
472,
necessity
S.Ct.
prisonment
contempt
for the writing of
objections to
are serious constitutional
defamatory
letter
subcommittee of
conviction under section
witness
So, too,
the House.
and the
put
to him
who refuses
answer
duty
congres
of the courts to scrutinize
Committee.”
investigations,
sional
lest
transcend
limitations,
us,
problem
constitutional
con-
Now the
and the
3 McGeary,
Developments
Science,
1929, 117, 149,
of Con
No.
Ser.
Investigative Power,
gressional
Congressional
153-158; Eberling,
Inves-
Hamilton,
Inquisitorial
tigations,
Landis,
Power
Constitu-
114;
383;
511;
Congress,
Stebbins,
Congressional
23 A.B.A.J.
tional
on the
Limitations
Congres
Investigation,
Limitations of the Powers
Power
40 Harv.L.Rev.
Investigating Committees,
Wigmore
Evidence,-3d
sional
16 A.
425; Dimock, Congressional
4k;
B.A.J.
vestigating
In
Ed.
8 id.
§
Col.L.
Committees,
Hopkins
Johns
infra.
discussed
Rev.
Univ. Studies
Historical
Political
*13
by
hence,
scope,
con- to its
as characterized
or not
and
time, whether
one at this
is
powerful”
members,
one of
“the most
its
as
2 U.S.C.A.
defendant
this
viction of
Congress.5
us
committee of
have
valid. We
§
activities,
aspects of the Committee’s
other
ac
indicates that
The Sinclair case
testi-
voluntary
example, the
involving, for
authorizing resolu
tual construction of the
others,
disparaging of
mony
witnesses
bear
have some
by
tion
a committee
libel,
possible incidence
the law
experi
ing
interpretation.
on
But the
its
matters
Questions as to these
and so on.
now
ence of this Committee’s activities
issues
framing of definite
await
con
nearly a
decade
instructive in
them;
pass
we should
presenting
here
is,
showing
trary direction, that
as
de-
whether or
the one issue
ex
asserted and
there
no bounds
its
are
lib-
deprived of his
properly
fendant was
powers. A
activities
erted
review of these
third
erty.
we have to consider
Hence
here,
it has
need
undertaken
since
not be
reinforced
suggested by
writer
grounds
thoroughly
and since
been done
elsewhere
question as
pertinent
far
here
so
as
congression
reports,
the various committee
suggested
Amendment
the First
debates,
mem
al
addresses and
articles
ground.
first
bers,
publications
freely
general
are
and
available. It has never made
secret of
general, making
Now
the statute itself
strength
its intent
to use that
and
inquiries
attempt
no
to define
strength
say
to the utmost. Suffice
toit
Obviously must be filled
Congress.
it
range
activity
here that its
covered
has
expression
form
of authori
out
and
organizations,
all
including
varieties
particular
zation in a
case. We turn there
Union,
Civil
American
Liberties
I.
the C.
key
fore to the
words of the resolutions
O., the
Welfare Confer
National Catholic
original
creating.and continuing the
Com
ence,
party,
the Farmer-Labor
the Feder
year
passed
mittee
and
statute
last
Project,
organiza
Theatre
consumers’
present authority
al
Com
for the
tions,
publications
maga
from the
mittee’s
all
actions. These are
in the same
various
Worker,”
zine “Time”
and
making
adjective
“Daily
wording,
"un-Ameri
can,”
varying
types
industry,
definition,
forms
and
without
the foun
further
which the
movie
dation
recent
stone of all the activities. Pub.L.
Sess.,
industry
public
Cong.,
is fresh in
Aug.
No.
2d
mind. While
79th
specific
has
definition
121(b) (1) (q), 60
828.4 The Com
avoided
of what
Stat.
inquired
is seeking,
repeatedly
mittee
as to
is first authorized “to
make from
membership
party
time
investigations
to time
Communist
(i)
the ex
tent,
organizations
character,
objects
regards
other
which it
of un-Ameri
propaganda
activities in
communist controlled
affected.
