Barenblatt v. United States/Dissent Black

Mr. Justice BLACK, with whom THE CHIEF JUSTICE and Mr. Justice DOUGLAS concur, dissenting.

On May 28, 1954, petitioner Lloyd Barenblatt, then 31 years old, and a teacher of psychology at Vassar College, was summoned to appear before a Subcommittee of the House Committee on Un-American Activities. After service of the summons, but before Barenblatt appeared on June 28, his four-year contract with Vassar expired and was not renewed. He, therefore, came to the Committee as a private citizen without a job. Earlier that day, the Committee's interest in Barenblatt had been aroused by the testimony of an ex-Communist named Crowley. When Crowley had first appeared before the Un-American Activities Committee he had steadfastly refused to admit or deny Communist affiliations or to identify others as Communists. After the House reported this refusal to the United States Attorney for prosecution, Crowley 'voluntarily' returned and asked to testify. He was sworn in and interrogated, but not before he was made aware by various Committee members of Committee policy to 'make an appropriate recommendation' to protect any witness who 'fully cooperates with the committee.' He then talked at length, identifying by name, address and occupation, whenever possible, people he claimed had been Communists. One of these was Barenblatt, who, according to Crowley, had been a Communist during 1947-1950 while a graduate student and teaching fellow at the University of Michigan. Though Crowley testified in great detail about the small group of Communists who had been at Michigan at that time and though the Committee was very satisfied with his testimony, it sought repetition of much of the information from Barenblatt. Barenblatt, however, refused to answer their questions and filed a long statement outlining his constitutional objections. He asserted that the Commitee was violating the Constitution by abridging freedom of speech, thought, press, and association, and by conducting legislative trials of known or suspected Communists which trespassed on the exclusive power of the judiciary. He argued that however he answered questions relating to membership in the Communist Party his position in society and his ability to earn a living would be seriously jeopardized; that he would, in effect, be subjected to a bill of attainder despite the twice-expressed constitutional mandate against such legislative punishments. This would occur, he pointed out, even if he did no more than invoke the protection of clearly applicable provisions of the Bill of Rights as a reason for refusing to answer.

He repeated these, and other objections, in the District Court as a reason for dismissing an indictment for contempt of Congress. His position, however, was rejected at the trial and in the Court of Appeals for the District of Columbia Circuit over the strong dissents of Chief Judge Edgerton and Judges Bazelon, Fahy and Washington. The Court today affirms, and thereby sanctions the use of the contempt power to enforce questioning by congressional committees in the realm of speech and association. I cannot agree with this disposition of the case for I believe that the resolution establishing the House Un-American Activities Committee and the questions that Committee asked Barenblatt violate the Constitution in several respects. (1) Rule XI creating the Committee authorizes such a sweeping, unlimited, all-inclusive and undiscriminating compulsory examination of witnesses in the field of speech, press, petition and assembly that it violates the procedural requirements of the Due Process Clause of the Fifth Amendment. (2) Compelling an answer to the questions asked Barenblatt abridges freedom of speech and association in contravention of the First Amendment. (3) The Committee proceedings were part of a legislative program to stigmatize and punish by public identification and exposure all witnesses considered by the Committee to be guilty of Communist affiliations, as well as all witnesses who refused to answer Committee questions on constitutional grounds; the Committee was thus improperly seeking to try, convict, and punish suspects, a task which the Constitution expressly denies to Congress and grants exclusively to the courts, to be exercised by them only after indictment and in full compliance with all the safeguards provided by the Bill of Rights.

It goes without saying that a law to be valid must be clear enough to make its commands understandable. For obvious reasons, the standard of certainty required in criminal statutes is more exacting than in noncriminal statutes. This is simply because it would be unthinkable to convict a man for violating a law he could not understand. This Court has recognized that the stricter standard is as much required in criminal contempt cases as in all other criminal cases, and has emphasized that the 'vice of vagueness' is especially pernicious where legislative power over an area involving speech, press, petition and assembly is involved. In this area the statement that a statute is void if it 'attempts to cover so much that it effectively covers nothing,' see Musser v. State of Utah, 333 U.S. 95, 97, 68 S.Ct. 397, 398, 92 L.Ed. 562, takes on double significance. For a statute broad enough to support infringement of speech, writtings, thoughts and public assemblies, against the unequivocal command of the First Amendment necessarily leaves all persons to guess just what he law really means to cover, and fear of a wrong guess inevitably leads people to forego the very rights the Constitution sought to protect above all others. Vagueness becomes even more intolerable in this area if one accepts, as the Court today does, a balancing test to decide if First Amendment rights shall be protected. It is difficult at best to make a man guess-at the penalty or imprisonment-whether a court will consider the State's need for certain information superior to society's interest in unfettered freedom. It is unconscionable to make him choose between the right to keep silent and the need to speak when the statute supposedly establishing the 'state's interest' is too vague to give him guidance. Cf. Scull v. Commonwealth of Virginia, 359 U.S. 344, 79 S.Ct. 838.

