Barenblatt v. United States – Oral Argument – November 18, 1958 (Part 2)

Media for Barenblatt v. United States

Audio Transcription for Oral Argument – November 18, 1958 (Part 1) in Barenblatt v. United States

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Earl Warren:

Mr. Ennis, you may proceed.

Edward J. Ennis:

Thank you, Your Honor.

When the Court rose for lunch, we had — I had reached in the statement of facts, which I’ll make very brief, the place where the petitioner, Barenblatt, had been summoned to Washington for a hearing and the hearing which begins at page 173 of the record.

And the first witness was a Mr. Crowley, whom he had known in the University of Michigan.

And Mr. Crowley, who had refused to answer on a former occasion, came back to tell his story without a subpoena on this occasion.

And as the Chairman said that the field covered will be communism in education and the experiences and background in the Party of Francis X.T. Crowley.

Now, very briefly, Mr. Crowley, testified that his experience with the Communist Party was that, while in the first year in College in Columbia, he had lost his religious faith and he was looking around for another one and an older woman, a member of the Communist Party had introduced him into a Communist Party and that he then served, he delivered the — the daily — the Daily Worker and worked for the Communist Party.

And finally, a year or two later, after wandering around in various jobs within the — the University of Michigan undergraduate school, where he said his membership, which he had taken out in New York, was transferred to Michigan and there he was a member of the Neophytes Club in the undergraduate school, which apparently was a club named after someone allegedly a Communist, a member of the Communist Party of the United States who had died in the Spanish Civil War.

Now, Mr. Crowley said that after he had refused to testify and had been cited for contempt, he was working on a construction job of the church.

He was helping to construct the church and in connection with that work he met — he met a priest who told him he really ought to go Washington and tell a story.

So Mr. Crowley then undertook to tell a story.

Now, what he told about Michigan after first about his experiences in New York and Boston, what he told about Michigan was that he named some dozens of persons who had been members of the Neophytes Club and whom he said were members of the Communist Party.

And then he named a number of persons who were members of the Haldane Club of the graduate school.

The Haldane Club of the Communist Party apparently named after the English scientist.

And among the names he gave —

Felix Frankfurter:

I was hoping he’d be the Lord Chancellor and of course by the —

Edward J. Ennis:

The record doesn’t show.

That was only my assumption, Your Honor, from some of the — Mr. Haldane’s works and statement that it was after the scientist.

And he finally got around to naming a Barenblatt.

And about him he said — very simply, he said, “He was a member, but I know he’s out of the Party and that he has no — no further interests in it.”

And he was cut short on that and they said, “No, we’ll ask Mr. Barenblatt about that.

Just tell us the names and if Barenblatt is one of them, that’s all we want from you.”

So then another — another person was called who he — who he named in this — in this rather long testimony, which he named perhaps for more than a score of people, and then Barenblatt is called.

There was no effort to state to him in any formal way, this was a court before the Washington — decision of this Court.

There was no effort to state in any formal way the nature of the inquiry or the pertinency of the questions which were to be asked of him.

But he was asked —

Potter Stewart:

He’d been — he had been subpoenaed, had he?

Felix Frankfurter:

Oh yes, he was on a subpoena.

Potter Stewart:

And what — does the subpoena appear on the record here?

Edward J. Ennis:

No, the subpoena is not in the record.

Potter Stewart:

Did they inform him of the purpose of the inquiry?

Was there any information in the subpoena as to the purpose of the inquiry or the investigation?

Edward J. Ennis:

Your Honor, you take me by surprise.

I have not seen the subpoena.

It was — I don’t believe made part of the — of the prosecution in the case.

And perhaps my Brother, Mr. Monahan, will be able to help the Court.

I’m — I just don’t know.

All I know is there’s a subpoena to testify.

And he — at the outset, or after giving some identifying data about his age and where he had worked until he received the subpoena, he very early in the record, stated his position that he would not answer any questions in respect to former membership or present membership in either the Communist Party as such or in the Haldane, a club of the Communist Party of Michigan, nor would he answer a question as to whether he knew Crowley.

He said, “I knew him.”

But he would not answer as to whether he knew him as a Communist.

And the five questions, indictment questions were, “Are you a Communist?”

One.

Two, “Have you been a Communist?”

Three, “Were you a member of the — rather, are you a member of the Communist Party?

Were you a member of the Communist Party?”

Third, “Were you a member of the Haldane Club of the Communist Party?

Did you now — know Crowley as a Communist?”

And the fifth question on which he was indicted, “Were you a member of some counsel of cultural — I have it here, another organization which existed on the Michigan campus?”

Potter Stewart:

Is it factually true, as is represented in the briefs, I think, that the petitioner here had been present in the room during the day, when Mr. Crowley had testified that he was a Communist, had been a Communist?

Edward J. Ennis:

The record supports the — the contention that he was present at certainly — at some time during the hearing.

He was called down to be present that day and he wasn’t told that he’d be called for particular hours so — and as the record — his own testimony indicates that he was in the — in the hearing.

Potter Stewart:

So that he had heard Mr. Crowley testify under oath that — that he, Mr. Crowley, had been a Communist?

Edward J. Ennis:

I’m not prepared to go so far as to say that he heard that question.

He admitted that he was present during the hearing and I think, it would not be an unfair — an unfair assumption to say that he was present during this important part for him.

Oh, the subpoena — Mr. Monahan is — is kind enough to advise me that the subpoena appears at page — at page 70 of the record.”

And commanded to appear before the Committee and to testify touching matters of inquiry committed to said Committee and not to depart without leave of the Committee.

There was no description of the purpose of the inquiry in the subpoena.

Now, Mr. Crowley, just before being asked to identify these members of the Haldane Club, he stated and this appears on page 204 of the record.

In answer to the question, what sort of activities did the Haldane Group engage in?

Edward J. Ennis:

And he answered, “They were chiefly of an intellectual nature discussing things.

It was mainly a discussion group.

There was very little of the activity of the kind that the Neophytes engaged in, that was the undergraduate club, that is running around the campus with petitions or things like that.”

Now, when he refused to — when Barenblatt, the petitioner, refused to answer the questions, he tried to make a statement.

He had quite a long statement, 10 or 11 pages with him, which he said explained his reasons.

It was a good bit of colloquy back and forth with the Committee, as to whether he’d be allowed to make the statement because he hadn’t submitted to the Committee according to its rules in advance of the hearing.

But finally, they allowed him to put the statement in the record as his explanation of why he would not answer the questions.

And that statement appears beginning on page 227 of the records.

And it gives his reasons for — that he felt that this intrusion on his personal affairs was an unwarranted — was unwarranted and that the Committee did not have the authority and indeed the Congress did not have the authority under the cause of the First Amendment to authorize this intrusion on his affairs.

Now, Barenblatt was convicted before the — he — he agreed to waive a jury during the trial and he was convicted by — by the District Court without a jury, and given a sentence of six months and a $250 fine, which the Court of Appeals affirmed and this Court having granted certiorari, sent the case back for reconsideration.

Now, the second — the second opinion of the Court in the light of Watkins and Sweezy, and the two dissenting — these two dissenting opinions present for consideration to this Court, petitioner submits, three questions.

One, whether the — he was properly advised that the questions about his Communist Party membership was pertinent to the subject under inquiry.

The second question, whether Congress authorized the Committee to make an investigation of communism in education.

Did he make any — any inquiry as to what the purpose of the question was?

Edward J. Ennis:

The — the answer to that, Your Honor, is this.

He was called as the last witness.

There was no formal statement by the Committee to him as to what the purpose was.

Now, as to whether he made a sufficient objection, if one is required, all I can point Your Honor to is on this Exhibit 1, if — which is his written statement accepted by the Committee.

If Your Honor, will look at the bottom of page 228 and the top of page 229, where he speaks of — of the — his objection to being questioned.

And he says, “That they, the Congress, cannot by resolution increase their constitutional authority as was said by the Supreme Court in the Jones case.”

Now, if he adopted this language as his own, I think he asked for an explanation by the Committee of pertinency.

The citizen when interrogated about his private affairs has a right before answering to know why the inquiry is made.

And if the purpose disclosed is not a legitimate one, he may not be compelled to answer.

Now to answer — Mr. Justice Harlan, to answer you in all frankness, just as there was not a statement by the Committee as to the nature of the inquiry or the pertinency of the question, there was no clear statement by the Committee nor by the petitioner, was there a clear objection on that ground?

All I can submit to Your Honors on this point, is that at this time in 19 — June 28th, 1954, before either witnesses or counsel had the advantage of the Watkins decision, these things were not as competently or technically handled as they were in later hearings.

I submit that on this question, and I will address myself to it very briefly.

On this question of pertinency that it was the Committee’s obligation to give him some kind of a statement as to the nature of the inquiry, so that he could judge at the peril of criminal conviction whether he should refuse to answer on the ground of the First Amendment.

And I submit that the general statement which I’ve read, that the purpose of the hearing at the beginning of Crowley’s testimony, that the purpose of the hearing in — is in the main, communism in education and the experiences of Crowley in the Party that he could very well believe that the — what the Committee’s purpose was — was to give Crowley the opportunity to get out from under the contempt citation and to tell the Committee what he knew and to explain his experiences in the Communist Party.

And certainly, if that was a subject of the inquiry, as the Chairman at the beginning of Crowley’s testimony says it was, that it was not pertinent to that inquiry about Crowley’s experiences in the Party to ask Barenblatt whether he was a member of the Haldane Club as a Communist Party in the University of Michigan.

Now, so far as the law is concerned on this, I’m not going to take the Court’s time by trying to repeat what the Court — what the Court said in the Watkins decision.

Edward J. Ennis:

I might just leave this point by pointing out, recalling to the Court, that in Mr. Justice Frankfurter’s short concurring opinion which was restricted to this point in the Watkins case.

The statement is made very flattering, that the pertinency ought to be made clear to the — to the witness.

And I would like to — unless the Court have some questions on this business of pertinency, I would like to move to my second question, which is whether the Congress has authorized the Un-American Activities Committee to make this investigation of communism in education.

Because I’ve exhausted the record on what — on what the Committee said to the petitioner and the objection he made on the ground of pertinency.

Hugo L. Black:

Didn’t that —

Excuse me.

Hugo L. Black:

(Inaudible) on page 76, it means (Inaudible)

Edward J. Ennis:

Oh, yes.

I — I am familiar with it.

Hugo L. Black:

That Barenblatt was present when that (Inaudible)

Edward J. Ennis:

No.

This is the prior year, Your Honor.

Hugo L. Black:

It’s the prior —

Edward J. Ennis:

This was the opening of the hearings on the — this is the first part of the investigation on communism in education in the prior year.

And it’s perfectly plain that that was not before Mr. Barenblatt at the time of the hearing in June 28th of 1954, a year and three months later.

Hugo L. Black:

He wasn’t there then?

Edward J. Ennis:

No.

Now, in leaving this subject I should say this to the Court that the opinion of the Court of Appeals, the dissenting opinions didn’t deal with this question.

They didn’t — they felt they didn’t reach it.

They went off on the second point I’m coming to.

