Gibson v. Florida Legislative Investigation Committee/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

I join the opinion of the Court, because it is carefully written within the framework of our current decisions. But since the matters involved touch constitutional rights and since I see the Constitution in somewhat different dimensions than are reflected in our decisions, it seems appropriate to set out my views.

We deal here with the authority of a State to investigate people, their ideas, their activities. By virtue of the Fourteenth Amendment the State is now subject to the same restrictions in making the investigation as the First Amendment places on the Federal Government.

The need of a referee in our federal system has increased with the passage of time, not only in matters of commerce but in the field of civil rights as well. Today review of both federal and state action threatening individuals' rights is increasingly important if the Free Society envisioned by the Bill of Rights is to be our ideal. For in times of crisis, when ideologies clash, it is not easy to engender respect for the dignity of suspect minorities and for debate of unpopular issues. As the President of Yale University has stated:

'We have become too much a nation of lookers and listeners, a     nation of spectators. Amidst the easy artificiality of our     life, the plethora of substitutes for learning and thinking,      the innumerable devices for avoiding or delegating personal      responsibility for our opinions, even for having any      opinions, the fine edge of our faith has been dulled, our      creative powers atrophied.' A. Whitney Griswold,      Baccalaureate Address, Yale University, June 8, 1958      (Overbrook Press).

When the State or Federal Government is prohibited from dealing with a subject, it has no constitutional privilege to investigate it. An investigation to permit a legislature properly to perform its powers of internal management is of course allowed. See Barry v. Cunningham, 279 U.S. 597, 613, 49 S.Ct. 452, 455, 73 L.Ed. 867. But otherwise the power to investigate is only an adjunct of the power to legislate-an auxiliary power 'necessary and appropriate to that end.' McGrain v. Daugherty, 273 U.S. 135, 175, 47 S.Ct. 319, 329, 71 L.Ed. 580. Investigation to determine how constitutional laws are being administered marks one limitation. The other is an investigation to determine what constitutional laws should be passed. When the constitutional limits of lawmaking are passed, investigation is out of bounds, apart from the exception noted. See Kilbourn v. Thompson, 103 U.S. 168, 194-200, 26 L.Ed. 377; McGrain v. Daugherty, supra, 273 U.S. 171-175, 47 S.Ct. 329. That is to say, investigations by a legislative committee which 'could result in no valid legislation on the subject' are beyond the pale. Kilbourn v. Thompson, supra, 103 U.S. p. 195, 26 L.Ed. 377. For it misses the whole point of our constitutional history to assume that 'government,' or any branch of government, somehow has rights and powers of its own apart from those necessarily attending the proper performance of its constitutional functions.

Joining a lawful organization, like attending a church, is an associational activity that comes within the purview of the First Amendment, which provides in relevant part: 'Congress shall make no law * *  * abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.' 'Peaceably to assemble' as used in the First Amendment necessarily involves a coming together, whether regularly or spasmodically. Historically the right to assemble was secondary to the right to petition, the latter being the primary right. But today, as the Court stated in De Jonge v. Oregon, 299 U.S. 353, 364, 57 S.Ct. 255, 260, 81 L.Ed. 278, 'The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.' Assembly, like speech, is indeed essential 'in order to maintain the opportunity for free 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.' Id., p. 365, 57 S.Ct. p. 260. 'The holding of meetings for peaceable political action cannot be proscribed.' Ibid. A Free Society is made up of almost innumerable institutions through which views and opinions are expressed, opinion is mobilized, and social, economic, religious, educational, and political programs are formulated.

Joining groups seems to be a passion with Americans.

Schlesinger, The Rise of the City (1933), reviews the zeal with which Americans in the last century became the world's greatest 'joiners':

'Now Americans turned with furious zeal to the creation of     secret societies but to their own pattern. In the large     cities some form of organized social commingling seemed      called for to replace the spontaneous friendliness of small      rural towns. Liberty and equality this generation was willing     to take for granted, but fraternity filled a compelling human      need. Moreover, the romantic opportunity to posture before a     mystic brotherhood in all the glory of robe, plume and sword      restored a sense of self-importance bruised by the anonymity      of life amidst great crowds. If further inducement were     needed, it was supplied by the provision made by most lodges      for sickness and death benefits for their members.