States.”
powers
Then continue
functions of
itself the
further
has claimed
below;
spotlight
discussed
pub
even had
focus the
jury
these been more
grand
subversive,
(as they
not),
definite
are
it considers
licity
would not
on those
jobs
force,
dangerous
their
or the
them from
order
drive
have lessened
employment and
grant.
government
broad
All
vagueness, of
initial
key
It has
attempts
explain meaning of the
unions.
their offices
trade
orig
“un-American,”
1,000,000persons
either on the
word
gathered a file
over
inal
the Committee or on its
“file on
organizations,
creation of
claimed to
renewals,
op
individual and or
every
avoided
known subversive
later
hand,
today,”
States
posed.
ganization
other
has been
in the United
On
allegedly subversive
intent to continue
a definite
successful
has submitted lists of
Attorney
employees to the
government
without
restriction as
this Committee
s'eq.; Ogden,
original
The Dies Com
was H.Res.
et
resolution
Rev. 416
Rev.Ed.1945,
seq.;
Sess.,
Cong.Rec.
mittee,
Cong.,
et
3d
2d
75th
Lovett,
continuing
328 U.
1938. For
also United States
see
308-313,
resolutions,
L.
see
47 Col.L.Rev.
S.
Ed.
supra.
see
note
detailed
Col.L.
For
citations
instigated
speak
Generally
propaganda
un-American
investigation.
General
or
legis
from
a domestic
suggestion
foreign
or of
ing it has avoided the
countries
form
igin
principle
legislation has come
lation. No
attacks the
however,
activities,
government
Constitu
guaranteed
itself.
Committee
Its
here con
legislation
tion.” The
“subversive”
considered to have
word
led
*14
a
veys
meaning,
is
a bill of attainder
no
since
held unconstitutional
additional
as
Lovett,
Act or
completely
in
66 term
in this
v.
328
undefined
States
U.S.
And
in
Code.9
90
Hence neither elsewhere
our
S.Ct.
L.Ed 1252.7
Criminal
of our
principle
legislative authority
attacking
nor the actions clause
pursuant
our
by
government,
'lim form
suggest
permit
guaranteed
to it
or
of
specific
Constitution,
spoken
given
investigation
itations on the
of the
cannot
per
or written
amendment
content.
of
word.
The.freedom
possible
by
makes
.mitted
our Constitution
If, on
hand,
to con
other
we look
changes in
advocacy
extensive
of the most
temporary thought in
a
the matter we find
be that
governmental
form.
It cannot
vagueness
adjective. Perhaps
like
change
urging
the advocacy of amendments
the nearest to concreteness is in the em
example,
Execu
relation,
in
of
phasis
by
made
leading
certain
industrial
recently
subject
of
Congress,
tive
organizations
and others
what
books,
In
popular
several
subversive.
like
way”
to call the “American
or the
States, 320 U.S.
Schneiderman v. United
theory
enterprise.”
“American
free
of
It 118,
137, 144,
not a
interpretation
strained
to consider 1796,
provi
Supreme
Court noted the
trend,
that the converse
strongly resisted
amend
change by
sions for constitutional
course,
many
by
(as,
of our citizens
was
ment,
changes
many
with the
since
right),
in
their
which led to
undoubted
held
the idea that
“refute
these
governmental regulation
creased
a decade
any particular provision
attachment to
or
ago,
be included in
con
could
the intended
provisions
essential, or that one who ad
investigation.
tent
a matter
of the
As
changes
necessarily
vocates radical
fact,
testimony
at the
movie
recent
suggested,
It
Constitution.”
attached to the
necessary
found
un
essential,
principle was
indeed,
that if
qualities
American
for which the Commit
thought.
not a
Would
freedom of
it was
searching
placed
tee
in
was
films
an
American or
suggestion by either an
light
bankers
an
in
unfavorable
talked
or
government
field
English scholar in the
“against
enterprise system.”
free
system or
English parliamentary
English
Further
Labor
present program
of Public
subdivisions
Law 601 the
lessons,
concepts
object
propa-
introduce the
of subversive
party
useful
contained
ganda
language
attacking
principle
broad
our form
come within
Americans
government, viz., “(ii)
interpretation
the au
diffusion and the broad
all,
within
United States of
“subversive” means
thorization? After
subversive and
activities,”
committee,
special
prohibit
a
no
it
subversive
While was
certain
it;
further
it
it
no
bills were referred to
since
has
but
Stat.
contains
origi
ap
standing
Nor
made a
committee
has
the term.
does
reference
legislation.
pear
statute,
nated no
all in
of the same
The second
at
the later act
infra,
year
registration
or
introduced
cited note 9
for the
certain
carrying
ganizations
political
Supreme
activi
member
Committee
attributed to its
The codifiers
Court has
provisions
work
ties. 54 Stat. 1201-1204.
appropriations
significance
thought
or
it of little
attached
de
either
employment
it;
nying
do
federal
what
with
thus
members
troubled
were
organization
“Same,”
political party
appears,
in
or
advocat
the rubric
ing
government.
of all sections of
overthrow
the title clauses
both
Lovett, supra,
9-17,
in
United States
See
acts
18 U.S.O.A. §§
303, 308,
F.O.A.,
Tit.
