DeGregory v. Attorney General of New Hampshire/Opinion of the Court

This is the third time that the constitutional rights of appellant challenged in investigations by New Hampshire into subversion have been brought to us. The present case stems from an investigation by the Attorney General of the State under Rev.Stat.Ann. § 588:8-a (1965 Supp.), enacted in 1957, which provides in part:

'At any time when the attorney general has information which     he deems reasonable or reliable relating to violations of the      provisions of this chapter he shall make full and complete      investigation thereof and shall report to the general court      the results of this investigation, together with his      recommendations, if any, for legislation. * *  * (T)he      attorney general is hereby authorized to make public such      information received by him, testimony given before him, and      matters handled by him as he deems fit to effectuate the      purposes hereof.'

The 'violations' cover a wide range of 'subversive' activities designed to 'overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government * *  * of the state of New Hampshire, or any political subdivision *  *  * by force, or violence.' § 588:1.

Appellant was willing to answer questions concerning his relationship with and knowledge of Communist activities since 1957, and in fact he did answer them. But he refused to answer a series of questions put him concerning earlier periods. His refusal, not being based on the Fifth Amendment, raised important questions under the First Amendment, made applicable to the States by the Fourteenth Amendment. He was committed to jail for a period of one year or until he purged himself of contempt. That judgment was affirmed by the New Hampshire Supreme Court. 106 N.H. 262, 209 A.2d 712. The case is here on appeal. 382 U.S. 877, 86 S.Ct. 162, 15 L.Ed.2d 118.

The substantiality of appellant's First Amendment claim can best be seen by considering what he was asked to do. Appellant had already testified that he had not been involved with the Communist Party since 1957 and that he had no knowledge of Communist activities during that period. The Attorney General further sought to have him disclose information relating to his political associations of an earlier day, the meetings he attended, and the views expressed and ideas advocated at any such gatherings. Indeed, the Attorney General here relied entirely upon a 1955 Report on Subversive Activities in New Hampshire to justify renewed investigation of appellant. The Report connects appellant with the Communist Party only until 1953, over 10 years prior to the investigation giving rise to the present contempt.

On the basis of our prior cases, appellant had every reason to anticipate that the details of his political associations to which he might testify would be reported in a pamphlet purporting to describe the nature of subversion in New Hampshire. (See Uphaus v. Wyman, 360 U.S. 72, 88-95, 79 S.Ct. 1040, 1050-1054, 3 L.Ed.2d 1090, Brennan, J., dissenting.) Admittedly, 'exposure-in the sense of disclosure-is an inescapable incident of an investigation into the presence of subversive persons within a State.' Uphaus v. Wyman, supra, 360 U.S. at 81, 79 S.Ct. at 1046. But whatever justification may have supported such exposure in Uphaus is absent here; the staleness of both the basis for the investigation and its subject matter makes indefensible such exposure of one's associational and political past-exposure which is objectionable and damaging in the extreme to one whose associations and political views do not command majority approval.

'The First Amendment may be invoked against infringement of the protected freedoms by law or by lawmaking.' Watkins v. United States, 354 U.S. 178, 197, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273. Investigation is a part of lawmaking and the First Amendment, as well as the Fifth, stands as a barrier to state intrusion of privacy. No attack is made on the truthfulness of the questions answered by appellant stating that he does not serve in a subversive role and lacks knowledge of any current subversion. There is no showing of 'overriding and compelling state interest' (Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539, 546, 83 S.Ct. 889, 893, 9 L.Ed.2d 929) that would warrant intrusion into the realm of political and associational privacy protected by the First Amendment. The information being sought was historical, not current. Lawmaking at the investigatory stage may properly probe historic events for any light that may be thrown on present conditions and problems. But the First Amendment prevents use of the power to investigate enforced by the contempt power to probe at will and without relation to existing need. Watkins v. United States, supra, 354 U.S. at 197-200, 77 S.Ct. at 1184-1186. The present record is devoid of any evidence that there is any Communist movement in New Hampshire. The 1955 Report deals primarily with 'world-wide communism' and the Federal Government. There is no showing whatsoever of present danger of sedition against the State itself, the only area to which the authority of the State extends. There is thus absent that 'nexus' between appellant and subversive activities in New Hampshire which the Court found to exist in Uphaus v. Wyman, supra, 360 U.S. at 79, 79 S.Ct. at 1045. New Hampshire's interest on this record is too remote and conjectural to override the guarantee of the First Amendment that a person can speak or not, as he chooses, free of all governmental compulsion.

Reversed.

Mr. Justice HARLAN, whom Mr. Justice STEWART and Mr. Justice WHITE join, dissenting.

The Court appears to hold that there is on the record so limited a legislative interest and so little relation between it and the information sought from appellant that the Constitution shields him from having to answer the questions put to him. New Hampshire in my view should be free to investigate the existence or nonexistence of Communist Party subversion, or any other legitimate subject of concern to the State without first being asked to produce evidence of the very type to be sought in the course of the inquiry. Then, given that the subject of investigation in this case is a permissible one, the appellant seems to me a witness who could properly be called to testify about it; I cannot say as a constitutional matter that inquiry into the current operations of the local Communist Party could not be advanced by knowledge of its operations a decade ago. Believing that '(o)ur function * *  * is purely one of constitutional adjudication' and 'not to pass judgment upon the general wisdom or efficacy' of the investigating activities under scrutiny, Barenblatt v. United States, 360 U.S. 109, 125, 79 S.Ct. 1081, 1092, 3 L.Ed.2d 1115, I would affirm the judgment of the Supreme Court of New Hampshire.