'As was to be expected, membership was greatest in the     urbanized sections of the country notwithstanding the energy      with which the Negroes of the South aped their white brethren      and the increasing interest of Western farmers in lodge      activities. By the end of the period there were over six     million names on the rosters of fraternal bodies. America     possessed more secret societies and a larger number of      'joiners' than all other nations.' Id., pp. 288-290.

'It is not surprising, therefore, to find that at least five thousand national associations exist in the United States.' Robison, Protection of Associations From Compulsory Disclosure of Membership, 58 Col.L.Rev. 614, 622.

A coming together is often necessary for communication-for those who listen as well as for those who speak. Demosthenes, it is said, went to the seashore and declaimed to the waves in order to correct a stammer. But normally a speaker implies an audience. Joining a group is often as vital to freedom of expression as utterance itself. Registering as a student in a school or joining a faculty is as vital to freedom of expression as joining a church is to the free exercise of religion. Joining a political party may be as critical to expression of one's views as hiring reporters is to the establishment of a free press. Some have thought that political and academic affiliations have a preferred position under the due process version of the First Amendment. See Sweezy v. New Hampshire, 354 U.S. 234, 261-267, 77 S.Ct. 1203, 1220, 1 L.Ed.2d 1311 (concurring opinion). But the associational rights protected by the First Amendment are in my view much broader and cover the entire spectrum in political ideology as well as in art, in journalism, in teaching, and in religion.

In my view, government is not only powerless to legislate with respect to membership in a lawful organization; it is also precluded from probing the intimacies of spiritual and intellectual relationships in the myriad of such societies and groups that exist in this country, regardless of the legislative purpose sought to be served. '(T)he provisions of the First Amendment * *  * of course reach and limit *  *  * investigations.' Barenblatt v. United States, 360 U.S. 109, 126, 79 S.Ct. 1081, 1092, 3 L.Ed.2d 1115. If that is not true I see no barrier to investigation of newspapers, churches, political parties, clubs, societies, unions, and any other association for their political, economic, social, philosophical, or religious views. If, in its quest to determine whether existing laws are being enforced or new laws are needed, an investigating committee can ascertain whether known Communists or criminals are members of an organization not shown to be engaged in conduct properly subject to regulation, it is but a short and inexorable step to the conclusion that it may also probe to ascertain what effect they have had on the other members. For how much more 'necessary and appropriate' this information is to the legislative purpose being pursued!

It is no answer to the conclusion that all such investigations are illegal to suggest that the committee is pursuing a lawful objective in the manner it has determined most appropriate. For, as Laurent Frantz, The First Amendment in the Balance, 71 Yale L.J. 1424, 1441, has so persuasively shown, 'it does not follow that any objective can ever be weighed against an express limitation on the means available for its pursuit. The public interest in the suppression of crime, for example, cannot be weighed against a constitutional provision that accused persons may not be denied the right to counsel.' When otherwise valid legislation is sought to be applied in an unconstitutional manner we do not sustain its application. See, e.g., Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220. A different test should not obtain for legislative investigations, '(A)ny constitutional limitation serves a significant function only insofar as it stands in the way of something which government thinks ought to be done. Nothing else needs to be prohibited.' Frantz, supra, at 1445.

For some of us a phase of the problem emerged in United States v. Rumely, 345 U.S. 41, 57-58, 73 S.Ct. 543, 551, 97 L.Ed. 770 (concurring opinion), where several problems were posed. Can the Government damand of a publisher the names of the purchasers of his publications? Would not the spectre of a government agent then look over the shoulder of everyone who reads? Might not the purchase of a book or pamphlet today result in a subpoena tomorrow? Would not the fear of criticism go with every person into the bookstall? If the light of publicity may reach any student, any teacher, would not free inquiry be discouraged? For are there not always books and pamphlets that are critical of the administration or that preach an unpopular policy in domestic or foreign affairs or that are in disrepute in the orthodox school of thought? If the press and its readers were subject to the harassment of hearings, investigations, reports, and subpoenas, government would indeed hold a club over speech and over the press. Recognition of these dangers prompted our decision in Talley v. California, 362 U.S. 60, 80 S.Ct. 536, 4 L.Ed.2d 559, holding unconstitutional an ordinance requiring handbills to disclose the name and address of the distributor or printer. Plainly a legislative committee could not have obtained the same information from the petitioner in that case merely because it was seeking to determine whether Communists were behind the distribution as part of a massive propaganda campaign.