12.
§§
U.S.
two in 7
viz.
attempt by another committee
n.
an
Col.L.Rev.
For
papers,
daily
notably
definition of subversive activ
formulate a
the N.
22-25,
Lovett,
ity,
supra,
Y.
for Oct.
Times
see United States
Regis-
303, 311,
The title clause
the “Alien
90 L.
begins,
tration Act
1940”
“An Act
Ed. 1252.
turn,
Amendment,
speech
means
which,
securing
freedom
subvert,”
“tending to
any abridgment
Congress,
by undermin
pervert
corrupt (one)
“to
faith;
partial lessening
morals,
to does
authorize
allegiance, or
ing his
complete pro
anything
International
freedom
than
less
Webster’s New
alienate.”
True,
But
tection.
in the well-known formula
Dictionary,
Unabridged, 1939.
Ed.
2d
thought
in Schenck
change
political
devised Mr.
Holmes
advocacy of a
Justice
39 S.Ct
certainly
attempt
to undermine
an
.
points
All
present.
faith of the
of this
safety
the state
vague right
protect
real vice
so
underlines the
endangered;
when
and hence when
when so de
that is
ambiguous
authority
an
such,
terminedly
words “are used in
circumstances
against minority
marshalled
create
clear
attempt
such a nature as to
justifies
views.
invites and
*15
bring
present danger
they
that
will
political
think
to enforce conformity of
evils”
which
ing,
penalize
orig about
substantive
and the
new
Congress may legislate,
they may
pro
inal,
be
to label as subversive or un-American
lately
attempt
penalized.
hibited or
As
defined
approaches
devise new
for
California,
252, 263,
Bridges
public
314 U.S.
welfare,
in short to damn that
190, 194,
very
S.Ct.
86 L.Ed.
experimentation
kind
A.L.R.
of
initiative
1346, this means “that
evil
democracy
substantive
grow
has
which
made our
extremely
degree
must be
and the
Virginia
serious
flourish. Cf. West
State Board
extremely high
of imminence
Barnette,
before utter
of
Education v.
319 U.S.
*
* *
punished.
ances
be
For
1628, 147
A.L.R. 674.
speak equiv
First Amendment does not
a penal
Since this is
statute we are
ocally.
prohibits any
It
‘abridging
law
enforce,
upon
called
vague
standards so
speech, or
press.’
freedom of
It
and doubtful should be adjudged insufficient
must
taken
be
command
a
of
broad
requirements
settled
prohib-
scope
explicit
est
language, read in the
ited conduct
purposes
must for criminal
al-,
liberty-loving society,
context of a
will
set
clarity,
forth with
person
so that
Now,
country
when
peace,
low.”
is at
applies may
to whom it
determine what
it is hard to discern such
of
circumstances
legal
conduct is
and what is not. This has
present danger.”
Indeed,
“clear and
applied
ordinary
often
criminal
experience,
teaching
nearly
of
after
three
law, as in United States
L.
Cohen Gro-
well-nigh pathological
decades of
of
fear
cery Co.,
81, 89,
S.Ct.
“Communism,” under constant
investiga
14 A.L.R.
more recent-
by Congress, Ogden,
tion
The Dies Com
ly in M.
Kraus & Bros. v. United
mittee,
1945,14-37,
2d Rev.Ed.
might sug
S.Ct.
gest that there was more to be feared from
holding too
indefinite Maximum Price
the fear
itself
than
supposed
from the
Regulation of the Price Administrator un-
During
danger.
period
we have had
der
prosecutions
which criminal
had been
major
economy,
two
threats
but
undertaken.
may
“No
required
one
have come from different sources. One
peril
life, liberty
of
property
speculate
(domestic) was the economic crisis of the
meaning
as to
penal
of
statutes.” Lan-
thirties;
(foreign)
the other
Jersey,
zetta v. New
the at
Germany.