Measured by the foregoing standards, Rule XI cannot support any conviction for refusal to testify. In substance it authorizes the Committee to compel witnesses to give evidence about all 'un-American propaganda,' whether instigated in this country or abroad. The word 'propaganda' seems to mean anything that people say, write, think or associate together about. The term 'un-American' is equally vague. As was said in Watkins v. United States, 354 U.S. 178, 202, 77 S.Ct. 1173, 1187, 'Who can define (its) meaning * *  * ? What is that single, solitary 'principle of the form of government as guaranteed by our Constitution'?' I think it clear that the boundaries of the Committee are, to say the least, 'nebulous.' Indeed, 'It would be difficult to imagine a less explicit authorizing resolution.' Ibid.

The Court-while not denying the vagueness of Rule XI nevertheless defends its application here because the questions asked concerned communism, a subject of investigation which had been reported to the House by the Committee on numerous occasions. If the issue were merely whether Congress intended to allow an investigation of communism, or even of communism in education, it may well be that we could hold the data cited by the Court sufficient to support a finding of intent. But that is expressly not the issue. On the Court's own test, the issue is whether Barenblatt can know with sufficient certainty, at the time of his interrogation, that there is so compelling a need for his replies that infringement of his rights of free association § j ustified. The record does not disclose where Barenblatt can find what that need is. There is certainly no clear congressional statement of it in Rule XI. Perhaps if Barenblatt had had time to read all the reports of the Committee to the House, and in addition had examined the appropriations made to the Committee he, like the Court, could have discerned an intent by Congress to allow an investigation of communism in education. Even so he would be hard put to decide what the need for this investigation is since Congress expressed it neither when it enacted Rule XI nor when it acquiesced in the Committee's assertions of power. Yet it is knowledge of this need-what is wanted from him and why it is wanted-that a witness must have if he is to be in a position to comply with the Court's rule that he balance individual rights against the requirements of the State. I cannot see how that knowledge can exist under Rule XI.

But even if Barenblatt could evaluate the importance to the Government of the information sought, Rule XI would still be too broad to support his conviction. For we are dealing here with governmental procedures which the Court itself admits reach to the very fringes of congressional power. In such cases more is required of legislatures than a vague delegation to be filled in later by mute acquiescence. If Congress wants ideas investigated, if it even wants them investigated in the field of education, it must be prepared to say so expressly and unequivocally. And it is not enough that a court through exhaustive research can establish, even conclusively, that Congress wished to allow the investigation. I can find no such unequivocal statement here.

For all these reasons, I would hold that Rule XI is too broad to be meaningful and cannot support petitioner's conviction.

The First Amendment says in no equivocal language that Congress shall pass no law abridging freedom of speech, press, assembly or petition. The activities of this Committee, authorized by Congress, do precisely that, through exposure, obloquy and public scorn. See Watkins v. United States, 354 U.S. 178, 197-198, 77 S.Ct. 1173, 1184-1185. The Court does not really deny this fact but relies on a combination of three reasons for permitting the infringement: (A) The notion that despite the First Amendment's command Congress can abridge speech and association if this Court decides that the governmental interest in abridging speech is greater than an individual's interest in exercising that freedom, (B) the Government's right to 'preserve itself,' (C) the fact that the Committee is only after Communists or suspected Communists in this investigation.