But the majority of the Court said that looking at the whole record and that if Barenblatt was sitting there in the — at the hearing at least part at that time, that he was aware in a general way, at least, of the nature of the investigation, the nature of the inquiry and that it was not restricted to Mr. Crowley’s adventures in the Communist Party, but that it was directed to some extent to communism in education in Michigan and that he was fairly apprised, and that he couldn’t borrow a language from an opinion of this Court as his way of making the objection of pertinency, if an objection is required in the absence of a clear statement by the Committee.

Now, that’s about all I can help the Court on that point.

Now, if I may go to my second point which is that —

Earl Warren:

Did he have any right of the counsel at these hearings (Voice Overlap) —

Edward J. Ennis:

Oh, he — he had a counsel — he had his counsel with him, Your Honor.

Earl Warren:

Yes.

Edward J. Ennis:

He did have counsel with him.

In this statement, it’s obvious from the nature of the statement which is a legal document and it was prepared by Mr. Wittenberg and his counsel — who was his counsel in the hearing.

That’s very clear.

Potter Stewart:

Does the Watkins case as you understand it and this — this is a rhetorical question.

Potter Stewart:

I’m asking for information, does it require that the witness object on the ground of pertinency in order to preserve that right?

Edward J. Ennis:

I’m not entirely clear.

Potter Stewart:

Or is — is that not clear?

Edward J. Ennis:

There is some statement in the opinion of the Court by the Chief Justice, which does speak of the witness asking what is the pertinency, but it has to be related, the witness’ question as to whether there is enough information given by the Committee at the beginning of the hearing at which the witness — advising the witness.

These two things cannot be examined wholly separately, I don’t think —

Potter Stewart:

Do you think the security of the statement of purpose might excuse the obscurity of the objection?

Edward J. Ennis:

That’s my point.

That’s entirely my position, Mr. Justice.

Felix Frankfurter:

But if — if the — I’m asking of course if — but if the generality of — if a statement of the general purpose sufficiently indicates an allowable area of inquiry was made and the witness has counsel, would it be to severe restriction on the rights of the individual and say that counsel should make the same objections of pertinence that counsel in this trial court has to make if he doesn’t make it and won’t we (Inaudible)

Edward J. Ennis:

If the allowable —

Felix Frankfurter:

I’m just thinking out —

Edward J. Ennis:

Of course, I understand, Your Honor.

If the allowable area that’s described —

Felix Frankfurter:

Yes.

Edward J. Ennis:

— seems to counsel as to the witness —

Felix Frankfurter:

Suppose they take this — suppose they did (Inaudible) of this case, so that you wouldn’t have argued the first point on the general purpose, they made it perfectly clear.

But then questions are asked which, if you are sitting at the counsel table, leave a doubt in your mind or (Inaudible) that it’s pertinent.

If you didn’t make the objection, would it be a little too stiff to allow the objection of pertinency to be made and if he manifest it by a counsel.

I think the very different situation is (Voice Overlap) —

Edward J. Ennis:

Yes, I think that — I think in the case you get — what is going to — what it has to boil down to, Your Honor.

After the Court has laid down the rule, you’re going to place a certain — a certain responsibility on counsel to understand and — and deal with pertinency for his client.

I don’t think we quite have that situation in 1954.

Now, to the second question, did Congress authorize the investigation of communism in education by the language of the resolution setting up the Un-American Activities Committee, a language which of course, the Court is entirely familiar and appears on page 3 of the petitioner’s main brief?

Now, without quoting that, we all know that what was authorized was an investigation of Un-American propaganda activities and the diffusion in the United States of subversive and Un-American propaganda.

I’m not going to repeat here what the Court said about the — the difficult, if not, impossible vagueness of this language in the Watkins opinion.

I’m going to contend from my argument to say this, that two of the judges below, Chief Judge Edgerton, joined in by Judge Bazelon, they placed their opinion upon their reading of this Court’s opinion in the Watkins case, in which they say that they think the Court plainly, despite the subsequent discussion of pertinency, stated that this language did not convey any authority upon this committee to make any investigation.

Certainly, if Communist — certainly the Congress of the United States and the House, knows how to use the word, communism and the word education, if they want to authorize an investigation of communism in education and certainly they have not used this language here.

Now, I’m going to rest on the Court’s opinion on the Watkins case.

Chief Judge Edgerton’s opinion, I would like merely to make a kind of an anticipatory reply to the Government’s position.

Now, how does the Government deal with this question?

Edward J. Ennis:

The Government obviously doesn’t argue with the Court’s language in the Watkins case condemning the vagueness of this.

But the Government says; “Well, let’s not worry about the language.

Let’s look at what the members of Congress said in 1938 when this language was adopted.This language has been unchanged since its initial formulation setting up the Dies Committee in 1938.

And the Government in its brief says, “Well, there was a lot talk on the floor of the House when this was adopted by members, talking about communism.”

So, clearly by Un-American propaganda and propaganda instigated from abroad that attacks the principles of the form of Government as guaranteed by a Constitution and some of the Congressmen mentioned communism.

They certainly intended to include communism.

And that doesn’t quite get education here, but they say, “Now, we’re going to find education in this language by looking at the fact that when this investigation of education was going on during the years of 1953 and 1954, the Committee filed reports with Congress.

And Congress made an appropriation which at the time when Congress knew that its committee was investigating education, and that constitutes — that imports into the language some kind of authority to investigate communism in education.

Now, about all I can say about this is that you cannot substitute for the language of the resolution, either appropriations by Congress or statements on the floor of the House.

It’s true that if you have some language there that can be interpreted, you can use perhaps the appropriations or the discussions, but it has to relate to the language.

Now, I submit that when Your Honors read the Government’s brief, you’ll find almost there is the substitution for the language of the resolution.

Without bearing on the language, the actions of the Congress in — in granting appropriations for this committee to continue its work.

William J. Brennan, Jr.:

Well, Mr. Ennis, if this language was sufficient to authorize an inquiry in the — the communism in labor unions, would you still say that it was insufficient to authorize a — an inquiry under communism in education?

Edward J. Ennis:

Yes, I would.

I would —

William J. Brennan, Jr.:

Why?

Edward J. Ennis:

— draw a very definite distinction —

William J. Brennan, Jr.:

Why?

Edward J. Ennis:

— between the interests of the — of the Federal Government and the — in the field of labor, that would take me to my second point that education as to a Circuit Judge Fahy, joined in by Judge Washington said that relying upon language in Sweezy, that if Congress is going to authorize an investigation in the field which we presume is — is reserved generally to the State, such as education, which labor doesn’t quite fit into — into that category, that certainly, Congress should be required to use some words which would indicate that.

Felix Frankfurter:

We have that — the case here, but would you cut off inquiry assuming it can go into union matters, you could cut off inquiry with the education activity removed.

Edward J. Ennis:

Yes, I would.

Felix Frankfurter:

You would.

That is — I’m getting a —

Edward J. Ennis:

Yes.

Felix Frankfurter:

— I think — I was about to say some of my favorite labor unions and now you made it —

Edward J. Ennis:

Yes.

Felix Frankfurter:

— international which are vast considerable as you know it, education activities.

Edward J. Ennis:

Yes.

Felix Frankfurter:

Do you say that they could go and do the organizational side of the union, but not as — not as it arose through educational activity.

Edward J. Ennis:

Yes, but of course that’s a harder case than this.

Felix Frankfurter:

(Inaudible)

Edward J. Ennis:

Here, we’re dealing with the recognized institution of higher learning, the University of Michigan.

Felix Frankfurter:

Why (Inaudible) — why wouldn’t the — couldn’t determine the other?

Edward J. Ennis:

No, I think not.

Now, I’m going to leave this argument about — that you cannot rely upon appropriations and statements by members to supply an authority that is not in the words.

Felix Frankfurter:

Why not appropriation?

Assuming — I’m assuming of course more than just the Congress voted its hundreds of thousands of dollars.

Assuming they knew what was going on and —

Edward J. Ennis:

They did, they had reports that they read them.

Felix Frankfurter:

And then, gave appropriations that are indicated or — and that the record even indicate it would be used for — in the pursuit of Section 5, why wouldn’t appropriation?

Appropriations are, of course, among the most powerful of all manifestation of congressional purpose.

Edward J. Ennis:

I say, Your Honor, that the appropriation can be used to give a meaning to words in the resolution.

They cannot be a substitute.

You cannot —

Felix Frankfurter:

You don’t have the meaning in that word.

Edward J. Ennis:

The —

Felix Frankfurter:

Then why (Voice Overlap) —

Edward J. Ennis:

All right.

Felix Frankfurter:

— meaning out of appropriation is much so, that the (Inaudible)

Edward J. Ennis:

Because, Your Honor, I don’t think that my position would be that the House can only give the Committee its legislative authority to investigate by passing a resolution.

It cannot do it by making an appropriation.

Felix Frankfurter:

But you wouldn’t hold to that suppose the House — that resolution was sent hereafter.

If we appropriate money for purposes which the Committee pursued, we don’t have to use words.

And you think that was — or would you say that was words?

Edward J. Ennis:

No.

I would say that was — that gave no authority to investigate.

Felix Frankfurter:

You’d say that?

Edward J. Ennis:

I certainly would, Your Honor.

Because where is the standard?

Felix Frankfurter:

I will suggest again, we’re after meaning and not words.

Edward J. Ennis:

I agree, Your Honor.

Felix Frankfurter:

Maybe conveyed by action.

Edward J. Ennis:

I agree, Your Honor.

But I think this is our difference.

You’re assuming that in the appropriation, there are some words used which says what its purposes for.

Felix Frankfurter:

No, I’m assuming if the appropriations are (Inaudible) — I don’t know if it leads to the facts at all.

Edward J. Ennis:

Yes.

Felix Frankfurter:

It takes things only as noncontroversial, but I think (Inaudible)

This Court has held and has required that although words maybe silent and although words may contradict, the construction could upon — eventually could upon it, that construction may be put because practice has nullified the words and give a contrary meaning.

Edward J. Ennis:

Yes, that’s correct, Your Honor.

Felix Frankfurter:

Now, why can’t you apply that to appropriation?

I’m not saying that you’re out of court if you do but —

Edward J. Ennis:

No, I understand it, because it was my — my impression, Your Honor, was that, when appropriation is made, they save so much money to help —

Felix Frankfurter:

(Voice Overlap) —

Edward J. Ennis:

— Un-American Activities Committee.

Felix Frankfurter:

— appropriation before that.

All right, that’s your answer.

You said the appropriations are unambiguous — are ambiguous.

Edward J. Ennis:

Completely —

Felix Frankfurter:

Meaningless.

Edward J. Ennis:

Meaningless.

Felix Frankfurter:

But if the appropriations are addressed to the claim made for appropriation —

Edward J. Ennis:

But that’s not the case, Your Honor.

Felix Frankfurter:

All right.

Edward J. Ennis:

That’s where we differ — that’s why I didn’t understand Your Honor’s question.

Felix Frankfurter:

You don’t differ because I don’t know the facts.

Edward J. Ennis:

Yes, right.

Now, the appropriations are not of that character.

They don’t — the appropriation language doesn’t designate this field of investigation.

Now, I’m going to leave this subject that the — that the language is in — inappropriate, but just this consideration.

Edward J. Ennis:

And Mr. Justice Frankfurter, you — you said it better than I can in the Rumely decision.