The problem was exposed again in Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240, where the press was being investigated. What I said there seems germane here. Since what an editor writes or thinks is none of the Government's business-except, of course, that Congress could punish the breach of a carefully drawn security law; see Near v. Minnesota, 283 U.S. 697, 715-716, 51 S.Ct. 625, 631, 75 L.Ed. 1357-it has no power to investigate the capacities, ideology, prejudices, or politics of those who write the news.

'It is said that Congress has the power to determine the     extent of Communist infiltration so that it can know how much      tighter the 'security' laws should be made. This proves too     much. It would give Congress a roving power to inquire into     fields in which it could not legislate. If Congress can     investigate the press to find out if Communists have      infiltrated it, it could also investigate the churches for      the same reason. Are the pulpits being used to promote the     Communist cause? Were any of the clergy ever members of the     Communist Party? How about the governing board? How about     those who assist the pastor and perhaps help prepare his      sermons or do the research? Who comes to the confession and     discloses that he or she once was a Communist?' 369 U.S., at      777, 82 S.Ct., at 1054.

Bryant v. Zimmerman, 278 U.S. 63, 72, 49 S.Ct. 61, 64, 73 L.Ed. 184, held that the Due Process Clause of the Fourteenth Amendment did not prevent a State from compelling a disclosure of the membership lists of the Ku Klux Klan. That decision was made in 1928 and it is unnecessary to decide now whether its vitality has survived such cases as N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488; Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480; and Louisiana v. N.A.A.C.P., 366 U.S. 293, 81 S.Ct. 1333, 6 L.Ed.2d 301, for we distinguished that case in N.A.A.C.P. v. Alabama, supra, 357 U.S. at 465, 78 S.Ct. at 1173, saying, inter alia, 'The decision was based on the particular character of the Klan's activities, involving acts of unlawful intimidation and violence.' Moreover, the incorporation of the First Amendment into the Fourteenth had only recently been adumbrated (see Gitlow v. New York, 268 U.S. 652, 666, 45 S.Ct. 625, 629, 69 L.Ed. 1138) and the full exposition of the right of association that is part of the periphery of the First Amendment had not yet been made. Indeed Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070, which sustained the right of parents to avoid public schools and to put their children in parochial schools, rested in part on the property interest of the parochial schools. Id., pp. 534-535, 45 S.Ct. p. 573.

The right of association has become a part of the bundle of rights protected by the First Amendment (see, e.g., N.A.A.C.P. v. Alabama, supra), and the need for a pervasive right of privacy against government intrusion has been recognized, though not always given the recognition it deserves. Unpopular groups (N.A.A.C.P. v. Alabama, supra) like popular ones are protected. Unpopular groups if forced to disclose their membership lists may suffer reprisals or other forms of public hostility. N.A.A.C.P. v. Alabama, supra, 357 U.S. p. 462, 78 S.Ct. p. 1171. But whether a group is popular or unpopular, the right of privacy implicit in the First Amendment creates an area into which the Government may not enter.

'Freedom of religion and freedom of speech guaranteed by the     First Amendment give more than the privilege to worship, to      write, to speak as one chooses; they give freedom not to do      nor to act as the government chooses. The First Amendment in     its respect for the conscience of the individual honors the      sanctity of thought and belief. To think as one chooses, to     believe what one wishes are important aspects of the      constitutional right to be let alone.' Public Utilities      Comm'n, etc., v. Pollak, 343 U.S. 451, 467-468, 72 S.Ct. 813,     823, 96 L.Ed. 1068 (dissenting opinion).

There is no other course consistent with the Free Society envisoned by the First Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces and the people he associates with are no concern of government. That article of faith marks indeed the main difference between the Free Society which we espouse and the dictatorships both on the Left and on the Right.

As Mr. Justice Black said (dissenting) in Barenblatt v. United States, supra 360 U.S. 150-151, 79 S.Ct. 1105:

'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 suspended     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.'

If a group is engaging in acts or a course of conduct that is criminal, it can be prosecuted, and it and its members can be investigated, save as the Self-Incrimination Clause of the Fifth Amendments sets up a barrier. In Louisiana v. N.A.A.C.P., supra, a state statute requiring the N.A.A.C.P. to register and disclose its membership lists was involved. We denied enforcement of that law, saying that we are 'in an area where, as Shelton v. Tucker, 364 U.S. 479, 81 S.Ct. 247, 5 L.Ed.2d 231, emphasized, any regulation must be highly eslective in order to survive challenge under the First Amendment.' 366 U.S., at 296, 81 S.Ct., at 1335. And we added:

'At one extreme is criminal conduct which cannot have shelter     in the First Amendment. At the other extreme are regulatory     measures which, no matter how sophisticated, cannot be      employed in purpose or in effect to stifle, penalize, or curb      the exercise of First Amendment rights.' Id., p. 297, 81      S.Ct., p. 1336.