(A) I do not agree that laws directly abridging First Amendment freedoms can be justified by a congressional or judicial balancing process. There are, of course, cases suggesting that a law which primarily regulates conduct but which might also indirectly affect speech can be upheld if the effect on speech is minor in relation to the need for control of the conduct. With these cases I agree. Typical of them are Cantwell v. State of Connecticut, 310 U.S. 296, 60 S.Ct. 900, 84 L.Ed. 1213, and Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155. Both of these involved the right of a city to control its streets. In Cantwell, a man had been convicted of breach of the peace for playing a phonograph on the street. He defended on the ground that he was disseminating religious views and could not, therefore, be stopped. We upheld his defense, but in so doing we pointed out that the city did have substantial power over conduct on the streets even where this power might to some extent affect speech. A State, we said, might 'by general and non-discriminatory legislation regulate the times, the places, and the manner of soliciting upon its streets, and holding meetings thereon.' 310 U.S. at page 304, 60 S.Ct. at page 903. But even such laws governing conduct, we emphasized, must be tested, though only by a balancing process, if they indirectly affect ideas. On one side of the balance, we pointed out, is the interest of the United States in seeing that its fundamental law protecting freedom of communication is not abridged; on the other the obvious interest of the State to regulate conduct within its boundaries. In Cantwell we held that the need to control the streets could not justify the restriction made on speech. We stressed the fact that where a man had a right to be on a street, 'he had a right peacefully to impart his views to others.' 310 U.S. at page 308, 60 S.Ct. at page 905. Similar views were expressed in Schneider, which concerned ordinances prohibiting the distribution of handbills to prevent littering. We forbade application of such ordinances when they affected literature designed to spread ideas. There were other ways, we said, to protect the city from littering which would not sacrifice the right of the people to be informed. In so holding, we, of course, found it necessary to 'weigh the circumstances.' 308 U.S. at page 161, 60 S.Ct. at page 151. But we did not in Schneider, any more than in Cantwell, even remotely suggest that a law directly aimed at curtailing speech and political persuasion could be saved through a balancing process. Neither these cases, nor any others, can be read as allowing legislative bodies to pass laws abridging freedom of speech, press and association merely because of hostility to views peacefully expressed in a place where the speaker had a right to be. Rule XI, on its face and as here applied, since it attempts inquiry into beliefs, not action-ideas and associations, not conduct-does just that.

To apply the Court's balancing test under such circumstances is to read the First Amendment to say 'Congress shall pass no law abridging freedom of speech, press, assembly and petition, unless Congress and the Supreme Court reach the joint conclusion that on balance the interest of the Government in stifling these freedoms is greater than the interest of the people in having them exercised.' This is closely akin to the notion that neither the First Amendment nor any other provision of the Bill of Rights should be enforced unless the Court believes it is reasonable to do so. Not only does this violate the genius of our written Constitution, but it runs expressly counter to the injunction to Court and Congress made by Madison when he introduced the Bill of Rights. 'If they (the first ten amendments) are incorporated into the Constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the Legislative or Executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the Constitution by the declaration of rights.' Unless we return to this view of our judicial function, unless we once again accept the notion that the Bill of Rights means what it says and that this Court must enforce that meaning, I am of the opinion that our great charter of liberty will be more honored in the breach than in the observance.

But even assuming what I cannot assume, that some balancing is proper in this case, I feel that the Court after stating the test ignores it completely. At most it balances the right of the Government to preserve itself, against Barenblatt's right to refrain from revealing Communist affiliations. Such a balance, however, mistakes the factors to be weighed. In the first place, it completely leaves out the real interest in Barenblatt's silence, the interest of the people as a whole in being able to join organizations, advocate causes and make political 'mistakes' without later being subjected to governmental penalties for having dared to think for themselves. It is this right, the right to err politically, which keeps us strong as a Nation. For no number of laws against communism can have as much effect as the personal conviction which comes from having heard its arguments and rejected them, or from having once accepted its tenets and later recognized their worthlessness. Instead, the obloquy which results from investigations such as this not only stifles 'mistakes' but prevents all but the most courageous from hazarding any views which might at some later time become disfavored. This result, whose importance cannot be overestimated, is doubly crucial when it affects the universities, on which we must largely rely for the experimentation and development of new ideas essential to our country's welfare. It is these interests of society, rather that Barenblatt's own right to silence, which I think the Court should put on the balance against the demands of the Government, if any balancing proces is to be tolerated. Instead they are not mentioned, while on the other side the demands of the Government are vastly overstated and called 'self preservation.' It is admitted that this Committee can only seek information for the purpose of suggesting laws, and that Congress' power to make laws in the realm of speech and association is quite limited, even on the Court's test. Its interest in making such laws in the field of education, primarily a state function, is clearly narrower still. Yet the Court styles this attenuated interset self-preservation and allows it to overcome the need our country has to let us all think, speak, and associate politically as we like and without fear of reprisal. Such a result reduces 'balancing' to a mere play on words and is completely inconsistent with the rules this Court has previously given for applying a 'balancing test,' where it is proper: '(T)he courts should be astute to examine the effect of the challenged legislation. Mere legislative preferences or beliefs * *  * may well support regulation directed at other personal activities, but be insufficient to justify such as diminishes the exercise of rights so vital to the maintenance of democratic institutions.' Schneider v. State of New Jersey, Town of Irvington, 308 U.S. 147, 161, 60 S.Ct. 146, 151, 84 L.Ed. 155. (Italics supplied.)