Isn’t it perfectly fair procedurally that we should require a House of Congress when it’s going to bring a private citizen before the bar of criminal justice.

That it tells him in plain language the field of investigation which it has authorized its committee to make.

Shouldn’t a private citizen call before a committee, be able to look at an authorizing authority?

Now, it’s not unfair to ask Congress or House of Congress which like — like the judicial branch has sworn to uphold the Constitution.

It’s not unfair to say to the House, “If you want to investigate a delicate area like education, you adopt language and debate the question and so that at least, the House is exercising its constitutional responsibility.

Its decision to go into this delicate field, so there’s something for the Court to decide.

Is it fair for us to be here in 1958 dealing with general language of Un-American propaganda, passed in 1938?

Is it fair for the private citizen?

Is it fair for the courts that with — at words being easily available, that we have to speculate as to whether Congress, the House of Representative, intended in this language to authorize a committee to investigate in the field of education?

Now, I — I leave this question with the suggestion that the salutary procedural, judicial rule should be that where it is claimed that Congress has authorized investigation in such a field as education, that the courts should require the authorizing resolution to contain some reasonably plain language reaching that result.

Felix Frankfurter:

Congress (Voice Overlap) —

Edward J. Ennis:

And that is not here.

Felix Frankfurter:

Congress has reflected (Inaudible) that this is delicate territory or are not delicate territory, this is essentially state matter in its — what will I say, not too generous attitude withholding appropriations (Inaudible)

Edward J. Ennis:

Yes, I perhaps — I would — I would accept that Your Honor.

But what —

Felix Frankfurter:

Let me ask you a question, at least to beg one thing that I don’t quite understand in the dissenting opinions of Judge Fahy.

Have you got the language before you?

Edward J. Ennis:

Yes, I do have it.

It’s on the bottom of page 306 —

Felix Frankfurter:

Where?

Edward J. Ennis:

— of the record.

Felix Frankfurter:

I don’t — I don’t quite appreciate the parenthetical — qualifying view of (Inaudible)

Edward J. Ennis:

At least with the use of —

Felix Frankfurter:

(Voice Overlap) did not complete investigate — investigating — at least with the use of compulsory process under the sanction of contempt, I should think you can find enough that it could be included in the compulsory power of power.

I don’t get that (Voice Overlap) —

Edward J. Ennis:

No, I — I think — I understood that parenthetical statement to really reflect the kind of thing Your Honor said in the concurring opinion in Watkins, where on this very point which you restricted your opinion to, whether — whether the language was — was sufficient.

Well, you said that if and private citizen is to be brought to the bar of criminal justice, then clear language should be required.

Felix Frankfurter:

I understand that.

Edward J. Ennis:

Now —

Felix Frankfurter:

Disqualification says, all they can ask by witness, by (Inaudible) as for them, what this power to compel answers.

Well, I don’t — suppose anybody can ask anybody anything and the person can say, “It’s none of your business.”

Edward J. Ennis:

Oh, but why not, Your Honor?

If the House Un-American — if the House Un-American Activities Committee wishes to call voluntary witnesses and explore the whole field of education —

Felix Frankfurter:

Takes no leave of any court to do that (Voice Overlap) —

Edward J. Ennis:

That’s correct, Your Honor.

If the — if the professors in the — in the private educational institutions are willing to accede to a voluntary summons —

Felix Frankfurter:

(Inaudible)

Edward J. Ennis:

And — and I think that’s all that Judge Fahy means.

Felix Frankfurter:

It seems to me quite (Inaudible)

Edward J. Ennis:

Perhaps.

But I think if Your Honor — if I — if I may say it without any disrespect that there is language in your own opinion in Washington, there is — which — which said that, particularly where — where a person — or the private individual is being brought compulsory before the bar of criminal justice, clear language should be required.

Felix Frankfurter:

I think that is —

Edward J. Ennis:

And I think Your Honors that — that it is time that Congress has told that each should exercise its constitutional responsibility and not just sit back and see how far the courts are going to go in allowing a committee to invade a field like this and then Congress accepts the result.

They too are sworn to uphold the Constitution and should exercise their responsibility.

Now, I’d like to turn to the third question and that is — and my last question.

If Congress has authorized despite what we submitted the language of the Court in Watkins, if Congress has authorized the Committee by this Un-American propaganda language to investigate communism in education, does the investigation which was made, violate the petitioner’s rights under the First Amendment?

Now, we submit that it does.

And my brief argument will be based on two propositions which I think are incontrovertible because established by the opinions of this Court.

The first proposition is that disclosure of association of private persons cannot be compelled unless the governmental authority justifies that intrusion into private affairs by an overriding public interest.

William J. Brennan, Jr.:

Mr. Ennis, just so I understand it, you’re assuming on this branch of the argument that the Committee does have power —

Edward J. Ennis:

Yes.

William J. Brennan, Jr.:

— (Voice Overlap) process and does have power to investigate education?

Edward J. Ennis:

Yes.

Entirely and I’m now addressing myself to the proposition that the — the — that the language — the resolution meaning that investigation of education as applied by the Committee in this case, has violated Barenblatt’s rights under the First Amendment.

Now, in the last two cases, we’ve heard and I’m not going to bother the Court with the rephrasing of this balance of public versus private interests, the right to be led alone versus the public interest to know.

It’s expressed in the N.A.A.C.P. case versus Alabama and the other opinions of this Court.

So, my brief argument is based on that legal proposition and one other legal proposition.

And that is — and this, of course, what makes this case difficult.

That is the — the Communist Party aspect of it.

Edward J. Ennis:

My second proposition is that members of the Communist Party may advocate Communist doctrine, which does not rise or descend to the level of inciting immediate action toward overthrow the Government by a force and violence.

Now, I think that Your Honors have made that statement in the Yates case where you’ve distinguished between — between advocacy of doctrine.

The distinction is also stated in the Douds case and I think elsewhere.

Now, I want to —

If not the problem of defining that criminal case is a wholly different problem from the question of what the permissible scope of the Congressional investigation.

Do you agree with that?

Edward J. Ennis:

I agree with that entirely and I’m going —

But you don’t get much out of Yates?

Edward J. Ennis:

No, I do not.

Well I — what I do get out of Yates is that Communist — members of the Communist Party, we — we have no dispute here that they may have some recourse to the First Amendment and what I’m going to try to apply here for the facts of this case is as to whether on the facts of this case, we are dealing with an area of Communist Party member activity, which is perfected by the First Amendment.

Now, applying these two principles, I’d like to call to the Court’s attention from the record.

The purpose of this investigation as stated by the Committee because, if as we contend, the Committee’s position was that we are going to investigate what Communists are thinking about, what they’re teaching without any relation to overthrow the Government by force or violence, if that was the thrust and purpose of the investigation, it is plainly unconstitutional.

Now, what does the Committee say about it?

Well, on page 70 — on page 79 of the record, this is at the beginning of the hearings on Communist methods of infiltration and education.

The preceding year, not at which Barenblatt was called, but in which at the beginning of the hearing, when they called their two principal witnesses, Mr. Davis, Robert Gorham Davis, and Granville Hicks, in the prior year.

And the Committee Chairman says that the Committee is concerned with the opportunities that the Communist is equally concerned with the opportunities the Communist Party has to wield its influence upon members of the teaching profession and students to Communists who are members of the teaching profession.

Now, it’s our contention and I’ll try and support it by a couple of other statements.

If this committee very frankly said that what we’re going to investigate in education is what the Communist teachers are thinking about, what they’re talking about, what they’re teaching without any attempted relation of thought, whether we like the thought or not, but are any attempt to relate that thought to action against our Government.

Now, Mr. Davis, the first principal witness on page 91 of the record, he was asked by — by Mr. Tavener, the Committee counsel, what were you Communist teachers in the Teachers Union up to, what were you doing?

And the question is, “Do the group of Communists who are working within the Teachers Union sponsor the passage of resolutions with the Communist Party as a whole, was interested in having endorsed or adopted by various groups?

The witness, “Yes.”

Mr. Tavener, “Can you recall any specific instance?”

Mr. Davis, “No, I can’t, but they would have to do with the national political situation at that time.”

The Communist supported the new deal.

Supported the Roosevelt administration until the Russian Pact of 1939 and many of them measured which they supported where I think, could measure as against anti-Semitism, against fascism for minority rights.

We think that statement also supports the idea that this committee did not understand the constitutional restrictions on its investigation.

It was trying to find out what Communist thought was being banded about.

Now, in the1953 report, which followed this statement at the beginning by (Inaudible) and this statement by Mr. Davis, the 1953 report which preceded Barenblatt’s testimony also indicates — page 246 for example, that this committee entirely misunderstood the First Amendment limitations on its investigative functions.

Felix Frankfurter:

It’s quite why — extended the argument.It was going to educate themselves as to the nature of communist thought.

Edward J. Ennis:

Fine, then they should use voluntary witnesses, not Mr. Barenblatt.

Edward J. Ennis:

That’s all I can — a short answer, Your Honor, to that.

Of course —

Felix Frankfurter:

And suppose they could compulsory get testimonies for questions of physics and geometry — geometry but not about — not about politics.Suppose it became relevant to —

Edward J. Ennis:

No, I don’t think —

Felix Frankfurter:

Suppose (Voice Overlap) —

Edward J. Ennis:

No, you could not, Your Honor, under compulsion.

Felix Frankfurter:

(Voice Overlap) whether you establish some new departments or give money to the physics department, (Inaudible) quite not what they thought about?

Edward J. Ennis:

Not under compulsion, Your Honor.

I don’t think any physics —

Felix Frankfurter:

In order for us to ask a physicists to come and tell us about what the subject matter on the present day conflicts, the (Inaudible) of physics?

Edward J. Ennis:

No.

He said, “No.”

He said, “I don’t care to inform you.

I don’t care to enlighten you.”

He says, “My views of physics are my own.”

Felix Frankfurter:

If you want to come you —

Edward J. Ennis:

That’s —

Felix Frankfurter:

— register in the University of Michigan.

Edward J. Ennis:

That’s — that’s right.

[Laughter]

Potter Stewart:

Well, it would certainly — it would certainly be a false oversimplification to say that the right of privacy is a constitutional argument.

Edward J. Ennis:

Well, there’s certainly — there was language of this Court which would — I think it’s almost meaningless if I may say so —

Potter Stewart:

Yes (Voice Overlap) —

Edward J. Ennis:

— Your Honor, to put it — to put it that way.

If the right of privacy against what kind of inclusion?

We can’t talk about the right of privacy in vacuo.

Potter Stewart:

Well, now certainly this Court has all recognized the power, very broad power of a — of a legislative body, the national legislative body, to investigate for a proper purpose.

Made investigations through its compulsory process —

Edward J. Ennis:

Certainly, a proper purpose of the whole —

Potter Stewart:

To ascertain —

Edward J. Ennis:

— I mean, the whole —

Potter Stewart:

To ascertain facts —

Edward J. Ennis:

Yes, sir.

Potter Stewart:

— relevant to any matter within the proper legislative purpose.

Edward J. Ennis:

And I think the proper legislative purpose, the judiciary would generously construe with in favor of the —

Potter Stewart:

Yes.

Edward J. Ennis:

— of the coordinate body of the Government.

