Watkins v. United States (354 U.S. 178)/Dissent Clark

Mr. Justice CLARK, dissenting.

As I see it the chief fault in the majority opinion is its mischievous curbing of the informing function of the Congress. While I am not versed in its procedures, my experience in the Executive Branch of the Government leads me to believe that the requirements laid down in the opinion for the operation of the committee system of inquiry are both unnecessary and unworkable. It is my purpose to first discuss this phase of the opinion and then record my views on the merits of Watkins' case.

It may be that at times the House Committee on Un-American Activities has, as the Court says, 'conceived of its task in the grand view of its name.' And, perhaps, as the Court Indicates, the rules of conduct placed upon the Committee by the House admit of individual abuse and unfairness. But that is none of our affair. So long as the object of a legislative inquiry is legitimate and the questions propounded are pertinent thereto, it is not for the courts to interfere with the committee system of inquiry. To hold otherwise would be an infringement on the power given the Congress to inform itself, and thus a trespass upon the fundamental American principle of separation of powers. The majority has substituted the judiciary as the grand inquisitor and supervisor of congressional investigations. It has never been so.

Legislative committees to inquire into facts or conditions for assurance of the public welfare or to determine the need for legislative action have grown in importance with the complexity of government. The investigation that gave rise to this prosecution is of the latter type. Since many matters requiring statutory action lie in the domain of the specialist or are unknown without testimony from informed witnesses, the need for information has brought about legislative inquiries that have used the compulsion of the subpoena to lay bare needed facts and a statute, 2 U.S.C. § 192, 2 U.S.C.A. § 192 here involved, to punish recalcitrant witnesses. The propriety of investigations has long been recognized and rarely curbed by the courts, though constitutional limitations on the investigatory powers are admitted. The use of legislative committees to secure information follows the example of the people from whom our legislative system is derived. The British method has variations from that of the United States but fundamentally serves the same purpose-the enlightenment of Parliament for the better performance of its duties. There are standing committees to carry on the routine work, royal commissions to grapple with important social or economic problems, and special tribunals of inquiry for some alleged offense in government. Our Congress has since its beginning used the committee system to inform itself. It has been estimated that over 600 investigations have been conducted since the First Congress. They are 'a necessary and appropriate attribute of the power to legislate * *  * .' McGrain v. Daugherty, 1927, 273 U.S. 135, 175, 47 S.Ct. 319, 329, 71 L.Ed. 580.

The Court indicates that in this case the source of the trouble lies in the 'tremendous latitude' given the Un-American Activities Committee in the Legislative Reorganization Act. It finds that the Committee 'is allowed, in essence, to define its own authority, (and) to choose the direction and focus of its activities.' This, of course, is largely true of all committees within their respective spheres. And, while it is necessary that the 'charter,' as the opinion calls the enabling resolution, 'spell out (its) jurisdiction and purpose,' that must necessarily be in more or less general terms. An examination of the enabling resolutions of other committees reveals the extent to which this istrue.

Permanent or standing committees of both Houses have been given power in exceedingly broad terms. For example, the Committees on the Armed Services have jurisdiction over 'Common defense generally'; the Committees on Interstate and Foreign Commerce have jurisdiction over 'interstate and foreign commerce generally'; and the Committees on Appropriation have jurisdiction over 'Appropriation of the revenue for the support of the Government.' Perhaps even more important for purposes of comparison are the board authorizations given to select or special committees established by the Congress from time to time. Such committees have been 'authorized and directed' to make full and complete studies 'of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce'; 'of * *  * all lobbying activities intended to influence, encourage, promote, or retard legislation'; 'to determine the extent to which current literature *  *  * containing immoral, (or) obscene *  *  * matter, or placing improper emphasis on crime *  *  * are being made available to the people of the United States *  *  * '; and 'of the extent to which criminal or other improper practices *  *  * are or have been, engaged in in the field of labor-management relations *  *  * to the detriment of the interests of the public *  *  * .' (Emphasis added in each example.) Surely these authorizations permit the committees even more 'tremendous latitude' than the 'charter' of the Un-American Activities Committee. Yet no one has suggested that the powers granted were too broad. To restrain and limit the breadth of investigative power of this Committee necessitates the similar handling of all other committees. The resulting restraint imposed on the committee system appears to cripple the system beyond workability.