(B) Moreover, I cannot agree with the Court's notion that First Amendment freedoms must be abridged in order to 'preserve' our country. That notion rests on the unarticulated premise that this Nation's security hangs upon its power to punish people because of what they think, speak or write about, or because of those with whom they associate for political purposes. The Government, in its brief, virtually admits this position when it speaks of the 'communication of unlawful ideas.' I challenge this premise, and deny that ideas can be proscribed under our Constitution. I agree that despotic governments cannot exist without stifling the voice of opposition to their oppressive practices. The First Amendment means to me, however, that the only constitutional way our Government can preserve itself is to leave its people the fullest possible freedom to praise, criticize or discuss, as they see fit, all governmental policies and to suggest, if they desire, that even its most fundamental postulates are bad and should be changed; 'Therein lies the security of the Republic, the very foundation of constitutional government.' On that premise this land was created, and on that premise it has grown to greatness. Our Constitution assumes that the common sense of the people and their attachment to our country will enable them, after free discussion, to withstand ideas that are wrong. To say that our patriotism must be protected against false ideas by means other than there is, I think, to make a baseless charge. Unless we can rely on these qualities-if, in short, we begin to punish speech-we cannot honestly proclaim ourselves to be a free Nation and we have lost what the Founders of this land risked their lives and their sacred honor to defend.

(C) The Court implies, however, that the ordinary rules and requirements of the Constitution do not apply because the Committee is merely after Communists and they do not constitute a political party but only a criminal gang. '(T)he long and widely accepted view' t he Court says, is 'that the tenets of the Communist Party include the ultimate overthrow of the Government of the United States by force and violence.' This justifies the investigation undertaken. By accepting this charge and allowing it to support treatment of the Communist Party and its members which would violate the Constitution if applied to other groups, the Court, in effect, declares that Party outlawed. It has been only a few years since there was a practically unanimous feeling throughout the country and in our courts that this could not be done in our free land. Of course it has always been recognized that members of the Party who, either individually or in combination, commit acts in violation of valid laws can be prosecuted. But the Party as a whole and innocent members of it could not be attainted merely because it had some illegal aims and because some of its members were lawbreakers. Thus in De Jonge v. State of Oregon, 299 U.S. 353, 357, 57 S.Ct. 255, 256, on stipulated facts that the Communist Party advocated criminal syndicalism-'crime, physical violence, sabotage, or any unlawful acts or methods as a means of accomplishing or effecting industrial or political change or revolution'-a unanimous Court, speaking through Chief Justice Hughes, held that a Communist addressing a Communist rally could be found guilty of no offense so long as no violence or crime was urged at the meeting. The Court absolutely refused to concede that either De Jonge or the Communist Party forfeited the protections of the First and Fourteenth Amendments because one of the Party's purposes was to effect a violent change of government. See also Herndon v. Lowry, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066.

Later, in 1948, when various bills were proposed in the House and Senate to handicap or outlaw the Communist Party, leaders of the Bar who had been asked to give their views rose up to contest the constitutionality of the measures. The late Charles Evans Hughes, Jr., questioned the validity under both the First and Fifth Amendments of one of these bills, which in effect outlawed the Party. The late John W. Davis attacked it as lacking an ascertainable standard of guilt under many of this Court's cases. And the Attorney General of the United States not only indicated that such a measure would be unconstitutional but declared it to be unwise even if valid. He buttressed his position by citing a statement by J. Edgar Hoover, Director of the Federal Bureau of Investigation, and the declaration of this Court in West Virginia State Board of Education v. Barnette, 319 U.S. 624, 642, 63 S.Ct. 1178, 1187, 87 L.Ed. 1628, that:

'If there is any fixed star in our constitutional     constellation, it is that no official, high or petty, can      prescribe what shall be orthodox in politics, nationalism,      religion or other matters of opinion or force citizens to      confess by word or act their faith therein.'

Even the proponent of the bill disclaimed any aim to outlaw the Communist Party and pointed out the 'disadvantages' of such a move by stating that 'the Communist Party was illegal and outlawed in Russia when it took over control of the Soviet Union.' Again, when the Attorney General testified on a prpos al to bar the Communist Party from the ballot he said, 'an organized group, whether you call it political or not, could hardly be barred from the ballot without jeopardizing the constitutional guarantees of all other political groups and parties.'