Potter Stewart:

And certainly that —

Edward J. Ennis:

But still you have the problem of proper (Voice Overlap) —

Potter Stewart:

Just the power involved, the power to subpoena, to compel witnesses to come, to give relevant information that is relevant to a proper legislative inquiry.

Edward J. Ennis:

To a proper legislative purpose, yes, Your Honor.

But that proper legislative purpose cannot be what Communists are currently thinking about.

What is their present attitude on dialectical materialism?

Has there been any change in the — in the current communist thought on — on Marxism and Leninism.

Felix Frankfurter:

Is that so because you can’t exact — extract — understand — extract what’s in my mind just absolutely, comprehensively or they can’t extract things in my mind that are in that area of doubt and confusion, ambiguity, susceptibility to find political allegiance in et cetera, et cetera, which differentiates politics from physics.

Edward J. Ennis:

No, I thought it was the former, Your Honor, not the latter.

Felix Frankfurter:

Just the former.

Edward J. Ennis:

Yes.

I thought it was the former.

Now, to show further that the Committee erroneously believed it had a right to go into purely educational matters on page 246 of the record, for example.

The — the Committee is making its first report on education, its 1953 annual report.

And it’s talking about Mr. Davis’ testimony and it says such a thing as this.

“Although the membership of Dr. Davis in the Party had been comparatively brief during the period some years ago, he made the observation that might be expected of a man of his educational background and experience, when he responded to a question as to whether a Communist should be allowed to teach in American universities.”

I do not think we should allow the language of liberalism and democracy to be used by those who would destroy liberalism and democracy.

That is, I think, the Communist necessarily in universities today are dishonest in what they say, whereas Aristotle and Plato were honest.

Now, what this committee is saying is that Communists are not allowed to use the language of liberalism and democracy because they don’t believe in it, but, of course, that’s not true.

Under the First Amendment, if they restrict themselves to the intellectual field of thoughts in expression and association.

I’m connected with plots to overthrow the Government.

Of course, Communists are allowed to use the language of liberalism and democracy.

And under the First Amendment, whether we like it or not, they are perfectly entitled to be dishonest, intellectually dishonest.

Edward J. Ennis:

And I don’t think that — that on — if the First Amendment means what it says from what — I believe this Court has said it means, they can be stopped from being intellectually dishonest.

But I think I cite this for the proposition that this committee was not investigating subversion.

It was not investigating attempts to overthrow the Government of the United States.

It was investigating current Communists thought.

Now, in the 50 — in the 1954 report which followed Barenblatt’s testimony, for example, this statement beginning in the last four words on the bottom of page 265 and the top of page 266.

Now, perhaps as counsel, I — perhaps, this is not a — a choice of statement I should make.

It has certain emotional content.

But it makes my point very well.

Most of the teachers, the Committee here is congratulating itself that in all the Communist teachers that exposed by just — by pointing out they were — they — they were Communist, and so then, we left the matter to the local community.

And they fired them all.

And the Committee is congratulating itself in its second report that this exposure of Communist teachers, just because they were Communists, not because they were advocating overthrow of the Government, succeeded in eliminating them from the teaching — from the teaching world.

And the Committee says most of the teachers called had been suspended.

Earl Warren:

Where is this you’re reading?

Edward J. Ennis:

Bottom of page 265.

And it’s contained in the second report —

Earl Warren:

Right.

Edward J. Ennis:

— the second report of the Committee.

Earl Warren:

Yes.

I have it.

Edward J. Ennis:

It’s now been investigating communism and exposing them for two years.

And it says we’ve been getting them far.

Most of the teachers called have been suspended or permanently removed from their positions.

The Committee on Un-American Activities approved —

William J. Brennan, Jr.:

This I — I don’t find it in —

Edward J. Ennis:

Bottom of page 265.

William J. Brennan, Jr.:

Oh, 265.

Edward J. Ennis:

The bottom, the last four words.

William J. Brennan, Jr.:

Yes, go ahead.

Edward J. Ennis:

The Committee on Un-American Activities approves of this action, because the Committee has found that the delivery of a student into the tutelage of a member of the Communist Party has been responsible for the destruction of thousands of American homes.

It is horrible enough to lose 13 Americans to Red China as a result of the war, especially when the war was not of America’s choosing.

Edward J. Ennis:

It is far more horrible to lose one American to the Communist conspiracy through a teacher in a free educational institution in America.

I submit to this Court that I may share those sentiments as an individual, that it’s — it’s horrible to — to have a student persuaded that communism and is a — it is the wave of the future of a good way of life.

But I also submit to this Court that it is not for — it is not within the realm of the Committee of Congress to make that the subject of its investigation.

I can’t say I know what it means by saying that — that tutelage of students has been responsible for destruction of thousands of American homes.

But I say this that if that’s true, if — if students have been convinced by feasible discussion of communism to embrace it, that the First Amendment forbids the Congress of the United States from stopping it, we’ll have to find other ways, we’ll have to meet persuasion with counter persuasion.

I think this statement makes it clear that this committee misunderstood the — the scope of its constitutional investigative authority.

Now, I have — we got much more time.

I want to throughout the record, Your Honor.

I — I ought to say this.

I would explain this record to you a little bit.

This record contains principally the parts of the hearings which are eight parts.

A copy has been deposited with the Court of all the hearings.

One to eight on this investigation of — of the Committee, but this contains principally the parts which the Government offered upon a trial in the District Court of Barenblatt.

It wanted to call quite properly to — to the District Court’s attention.

The parts of the record which itself, would establish a legislative purpose.

So, it offered in evidence, two sections.

The first section, 1953 hearings and the 1954 hearings.

And that’s what this record contains.

Now, we have cited in our brief in addition to references from the record, we cited on the references in the hearings of set of which have been deposited with the Court and which I believe the Court will take judicial notice, showing other numerous statements with this House Un-American Activities Committee, just made it plain and it felt it had the entire field of investigation of communism in education without making any distinction whatever, between what was merely thought, expression and association and what was a conspiracy or concerted action to overthrow our Government.

Ignored it completely, not only ignored it, but devoted itself entirely to the legal area and made no attempt to tie any of this up with attempt to overthrow the Government by force and violence.

Now, I need — I hardly need to say that this kind of an investigation, if my statement is fit — and if this is the kind of an investigation that this committee was running, I need hardly labor the point that it certainly inhibited freedom of speech and thought and freedom of expression.

What is the Committee’s idea?

Is it — is it the Committee’s idea that if you want to be a Communist, you can read Das Kapital in your library, but don’t talk to anybody about it.

Don’t communicate this — this dangerous disease to anybody else.

Don’t join in any organization whether you’re called at the Communist Party or the Haldane Club to do this — to have discussions.

And what does Crowley say?

Crowley himself says the Haldane Club was a discussion group.

They were not activists.

They like to talk about these matters.

Now, obviously, the First Amendment not only permits you to read and think about Communism, but it permits you to associate with other people, like-minded people.

Edward J. Ennis:

And if you do — do all of this short of — short of the advocating immediate overthrow of our Government, it’s protected by the First Amendment.

Now, as to the — the Government’s position on this, I’ll just say a word.

Potter Stewart:

Mr. Ennis, isn’t — aren’t you confusing a little bit two concepts?

Let’s assume this is protected by the First Amendment, all these activities leave, talks, association and so on.

But isn’t that, at least, conceivable assuming that the Congress may have some interest in knowing how much of this area is.

How large these associations are.

How — just how — how much there is of it.

This is no — this is no sanction against it.

This is no — certainly no criminal prosecution.

Edward J. Ennis:

Congress cannot find that out by compulsory process.

Potter Stewart:

From anybody?

Edward J. Ennis:

Congress cannot —

Potter Stewart:

From any source?

Edward J. Ennis:

Congress cannot — Congress cannot find out by compulsory process how many people are thinking and talking —

Potter Stewart:

For teaching students —

Edward J. Ennis:

— associating together because they — they want to explore communism, they believe in communism, or they want to advocate it.

Felix Frankfurter:

In a — in a state legislature inquire the knowledge or understanding or appreciation of the theory of communism in a state institution.

In order, take the chance, there is ignorance about it, they will have compulsory courses on communism.

Edward J. Ennis:

I think that the — I — I would have to answer, Your Honor, that in my opinion, the — the right not to have to give compulsory evidence — compulsory testimony about your views override the State’s — the State’s proper objective in finding out what’s going on.

I’m afraid the State has to get that information from voluntary witnesses.

That would be my position.

Potter Stewart:

Could it find out, by compulsory process, how many students are learning arithmetic?

Edward J. Ennis:

Under the Congress of the United States?

Potter Stewart:

Yes.

Edward J. Ennis:

No.

Potter Stewart:

Or chemistry?

Edward J. Ennis:

Well now, just a minute.

If you’re talking about numbers, yes, I suppose you could, but — but that is not what the First Amendment protects.

The First Amendment protects the freedom of thought not — not —

Potter Stewart:

It also protects —

Edward J. Ennis:

Not arithmetical information.

Potter Stewart:

Let’s also assume it protects the right of a — anybody, a student or anybody else, to study or not to study arithmetic.

To associate or not to associate together in arithmetic class, but certainly couldn’t Congress properly investigate the extent that students are studying the sciences or arithmetic in connection certainly with obvious connection with be of, for the grant of federal funds to that educational institution.

Edward J. Ennis:

If — if you’re talking — if you’re talking Congress finding out statistics, yes.

But they cannot examine a particular student or a particular teacher on what he thinks of — by one (Inaudible) or another —

Potter Stewart:

No.

Edward J. Ennis:

— if he doesn’t choose to answer.

Felix Frankfurter:

You — Mr. Ennis, you greatly attempted to say, you’re so good why do you have to be so extreme?

That’s right.

Edward J. Ennis:

Well, Your Honor, I — I tried to state it as I believe it.

The — in — in closing, Your Honor, I want to say just a word about the Government’s justification for this.

I’d see, I think might —

Earl Warren:

You may make — you may make that short statement.

Edward J. Ennis:

I’ll make it — a very short statement, Your Honor.

Thank you very much.

The Government relies upon such things as the Veterans Act, which says we won’t pay a veteran’s tuition to go to the Jefferson School in New York or any other school on the — on the Attorney General’s list.

And they rely on such things as aids to education made by Congress to show an interest of Congress in the field of education.

I wish Congress had a greater interest in the field of education.

The trouble with these arguments, the Veterans Act, the subsidies, in the first place, they were not relied on by the Committee.

This is the Solicitor General’s justification of what the Committee did in 1954.

In the second place, such a contention is much too broad.

Are we going to amend the Constitution and increase the investigative powers of Committee of Congress by just sending a little money ahead into the State?

Surely a — a subsidy it doesn’t increase the powers of — the investigative powers or the constitutional powers of the Congress.

And thirdly, and I’ll end with this, that if that’s true that subsidies can be used as an excuse or — or instead of the — that’s not fair, a reason, for Congress to investigate.

Then its investigation must be limited and cannot extend to this shut gut — gun blunderbuss approach of what the Communists are thinking about.

The investigation would have to be more limited and would have to refer to the purpose of — for example, of the subsidy, but it could never authorize the Committee to ask the professors or the students what they’re thinking about.

Now, in concluding my — I concluded my arguments, Your Honor.

