UPHAUS v. WYMAN, ATTORNEY GENERAL OF NEW HAMPSHIRE
No. 336
Supreme Court of the United States
Decided November 14, 1960
364 U.S. 388
Louis C. Wyman, Attorney General of New Hampshire, appellee, pro se.
PER CURIAM.
In view of the Court‘s decision in Uphaus v. Wyman, 360 U. S. 72, rehearing denied, 361 U. S. 856, the motion to dismiss is granted and the appeal herein is dismissed for want of jurisdiction, in that the judgment sought to be reviewed is based on a non-federal ground.
MR. JUSTICE BRENNAN.
The New Hampshire Supreme Court has held in this proceeding that the New Hampshire Legislature still wanted Dr. Uphaus’ answers on December 14, 1959, not-
MR. JUSTICE BLACK, with whom THE CHIEF JUSTICE and MR. JUSTICE DOUGLAS concur, dissenting.
I concur in the dissent of MR. JUSTICE DOUGLAS and agree with him that since the New Hampshire law upheld by this Court in Uphaus v. Wyman, 360 U. S. 72, has now been changed, new federal questions are presented which cannot be dismissed as involving only the correctness of a ruling on local law, and that we consequently should not dismiss this appeal but should note jurisdiction, grant bail and hear arguments. The recent amendment withdrew the power, involved in the previous appeal, which authorized the Attorney General of New Hampshire “to determine whether subversive persons . . . are presently located within” the State, and thus took
First, I think this action is inconsistent with the Court‘s own test as set forth in its opinion on the prior appeal and there used to square the imprisonment of Dr. Uphaus with the First Amendment. That test was stated in these terms: “The interest of the guests at World Fellowship in their associational privacy having been asserted, we have for decision the federal question of whether the public interests overbalance these conflicting private ones.”3 This required the Court to weigh the interest of those guests against the interest of the State, as broadly expressed by its legislature, in knowing
Secondly, it seems to me that the record as it now stands before this Court requires a reappraisal of the question whether the actions of the State of New Hampshire constitute a bill of attainder in violation of
I think the summary dismissal of this appeal without even so much as the benefit of oral argument, when the abridgment of the rights of free speech and assembly is so obvious, is a sad indication of just how far this Court has already departed from the protections of the Bill of Rights and an omen of things yet to come. Such retrogression, of course, follows naturally from the Court‘s recent trend toward substituting for the plain language of the commands of the Bill of Rights elastic concepts which permit the Court to uphold direct abridgments of liberty unless the Court views those abridgments as “arbitrary,” “unreasonable,” “offensive to decency” or “unjustified on balance,”6 for these concepts reduce the absolute commands of the Constitution to mere admonitions. I think it is time for all who cherish the liberties guaranteed by the Bill of Rights to look closely at the disastrous consequences upon those liberties which have resulted from the
He is a citizen of this country by birth. Throughout the nearly seventy years of his life, evidently from early boyhood, he has been a deeply religious person. The record shows his active membership in and official service for various Methodist churches in the communities where he has lived. The value of that membership and those services is attested by affidavits filed by the pastors of those churches. The record further indicates, without dispute, that he is a man whose life has been dedicated to the principles of his religion. He holds a degree as a Doctor of Theology. He taught religious education at Yale University and was associated with the Religion and Labor Foundation for a number of years. Over the years, his religious faith manifested itself in an increasing opposition to war. It was this belief which led him, in 1952, to become the Director of World Fellowship, Inc., a summer camp operated, he says, in the interest of promoting the ideas of paсifism.