The Court finds fault with the use made of compulsory process, power for the use of which is granted the Committee in the Reorganization Act. While the Court finds that the Congress is free 'to determine the kinds of data' it wishes its committees to collect, this has led the Court says, to an encroachment on individual rights through the abuse of process. To my mind this indicates a lack of understanding of the problems facing such committees. I am sure that the committees would welcome voluntary disclosure. It would simplify and relieve their burden considerably if the parties involved in investigations would come forward with a frank willingness to cooperate. But everyday experience shows this just does not happen. One needs only to read the newspapers to know that the Congress could gather little 'data' unless its committees had, unfettered, the power of subpoena. In fact, Watkins himself could not be found for appearance at the first hearing and it was only by subpoena that he attended the second. The Court generalizes on this crucial problem saying 'added care on the part of the House and the Senate in authorizing the use of compulsory process and by their committees in exercising that power would suffice.' It does not say how this 'added care' could be applied in practice; however, there are many implications since the opinion warns that 'procedures which prevent the separation of power from responsibility' would be necessary along with 'constitutional requisites of fairness for witnesses.' The 'power' and 'responsibility' for the investigations are, of course, in the House where the proceeding is initiated. But the investigating job itself can only be done through the use of committees. They must have the 'power' to force compliance with their requirements. If the rule requires that this power be retained in the full House then investigations will be so cumbrous that their conduct will be a practical impossibility. As to 'fairness for witnesses' there is nothing in the record showing any abuse of Watkins. If anything, the Committee was abused by his recalcitrance.

While ambiguity prevents exactness (and there is 'vice in vagueness' the majority reminds), the sweep of the opinion seems to be that 'preliminary control' of the Committee must be exercised. The Court says a witness' protected freedoms cannot 'be placed in danger in the absence of a clear determination by the House or the Senate that a particular inquiry is justified by a specific legislative need.' Frankly I do not see how any such procedure as 'preliminary control' can be effected in either House of the Congress. What will be controlled reliminarily? The plans of the investigation, the necessity of calling certain witnesses, the questions to be asked, the details of subpoenas duces tecum, etc? As it is now, Congress is hard pressed to find sufficient time to fully debate and adopt all needed legislation. The Court asserts that 'the Congress has practically abandoned its original practice of utilizing the coercive sanction of contempt proceedings at the bar of the House.' This was to be expected. It may be that back in the twenties and thirties Congress could spare the time to conduct contempt hearings, but that appears impossible now. The Court places a greater burden in the conduct of contempt cases before the courts than it does before 'the bar of the House.' It cites with approval cases of contempt tried before a House of the Congress where no more safeguards were present than we find here. In contempt prosecutions before a court, however, the majority places an investigative hearing on a par with a criminal trial, requiring that 'knowledge of the subject to which the interrogation is deemed pertinent * *  * must be available (to the witness) with same degree of explicitness and clarity that the Due Process Clause requires in the expression of any element of a criminal offense.' I know of no such claim ever being made before. Such a requirement has never been thought applicable to investigations and is wholly out of place when related to the informing function of the Congress. See Frankfurter, Hands Off The Investigations, 38 New Republic, May 21, 1924, p. 329, 65 Cong.Rec. 9080-9082. The Congress does not have the facts at the time of the investigation for it is the facts that are being sought. In a criminal trial the investigation has been completed and all of the facts are at hand. The informing function of the Congress is in effect 'a study by the government of circumstances which seem to call for study in the public interest.' See Black, Inside a Senate Investigation, 172 Harper's Magazine, Feb. 1936, pp. 275, 278. In the conduct of such a proceeding it is impossible to be as explicit and exact as in a criminal prosecution. If the Court is saying that its new rule does not apply to contempt cases tried before the bar of the House affected, it may well lead to trial of all contempt cases before the bar of the whole House in order to avoid the restrictions of the rule. But this will not promote the result desired by the majority. Summary treatment, at best, could be provided before the whole House because of the time factor, and such treatment would necessarily deprive the witness of many of the safeguards in the present procedures. On review here the majority might then find fault with that procedure.

