United States v. Harriss/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting.

I am in sympathy with the effort of the Court to save this statute from the charge that it is so vague and indefinite as to be unconstitutional. My inclinations were that way at the end of the oral argument. But further study changed my mind. I am now convinced that the formula adopted to save this Act is too dangerous for use. It can easily ensnare people who have done no more than exercise their constitutional rights of speech, assembly, and press.

We deal here with the validity of a criminal statute. To use the test of Connally v. General construction Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322, the question is whether this statute 'either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application'. If it is so vague, as I think this one is, then it fails to meet the standards required by due process of law. See United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877. In determining that question we consider the statute on its face. As stated in Lanzetta v. New Jersey, 306 U.S. 451, 453, 59 S.Ct. 618, 619, 83 L.Ed. 888.

'If on its face the challenged provision is repugnant to the     due process clause, specification of details of the offense      intended to be charged would not serve to validate it. * *  *      It is the statute, not the accusation under it, that prescribes the rule to govern conduct and      warns against transgresson. * *  * No one may be required at      peril of life, liberty or property to speculate as to the      meaning of penal statutes. All are entitled to be informed as     to what the State commands or forbids.'

And see Winters v. New York, 333 U.S. 507, 515, 68 S.Ct. 665, 670, 92 L.Ed. 840.

The question therefore is not what the information charges nor what the proof might be. It is whether the statute itself is sufficiently narrow and precise as to give fair warning.

It is contended that the Act plainly applies

-to persons who pay others to present views to Congress either in committee hearings or by letters or other communications to Congress or Congressmen and

-to persons who spend money to induce others to communicate with Congress.

The Court adopts that view, with one minor limitation which the Court places on the Act-that only persons who solicit, collect, or receive money are included.

The difficulty is that the Act has to be rewritten and words actually added and subtracted to produce that result.

Section 307 makes the Act applicable to anyone who 'directly or indirectly' solicits, collects, or receives contributions 'to be used principally to aid, or the principal purpose of which person is to aid' in either

-the 'passage or defeat of any legislation' by Congress, or

-'To influence, directly or indirectly, the passage or defeat of any legislation' by Congress.

We start with an all-inclusive definition of 'legislation' contained in § 302(e). It means, 'bills, resolutions, amendments, nominations, and other matters pending or proposed in either House of Congress, and includes any other matter which may be the subject of action by either House.' What is the scope of 'any other matter which may be the subject of action' by Congress? It would seem to include not only pending or proposed legislation but any matter within the legitimate domain of Congress.

What contributions might be used 'principally to aid' in influencing 'directly or indirectly, the passage or defeat' of any such measure by Congress? When is one retained for the purpose of influencing the 'passage or defeat of any legislation'?

(1) One who addresses a trade union for repeal of a labor law certainly hopes to influence legislation.

(2) So does a manufacturers' association which runs ads in newspapers for a sales tax.

(3) So does a farm group which undertakes to raise money for an educational program to be conducted in newspapers, magazines, and on radio and television, showing the need for revision of our attitude on world trade.

(4) So does a group of oil companies which puts agents in the Nation's capital to sound the alarm at hostile legislation, to exert influence on Congressmen to defeat it, to work on the Hill for the passage of laws favorable to the oil interests.

(5) So does a business, labor, farm, religious, social, racial, or other group which raises money to contact people with the request that they write their Congressman to get a law repealed or modified, to get a proposed law passed, or themselves to propose a law.

Are all of these activities covered by the Act? If one is included why are not the others? The Court apparently excludes the kind of activities listed in categories (1), (2), and (3) and includes part of the activities in (4) and (5)-those which entail contacts with the Congress.

There is, however, difficulty in that course, a difficulty which seems to me to be insuperable. I find no warrant in the Act for drawing the line, as the Court does, between 'direct communication with Congress' and other pressures on Congress. The Act is as much concerned with one, as with the other.

The words 'direct communication with Congress' are not in the Act. Congress was concerned with the raising of money to aid in the passage or defeat of legislation, whatever tactics were used. But the Court not only strikes out one whole group of activities to influence 'indirectly'-but substitutes a new concept for the remaining group-to influence 'directly.' To influence 'directly' the passage or defeat of legislation includes any number of methods-for example, nationwide radio, television or advertising programs promoting a particular measure, as well as the 'button holing' of Congressmen. To include the latter while excluding the former is to rewrite the Act.

This is not a case where one or more distinct types of 'lobbying' are specifically proscribed and another and different group defined in such loose, broad terms as to make its definition vague and uncertain. Here if we give the words of the Act their ordinary meaning, we do not know what the terminal points are. Judging from the words Congress used, one type of activity which I have enumerated is as much proscribed as another.

The importance of the problem is emphasized by reason of the fact that this legislation is in the domain of the First Amendment. That Amendment provides that 'Congress shall make no law * *  * abridging the freedom of speech, or of the press; or the right of the people *  *  * to petition the Government for a redress of grievances.'

Can Congress require one to register before he writes an article, makes a speech, files an advertisement, appears on radio or television, or writes a letter seeking to influence existing, pending, or proposed legislation? That would pose a considerable question under the First Amendment, as Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430, indicates. I do not mean to intimate that Congress is without power to require disclosure of the real principals behind those who come to Congress (or get others to do so) and speak as though they represent the public interest, when in fact they are undisclosed agents of special groups. I mention the First Amendment to emphasize why statutes touching this field should be 'narrowly drawn to prevent the supposed evil,' see Cantwell v. Connecticut, 310 U.S. 296, 307, 60 S.Ct. 900, 905, 84 L.Ed. 1213, and not be cast in such vague and indefinite terms as to cast a cloud on the exercise of constitutional rights. Cf. Stromberg v. California, 283 U.S. 359, 369, 51 S.Ct. 532, 535, 75 L.Ed. 1117; Thornhill v. Alabama, 310 U.S. 88, 97-98, 60 S.Ct. 736, 741-742, 84 L.Ed. 1093; Winters v. New York, 333 U.S. 507, 509, 68 S.Ct. 665, 667, 92 L.Ed. 840; Joseph Burstyn, Inc., v. Wilson, 343 U.S. 495, 504-505, 72 S.Ct. 777, 781-782, 96 L.Ed. 1098.

If that rule were relaxed, if Congress could impose registration requirements on the exercise of First Amendment rights, saving to the courts the salvage of the good from the bad, and meanwhile causing all who might possibly be covered to act at their peril, the law would in practical effect be a deterrent to the exercise of First Amendment rights. The Court seeks to avoid that consequence by construing the law narrowly as applying only to those who are paid to 'button hole' Congressman or who collect and expend moneys to get others to do so. It may be appropriate in some cases to read a statute with the gloss a court has placed on it in order to save it from the charge of vagueness. See Fox v. Washington, 236 U.S. 273, 277, 35 S.Ct. 383, 384, 59 L.Ed. 573. But I do not think that course is appropriate here.

The language of the Act is so broad that one who writes a letter or makes a speech or publishes an article or distributes literature or does many of the other things with which appellees are charged has no fair notice when he is close to the prohibited line. No construction we give it today will make clear retroactively the vague standards that confronted appellees when they did the acts now charged against them as criminal. Cf. Pierce v. United States, 314 U.S. 306, 311, 62 S.Ct. 237, 239, 86 L.Ed. 226. Since the Act touches on the exercise of First Amendment rights, and is not narrowly drawn to meet precise evils, its vagueness has some of the evils of a continuous and effective restraint.