Almost immediately upon his arrival at World Fellowship, Dr. Uphaus came under the fire of an investigation being conducted by the Attorney General of New Hampshire, apparently on the theory that World Fellowship was frequented by “subversive” persons. Eventually, as the Director of World Fellowship, he was called before the Attorney General to testify. At the very outset of the hearing before the Attorney General, he expressed a complete willingness to answer any question concerning himself, including any views he might hold or any actions he might have taken with regard to any subject. In addition, he expressed a willingness to give the Attorney General any information which might be wanted in regard to
Nonetheless, the order to produce was upheld and Dr. Uphaus was imprisoned for his failure to comply with it. As a result, he has been in jail since last December 14 under a judgment which sentenced him to imprisonment for one year or until such time as he would comply with the order to produce. His plight, however, is even worse than would normally be indicated by that sentence in that there can be no assurance at all that he will be released at the end of the year specified. The Attorney General of New Hampshire insists, notwithstanding the recent legislation reducing his powers, that he has a right to continue all investigations presently pending, and the Supreme Court of New Hampshire apparently agrees with him. This Court, by its action today, necessarily takes the position that this serious abridgment of the rights of free speech and peaceable assembly does not even raise a substantial federal question. As a result, it is entirely possible that Dr. Uphaus will be subjected to new questioning and forced into a new “contempt” as soon as he serves out this year‘s imprisonment. The brief filed by the Attorney General of New Hampshire makes it appear that he has every intention of doing just that. Thus, a distinct possibility exists that this man who, at least so far as these records show, has never committed a single crime, nor even so much as an immoral act, faces imprisonment for the rest of his life. This simply because he has refused to violate his religious principles and sacrifice his constitutional rights by disclosing the names of those with whom he has peaceably assembled to discuss public affairs in this country.
In this respect, the predicament of Dr. Uphaus may be likened to that of the defendant in the famous Sheriff‘s
“Make a law to render them incapable of office; make anоther, to punish them for not serving. . . . If they accept, punish them; if they refuse, punish them; if they say, yes, punish them; if they say, no, punish them. My Lords, this is a most exquisite dilemma, from which there is no escaping; it is a trap a man cannot get out of; it is as bad persecution as the bed of Procrustes: If they are too short, stretch them; if they are too long, lop them.”10
This technique of putting unorthodox groups into a position where their only real choice is between various alternative punishments (a technique the prevalence of which today extends far beyond the borders of New Hampshire) is strikingly similar to that being utilized here against Dr. Uphaus. If he testifies, his friends will suffer; if he refuses to testify, he goes to jail. The dilemma is truly one “from which there is no escaping” for a man who, like Dr. Uphaus or like the religious dissenter in the Sheriff‘s Case, cannot bring himself to sacrifice either his religious principles or his legal rights.
I do not suggest, of course, that this imprisonment of Dr. Uphaus is without precedent in history. Indeed, I am painfully aware that there are a multitude of such precedents extending from many centuries back in the past and continuing forward in an almost unbroken line to the present day. There is, for example, the case of the Puritan minister John Udall in 1590, a case which bears a strong similarity to that of Dr. Uphaus. Udall was called before a court in connection with the investigatiоn of the authorship of certain religious tracts which, in the words of one of the judges, “tend [ed] to the overthrowing of the State, and the moving of Rebellion.”12 That court sought to force Udall to disclose the identity of other Puritans so that it might question them as to the authorship of the tracts. In refusing to divulge the demanded
It would not be difficult to point out many other cases such as that of Udall, but I will content myself with one other. Some seventy years after John Udall‘s experiences, there was a dissenting preacher in England named John Bunyan. He was arrested for preaching and efforts were made to get him to agree not to preach any more. He refused to be coerced into silence. The result was that he was put through a kind of trial15 and sentenced to prison for holding “several unlawful [religious] meetings . . . to the great disturbance and distraction of the
My guess is that history will look with no more favor upon the imprisonment of Willard Uphaus than it has upon that of Udall, Bunyan or the many others like them. For this is another of that ever-lengthening line of cases where people have been sent to prison and kept there for long periods of their lives because their beliefs were inconsistent with the prevailing views of the moment. I believe the First and Fourteenth Amendments were intended to prevent any such imprisonments in this country. The grounds urged by the Attorney General of New Hampshire here are, as shown by the cases of Udall and Bunyan, precisely those that have always been
precedent, and nоt daring to reject that which they would not have themselves asserted, will be found to have rather timidly exercised their judgment in the construction of this statute, yielding a deference to former authority which we have transferred to their own.” For a sympathetic treatment of Hale‘s part in the Bunyan case, see 2 Campbell, Lives of the Chief Justices of England, 219-222.