I think that if the Court reaches this question, that it is high time, after 20 years of activity by this committee, or the Committee and the Congress to be instructed as to the limitations on its constitutional authority.

Earl Warren:

Mr. Monahan.

Philip R. Monahan:

Mr. Chief Justice, may it please the Court.

Philip R. Monahan:

Mr. Justice Stewart asked the question of whether under the Watkins decision, it was necessary for a witness to object to the alleged lack of pertinency of a question in order later to raise the issue at his criminal trial for contempt.

If I may, Mr. Justice Stewart, I would like to answer your question in the words of the Watkins opinion.

On page 214 of the Watkins opinion, the fourth line from the bottom and this portion of the opinion in the Government’s view contains the essence of the holding of the Watkins decision.

“Unless the subject matter has been made to appear with undisputable clarity, it is the duty of the investigative body upon objection of the witness on grounds of pertinency to state for the record the subject under inquiry at that time and the manner in which the propounded questions are pertinent thereto.

To be meaningful, the explanation must describe what the topic under inquiry is and the connective reasoning whereby the precise questions asked relate to it.”

In the case at bar, there was no objection by Mr. Barenblatt or by his counsel to the pertinency of the questions which he was asked.

Mr. Ennis has referred to a quotation from an opinion of this Court in the Jones case, which appeared in approximately the middle of an 11-page legal brief, which was filed with the Committee by Mr. Barenblatt, in which he objected to the Committee’s jurisdiction under the First Amendment, the Ninth Amendment, the Tenth Amendment, the constitutional prohibition against bills of attainder, ex post facto legislation and the constitutional separation of powers.

I submit, if it please the Court, that it does not require an 11-page legal brief to make a simple objection that a question is not pertinent to the subject under inquiry.

But our argument does not rest upon that alone.

We submit that the subject was — was in any event crystal clear.

Mr. Justice Clark had pointed out that at the beginning of these hearings in 1953, Chairman Velde made a two or three-page long statement of the — of the purpose of the investigation.

And I recommend to the Court that it read that language which — which appears in the beginning of page 73 of the record and it will — it’s very clear from that just what the purpose of the — of the investigation was, namely communism in education.

Now, it’s true that Mr. Barenblatt was not present at that time, but I take it that it is not necessary for the Chairman of the Committee to repeat that — the purpose of the Committee each day of our investigation and for each witness.

But in it, but — but further than that, when Mr. Barenblatt appeared that there was a brief — a brief repetition of the purpose of the Committee when the counsel for the Committee in introducing Mr. Crowley to the Committee — and Mr. Crowley testified just shortly before Mr. Barenblatt, that the purpose was to — to pursue the Committee’s inquiry into communism in education.

Therefore, these things that — to the Government, that this case is as different from the Watkins case, as black is different from white.

Hugo L. Black:

May I ask you in connection with your argument that there has been no objection raised.

If these facts as shown in the record, it seems to me it is and maybe it’s not enough.

From the very first, Mr. Barenblatt said that he had objections to testify.

He had grounds stated in the paper that he had and that also they would not take them.

He kept repeating that.

Finally, he said, “I’ve been trying to answer not on the Fifth Amendment, but on — but on the grounds stated in my objection that’s presented to the members of this committee which you have not allowed me to read.

And if that showed, one of the grounds of this objection was that if the purpose disclosed is not a legitimate ones, he may not be compelled to answer.

I’m quoting from another opinion of this Court that a witness rightfully may refuse to answer by the bounds of the power are acceded.

Why was that enough — not enough objection on the ground that he didn’t know what the purpose was?

Maybe that it doesn’t apply to your — second part of your argument, that — that they actually informed him.

But what more could a man do when he did?

Philip R. Monahan:

I would like to suggest, Your Honor, that while it is true that the Committee, at first, refused to receive the statement of objections on the ground that it constituted a — a preliminary statement, which had not been submitted to the Committee in accordance with the Committee’s rules, thereafter, it was received and was spread on the record — just to clear — to clear up that point — it —

Hugo L. Black:

And he — but he — he said that this is not a preliminary thing.

Philip R. Monahan:

Yes.

Hugo L. Black:

He proceeded to tell this is not —

Philip R. Monahan:

The — the Committee did not —

Hugo L. Black:

This — this states the grounds of my objection to testify.

Philip R. Monahan:

That’s — that’s correct —

Hugo L. Black:

And in it was a repeated statement, and here in quotation, (Inaudible)

Philip R. Monahan:

It was not repeated —

Hugo L. Black:

The witness — well, he repeat it twice.

Quotation as to Jones and the Securities & Exchange Commission, they specifically set this point interrogated by the private affairs, has the right to point and to know why the inquiry was made.

And the purpose of course, was not legitimate would not be compelled.

And the other one was that the witness may rightfully refuse to answer by the bounds of the power acceded.

That was in the grounds of objection that he offers thought continually called their attention.

Why is it not — not that enough?

Maybe it’s not but I —

Philip R. Monahan:

I — I don’t think that — I don’t think that it was enough to raise before this committee the issue of the pertinency of the question to the subject of inquiry.

The whole thrust of that document, if it please Your Honor, was that the Committee was out of bounds in this whole inquiry.

It did not go to the pertinency of the particular questions which were asked him to the subject under inquiry.

Hugo L. Black:

But he did state, if I declined to answer when they asked him this question on the grounds stated in my objection and presented to me by the members of this committee that it would not allow me to read, those grounds were a part of — that the — he had a right to be informed of the purposes why the inquiry be made.

Philip R. Monahan:

But may I —

Hugo L. Black:

That this could not be compelled to answer, unless it’s otherwise.

Philip R. Monahan:

May I suggest to, Your Honor, though, that the whole tenure of that document, including that passage, was that he was objecting to the Committee’s answering him and asking him any questions at all.

Hugo L. Black:

But — but he assigned it to the particular question one by one and just look at this, they’re my grounds for saying this.

Philip R. Monahan:

Yes, but — but not on the grounds of pertinency to the subject under inquiry, sir, is my point.

He was addressing himself to the — to the power of a committee in this field.

Now, the — the Government does not read Watkins as having declared the authorizing resolution of the House Un-American Activities Committee as being totally invalid to support the compulsory use of process in — in any kind of a case.

I think that the — if the Court had — if that were the holding of the Watkins, we would all be wondering what we’re doing here today, because Barenblatt’s conviction could not stand up anymore than Watkins, if that was the holding of the Court.

And furthermore, as the court below pointed out, surely this Court, if it was making such a far-reaching decision as that, would’ve said so in so many words, because that would have nullified the charter of the House Un-American Activities Committee.

It couldn’t hold anymore hearings such a — a far-reaching and important decision as that certainly would be made clear and in plain terms.

The actual holding of the case is what I suggested a few moments ago and we read the Watkins language directed to vagueness and to the vagueness and imprecision of the — of the charter as being relevant to the question of what means Watkins had of ascertaining the subject of inquiry.

That — the Court points out in its — in its opinion that the subject of inquiry can be garnered from several sources.

The authorizing resolution, the remarks of the Chairman and not the whole tenure of the questions, and it was — it was with reference to the — to that — to the use of the resolution for that purpose, that as we read the Watkins opinion, the Court’s remarks were addressed with regard to vagueness.

If I can assume that the question of the Un-American Activities Committee’s charter, the validity of it is still open, I should like to point out to the Court that accepting the language of the Watkins opinion that the language of the resolution is vague and imprecise nevertheless, that language does not come before the Court in its bare terms alone, but with the gloss of a lengthy legislative history which shows clearly that the purpose of the House in setting up this committee was to investigate two — two things, The German-American Bund back in the 1930s and the communism.

Philip R. Monahan:

And for that reason, even though looking at the bare language of the resolution alone, it must be admitted.

Under Watkins, we have been taught by Watkins that it is vague and imprecise.

I want to emphasize that — that the bare language alone is not before the Court, but it has this clause of this legislative history.

Now, the dissenting — the dissenting judges below thought that this page should be disposed of on the ground — and which Rumely was disposed of by the Court, namely a narrow reading of a committee’s authorizing resolution in order to avoid delicate constitutional issues.

But the difference between this case and the Rumely case is that in Rumely, there was no way of knowing that the House intended its committee to go into the particular phase of lobbying activities, which that case involved.

And since the Court thought that the particular phase of lobbying activities which that case involved raised grave constitutional issues and since there was no way of — of knowing that the House intended its committee to go into that field, it — it read, it interpreted the resolution as excluding these difficult areas and as being limited to lobbying activities in the narrower sense of —

William O. Douglas:

If — if you think of this — these Communist activities in terms of what people do, on the one hand what people think on the other hand, the Rumely case seems to be quite relevant.

Philip R. Monahan:

I don’t think —

William O. Douglas:

I guess what we’re concerned here was the meaning of Communist activities, aren’t we?

Or, subversive activities, whether that should be I think large to include the mental processes, what people think or what their beliefs may be.

Philip R. Monahan:

The particular issue that I’m addressing my argument to now, sir, is whether or not the Committee’s authorizing resolution, authorized it to inquire into communism in education, that’s the point, in education.

And that is the point of the dissenting judge’s dissent below that it should — it should be read as not authorizing the Committee to go into this phase of communism, because it raises delicate constitutional issues they thought.

Now —

William O. Douglas:

I thought there is a narrow question that if — whether or not this — (Inaudible) man believes in (Inaudible)

Philip R. Monahan:

No, sir.

I think if you read the dissenting judge’s two opinions, there — there were two dissenting opinions.

But both of them agreed on this — on this aspect of it that the authorizing resolution to avoid delicate constitutional issues should be read as not authorized in the Committee to go into the general subject of communism in education.

Hugo L. Black:

Is there anything in the original resolution that bears on the subject precisely?

Philip R. Monahan:

On the subject of education?

Hugo L. Black:

Yes.

Philip R. Monahan:

No — no, sir.

Just — just as there is nothing in the resolution which bears upon the subject of labor?

Hugo L. Black:

Is there anything in the resolution that or that stayed on the resolution that Congress has passed?

Philip R. Monahan:

At the time — what —

Hugo L. Black:

It indicates that they were then —

Philip R. Monahan:

At the time —

Hugo L. Black:

— investigating what they thought exclude what it comprises?

Philip R. Monahan:

At the time of the original passage of the Dies resolution?

No, sir, nor in the subsequent re-passing — reenactment of the resolution.

But —

Hugo L. Black:

Anything in the report?

Philip R. Monahan:

Pardon me, sir?

Hugo L. Black:

Anything in your report about the resolution?

Philip R. Monahan:

In subsequent reports, yes.

In the — in the report which the — which the Committee submitted to the House following its inquiring into this field, it fully developed what it had gone into —

Hugo L. Black:

You mean this particular inquiry?

Philip R. Monahan:

Yes.

The — the general inquiry into communism in education of which of this was a part, yes, sir.

Hugo L. Black:

So that up to the time, this have been done, there was nothing in any —

Philip R. Monahan:

Oh.

Hugo L. Black:

— language in —

Philip R. Monahan:

I — may I correct myself, sir?

This report that I have reference to was — was — was made at the beginning of 1954 after the Committee’s first year of inquiry into this field.

Hugo L. Black:

How long was that after the resolution after the past authorizing?

Philip R. Monahan:

Well, if the resolution — the resolution has been passed at the beginning of each session of the Congress, sir, since 1938.

Hugo L. Black:

A continuing fashion?

Philip R. Monahan:

Yes.

They reenacted — they readopt it.

But more important than that, sir, is this, that two months — less than two months after the most recent enactment of the resolution in 1953, to wit, on February 24th, 1953, which was on the literal eve of the — of the beginning of this series of public inquiries into education, they — the day before they began, there was an extended debate on the floor of the House in connection with appropriations for the Committee.

The — the — the resolution for the appropriations asked the $300,000 of funds to continue the Committee’s inquiry.

And in the course of that debate and it’s all set out in our brief and I’m not going to go into the details of it, the — the desirability of going into this field was threshed back and forth and the pros and cons were discussed.

And assured of the matter is that it was made crystal clear to every member of the House that the Committee not only was — had actually begun its inquiry in Executive session and was about to continue its inquiry in public sessions throughout the country.

And following the debate, the appropriations were voted by the overwhelming vote of 315 to 2.

I submit to Your Honors, that this case cannot be disposed of on the ground of Rumely in the light of that legislative history.

Earl Warren:

Leaving the legislative history subsequent to the adoption of the original resolution out of consideration for the moment, is this — is — is this resolution more applicable to this field and the Rumely resolution was applicable to that field?

Philip R. Monahan:

I think — I think it is, sir.

Earl Warren:

In what (Voice Overlap) —

Philip R. Monahan:

For — for this reason that this inquiry was into communism in education, but into communism.

Earl Warren:

(Inaudible)

Philip R. Monahan:

It was in one — one area of the Communist problem in this country.

Philip R. Monahan:

And it is clear from the legislative history —

Earl Warren:

Now, I just said we’d leave that out for the moment.

Philip R. Monahan:

Oh, yes, that’s right.

Earl Warren:

Don’t take it as — because — was this resolution was adopted in 1939, if that —

Philip R. Monahan:

1938, yes.

Earl Warren:

If that was the date?

That I take, if this where what the — when the legislature, the Congress, determined what the scope of the Committee was to be.

Taking it as of that date, is this — is the resolution more applicable to this —

Philip R. Monahan:

Yes, sir.

Earl Warren:

— situation than was the resolution in the Rumely case?

Philip R. Monahan:

It is, sir, for this reason, in the Rumely case, the question was as to what was the meaning of lobbying.

That — that’s what the issue was.

What does lobbying mean?

Does it mean — is it limited to direct approaches to Congressmen or does it include the — the saturation of the thinking of the public so that in that indirect way, the — the views will be — will be brought home to the Congressmen by the selling of books and so on if you remembered.

Earl Warren:

But don’t you have to go into somewhat the same gymnastics for this?

Philip R. Monahan:

No.

No, because here, the — the only question is, does it — does the resolution authorize inquiries into communism?

And — and there — and there is no — there is no basis for a — a splitting of the term, “communism” into — there’s no question what communism means, as to what’s in the — in the Rumely case.

Earl Warren:

Is there any — is there any difference between the person believing in the theory of communism and belonging to the Communist Party of being — being actively on it?

Philip R. Monahan:

Being an active —

Earl Warren:

Isn’t there a difference between merely believing in —

Philip R. Monahan:

Yes, I think.

Earl Warren:

— the theory of communism and being part of the movement?

Philip R. Monahan:

I think there is, sir, but —

Earl Warren:

Well, you said that there’s no — in this case, there’s no confusion about what is meant by communism now, if there is —

Philip R. Monahan:

But I do —

Earl Warren:

— (Voice Overlap) difference which did they mean when they said that?

Philip R. Monahan:

But I —

Earl Warren:

Do you mean just those who belong to the Party or do — did they mean the thought of the — of those who might be interested in — into this philosophy?

Philip R. Monahan:

What I — what I mean though, sir, is there’s no difference in the meaning of communism with reference to education as distinguished from labor, the Government and the military.

Philip R. Monahan:

It’s —

Earl Warren:

Supposed — supposed this was in the field of religion, what would you say?

Would this — would this resolution cover it?

Philip R. Monahan:

I — I think that — I think that it would, sir.

Earl Warren:

A matter of fact —

Philip R. Monahan:

There is great constitutional problems undoubtedly would arise there.

But, I think that — when — when Congress — when the House told it’s Committee that it wanted to go into Un-American Activities Committee, Un-American Activities, which we are for present purposes, equating to communism, then, it means communism in every facet of a national life and that there is no basis for — for cutting up and saying, “It’s all right to go into this field, but not into that field.”

Earl Warren:

As a matter of fact, given this same Subcommittee start to go into the field of religion and then back away from it.

Philip R. Monahan:

I think that there had been some —

Earl Warren:

They’re saying —

Philip R. Monahan:

— activity in that area.

Yes, sir.

Earl Warren:

In Subcommittee.

Philip R. Monahan:

Yes, sir.

I think so.

Felix Frankfurter:

Why do you —

Philip R. Monahan:

It’s not in this record, but might just —

Felix Frankfurter:

Why do you make a differentiation between — you said that as I understood you, (Inaudible) that might be different.

Why do you differentiate between going into religious (Inaudible) and then going into —

Philip R. Monahan:

Oh, I wasn’t — I wasn’t — I didn’t — I didn’t mean to distinguish between religion and education —

Felix Frankfurter:

(Voice Overlap) —

Philip R. Monahan:

— but between religion and education on the one hand and —

Felix Frankfurter:

I’d — I followed that part of the argument, but as — but on the merits, you —

Philip R. Monahan:

I think of the — essentially the same question would be raised.

Felix Frankfurter:

Right.

Philip R. Monahan:

Perhaps religion would point up the issue a little bit more strongly than education, but I think that — I would say that they’re essentially the same.

Felix Frankfurter:

I thought you might answer that there is a provision in the Constitution about bearing on —

Philip R. Monahan:

Yes.

And religion is referred to specifically, but — but speech and assembly is two which we — which —

Felix Frankfurter:

Yes.

Felix Frankfurter:

(Inaudible) about — religion exactly is separation of the church and State, talking about religious oath?

Earl Warren:

But it’s your — it’s your opinion that this committee did have the authority under this resolution to go into churches, investigate them or any Communist propaganda or any Communist thinking in there.

That was in education and then it could call, ministers of the gospel and it would call members of the church and ask them their belief as to — as to certain doctrines that would have been the Committee might bear for in Congress.

Philip R. Monahan:

You — you’re now ask me under the charter?

Earl Warren:

Yes.

Philip R. Monahan:

And constitution — constitutional questions aside.

Earl Warren:

Yes.

Philip R. Monahan:

I — I see no — no base.

I don’t think that the problem of going to communism can be evaded by holding him in a church, no, sir.

Felix Frankfurter:

Yes.

Yes, I just wanted to say —

Philip R. Monahan:

Now, I now turn to the constitutional issue, which boiled to it’s essence is as the Government sees at this, can a committee of the Congress, consistently with the First Amendment exact an answer to the question of whether a witness, a teacher in an inquiry into communism in education, is a member of the Communist Party?

I want to emphasize, is a member of the Communist Party or — or ever has been a member of the Communist Party, because that’s what this case is about.

The — the first two counts of the indictment were based upon the present and past membership in the Party.

The third count was based upon the question of whether or not — whether or not Mr. Barenblatt had been a member of the Haldane Club — not a university club.

The Haldane Club of the Communist Party, it was an integral part of the Communist Party.

And therefore, as the Government sees it, the whole point, the whole object of the Haldane Club questioned was the fact that it was part of the Communist Party.

And the fourth question was whether or not, he knew Francis Crowley as a member of the Communist Party.

And I want to point out in passing here, that this was not a question does — asking Mr. Barenblatt to inform on someone because Mr. Crowley had to — Mr. Barenblatt’s certain knowledge publicly acknowledged a few moments previously or an hour or so previously, at that — on that day that he was a member of the Communist Party.

And therefore, by answering that question affirmatively, he would not be informing or pitching on somebody.

Now, while some light will be shed on the proper resolution of this issue by a consideration of prior decisions of this Court and I’m going to turn to the precedents in a moment, it is the Government’s belief that the decision of the question requires examination and final analysis of fundamentals.

And so with the Court’s lead, I should like to devote the next few moments to a review of some of these fundamental points, which in the Government’s view are relevant.

This Court knows judicially that there exists and has for some decades existed what has been described by the Congress in the Internal Security Act as a world communist movement whose purpose it is by treachery, deceit, infiltration and any other means deemed necessary to establish a Communist totalitarian dictatorship throughout the world.

This Court knows judicially, secondly, a prime objective of this movement having its headquarters in the U.S.S.R. is the destruction of the Government of the United States and free governments everywhere.

This Court judicially knows, thirdly, that following two decades during which the newly emerged Communist dictatorship of the U.S.S.R. seemed too preoccupied with his own domestic problems to pose any serious or immediate threat to the United States and following another period of four years during which by an accident of history, the western democracies and the Communist dictatorship found themselves with in partnership against a common foe.

The Government of the United States, at the end of World War II, awoke to a realization of the full dimensions of the danger which confronted it in an atomic era at the hands of this late ally of expedience.

Hugo L. Black:

Where are you reading from?

Philip R. Monahan:

These are some — my own notes, sir.

Hugo L. Black:

Oh, I thought you said that —

Philip R. Monahan:

I’m — I’m asking the — I’m asking the Court —

Hugo L. Black:

— (Voice Overlap) reading from quotations.

Philip R. Monahan:

No.

These are my own notes, sir, which I’m asking — which I suggest to the Court, it should take judicial notice of.

Fourthly, since the Second World War, that this Government, at last fully aware of the peril in which it found itself, has appropriated from its material resources and substance, unprecedented sums for the purpose of girding itself against the good prospect of attack and defeat at the hands of this foe.

Fifthly, this Court will take judicial notice of the fact that the three perilous years, from 1950 to 1953, the Cold War broke out into armed conflict with American casualties numbering in the scores of thousands.

Sixthly, throughout the uneasy years, since the Second World War —

Earl Warren:

Is that all in your brief Mr. — is that all in your brief?

Philip R. Monahan:

No, sir.

Earl Warren:

It is not?

Philip R. Monahan:

No, sir.

I —

Earl Warren:

All right.

Philip R. Monahan:

— these are some —

Earl Warren:

I thought you said it was in your brief, I didn’t think it necessary.

Hugo L. Black:

(Inaudible)

Philip R. Monahan:

Well, I — I am suggesting that the Court should take judicial knowledge of these facts of history, sir, of recent history.

Throughout the uneasy years since World War II, the foremost and never ending concern of the Congress of the United States to which jointly with the Executive, the Constitution commits the responsibility of preserving and maintaining the nation’s physical security has been the search for effective legislative tools of coping with this unprecedented menace to our physical safety and way of life.

And finally, to state the matter in the most conservative way possible, this Court knows judicially that there are at least the gravest of reasons for the Congress to believe that there exists within our borders an organization calling itself the Communist Party of the United States, which is in fact, but the domestic instrumentality of the Communist dictatorship headquartered in the U.S.S.R.