All these statements indicate quite clearly that no matter how often or how quickly we repeat the claim that the Communist Party is not a political party, we cannot outlaw it, as a group, without endangering the liberty of all of us. The reason is not hard to find, for mixed among those aims of communism which are illegal are perfectly normal political and social goals. And muddled with its revolutionary tenets is a drive to achieve power through the ballot, if it can be done. These things necessarily make it a political party whatever other, illegal, aims it may have. Cf. Gerende v. Board of Supervisors, 341 U.S. 56, 71 S.Ct. 565, 95 L.Ed. 745. Significantly until recently the Communist Party was on the ballot in many States. When that was so, many Communists undoubtedly hoped to accomplish its lawful goals through support of Communist candidates. Even now some such may still remain. To attribute to them, and to those who have left the Party, the taint of the group is to ignore both our traditions that guilt like belief is 'personal and not a matter of mere association' and the obvious fact that 'men adhering to a political party or other organization notoriously do not subscribe unqualifiedly to all of its platforms or asserted principles.' Schneiderman v. United States, 320 U.S. 118, 136, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796. See also Dennis v. United States, 341 U.S. 494, 579, 581, 71 S.Ct. 857, 902, 903, 95 L.Ed. 1137 (dissenting opinions).

The fact is that once we allow any group which has some political aims or ideas to be driven from the ballot and from the battle for men's minds because some of its members are bad and some of its tenets are illegal, no group is safe. Today we deal with Communists or suspected Communists. In 1920, instead, the New York Assembly sspe nded duly elected legislators on the ground that, being Socialists, they were disloyal to the country's principles. In the 1830's the Masons were hunted as outlaws and subversives, and abolitionists were considered revolutionaries of the most dangerous kind in both North and South. Earlier still, at the time of the universally unlamented alien and sedition laws, Thomas Jefferson's party was attacked and its members were derisively called 'Jacobins.' Fisher Ames described the party as a 'French faction' guilty of 'subversion' and 'officered, regimented and formed to subordination.' Its members, he claimed, intended to 'take arms against the laws as soon as they dare.' History should teach us then, that in times of high emotional excitement minority parties and groups which advocate extremely unpopular social or governmental innovations will always be typed as criminal gangs and attempts will always be made to drive them out. It was knowledge of this fact, and of its great dangers, that caused the Founders of our land to enact the First Amendment as a guarantee that neither Congress nor the people would do anything to hinder or destroy the capacity of individuals and groups to seek converts and votes for any cause, however radical or unpalatable their principles might seem under the accepted notions of the time. Whatever the States were left free to do, the First Amendment sought to leave Congress devoid of any kind or quality of power to direct any type of national laws against the freedom of individuals to think what they please, advocate whatever policy they choose, and join with others to bring about the social, religious, political and governmental changes which seem best to them. Today's holding, in my judgment, marks another major step in the progressively increasing retreat from the safeguards of the First Amendment.

It is, sadly, no answer to say that this Court will not allow the trend to overwhelm us; that today's holding will be strictly confined to 'Communists,' as the Court's language implies. This decision can no more be contained than could the holding in American Communications Ass'n, C.I.O. v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. In that case the Court sustained as an exercise of the commerce power an Act which required labor union officials to take an oath that they were not members of the Communist Party. The Court rejected the idea that the Douds holding meant that the Party and all its members could e a ttainted because of their Communist beliefs. It went to great lengths to explain that the Act held valid 'touches only a relative handful of persons, leaving the great majority of persons of the identified affiliations and beliefs completely free from restraint.' '(W)hile this Court sits,' the Court proclaimed, no wholesale proscription of Communists or their Party can occur. 339 U.S. at pages 404, 410, 70 S.Ct. at pages 687, 690. I dissented and said:

'Under such circumstances, restrictions imposed on proscribed     groups are seldom static, even though the rate of expansion      may not move in geometric progression from discrimination to      arm-band to ghetto and worse. Thus I cannot regard the     Court's holding as one which merely bars Communists from      holding union office and nothing more. For its reasoning     would apply just as forcibly to statutes barring Communists      and their suspected sympathizers from election to political      office, mere membership in unions, and in fact from getting or holding any      job whereby they could earn a living.' 339 U.S. at page 449,      70 S.Ct. at page 709.