MR. JUSTICE DOUGLAS, with whom THE CHIEF JUSTICE and MR. JUSTICE BLACK concur, dissenting.
I would note jurisdiction in this case for several reasons.
First. Dr. Uphaus is in prison for civil contempt for failure to deliver to a state investigating agency lists which he claims are constitutionally protected from disclosure. On June 8, 1959, we affirmed his conviction in the state courts of New Hampshire by a divided vote. Uphaus v. Wyman, 360 U. S. 72. Following the remand in that case, Uphaus was given a further hearing at which questions never before presented to us were raised. The law under which Uphaus is committed was
“Our opinion of March 31, 1960,2 did not turn upon any holding that RSA 588:8a provided an extension of the legislative investigation first authorized in 1953. The plaintiff stands committed for refusal, while Laws 1955, c. 197, was still in effect, to comply with an order entered prior to enactment of RSA 588:8a.”
The majority conclude that this is a ruling on local law only аnd therefore presents no federal question. That plainly would be right if this were a commitment for criminal contempt and if it may be constitutionally imposed. The expiration of a law normally would be no defense to violations committed while it was in force. But this is a case of civil contempt used for its coercive authority to make the defendant produce the documents which were demanded. In such a case the defendant carries the keys to freedom in his own pocket, as pointed out in Uphaus v. Wyman, supra, 81. But the requirement to produce assumes that their production is relevant to some interest of the State. As stated in Uphaus v. Wyman, supra, at 78:
“What was the interest of the State? The Attorney General was commissioned to determine if there were any subversive pеrsons within New Hampshire. The obvious starting point of such an inquiry was to learn what persons were within the State. It is therefore clear that the requests relate directly to the Legislature‘s area of interest, i. e., the presence of subversives in the State, as announced in its resolution.”
Thus a new and important question is presented in this second appeal which is now filed with us. May a person be incarcerated for civil contempt for failure to produce documents to a legislative committee when the committee is no longer authorized to investigate the matter? If, of course, the 1957 Act extended this authority respecting pending cases, the conclusion of the majority that the question is a local, nonfederal one, so far as the contempt issue is concerned, would obviously be correct. But the opinion of the Supreme Court of New Hampshire rendered June 27, 1960, rejects that construction of the New Hampshire statutes. It treats the offense as completed while the earlier Act was in forсe. I can read its opinion of June 27, 1960, to mean only that it considered the case as if it involved criminal rather than civil contempt. For the criteria it considered relevant have no apparent pertinency when an issue of civil contempt is tendered.
Are the principles announced in Uphaus v. Wyman, supra, applicable to criminal as well as to civil contempt? Perhaps so. But the careful delineation of the issues in that case made by my Brother CLARK, who wrote for the majority, restricts the case to civil contempt. As appellant states in his brief, the conditional nature of a civil contempt order “makes tolerable the omission, from civil contempt proceedings, of many of the procedural
The Supreme Court of New Hampshire in its June 27, 1960, opinion stresses that the point now pressed was “not presented in the pending proceedings at any time, until first advanced before the Superior Court on December 14, 1959, the day on which the order of committal was entered.” 102 N. H., at 518, 162 A. 2d, at 612. That seems to be true. But no waiver of the point appears to havе been made. It is true that at the hearing counsel for Uphaus stated that his client had a legal duty to comply.
“Your Honor please, it is not our purpose to deny that Willard Uphaus is under legal obligation to answer the question which has been propounded to him. We have explained to him his legal obligation, and he understands it. It is our contention that this is a real matter of conscience; that he feels bound to a higher obligation even than the direction of the court . . . . We are not contending at all that he is not obligated to answer the question.”
But the transcript makes clear that the attorneys for Uphaus made two separate points. First, they argued that the 1957 amendment to the statute deprived the Attorney General of his power tо investigate the presence of “subversive persons” in New Hampshire and therefore that commitment for civil contempt was no longer permissible. A motion to dismiss on that ground was argued and denied, an exception being noted. As a second and separate point, evidence was offered and argument made
Second. Recently, when Alabama asked the National Association for the Advancement of Colored People to disclose its membership list, we held that disclosure was not required because, if compelled, it might well abridge the rights of members to engage in lawful association in support of their common beliefs. We said in N. A. A. C. P. v. Alabama, 357 U. S. 449, 462:
“It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute as effective a restraint on freedom of association as the forms of governmental aсtion in the cases above were thought likely to produce upon the particular constitutional rights there involved. This Court has recognized the vital relationship between freedom to associate and privacy in one‘s associations. When referring to the varied forms of governmental action which might interfere with freedom of assembly, it said in American Communications Assn. v. Douds, [339 U. S. 382], at 402: ‘A requirement that adherents of particular religious faiths or political parties wear identifying arm-bands, for example, is obviously of this nature.’ Compelled disclosure of membership in an organization engaged in advocacy of particular beliefs is of the same order.
Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs. Cf. United States v. Rumely, [345 U. S. 41], at 56-58 (concurring opinion).”
What we there said was not designed, as I understood it, as a rule for Negroes only. The Constitution favors no racial group, no political or social group. The group with which Dr. Uphaus was associated and whose membership list he refused to disclose is entitled under the First Amendment to the same protection as the N. A. A. C. P. No groundwork whatever was laid in any of the records before us that World Fellowship, Inc., was at any time engaged in any conduct that could be called unlawful.
We had N. A. A. C. P. v. Alabama, supra, before us when the Uphaus case was decided. It involved rights of the organization itself to defy those who wanted its membership lists. Not until later, however, did we have the case where an individual who possessed membеrship lists challenged the right of government to demand their production. In Bates v. Little Rock, 361 U. S. 516, decided after we handed down our decision in the Uphaus case, we reversed a state conviction of custodians of the records of local branches of N. A. A. C. P. for refusing to disclose its membership lists to city officials. We said:
“On this record it sufficiently appears that compulsory disclosure of the membership lists of the local branches of the National Association for the Advancement of Colored People would work a significant interference with the freedom of association of their members. There was substantial uncontroverted evidence that public identification of persons in the community as members of the organizations had been followed by harassment and threats of bodily harm.
There was also еvidence that fear of community hostility and economic reprisals that would follow public disclosure of the membership lists had discouraged new members from joining the organizations and induced former members to withdraw. This repressive effect, while in part the result of private attitudes and pressures, was brought to bear only after the exercise of governmental power had threatened to force disclosure of the members’ names. N. A. A. C. P. v. Alabama, 357 U. S., at 463. Thus, the threat of substantial government encroachment upon important and traditional aspects of individual freedom is neither speculative nor remote.” Id., 523-524.
Can there be any doubt that harassment of members of World Fellowship, Inc., in the climate prevailing among New Hampshire‘s law-enforcement officials will likewise be severe?3 Can there be any doubt that its members will be as closely pursued as might be members of N. A. A. C. P. in some communities? If either N. A. A. C. P. or World Fellowship were engaged in criminal activity, we would have a different problem. But neither is shown to be. World Fellowship, so far as this record shows, is as law-abiding as N. A. A. C. P. The members of one are entitled to the same freedom of speech, of press, of assembly, and of association as the members of the other. These rights extend even to Communists, as a unanimous Court held in De Jonge v. Oregon, 299 U. S. 353.4
For these reasons, as well as those advanced by MR. JUSTICE BLACK, which I wholly share, I would note probable jurisdiction of this appeal. And Dr. Uphaus should, of course, be released on bail pending resolution of the questions by the Court.
lence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for frеe political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.
“It follows from these considerations that, consistently with the Federal Constitution, peaceable assembly for lawful discussion cannot be made a crime. The holding of meetings for peaceable political action cannot be proscribed. Those who assist in the conduct of such meetings cannot be branded as criminals on that score. The question, if the rights of free speech and peaceable assembly are to be preserved, is not as to the auspices under which the meeting is held but as to its purpose; not as to the relations of the speakers, but whether their utterances transcend the bounds of the freedom of speech which the Constitution protects.” 299 U. S., at 365.
Notes
“The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and vio-
“Roch. The day is past, and we must make an end: will you take the oath?
“U. I dare not take it.
“Roch. Then you must go to prison, and it will go hard with you, for you must remain there until you be glad to take it.”