The Florida court in this case said that a requirement of nondisclosure would provide an 'ideological asylum for those who would destroy by violence the very foundations upon which their governmental sanctuary stands.' 126 So.2d 129, 132. But there is no showing here that the N.A.A.C.P. is engaged in any criminal activity of any kind whatsoever. The Florida Supreme Court in Graham v. Florida Legislative Investigation Committee, 126 So.2d 133, 136, conceded that the N.A.A.C.P. is 'an organization perfectly legitimate but allegedly unpopular in the community.' Whether it has members who have committed crimes is immaterial. One man's privacy may not be invaded because of another's perversity. If the files of the N.A.A.C.P. can be ransacked because some Communists may have joined it, then all walls of privacy are broken down. By that reasoning the records of the confessional can be ransacked because a 'subversive' or a criminal was implicated. By that reasoning an entire church can be investigated because one member was an ideological stray or had once been a Communist or because the minister's sermon paralleled the party line. By the reasoning the files of any society or club can be seized because members of a 'subversive' group had infiltrated it.

In sum, the State and the Federal Governments, by force of the First Amendment, are barred from investigating any person's faith or ideology by summoning him or by summoning officers or members of his society, church, or club.

Government can intervene only when belief, thought, or expression moves into the realm of action that is inimical to society. That was Jefferson's view. In his Bill for Establishing Religious Freedom he spoke primarily of religious liberty but in terms applicable to freedom of the mind in all of its aspects. It was his view that in the Free Society men's ideas and beliefs, their speech and advocacy are no proper concern of government. Only when they become brigaded with action can government move against them. Jefferson said:

' * *  * that the opinions of men are not the object of civil      government, nor under its jurisdiction; that to suffer the      civil magistrate to intrude his powers into the field of      opinion and to restrain the profession or propagation of      principles on supposition of their ill tendency is a      dangerous fallacy, which at once detroys all religious      liberty, because he being of course judge of that tendency      will make his opinions the rule of judgment, and approve or      condemn the sentiments of others only as they shall square      with or suffer from his own; that it is time enough for the      rightful purposes of civil government for its officers to      interfere when principles break out into overt acts against peace and good order; and finally, that truth is      great and will prevail if left to herself; that she is the      proper and sufficient antagonist to error, and has nothing to      fear from the conflict unless by human interposition disarmed      of her natural weapons, free argument and debate; errors      ceasing to be dangerous when it is permitted freely to      contradict them.'

Madison too knew that tolerance for all ideas across the spectrum was the only true guarantee of freedom of the mind:

'Whilst all authority in it will be derived from and     dependent on the society, the society itself will be broken      into so many parts, interests and classes of citizens, that      the rights of individuals, or of the minority, will be in      little danger from interested combinations of the majority. In a free government the security for civil rights must be     the same as that for religious rights. It consists in the one     case in the multiplicity of interests, and in the other in      the multiplicity of sects. The degree of security in both     cases will depend on the number of interests and sects *  *      * .'

Once the investigator has only the conscience of government as a guide, the conscience can become 'ravenous,' as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show:

'MORE: And when we stand before God, and you are sent to     Paradise for doing according to your conscience, and I am damned for not doing according to mine,      will you come with me, for fellowship?

'CRANMER: So those of us whose names are there are damned,     Sir Thomas?

'MORE: I don't know, Your Grace. I have no window to look     into another man's conscience. I condemn no one.

'CRANMER: Then the matter is capable of question?

'MORE: Certainly.

'CRANMER: But that you owe obedience to your King is not     capable of question. So weigh a doubt against a certainty-and     sign.

'MORE: Some men think the Earth is round, others think it     flat; it is a matter capable of question. But if it is flat,     will the King's command make it round? And if it is round,     will the King's command flatten it? No, I will not sign.'     Id., pp. 132-133.

Where government is the Big Brother, privacy gives way to surveillance. But our commitment is otherwise. By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts.