Wilkinson v. United States/Dissent Brennan

Mr. Justice BRENNAN, with whom Mr. Justice DOUGLAS joins, dissenting.

For the reasons stated in my Brother DOUGLAS' dissenting opinion in Braden v. United States, 365 U.S. 431, at page 446, 81 S.Ct. 584, at page 593, 5 L.Ed.2d 653, which I joined, I believe that the Committee failed to lay an adequate foundation at the hearing for questions which, it was claimed, concerned the exercise of rights protected by the First Amendment.

I also dissent because on these facts the inference is inescapable that the dominant purpose of these questions was not to gather information in aid of law making or law evaluation but rather to harass the petitioner and expose him for the sake of exposure. A scant 19 months before the hearing in question petitioner was summoned before this very Committee and refused to answer questions on substantially the same grounds as those he claimed in this instance. Nor did his conduct in the interim afford any basis for a hope that he might have repented, an inference which, by contrast, was possible in Flaxer v. United States, 358 U.S. 147, 151, 79 S.Ct. 191, 193, 3 L.Ed.2d 183, cited by the Government. For petitioner continued to proclaim his hostility to the Committee and his belief that it had no power to probe areas of free expression. He was not even called to testify at these hearings in Atlanta until the Committee learned that he was to be present in Atlanta to express his opposition to the Committee's work, as, of course, he had a right to do. In fact, the Committee's Staff Director came perilously close to admitting, on cross-examination by petitioner's counsel, that petitioner was called to the stand only because of his opposition to the Committee's activities.

It is particularly important that congressional committees confine themselves to the function of gathering information when their investigation begins to touch the realm of speech and opinion. On this record, I cannot help concluding that the Committee had no reasonable prospect that petitioner would answer its questions, and accordingly that the Committee's purpose could not have been the legitimate one of fact gathering. I am forced to the view that the questions asked of petitioner were therefore not within the Committee's power. Cf. Barenblatt v. United States, 360 U.S. 109, 166, 79 S.Ct. 1081, 1113, 3 L.Ed.2d 1115 (dissenting opinion); Uphaus v. Wyman, 360 U.S. 72, 82, 79 S.Ct. 1040, 1047, 3 L.Ed.2d 1090 (dissenting opinion). I would reverse.