Coming to the merits of Watkins' case, the Court reverses the judgment because: (1) The subject matter of the inquiry was not 'made to appear with undisputable clarity' either through its 'charter' or by the Chairman at the time of the hearing and, therefore, Watkins was deprived of a clear understanding of 'the manner in which the propounded questions (were) pertinent thereto'; and (2) the present committee system of inquiry of the House, as practiced by the Un-American Activities Committee, does not provide adequate safeguards for the protection of the constitutional right of free speech. I subscribe to neither conclusion.

Watkins had been an active leader in the labor movement for many years and had been identified by two previous witnesses at the Committee's hearing in Chicago as a member of the Communist Party. There can be no question that he was fully informed of the subject matter of the inquiry. His testimony reveals a complete knowledge and understanding of the hearings at Chicago. There the Chairman had announced that the Committee had been directed 'to ascertain the extent and success of subversive activities directed against these United States (and) On the basis of these investigations and hearings * *  * (report) its findings to the Congress and (make) recommendations *  *  * for new legislation.' He pointed to the various laws that had been enacted as a result of Committee recommendations. He stated that 'The Congress has also referred to the House Committee on Un-American Activities a bill which would amend the National Security Act of 1950' which, if made law, would restrict the availability of the Labor Act to unions not 'in fact Communist-controlled action groups.' The Chairman went on to say that 'It cannot be said that subversive infiltration has had a greater nor a lesser success in infiltrating this important area. The hearings today are the culmination of an investigation * *  *. Every witness who has been subpoenaed to appear before the committee here in Chicago * *  * (is) known to possess information which will assist the Committee in performing its directed function to the Congress of the United States.'

A subpoena had issued for Watkins to appear at the Chicago hearings but he was not served. After Watkins was served the hearing in question was held in Washington, D.C. Reference at this hearing was made to the one conducted in Chicago. Watkins came before the Committee with a carefully prepared statement. He denied certain testimony of the previous witnesses and declared that he had never been a 'card-carrying member' of the Party. He admitted that for the period 1942-1947 he 'cooperated with the Communist Party * *  * participated in Communist activities *  *  * made contributions *  *  * attended caucuses at (his union's) convention at which Communist Party officials were present *  *  * (and) freely cooperated with the Communist Party *  *  * .' This indicated that for a five-year period he, a union official, was cooperating closely with the Communist Party even permitting its officials to attend union caucuses. For the last two years of this liaison the Party had publicly thrown off its cloak of a political party. It was a reconstituted, militant group known to be dedicated to the overthrow of our Government by force and violence. In this setting the Committee attempted to have Watkins identify 30 persons, most of whom were connected with labor unions in some way. While one 'operated a beauty parlor' and another was 'a watchmaker,' they may well have been 'drops' or other functionaries in the program of cooperation between the union and the Party. It is a non sequitur for the Court to say that since 'almost a quarter of the persons on the list are not labor people, the inference becomes strong that the subject before the Subcommittee was not defined in terms of Communism in labor.' I submit that the opposite is true.

