Gibson v. Florida Legislative Investigation Committee/Dissent Harlan

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

The difficulties with this decision will become apparent once the case is deflated to its true size.

The essential facts are these. For several years before petitioner was convicted of this contempt, the respondent, a duly authorized Committee of the Florida Legislature, had been investigating alleged Communist 'infiltration' into various organizations in Dade County, Florida, including the Miami Branch of the National Association for the Advancement of Colored People. There was no suggestion that the branch itself had engaged in any subversive or other illegal activity, but the Committee had developed information indicating that 14 of some 52 present or past residents of Dade County, apparently at one time or another members of the Communist Party or connected organizations, were or had been members or had 'participated in the meetings and other affairs' of this local branch of the N.A.A.C.P.

Having failed to obtain from prior witnesses, other than its own investigator, any significant data as to the truth or falsity of this information, the Committee, in 1959, summoned the petitioner to testify, also requiring that he bring with him the membership records of the branch. Petitioner, a Negro clergyman, was then and for the past five years had been president of the local branch, and his custodianship of the records stands conceded.

On his appearance before the Committee petitioner was asked to consult these records himself and, after doing so, to inform the Committee which, if any, of the 52 individually identified persons were or had been members of the N.A.A.C.P. Miami Branch. He declined to do this on two grounds. First, he said that the N.A.A.C.P. itself had already undertaken action 'excluding from our ranks any and all persons who may have subversive tendencies.' To substantiate this, petitioner furnished the Committee with copies of 'Anti-Communism' resolutions which he stated had been adopted each year since 1950 at the Association's annual convention. Second, petitioner protested that production of the membership records would violate 'a legal right of ours, the right of association.' At the same time the petitioner expressed willingness to testify from recollection as to the membership or nonmembership in the local branch of any persons that the Committee might name to him.

The petitioner was then asked to state from recollection the N.A.A.C.P. membership vel non of the 14 persons mentioned above, photographs of each being exhibited to him. But he was unable to supply any information, disclaiming even knowledge of most of the names. He was then again asked to utilize the membership records as a testimonial aid, it having been earlier made clear to him that the Committee itself did not propose to look at the records:

'(By Committee counsel). Now, are you aware of the fact,     Reverend, that we're not actually asking you to turn over to      this Committee those records, but that we're asking that you      bring those records here for the purpose of consulting them      yourself and telling us, under oath, after consulting them,      whether or not certain people who we will name are members,      or have been members of your organization?

'(By the witness). I'm aware of it.'

Petitioner persisted in his refusal. This contempt charge and conviction, and its affirmance by the Supreme Court of Florida, 126 So.2d 129, followed.

This Court rests reversal on its finding that the Committee did not have sufficient justification for including the Miami Branch of the N.A.A.C.P. within the ambit of its investigation-that, in the language of our cases (Uphaus v. Wyman, 360 U.S. 72, 79, 79 S.Ct. 1040, 1045, 3 L.Ed.2d 1090), an adequate 'nexus' was lacking between the N.A.A.C.P. and the subject matter of the Committee's inquiry.

The Court's reasoning is difficult to grasp. I read its opinion as basically proceeding on the premise that the governmental interest in investigating Communist infiltration into admittedly nonsubversive organizations, as distinguished from investigating organizations themselves suspected of subversive activities, is not sufficient to overcome the countervailing right to freedom of association. Ante, pp. 547-549. On this basis 'nexus' is seemingly found lacking because it was never claimed that the N.A.A.C.P. Miami Branch had itself engaged in subversive activity ante, pp. 554-555, and because none of the Committee's evidence relating to any of the 52 alleged Communist Party members was sufficient to attribute such activity to the local branch or to show that it was dominated, influenced, or used 'by Communists.' Ante, pp. 895-898.

But, until today, I had never supposed that any of our decisions relating to state or federal power to investigate in the field of Communist subversion could possibly be taken as suggesting any difference in the degree of governmental investigatory interest as between Communist infiltration of organizations and Communist activity by organizations. See, e.g., Barenblatt v. United States, 360 U.S. 109, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (infiltration into education); Wilkinson v. United States, 365 U.S. 399, 81 S.Ct. 567, 5 L.Ed.2d 633, and Braden v. United States, 365 U.S. 431, 81 S.Ct. 584, 5 L.Ed.2d 653 (infiltration into basic industries); Russell v. United States, 369 U.S. 749, 773, 82 S.Ct. 1038, 1052, 8 L.Ed.2d 240 (infiltration of newspaper business).