Japan
tack
Each
com
within constitutional limits. is. dangerous pro a bucket here. The fact propaganda forbid dying man 'chooses, obviously to a portions life-giving it water when it at- foolish prohibition. of thirst not render investigate the need of such does raging tor- merely tempt to excesses dangerous But it curb the when attacks not .^departingfrom yond lation. An tion. But it yardstick evil reaches held of the nied 320 U.S. ment in of duty, necessity, desirability, lence, the crime there overthrowing justification claim of propaganda, a matter of would States, Cir., able into an as needed. In the Alien justified. any the investigation *16 knowing same manner as the is to translate the constitutional formula could constitutional impress such investigation adequate contended, however, the by authority. point For be argument government.” the assassination United States U.S.C.A. § justified great or willful is hard to see how the easily or destroying 138 F.2d all treasonable legislated against working any possible difficulty effect then is in can be broadened be- In made the much investigation into the being constitutionally proper wide reaches of its advocate not truth, Dunne advocacy norm, tool all resulting legisla- Registration by Such a to be defined in stressed is propaganda. that it has defined argumentation certiorari de of force or vio scope already any govern propriety provide valid appropriate there is protection, v. any seems in terms formula, of “the officer legis- scope scope that, been that the Act no of property chief tive makes excess its function is to tifies the With legislative commission constitutional amendments public good, ion, ways properly pillory rent. Under this enough consequence' sort of scope Since there is the award of sible Sugar Refining 195. And regulate private property, so with Moreover, Attorney-General, appeal, to the will lead power, including activity justice. Colonial such could sanctify the investigation expressly due lesser generally exercise of the nationalization conclusion power, in a thesis power process also be just to the we the Attorney-General decision always an area of Co., the strange argument compensation. A doctrine rejected legislate must dram of the because person legislature, —a utilized to [1914] that, investigate limitless. 15 C.L.R. dubious entire law, was invalid. control Sugar theory. face the thesis greater analogies by an Australian provided it does by reason at Congress might carried or take it good must al- A.C. of unlimited of large has grant Refining Co. interestingly for, refusing to justify always jus- over remainder. suggesting Clearly investiga- power to practical Colonial indeed! permis- further indeed, of the opin- the an legal since there area of one much activity argument, is corollary A questions specific only the Committee within the is pressed, constitutional the Com before limitations, investigation objected witness as a a therefore the be present, as the illegal that in cases supported, only whole mittee is to sworn, he been rejected. has not practical witness Passing activities where the believed, this, is is anything But impossibility isolating redress. of then as has no us here. We beyond investigatory scope, issue permitted confuse logically in the character of such view is indefensible mind the keep a need principles. constitutional the examination light objections Of available priv personal only going beyond it is the con- will include proper. They course self-crimination, against ileges, limitation which ever renders such as stitutional they still exist True, form improper. attenuated legislative acts one can whatever investigations,10 per- is, generally, question as so one in say pros testimony privilege for later criminal of the self-crimina problems claimed, raised tion, is For intended if U.S.O. ecution. easy waiver to ex statutes § these 28 U.S.O.A. A. § prevent privilege, testifying, De see United States use cuse question un- ered Neverthe tinency determined vacuo. question to “the impor if inquiry.” But less those der where issues vast U.S.C.A. assumed, light investigation tance is as broad as thus should be considered wholly way significance, de- logical or rational of their broad and not there is no termining pertin- question concept single in the narrow in is not inquiry.” How question presents ent to dividual them as kind of under who “the question, public stark avenger can it be vicarious weal. said that even the solely upon you gaze “Are When we concentrate our Communist?” affiliations, inquiry propagan- testify party the refusal into as to un-American very sympathetic for us da when the latter be defined broad- is hard to feel ly exper- feeling as has in actual general Committee with refuser. The clearly objection very up real ience? The one show his true should stand here, colors, when, scope investigation. particularly to the assumed in Attorney-General tinge, Re- Sugar quiry strong patriotic Cf. v. Colonial given fining Co., supra. That naturally public is a led confusion which power, initial properly mingles strong which should condemnation of Committee procedures at the inquiry raised with outset some belief its assumed person at whom it is Logically objective. quite directed. This normal reaction that Communist, validity