I think the Committee here was acting entirely within its scope and that the purpose of its inquiry was set out with 'undisputable clarity.' In the first place, the authorizing language of the Reorganization Act Must be read as a whole, not dissected. It authorized investigation into subversive activity, its extent, character, objects, and diffusion. While the language might have been more explicit than using such words as 'un-American,' or phrases like 'principle of the form of government,' still these are fairly well understood terms. We must construe them to give them meaning if we can. Our cases indicate that rather than finding fault with the use of words or phrases, we are bound to presume that the action of the legislative body in granting authority to the Committee was with a legitimate object 'if (the action) is capable of being so construed.' (Emphasis added.) People ex rel. McDonald v. Keeler, 1885, 99 N.Y. 463, 487, 2 N.E. 615, 627, 628, as quoted and approved in McGrain v. Daugherty, supra, 273 U.S. at page 178, 47 S.Ct. at page 330, 71 L.Ed. 580. Before we can deny the authority 'it must be obvious that' the Committee has 'exceeded the bounds of legislative power.' Tenney v. Brandhove, 1951, 341 U.S. 367, 378, 71 S.Ct. 783, 789, 95 L.Ed. 1019. The fact that the Committee has often been attacked has caused close scrutiny of its acts by the House as a whole and the House has repeatedly given the Committee its approval. 'Power' and 'responsibility' have not been separated. But the record in this case does not stop here. It shows that at the hearings involving Watkins, the Chairman made statements explaining the functions of the Committee. And, furthermore, Watkins' action at the hearing clearly reveals that he was well acquainted with the purpose of the hearing. It was to investigate Communist infiltration into his union. This certainly falls within the grant of authority from the Reorganization Act and the House has had ample opportunity to limit the investigative scope of the Committee if it feels that the Committee has exceeded its legitimate bounds.

The Court makes much of petitioner's claim of 'exposure for exposure's sake' and strikes at the purposes of the Committee through this catch phrase. But we are bound to accept as the purpose of the Committee that stated in the Reorganization Act together with the statements of the Chairman at the hearings involved here. Nothing was said of exposure. The statements of a single Congressman cannot transform the real purpose of the Committee into something not authorized by the parent resolution. See United States v. Rumely, 1953, 345 U.S. 41, 73 S.Ct. 543, 97 L.Ed. 770; Sinclair v. United States, 1929, 279 U.S. 263, 290, 295, 49 S.Ct. 268, 272, 73 L.Ed. 692. The Court indicates that the questions propounded were asked for exposure's sake and had no pertinency to the inquiry. It appears to me that they were entirely pertinent to the announced purpose of the Committee's inquiry. Undoubtedly Congress has the power to inquire into the subjects of communism and the Communist Party. American Communications Ass'n v. Douds, 1950, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925. As a corollary of the congressional power to inquire into such subject matter, the Congress, through its committees, can legitimately seek to identify individual members of the Party. Barsky v. United States, 1948, 83 U.S.App.D.C. 127, 167 F.2d 241, certiorari denied, 334 .u.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767. See also Lawson v. United States, 1949, 85 U.S.App.D.C. 167, 170 171, 176 F.2d 49, 52-53, certiorari denied, 339 U.S. 934, 70 S.Ct. 663, 94 L.Ed. 1352; United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, 90-92, certiorari denied, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122.

The pertinency of the questions is highlighted by the need for the Congress to know the extent of infiltration of communism in labor unions. This technique of infiltration was that used in bringing the downfall of countries formerly free but now still remaining behind the Iron Curtain. The Douds case illustrates that the Party is not an ordinary political party and has not bee at least since 1945. Association with its officials is not an ordinary association. Nor does it matter that the questions related to the past. Influences of past associations often linger on as was clearly shown in the instance of the witness Matusow and others. The techniques used in the infiltration which admittedly existed here might well be used again in the future. If the parties about whom Watkins was interrogated were Communists and collaborated with him, as a prior witness indicated, an entirely new area of investigation might have been opened up. Watkins' silence prevented the Committee from learning this information which could have been vital to its future investigation. The Committee was likewise entitled to elicit testimony showing the truth or falsity of the prior testimony of the witnesses who had involved Watkins and the union with collaboration with the Party. If the testimony was untrue a false picture of the relationship between the union and the Party leaders would have resulted. For these reasons there were ample indications of the pertinency of the questions.

The Court condemns the long-established and long-recognized committee system of inquiry of the House because it raises serious questions concerning the protection it affords to constitutional rights. It concludes that compelling a witness to reveal his 'beliefs, expressions or associations' impinges upon First Amendment rights. The system of inquiry, it says, must 'insure that the Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly.' In effect the Court honors Watkins' claim of a 'right to silence' which brings all inquiries, as we know, to a 'dead end.' I do not see how any First Amendment rights were endangered here. There is nothing in the First Amendment that provides the guarantees Watkins claims. That Amendment was designed to prevent attempts by law to curtail freedom of speech. Whitney v. People of State of California, 1927, 274 U.S. 357, 375, 47 S.Ct. 641, 648, 71 L.Ed. 1095. It forbids Congress from making any law 'abridging the freedom of speech, or of the press.' It guarantees Watkins' right to join any organization and make any speech that does not have an intent to incite to crime. Dennis v. United States, 1951, 341 U.S. 494, 71 S.Ct. 857, 95 L.Ed. 1137. But Watkins was asked whether he knew named individuals and whether they were Communists. He refused to answer on the ground that his rights were being abridged. What he was actually seeking to do was to protect his former associates, not himself, from embarrassment. He had already admitted his own involvement. He sought to vindicate the rights, if any, of his associates. It is settled that one cannot invoke the constitutional rights of another. Tileston v. Ullman, 1943, 318 U.S. 44, 46, 63 S.Ct. 493, 494, 87 L.Ed. 603.

As already indicated, even if Watkins' associates were on the stand they could not decline to disclose their Communist connections on First Amendment grounds. While there may be no restraint by the Government of one's beliefs, the right of free belief has never been extended to include the withholding of knowledge of past events or transactions. There is no general privilege of silence. The First Amendment does not make speech or silence permissible to a person in such measure as he chooses. Watkins has here exercised his own choice as to when he talks, what questions he answers, and when he remains silent. A witness is not given such a choice by the Amendment. Remote and indirect disadvantages such as 'public stigma, scorn and obloquy' may be related to the First Amendment, but they are not enough to block investigation. The Congress has recognized this since 1862 when it first adopted the contempt section, R.S. § 103, as amended, 2 U.S.C. § 193, 2 U.S.C.A. § 193, declaring that no witness before a congressional committee may refuse to testify 'upon the ground that his testimony to such fact or his production of such paper may tend to disgrace him or otherwise render him infamous.' See also McGrain v. Daugherty, supra, 273 U.S. at pages 179, 180, 47 S.Ct. at page 330, 71 L.Ed. 580; United States v. Josephson, 2 Cir., 1947, 165 F.2d 82, 89, certiorari denied, 333 U.S. 838, 68 S.Ct. 609, 92 L.Ed. 1122. See also Report on Congressional Investigations, Assn. of the Bar of the City of New York, 1948, 3-4.

We do not have in this case unauthorized, arbitrary, or unreasonable inquiries and disclosures with respect to a witness' personal and private affairs so ably and properly denounced in the Sinclair case, supra, 279 U.S. at pages 291, 292, 49 S.Ct. at page 271, 73 L.Ed. 692. This inquiry is far different from the cases relied upon by the Court. There is no analogy to the case of Richard Thompson involving the sermons of clergymen. It is not Floyd's case involving criticism of the royal family. There is no resemblance to John Wilkes' struggle for a seat in Parliament. It is not Briggs where the prosecutor sought to develop the national origin of policemen. It is not Kilbourn involving a private real estate pool. Nor is it Quinn, Emspak, or Bart, involving the Fifth Amendment. It is not Rumely involving the interpretation of a lobbying statute. Nor is this 'a new kind of congressional inquiry unknown in prior periods of American history * *  * (i.e.) a broad scale intrusion into the lives and affairs of private citizens.' As I see it only the setting is different. It involves new faces and new issues brought about by new situations which the Congress feels it is necessary to control in the public interest. The difficulties of getting information are identical if not greater. Like authority to that always used by the Congress is employed here and in the same manner so far as congressional procedures are concerned. We should afford to Congress the presumption that it takes every precaution possible to avoid unnecessary damage to reputations. Some committees have codes of procedure, and others use the executive hearing technique to this end. The record in this case shows no conduct on the part of the Un-American Activities Committee that justifies condemnation. That there may have been such occasions is not for us to consider here. Nor should we permit its past transgressions, if any, to lead to the rigid restraint of all congressional committees. To carry on its heavy responsibility the compulsion of truth that does not incriminate is not only necessary to the Congress but is permitted within the limits of the Constitution.