My prediction was all too accurate. Today, Communists or suspected Communists have been denied an opportunity to work as government employees, lawyers, doctors, teachers, pharmacists, veterinarians, subway conductors, industrial workers and in just about any other job. See Speiser v. Randall, 357 U.S. 513, 531, 78 S.Ct. 1332, 1352, 2 L.Ed.2d 1460 (concurring opinion). Cf. Barsky v. Board of Regents, 347 U.S. 442, 456, 467, 472, 74 S.Ct. 650, 658, 664, 666, 98 L.Ed. 829 (dissenting opinions). In today's holding they are singled out and, as a class, are subjected to inquisitions which the Court suggests would be unconstitutional but for the fact of 'Communism.' Nevertheless, this Court still sits!

Finally, I think Barenblatt's conviction violates the Constitution because the chief aim, purpose and practice of the House Un-American Activities Committee, as disclosed by its many reports, is to try witnesses and punish them because they are or have been Communists or because they refuse to admit or deny Communist affiliations. The punishment imposed is generally punishment by humiliation and public shame. There is nothing strange or novel about this kind of punishment. It is in fact one of the oldest forms of governmental punishment known to mankind; branding, the pillory, ostracism and subjection to public hatred being but a few examples of it. Nor is there anything strange about a court's reviewing the power of a congressional committee to inflict punishment. In 1880 this Court nullified the action of the House of Representatives in sentencing a witness to jail for failing to answer questions of a congressional committee. Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377. The Court held that the Committee in its investigation of the Jay Cooke bankruptcy was seeking to exercise judicial power, and this, it emphatically said, no committee could do. It seems to me that the proof that the Un- American Activities Committee is here undertaking a purely judicial function is overwhelming, far stronger, in fact, than it was in the Jay Cooke investigation which, moreover, concerned only business transactions, not freedom of association.

The Un-American Activities Committee was created in 1938. It immediately conceived of its function on a grand scale as one of ferreting out 'subversives' and especially of having them removed from government jobs. It made many reports to the House urging removal of such employees. Finally, at the instigation of the Committee, the House put a rider on an appropriation bill to bar three government workers from collecting their salaries. The House action was based on Committee findings that each of the three employees was a member of, or associated with, organizations deemed undesirable and that the 'views and philosophies' of these workers 'as expressed in various statements and writings constitute subversive activity within the definition adopted by your committee, and that (they are), therefore, unfit for the present to continue in Government employment.' The Senate and the President agreed to the rider, though not without protest. We held that statute void as a bill of attainder in United States v. Lovett, 1946, 328 U.S. 303, 66 S.Ct. 1073, 90 L.Ed. 1252, stating that its 'effect was to inflict punishment without the safeguards of a judicial trial' and that this 'cannot be done either by a state or by the United States.' 328 U.S. at pages 316-317, 66 S.Ct. at page 1079.

Even after our Lovett holding, however, the Committee continued to view itself as the 'only agency of government that has the power of exposure,' and to work unceasingly and sincerely to identify and expose all suspected Communists and 'subversives' in order to eliminate them from virtually all fields of employment. How well it has succeeded in its declared program of 'pitiless publicity and exposure' is a matter of public record. It is enough to cite the experience of a man who masqueraded as a Communist for the F.B.I. and who reported to this same Committee that since 1952 when his 'membership' became known he has been unable to hold any job. To accomplish this kind of result, the Committee has called witnesses who are suspected of Communist affiliation, has subjected them to severe questioning and has insisted that each tell the name of every person he has ever known at any time to have been a Communist, and, if possible, to give the addresses and occupations of the people named. These names are then indexed, published, and reported to Congress, and often to the press. The same technique is employed to cripple the job opportunities of those who strongly criticize the Committee or take other actions it deems undesirable. Thus, in 1949, the Committee reported that it had indexed and printed some 335,000 names of people who had signed 'Communist' petitions of one kind or another. All this the Committee did and does to punish by exposure the many phases of 'un-American' activities that it reports cannot be reached by legislation, by administrative action, or by any other agency of Government, which, of course, includes the courts.

The same intent to expose and punish is manifest in the Committee's investigation which led to Barenblatt's conviction. The declared purpose of the investigation was to identify to the people of Michigan the individuals responsible for the, alleged, Communist success there. The Committee claimed that its investigation 'uncovered' members of the Communist Party holding positions in the school systems in Michigan; that most of the teachers subpoenaed before the Committee refused to answer questions on the ground that to do so might result in self-incrimination, and that most of these teachers had lost their jobs. It then stated that 'the Committee on Un-American Activities approves of this action * *  * .' Similarly, as a result of its Michigan investigation, the Committee called upon American labor unions to amend their constitutions, if necessary, in order to deny membership to any Communist Party member. This would, of course, prevent many workers from getting or holding the only kind of jobs their particular skills qualified them for. The Court, today, barely mentions these statements, which, especially when read in the context of past reports by the Committee, show unmistakably what the Committee was doing. I cannot understand why these reports are deemed relevant to a determination of a congressional intent to investigate communism in education, but irrelevant to any finding of congressional intent to bring about exposure for its own sake or for the purposes of punishment.