Considering the number of congressional inquiries that have been conducted in the field of 'Communist infiltration' since the close of World War II, affecting such diverse interests as 'labor, farmer, veteran, professional, youth, and motion picture groups' (Barenblatt, supra, at 119, 79 S.Ct. at 1089), it is indeed strange to find the strength of state interest in the same type of investigation now impugned. And it is not amiss to recall that government evidence in Smith Act prosecutions has shown that the sensitive area of race relations has long been a prime target of Communist efforts at infiltration. See Scales v. United States, 367 U.S. 203, 235, 245, 249 n. 26, 251, 255-256, 81 S.Ct. 1469, 1500, 6 L.Ed.2d 782.

Given the unsoundness of the basic premise underlying the Court's holding as to the absence of 'nexus,' this decision surely falls of its own weight. For unless 'nexus' requires an investigating agency to prove in advance the very things it is trying to find out, I do not understand how it can be said that the information preliminarily developed by the Committee's investigator was not sufficient to satisfy, under any reasonable test, the requirement of 'nexus.'

Apart from this, the issue of 'nexus' is surely laid at rest by the N.A.A.C.P.'s own 'Anti-Communism' resolution, first adopted in 1950, which petitioner had voluntarily furnished the Committee before the curtain came down on his examination:

'ANTI-COMMUNISM

'Whereas, certain branches of the National Association for     the Advancement of Colored People are being rocked by      internal conflicts between groups who follow the Communist      line and those who do not, which threaten to destroy the      confidence of the public in the Association and which will      inevitably result in its eventual disruption; and

'Whereas, it is apparent from numerous attacks by Communists     in their official organs 'The Daily Worker' and 'Political      Affairs' upon officials of the Association that there is a well-organized, nationwide      conspiracy by Communists either to capture or split and wreck      the NAACP; therefore be it

'Resolved, that this Forty-First Convention of the National     Association for the Advancement of Colored People go on      record as unequivocally condemning attacks by Communists and      their fellow-travelers upon the Association and its      officials, and in order to safeguard the good-name of the      Association, promote and develop unity, eliminate internal      ideological friction, increase the membership and build the      necessary power effectively to wage the fight for civil      rights, herewith, call upon, direct and instruct the National      Board of Directors to appoint a committee to investigate and      study the ideological composition and trends of the      membership and leadership of the local units with a view to      determining causes of the aforementioned conflicts, confusion      and loss of membership; be it further

'Resolved, that this Convention go on record as directing and     instructing the Board of Directors to take the necessary      action to eradicate such infiltration, and if necessary to      suspend and reorganize, or lift the charter and expel any      unit, which, in the judgment of the Board of Directors, upon      a basis of the findings of the aforementioned investigation      and study of local units comes under Communist or other      political control and combination.' (Emphasis added.)

It hardly meets the point at issue to suggest, as the Court does (ante, p. 554), that the resolution only serves to show that the Miami Branch was in fact free of any Communist influences unless self-investigation is deemed constitutionally to block official inquiry.

I also find it difficult to see how this case really presents any serious question as to interference with freedom of association. Given the willingness of the petitioner to testify from recollection as to individual memberships in the local branch of the N.A.A.C.P., the germaneness of the membership records to the subject matter of the Committee's investigation, and the limited purpose for which their use was sought-as an aid to refreshing the witness' recollection, involving their divulgence only to the petitioner himself (supra, pp. 577-578)-this case of course bears no resemblance whatever to N.A.A.C.P. v. Alabama, 357 U.S. 449, 78 S.Ct. 1163, 2 L.Ed.2d 1488, or Bates v. Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480. In both of those cases the State had sought general divulgence of local N.A.A.C.P. membership lists without any showing of a justifying state interest. In effect what we are asked to hold here is that the petitioner had a constitutional right to give only partial or inaccurate testimony, and that indeed seems to me the true effect of the Court's holding today.

I have scrutinized this record with care to ascertain whether any unfairness in the Committee's proceedings could be detected. I can find none. In the questioning and treatment of witnesses, explanations of pertinency, rulings on objections, and general conduct of the inquiry, I perceive nothing in this record which savors of other than a decorous attitude on the part of the Committee and a lawyer like and considerate demeanor on the part of its counsel. Nor do I find in the opinion of the Florida Supreme Court the slightest indication of anything other than a conscientious application of the constitutional principles governing cases such as this.

There can be no doubt that the judging of challenges respecting legislative or executive investigations in this sensitive area demands the utmost circumspection on the part of the courts, as indeed the Florida Supreme Court has itself recognized. See Graham v. Florida Legislative Investigation Comm., 126 So.2d 133, 135. But this also surely carries with it the reciprocal responsibility of respecting legitimate state and local authority in this field. With all respect, I think that in deciding this case as it has the Court has failed fully to keep in mind that responsibility.

I would affirm.