An organization which under the cloak and style of the domestic political party, secretly seeks to foster, in every way possible, the political and other ends of the Soviet based dictatorship to which it bears allegiance.

On the true nature of the Communist Party of the United States, no one has spoken with more admirable clarity.

In my opinion, with Mr. Justice Jackson, whom no one will accuse of having been credulous or an alarmist on this subject in American Communications Association versus Douds —

Hugo L. Black:

Was that a court opinion?

Philip R. Monahan:

This was the views of Mr. Justice Jackson, sir.

His — his own views, but I commend them to the Court on their merits.

From information before several committees, Mr. Justice Jackson said, “And from facts of general knowledge, Congress could rationally conclude that behind its political party façade, the Communist Party is a conspiratorial and revolutionary junta organized to reach ends and to use methods which are incompatible with our constitutional system.

Its goal is to seize powers of Government by and for a minority, rather than to acquire power through the vote of a free electorate.

It purposes forcibly to recast our whole social and political structure after the muscovite model of police state dictatorship.

It is designed — Mr. Justice Jackson’s opinion continues, to undo the Declaration of Independence, the Constitution and our Bill of Rights and overturn our system of free representative self-government.

The violent and undemocratic means are the calculated and indispensable methods to attain his goal.

It is a secret conclave.

Philip R. Monahan:

Members are admitted only upon acceptance as reliable and after indoctrination in its policies to which the member is fully committed.

Each member pledges unconditional obedience to party authority, adherence are known by secret or code names.

They constitute cells in the factory, the office, the political society or the labor union for any deviation from the Party line they have purged and excluded, it more over, Mr. Justice Jackson opinion continues, alone —

Earl Warren:

Mr. Monahan —

Philip R. Monahan:

This is the end of it, sir.

Earl Warren:

— do we — do we have the list of all of that?

I think that we know that case and it’s in the reports, you’ve been cited to us.

I — I don’t think it’s necessary to take —

Philip R. Monahan:

I was on the last time —

Earl Warren:

You (Voice Overlap) more — you (Voice Overlap) —

Philip R. Monahan:

I was on —

Earl Warren:

— more mind powers to — to read it all, it isn’t customary for us to do that unless you have a —

Philip R. Monahan:

I just have a —

Earl Warren:

— purpose of this in deterrent to us in reading it.

Philip R. Monahan:

Well, I was on the last sentence, sir.

Earl Warren:

Well, all right, finish your sentence.

Philip R. Monahan:

I — and — and this goes to the crux of it.

And be that so important I would like to read it.

“It moreover he said, alone, among American parties, past or present, is dominated and controlled by a foreign government.

It is a secret party which to the threat of civil disorder ends the threat of betrayal into alien hands.

Hugo L. Black:

I think this Court in the later opinion at least a majority, referred to an opinion of another court, which should accepted that being the statement of the Court as judicial knowledge stated that it was not, but that was the separate views of Mr. Justice Jackson —

Philip R. Monahan:

I think, I remember —

Hugo L. Black:

He —

Philip R. Monahan:

I think I remember that the opinions which he refers there and it was with reference to someone who is a member of the Party years ago and the Court pointed out rightly that these were the views of Mr. Justice Jackson, but I’d like to point out that these — that these view —

Hugo L. Black:

Are they your views too?

Philip R. Monahan:

They — their views do not necessarily differ from the views of the Court in the Douds case.

The Court did not — there was no dissent from these — from these views.

Hugo L. Black:

Right, it was —

Philip R. Monahan:

They would —

Hugo L. Black:

They were individual views, was it not?

Philip R. Monahan:

Yes.

Entitled, I think, to the consideration of the Court and I’m just pointing out that there was no dissent — it was not a dissenting opinion.

It was a — it was a concurring opinion.

It was concurring in part and dissenting in part to be exact.

Pertinent too, to this subject, is a testimony of one of the witnesses before this committee who’s — call himself a former member of the Party who said that in his opinion, every member of the Communist Party is either actually or potentially an agent of the Soviet Union.

The Congress does — has reasons for believing that there exists within our borders a fifth column and as true assents as the fifth column of General Mola at the siege of Madrid.

And how is all this relevant?

I think this is — Mr. Chief Justice, you want to know how was all this relevant in the issue before this Court?

I suggest that it’s relevant in two ways.

First, it refused the view which is at the bottom of the petitioner’s case and the amicus case that the Communist Party is after all just another political party, and that if this question can be asked of a witness, are you a member of the Communist Party, then there is nothing to prevent the– the Committee from asking, are you a member of the Democratic Party, or the Republican Party or the Socialist Party or the Progressive Party.

And secondly, these — these facts of history which I have referred, teach or should teach that this Court, in weighing in the balance against the command of the First Amendment which is its — which it is its solemn duty to enforce the actions of the Congress of the United States and its duly constituted committees in their effort to cope with and find adequate legislative tools to deal with this Communist problem, must avoid a stellar or doctrinaire approach.

It must meet the problem with a keen realization that it is Congress’ and not this Court’s responsibility to find the legislative means for — for dealing with this danger and that in finding such legislative tools, it must not be encased in a straightjacket.

It would be easy, this Court said, in the (Inaudible) case, speaking for Mr. Justice Jackson, here he was speaking for the Court.

For those of us who do not have security responsibility to say that those who do are taking communism too seriously and overestimating its danger.

We, in our private opinions, need not concur in Congress’ policies to hold its enactments constitutional.

Judicially, we must tolerate what personally, we may regard as a legislative mistake.

To turn in to the immediate issue before us, once at a violation of the First Amendment for this committee to ask Mr. Barenblatt, whether or not, he was or rather, had been a member of the Communist Party.Petitioner was not queried concerning his opinions or teachings, or studies.

He was not subjected to an inquisition into his views on the China situation or the North Atlantic Treaty Organization, or any other matter of controversy.

He was asked, if he ever been a member of the Communist Party.

Only, it is submitted, if this question is equated to a query as to his membership in a conventional political party, cannot be said that the Committee trespassed on forbidden ground.

But it may be asked, what was the Congress and its Committee doing in the field of education?

Of course, it can examine into the question of communism in the Army, in the Navy, in the Air Force, and Government generally.

Of course, it can examine of the question of communism in the labor movement especially since the Douds decision, but what was it doing in the field of education?

The Government submits, Your Honor, that when it is realized that Congress annually appropriates hundreds of millions of dollars for such programs as a support of the land-grant colleges and universities, the Army, Navy and Air Force ROTC programs, the educational assistant program — assistance programs of veterans of World War II and the Korean conflict, the off-duty education program for the personnel of the Armed Forces on active duty, the educational exchange programs under the supervision of the State Department and the widespread university research contracts, whereby under contracts to departments of the Government in the defense program, utilize the — the personnel and research facilities of the colleges and the universities as part of the defense effort.

And now under the National Defense Education Act of 1938 passed two months ago, there as a — a broad program of aid to education generally, the Government submits that it’s too late in the day to suggest that Congress has no legitimate interest with the problem of Communists in the educational world.

The statistics reviewed in our brief show that for the — the veterans educational assistance program alone, since it’s beginning through the academic year 1954 to 1955, a total of over $17 billion were appropriated.

Truly, it seems to the Government, Congress has the most lively interest in communism in education.

Felix Frankfurter:

Mr. Monahan —

Philip R. Monahan:

Yes, sir.

Felix Frankfurter:

— may I suggest that to debate down the very bill which you just referred, the recent bill passed by the last Congress, for scholarship and so on.

Felix Frankfurter:

That in itself, that debate disclosed, at least, one read it as being (Inaudible)

How alert or how — what should I say, sensitive, that he’s a good portion of Congress is against the intrusion in the Federal Government in the lawful educational matters.

How much they are on their guard against the taking over (Inaudible)

Philip R. Monahan:

I agree, sir.

Felix Frankfurter:

That — that — I don’t know how far that character except it does bear on the district between inquiries into that field and other fields.

Philip R. Monahan:

I agree, sir, that Congress is very weary to trace into the educational world, generally.

But we are here concerned not with going in to education generally, but with communism in education and to suggest —

Felix Frankfurter:

I — I have seen the difficulty, I — at least from the difficulty by the position taken by Mr. Ennis for instance, as to the limit that would be imposed upon Congress to find out — I forgot how much they voted, that is a over a five-year program (Inaudible) is that right?

What — what limitation that would impose in finding out what use is being made of that money or to what ends, what education has done.

Philip R. Monahan:

It — it is not necessary —

Felix Frankfurter:

And these are not — these are not simple questions, to me, at least, they’re very difficult questions.

But it does bear on —

Philip R. Monahan:

It bears —

Felix Frankfurter:

— the special position that education seemed to have in the eyes of Congress when (Inaudible) legislative office.

Philip R. Monahan:

It is not necessary for the Government to adopt the position to use the colloquial phrase that, “He who pays the piper calls the tune.”

In order to maintain —

Felix Frankfurter:

I could hope the Government could take the opposite position, now that does —

Philip R. Monahan:

I — I say it is not necessary for the Government to take that position in order to maintain that in the — in the light of this huge program aid to education over the years, that it has a lively interest in the problem of whether or not members of this organization to which I address my remarks at some length perhaps two — two great lengths some moments ago, are whether or not, members of that organization are teaching in those schools.

Felix Frankfurter:

Well, the — the question is a much more narrow one in this — why business to which you invite us namely through what particularity should Congress speak when it does enter this view, that’s all that I see here.

Philip R. Monahan:

Well — but how is Congress going to know with what particularity to enter this field until it inquires, until it investigates.

Felix Frankfurter:

All I’m saying is it can’t announce the subject matter with more particularity than your rights to putting the umbrella requires.

Philip R. Monahan:

Well, it — it did announce the — the subject as the extent of Communist penetration into the education.

Felix Frankfurter:

Not in the field, could it?

Earl Warren:

Could it?

A court could do that?

Philip R. Monahan:

I thought that — that in the — in the — in Chairman — in Chairman Velde’s opening statement.

Felix Frankfurter:

Yes, but they’re talking about the resolution.

Earl Warren:

Opening statement?

Felix Frankfurter:

We’re talking about the relation between what he’s inquired and doing what he thought right to inquire them.

Philip R. Monahan:

The relationship between what he inquired into.

Felix Frankfurter:

And what he was authorized to inquire, in other words, the scope of the resolution.

Philip R. Monahan:

Well, that — that is certainly one — one part of — of —

Felix Frankfurter:

Another one —

Philip R. Monahan:

— one of the issues before —

Felix Frankfurter:

What — what he deemed to be his authority doesn’t establish that it was his authority.

Philip R. Monahan:

That — that’s one of the issues before the Court.

Felix Frankfurter:

Why?

Philip R. Monahan:

But — but I — I have left that issue and I — and now I’m — I’m now, addressing to the constitutional issue on the assumption that the Committee did have that authority from its — from the House.

Felix Frankfurter:

I — I misconceived your — the scope of that.

Hugo L. Black:

May I ask, do you —

Philip R. Monahan:

Yes, sir.

Hugo L. Black:

You said about the subsidies, where did this man teach?

Philip R. Monahan:

Where?

Hugo L. Black:

Yes.

Philip R. Monahan:

He — he taught at two schools —

Hugo L. Black:

That I was (Voice Overlap) —

Philip R. Monahan:

— that the record indicates.