I do not question the Committee's patriotism and sincerity in doing all this. I merely feel that it cannot be done by Congress under our Constitution. For, even assuming that the Federal Government can compel witnesses to testify as to Communist affiliations in order to subject them to ridicule and social and economic retaliation, I cannot agree that this is a legislative function. Such publicity is clearly punishment, and the Constitution allows only one way in which people can be convicted and punished. As we said in Lovett, 'Those who wrote our Constitution well knew the danger inherent in special legislative acts which take away the life, liberty, or property of particular named persons, because the legislature thinks them guilty of conduct which deserves punishment. They intended to safeguard the people of this country from punishment without trial by duly constituted courts.' 328 U.S. at page 317, 66 S.Ct. at page 1079. (Italics added.) Thus if communism is to be made a crime, and Communists are to be subjected to 'pains and penalties,' I would still hold this conviction bad, for the crime of communism, like all others, can be punished only by court and jury after a trial with all judicial safeguards.

It is no answer to all this to suggest that legislative committees should be allowed to punish if they grant the accused some rules of courtesy or allow him counsel. For the Constitution proscribes all bills of attainder by State or Nation, not merely those which lack counsel or courtesy. It does this because the Founders believed that punishment was too serious a matter to be entrusted to any group other than an independent judiciary and a jury of twelve men acting on previously passed, unambiguous laws, with all the procedural safeguards they put in the Constitution as essential to a fair trial-safeguards which included the right to counsel, compulsory process for witnesses, specific indictments, confrontation of accusers, as well as protection against self-incrimination, double jeopardy and cruel and unusual punishment-in short, due process of law. Cf. Chambers v. State of Florida, 309 U.S. 227, 60 S.Ct. 472, 84 L.Ed. 716. They believed this because not long before worthy men had been deprived of their liberties, and indeed their lives, through parliamentary trials without these safeguards. The memory of one of these, John Lilburne-banished and disgraced by a parliamentary committee on penalty of death if he returned to this country-was particularly vivid when our Constitution was written. His attack on trials by such committees and his warning that 'what is done unto any one, may be done unto every one' were part of the history of the times which moved those who wrote our Constitution to determine that no such arbitrary punishments should ever occur here. It is the protection from arbitrary punishments through the right to a judicial trial with all these safeguards which over the years has distinguished America from lands where drumhead courts and other similar 'tribunals' deprive the weak and the unorthodox of life, liberty and property without due process of law. It is this same right which is denied to Barenblatt, because the Court today fails to see what is here for all to see-that exposure and punishment is the aim of this Committee and the reason for its existence. To deny this is to ignore the Committee's own claims and the reports it has issued ever since it was established. I cannot believe that the nature of our judicial office requires us to be so blind, and must conclude that the Un-American Activities Committee's 'identification' and 'exposure' of Communists and suspected Communists, like the activities of the Committee in Kilbourn v. Thompson, amount to an encroachment on the judiciary which bodes ill for the liberties of the people of this land.

Ultimately all the questions in this case really boil down to one-whether we as a people will try fearfully and futilely to preserve democracy by adopting totalitarian methods, or whether in accordance with our traditions and our Constitution we will have the confidence and courage to be free.

I would reverse this conviction.

RANDOM SELECTION OF STATEMENTS BY THE HOUSE UN-AMERICAN ACTIVITIES COMMITTEE ON EXPOSURE AND PUNISHMENT OF 'SUBVERSIVES.'

'(T)o inform the American people of the activities of any such organizations * *  * is the real purpose of the House Committee'. 'The purpose of this committee is the task of protecting our constitutional democracy by turning the light of pitiless publicity on (these) organizations.' H.R. Rep. No. 1476, 76th Cong., 3d Sess. 1-2, 24.