else, he assumes the as well as one testify. Indeed, practically say if he starts to should what he is when the fact is legally question, real importance public good could al extremely first, scope if, however, broad view natural of waiver de- lowed its veloped respect appearances authority properly with before the investigating lim *17 committees, congressional may Indeed, objectives. ited constitutional whether he to any objection validity given not have waived propagan of a search directed proceeding. thus government See da for United States v. the overthrow the of Cir., Lorenzo, violence, 151 De 2 perfect F.2d But seem force or would if ly even so strict not applied, fitting rules as matter detailed be of examina gained nothing any practical seems in illegal a witness’ denial of tion—to test ac by requirement sense that a witness must inquire per to or not the tivities— whether sworn name give investigated be and and address be- son was any a member of fore he can the resist unconstitutional organization that princip such advocated investigation. pro- breadth of Hence, Such a validity whenever the initial les.11 formality cedural reality no investigation forth, properly of set scope context of broad of First investigation proceed can in a then Amendment. way accomplish express workmanlike to its Moreover, emphasis subject problems point pro- purpose, only specific of belittles, nullifies, particular questions cedure pertinency as well con- as to objection. hearings, par stitutional Under our and the conduct of the with scheme legal values constitutional the procedural issues must ticular reference to safe raised, always all, by persons guards be if some to be accorded the individuals under thereby. They affected cannot investigation.12 be consid- Lorenzo, Cir., 122; F.2d and held com evidence to show insufficient Congressional Eberling, Investiga pare party in 1927 the Communist tions, 288, 339, 389, 390, advocating govern overthrow of validity. plea questioning their ment force and violence. also See privileged lawyer Wixon, Bridges between v. communications 326 U.S. 65 S. client seems have been sus L.Ed. Ct. proceedings procedural safeguards in tained Discussion MacCracken, Jurney investigated persons led to v. —not present
U.S.
55 S.Ct.
I must have not dwelt the electorate at activities, being whether the Committee’s remain its But in main source of control. narrow, in though form of con- investigation important, directed field place, liberties, words and acts taken stitutional is' desir- after more control can abridg- power For nevertheless considered an thus wielded be able. the extreme ment ruin if speech. freedom of For it candes seeds own of its too Indeed the constitutionally well established now exercised. our Constitution public does not follow mixed and reaction the earl- confused penalties signifies as English ier activities view after the of this Committee involving the curtailment, pro- Any for such but does much. event expression hibit of views or beliefs tending prevent persons freedom of acts broadly important exercising disturbing to our historical is sure to be democracy con- right. Grosjean Co., conceptions unless it Press v. American in manner as ducted to such ends public opinion. support California, supra. command the Bridges v. Here there constant Yet Committee has been can be no doubt intended and ac- searching most criticism from even the consequence tual investigation. society, who elements in our conservative Committee announces its desire that guilty of “red” tenden- can no sense persons it guilty finds shall forfeit their ; support its ob- cies even those who while jobs public industry jectives than general do with more so subject shall to prosecution col- a situ- apology methods. Such for its lateral crimes which have been dis- invulnerable, a po- ation, legally if even closed, generally exposed piti- shall be weakness, preventive tent source of lessly public That it is condemnation. accomplishment. Friends and long-range purpose successful daily papers congressional supporters show. There no doubt of the ob- find exercise here present well fear its abridgment right vious and direct proper of a application restraint speak express opinions freely one’s run, rather long strength in the source of which is thus achieved. widespread For a belief than the reverse.' *18 acting right un- investigation that congressional the Committee way American end important, to even an productive American been so so usefulness destroy will the Committee’s many good in history, so instances people.” eyes liberty-loving of “a’ hamper that no one would wish to it im- properly. true, many And urge, the in- I for dismissal of would reverse public opinion ex- that the force of dictment. 1796; Bridges 161-163; Inquisition,” Me v. Wix Ct. “Ex Parte Congres
on, supra, 135, 147, 163, Geary, Developments of Power, 1940; protec Investigative Rif sional counsel, presentation Jury, kind, J., charge tion writ to Grand Oct. by witnesses, right N.Y.Times, p. ten statements Oct. cross-examination, Dimoek, Report Committee on so on. President’s Committees, Rights,” Congressional Investigating Rights, These “To Secure Civil Hopkins Cong., Pub.L.No.601, 1947, 165; Johns Univ. 2d Studies Historical 79th Science, Sess., 133(e). Aug. Ser. No. Political