Russell v. United States (369 U.S. 749)/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

While I join the opinion of the Court, I think it is desirable to point out that in a majority of the six cases that we dispose of today no indictment, however drawn, could in my view be sustained under the requirements of the First Amendment.

The investigation was concededly an investigation of the press. This was clearly brought out by the record in Shelton, wherein the following colloquy was alleged to have taken place at the commencement of the Subcommittee hearings:

'Senator Hennings. On the same subject matter. I do believe     it is very important at the outset for us to make it      abundantly clear, if that is the purpose of counsel, and if      it is the purpose of this committee, that this is not in any      sense an attack upon the free press of the United States.

'The Chairman. Why, certainly, that is true.

'Senator Hennings. And I think, too, that it should be clear     that the best evidence of any subversion or infiltration into      any news-dispensing agency or opinion-forming journal is      certainly the product itself.

'The Chairman. That is correct.

'Senator Hennings. Of course, the committee is interested in     the extent and nature of so-called Communist infiltration, if      such exists, into any news-dispensing agency.

'The Chairman. Correct.

'Senator Hennings. But I would like to have the position of     the committee, if it be the position of the majority of this      committee, since the committee has not met to determine      whether one policy or another is to be pursued in the course      of these hearings-that it be generally known and understood      that this is not an attack upon any one newspaper, upon any group of      newspapers as such, but an effort on the part of this      committee to show such participation and such attempt as may      be disclosed on the part of the Communist Party in the United      States or elsewhere, indeed, to influence or to subvert the      American press.

'And I do think that at some later time, perhaps, it might be     appropriate for executives of some of the newspapers under      inquiry, whose employees are under inquiry, to be called and      to testify and for them to show, if they can show, that the      end product, the newspaper itself, has not been influenced by      these efforts.

'The Chairman. The Chair thinks that is a very find and very     accurate statement, one with which the Chair certainly      agrees, in its entirety.

'We are not singling out any newspaper and not investigating     any newspaper or any group of newspapers. We are simply     investigating communism wherever we find it, and I think      that when this series of hearings is over that no one can say that any newspaper or      any employees of any one newspaper has been singled out.

'Senator Hennings. Thank you, Mr. Chairman.

'Senator Watkins. I would like to say I agree with Senator     Hennings' statement, Mr. Chairman.' R. 72-73.

The New York Times was a prime target of the investigation, 30 of the 38 witnesses called at the 1955 executive session and 15 of the 18 called at the 1956 public hearings being present or past employees of that paper.

The power to investigate is limited to a valid legislative function. Inquiry is precluded where the matter investigated is one on which 'no valid legislation' can be enacted. Kilbourn v. Thompson, 103 U.S. 168, 195, 26 L.Ed. 377. Since the First Amendment provides that 'Congress shall make no law * *  * abridging the freedom *  *  * of the press,' this present investigation was plainly unconstitutional. As we said in Watkins v. United States, 354 U.S. 178, 197, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273:

'Clearly, an investigation is subject to the command that the     Congress shall make no law abridging freedom of speech or      press or assembly. While it is true that there is no statute     to be reviewed, and that an investigation is not a law,      nevertheless an investigation is part of lawmaking. It is     justified solely as an adjunct to the legislative process. The First Amendment may be invoked against infringement of     the protected freedoms by law or by law making.'

Under our system of government, I do not see how it is possible for Congress to pass a law saying whom a newspaper or news agency or magazine shall or shall not employ. If this power exists, it can reach the rightist as well as the leftist press, as United States v. Rumely, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770, shows. Whether it is used against the one or the other will depend on the mood of the day. Whenever it is used to ferret out the ideology of those collecting news or writing articles or editorials for the press, it is used unconstitutionally. The theory of our Free Society is that government must be neutral when it comes to the press-whether it be rightist or leftist, orthodox or unorthodox. The theory is that in a community where men's minds are free, all shades of opinion must be immune from governmental inquiry lest we end with regimentation. Congress has no more authority in the field of the press than it does where the pulpit is involved. Since the editorials written and the news printed and the policies advocated by the press are none of the Government's business, I see no justification for the Government investigating the capacities, pacities, leanings, ideology, qualifications, prejudices or politics of whose who collect or write the news. It was conceded on oral argument that Congress would have no power to establish standards of fitness for those who work for the press. It was also conceded that Congress would have no power to prescribe loyalty tests for people who work for the press. Since this investigation can have no legislative basis as far as the press is concerned, what then is its constitutional foundation?

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?

There is a dictum in United States v. Rumely, 345 U.S. 41, 43, 73 S.Ct. 543, 544, 97 L.Ed. 770, that the reach of the investigative power of Congress is measured by the 'informing function of Congress,' a phrase taken from Woodrow Wilson's Congressional Government (1885), p. 303. But the quotation from Wilson was mutilated, because the sentences which followed his statement that 'The informing function of Congress should be preferred even to its legislative function' were omitted from the Rumely opinion. Those omitted sentences make abundantly clear that Wilson was speaking, not of a congressional inquiry roaming at large, but of one that inquired into and discussed the functions and operations of government. Wilson said:

'The informing function of Congress should be preferred even     to its legislative function. The argument is not only that     discussed and interrogated administration is the only pure      and efficient administration, but, more than that, that the      only really self-governing people is that people which      discusses and interrogates its adminstration. The talk on the     part of Congress which we sometimes justly condemn is the      profitless squabble of words over frivolous bills or selfish      party issues. It would be hard to conceive of there being too     much talk about the practical concerns and processes of      government. Such talk it is which, when earnestly and     purposefully conducted, clears the public mind and shapes the      demands of public opinion.' Id., at 303-304.

The power to inform is, in my view, no broader than the power to legislate.

Congress has no power to legislate either on 'religion' or on the 'press.' If an editor or a minister violates the law, he can be prosecuted. But the investigative power, as I read our Constitution, is barred from certain areas by the First Amendment. If we took the step urged by the prosecution, we would allow Congress to enter the forbidden domain.

The strength of the 'press' and the 'church' is in their freedom. If they pervert or misuse their power, informed opinion will in time render the verdict against them. A paper or pulpit might conceivably become a mouthpiece for Communist ideology. That is typical of the risks a Free Society runs. The alternative is governmental oversight, governmental investigation, governmental questioning, governmental harassment, governmental exposure for exposure's sake. Once we crossed that line, we would sacrifice the values of a Free Society for one that has a totalitarian cast.

Some think a certain leeway is necessary or desirable, leaving it to the judiciary to curb what judges may from time to time think are excessive practices. Thus, a judge with a professorial background may put the classroom in a preferred position. One with a background of a prosecutor dealing with 'subversives' may be less tolerant. When a subjective standard is introduced, the line between constitutional and unconstitutional conduct becomes vague, uncertain, and unpredictable. The rationalization, of course, reduces itself ultimately to the idea that 'the judges know best.' My idea is and has been that those who put the words of the First Amendment in the form of a command knew best. That is the political theory of government we must sustain until a constitutional amendment is adopted that puts the Congress astride the 'press.'

Mr. Justice CLARK, dissenting.