'The very first exposure which our committee undertook in the summer of 1938 was that of the German-American Bund'. 'Other organizations * *  * have been greatly crippled *  *  * as a result of our exposures. The American Youth Congress once enjoyed a very considerable prestige * *  *. Today many of its distinguished former sponsors refuse to be found in its company * *  *. We kept the spotlight of publicity focused upon the American Youth Congress, and today it is clear to all that, in spite of a degree of participation in its activities by many fine young people, it was never at its core anything less than a tool of Moscow'. 'This committee is the only agency of Government that has the power of exposure * *  *. There are many phases of un-American activities that cannot be reached by legislation or administrative action. We believe that the committee has shown that fearlessexp osure * *  * is the *  *  * answer.' H.R. Rep. No. 1, 77th Cong., 1st Sess. 21 22, 24.

'Our investigation has shown that a steady barrage against Congress comes * *  * from the New Republic, one of whose editors *  *  * was recently forced out of an $8,000 Government job by the exposure of his Communist activities.' H.R. Rep. No. 2277, 77th Cong., 2d Sess. 3.

'(T)he House Committee on Un-American Activities is empowered to explore and expose activities by un-American individuals and organizations which, while sometimes being legal, are nonetheless inimical to our American concepts'. The Committee recommends that Congress 'discharge * *  * any employee or official of the Federal Government whose loyalty to the United States is found to be in doubt.' H.R. Rep. No. 2742, 79th Cong., 2d Sess. 16, 17.

'Index of Persons and Organizations.' (Six pages of names follow.) H.R. Rep. No. 2233, 79th Cong., 2d Sess. III-VIII.

'Early in 1947 the committee adopted the following eight point program. * *  *

'1. To expose and ferret out the Communists and Communist sympathizers in the Federal Government.

'2. To spotlight the spectacle of * *  * Communists *  *  * in American labor.'

'In a sense the storm of opposition to the activities of the committee is a tribute to its achievements in the field of exposure.' Report of the Committee on Un-American Activities to the United States House of Representatives, 80th Cong., 2d Sess., Dec. 31, 1948, 2, 3 (Committee print).

'The committee would like to remind the Congress that its work is part of an 11-year continuity of effort that began * *  * in August 1938. The committee would also like to recall that at no time in those 11 years has it ever wavered from a relentless pursuit and exposure'. 'In the course of its investigations * *  * the committee has made available a large, completely indexed, and readily accessible reference collection of lists of signers of Communist Party election petitions.' H.R. Rep. No. 1950, 81st Cong., 2d Sess. 15, 19.

'To conduct the expose * *  * it was necessary for the investigative staff to interview over 100 persons *  *  *.

'The same tedious investigation of details was necessary prior to the successful exposure * *  * in the Territory of Hawaii'. 'As a result of the investigation and hearings held by the committee, Dolivet's contract with the United Nations has not been renewed, and it is the committee's understanding that he was removed from editorship of the United States World.' H.R. Rep. No. 3249, 81st Cong., 2d Sess. 4, 5.

'During 1951 the committee's hearings disclosed the positive identification of more individuals * *  * than during any preceding year'. 'If communism in Hollywood is now mythical, it is only because this committee conducted three investigations to bring it about. The industry itself certainly did not accomplish this'. 'The committee's investigation * *  * was concerned almost entirely with the problem of exposure of the actual members of the Communist Party and did not deal, except in a few instances, with *  *  * fellow travelers'. 'On the question of fellow travelers, suffice it to say * *  * 'The time has come now when even the fellow traveler must get out". 'Dr. Struik was identified as a Communist teacher *  *  * . Nevertheless, he was permitted to teach *  *  * until this year'. 'With individuals like *  *  * Struik *  *  * teaching in our leading universities, your committee wonders who the Professor Struiks were *  *  * who led Alger Hiss along the road of communism.' H.R. Rep. No. 2431, 82d Cong., 2d Sess. 6, 8-9, 16 17.

'In this annual report, the committee feels that the Congress and the American people will have a much clearer and fuller picture * *  * by having set forth the names and, where possible, the positions occupied by individuals who have been identified as Communists, or former Communists, during the past year'. 'The committee considers the failure of certain trade-unionists to rid themselves of Communists to be a ntio nal disgrace'. 'The following persons were identified.' (Approximately fifty pages of names follow.) H.R. Rep. No. 2516, 82d Cong., 2d Sess. 6-7, 12-27, 28-34, 36-40, 41-56, 58-67 (similar lists can be found in various other reports).

'The focal point of the investigation into the general area of education was to the individual who had been identified'; 'The question has been asked as to what purpose it served by the disclosure of the names of individuals who may long ago have left the conspiracy'. 'The committee has no way of knowing the status of his membership at present until he is placed under oath and the information is sought to be elicited.' H.R.Rep.No.1192, 83d Cong., 2d Sess. 1, 7.