Hugo L. Black:

Where was he teaching, when they brought him down?

Philip R. Monahan:

When he was subpoenaed, he was teaching (Inaudible)

Hugo L. Black:

Does the Government support that school?

Philip R. Monahan:

I am unable, sir, to give you an off-hand answer to that question.

But I would be very surprised if there are not some federal funds used at that, sir.

Hugo L. Black:

Your argument seems to be that because the Government contributes funds as to who would have the right to make inquiries about something if it takes being thought as wrong.

Philip R. Monahan:

Certainly, I can say this to Your Honors, that it indirectly supports that, at least to this extent, that all contribution as to that, sir, are deductible for tax purposes.

Felix Frankfurter:

But you don’t have —

Philip R. Monahan:

And —

Felix Frankfurter:

— to go into that indirectly.

I think it is a fact that the major fraction of money spent in American educational institution dealing with science and in recent years come from the Government.

Philip R. Monahan:

I — I agree wholeheartedly with that, sir, but I — I think that Mr. Justice Black’s question was — I — maybe it’s the unwarranted inference.

I think that your point was —

Hugo L. Black:

Well I was just trying to find out because you had talked about the subsidies and so forth.

Philip R. Monahan:

But — and the questions what she was asked about were not about — were about those activities at the University of Michigan.

And I can assure Your Honor that there have been federal funds used at the University of Michigan.

Hugo L. Black:

There’s probably at the other place.

I just wanted to know what your bearing was and if — if your bearing changed to be that we should be rather free and construing a resolution to authorize an investigation into educational teaching.

Philip R. Monahan:

I’m now on the constitutional issue, sir.

I’ve — I’ve left the issue of whether or not, the resolution should be construed to cover this field.

My remarks for the past 20 or 30 minutes have been — assuming that to be the case, assuming that the House did authorize its committee to go into this field whether or not it was constitutionally empowered to do so.

Hugo L. Black:

Then you are arguing that which is a very natural argument had made many times as I gather it, that since the Government has contributes — if the Government contributes (Inaudible) to a school of any kind, it would — that would constitute — you have a constitutional basis for it’s looking into their matter.

Philip R. Monahan:

It faces a basis of interest —

Hugo L. Black:

Yes.

Philip R. Monahan:

— not just sort of interest.

And you say it’s made many times, I’m sure that it has been because it seems so sound that I’d be very surprised that it hasn’t been made often, sir.

Hugo L. Black:

I’m certain.

Philip R. Monahan:

Nor is the Congressional interest limited to inquiring into whether the university’s lecture halls are being used as sounding boards for the propagation of foreign orientated points of view.

With the advent in recent years, as I pointed out a moment ago, of these very wildly prevalent contract programs whereby the defense agencies of the Government utilize the personnel and the research facilities of the colleges and universities, a very pressing and delicate problem has been the matter of personnel security clearance of the teachers of these schools who are engaged in this program of contract research.

Could I ask you a question?

Philip R. Monahan:

Yes, sir.

I haven’t read this record yet, but I’d like to get your answer to this.

Am I correct in the impression that the record does not reveal that the Committee was inquiring as to what kind of curricula were being — what kind of courses were being taught in these institutions?

Philip R. Monahan:

You’re absolutely correct, sir.

Simply as to whether or not there were so called Communists on the —

Philip R. Monahan:

Absolutely correct, sir.

This problem of the personnel security clearance of the teachers engaged in these — in these research programs as part of a national defense is certainly a matter of the keenest interest to the Congress and the records of the hearings involved in this case reflect the emphasis which the Committee placed upon the phase of its inquiry.

Hugo L. Black:

The arguments would apply on both the public and private schools.

Philip R. Monahan:

Yes, sir.

Furthermore, the Government submits that it is not without significance that there is already on the statute books of the United States, a provision affecting the field of education and communism which was adopted in 1952 as part of the Veterans Readjustment Assistance Act of that year, which incorporated in large part, one of the recommendations of this committee.

Now, it is true that the recommendation of this committee in question was made much earlier.

It was made in 1941 and this was not adopted until 1952.

But I submit that it nevertheless refutes at least pro tanto the argument that this committee is not — is not interested in legislation but only in exposing for the sake of exposure.

Earl Warren:

When was this Subcommittee set up?

Philip R. Monahan:

This — the original Dies Committee —

Earl Warren:

No.

Philip R. Monahan:

— of — of the —

Earl Warren:

The Subcommittee that was acting at the time where the they specify.

Philip R. Monahan:

I think that the practice had been that a Subcommittee maybe named from time to time, by the Chairman.

Earl Warren:

I didn’t ask you that.

I asked you —

Philip R. Monahan:

Oh.

Earl Warren:

— when this one was set up.

Philip R. Monahan:

I’m not sure of — of that, Your Honor.

Earl Warren:

There’s only a couple of years before wasn’t it, it took years before?

Philip R. Monahan:

My — my recollection is that it may have been set up on the day of this — on the day of this hearing.

Because, you — Your Honor, you may notice in reading the record that from time to time Chairman Velde will say, “I — I now appoint a committee — a subcommittee of so and so for present purposes.”

But it is argued that an investigation of this type is so pregnant with the possibility of abuse.

That it should be curved by this Court.

Can a congressional committee’s power of inquiry and to educate communism in education be abused?

Of course, it can.

A congressional committee’s power of inquiry into any subject can be abused.

And I hold no brief for such tactics as witness baiting and exposure — for exposure’s sake without any reference to any valid legislative purpose and other abuses.

But no principle is more firmly embedded in our jurisprudence and the decisions of this Court that the possibility of the abuse of a power is no argument, whatever, against its existence.

The issue before this Court is not whether congressional investigations have led to the abuse of power in the past or where other committees have been guilty of the abuse of power, or whether this committee may have been — this committee or members thereon, may have been guilty of the abuse of power in other instances.

This Court must look to this record to determine whether in this instance and on this occasion, this committee was empowered to ask and demand answers to the questions which were asked of this witness.

Petitioner and the amicus will conjure up what might be referred to as horrible examples of what can happen and what has happened in the past in the course of congressional inquiries into communism?

The enforced naming of names is wrote on and some at length in the petitioner’s brief.

After the witness says — answer that it was or has been a member of the Communist Party often the next question is, who else do you know that was in there?

Without meaning, in anyway to suggest that it is not perfectly legitimate for a committee to demand other witness who admits his own present or past membership in the Communist Party that he named his associates.

It is to be emphasized and insisted upon that legitimacy of such a follow-up question is not involved here.

The questions asked of petitioner must, in other words, be looked at and the — and the legitimacy of their asking be determined on the basis of them alone and the record in this case.

I turn now, briefly, to the precedence which I think have a bearing upon this issue.

Philip R. Monahan:

In Garner versus the Los Angeles Board of Public Works, this Court held that it was not a violation of the First Amendment as incorporated in the Fourteenth, for the City of Los Angeles to demand of its public municipal employees as a condition of their continued employment that they execute affidavits stating whether or not, they were — or ever had been members of the Communist Party and if so, to state the period of their membership.

Hugo L. Black:

Do you think if Garner would be controlling in this case —

Philip R. Monahan:

It is true that in Garner, the public body involved was a — the City of Los Angeles —

Hugo L. Black:

Well that was the Fourteenth Amendment rule.

Philip R. Monahan:

It was the Fourteenth Amendment incorporating the First.

Hugo L. Black:

And this is First?

Philip R. Monahan:

And this is the First, but they are equivalent.

Hugo L. Black:

Well, I — I’ve insisted that I —

Philip R. Monahan:

I think —

Hugo L. Black:

— have, but I’ve never been able to get the courts to say it.

Philip R. Monahan:

Oh, I — [Laughter] I — I am really surprised to hear that, sir.

Because as I — as I read the opinions of this Court, I thought that it had been settled.

Felix Frankfurter:

You’re surprised and I’m delighted.

[Laughter]

Philip R. Monahan:

I — there maybe some decisions which I have missed in the last few weeks, but as I read the [Laughter] — but as I read the decisions —

Hugo L. Black:

I agree with you.

Philip R. Monahan:

Okay.

[Laughter] Now —

Felix Frankfurter:

If that was the purpose of the question would have that admission.

Philip R. Monahan:

Now, it is true that in Garner, the public body involved was a municipality asking the questions of its city employees whereas here, is the congressional committee.

But, and this is the point I want to emphasize, so far as the repressive effect on First Amendment liberty is concerned, the asking of that question by the City of Los Angeles is really no different from the asking of that question in this case.

In other words, the public interest was different in that case from the public interest in this case.

I’m not saying it was any stronger, but the effect of the asking of the question on the First Amendment liberty was no different.

And in Adler against the Board of Education of the City of New York, this Court held that it was not a violation of the Fourth — of the First Amendment as incorporated in the Fourteenth, for the City of New York to enact the Feinberg Law providing for the promulgation of a list of organizations membership in which would constitute prima facie evidence of disqualification from public school employment.

And this Court said in the course of that opinion, in the employment of officials and teachers of the school system, a State may very properly inquire into the company they keep.

And we know of no rule, constitutional or otherwise, that prevents the State when determining the fitness and loyalty of such persons from considering the organizations and persons with whom they associate.

And only last term in the Beilan and the Lerner cases, this Court held in the Beilan case that it was not a violation of the First Amendment as incorporated in the Fourteenth for the Board of Public Education of Philadelphia to discharge a teacher from his position in the public schools of that city for refusing to answer a question of whether or not he had ever been an officer of the Communist political association.

And in the Lerner case, similarly this Court held that it was not a violation of the First Amendment as incorporated in the Fourteenth, for the New York City Transit Authority to discharge a subway conductor from his position in a city subway system for refusing to answer the question of whether or not he was then a member of the Communist Party.

This Court pointed out in Garner, Mr. Justice Harlan said in the course of the — of the Court’s opinion, that a government employee can be required under pain of dismissal, to respond to inquiry proving into matters relevant to his employment.

And that present membership in the Communist Party is such a matter.

Philip R. Monahan:

I submit to the Court that in all of these cases I’ve been referring to the repressive effect upon First Amendment liberties was just as great in those cases as — as in this case.

And that that those cases were correctly decided, Barenblatt cannot be reversed.

And in the Douds case, which although in older case, in some ways went further than any of us — those — those more recent cases, this Court held that there was not a violation of the First Amendment for Congress to require as a condition of any labor union utilizing the facilities of the National Labor of Relations Board to file affidavits by all the officers of the union and of any international union with which it was affiliated stating what?

Not — whether or not, they were members of the Communist Party, not that.

But that they were not members of the Communist Party.

And the Government’s opinion that — the Douds decision goes much further than the Government asks this Court to go in this case and that if Douds was correctly decided, a fortiori this case must be decided by affirmance.

And, of course, the lower court decisions I refer you to the Barsky, Josephson and long line of lower court decisions which have held that there is no violation of First Amendment rights in asking this question.

As Mr. — as Judge Prettyman said in the Barsky case, if Congress has the power to inquire into the subjects of communism and the Communist Party, it has power to identify the individuals who believe in communism and those who belong to the Party.

The nature and scope of the program and activities that can in large measure upon the character and number of their adherence, personnel is part of the subject.

And finally, in conclusion, and to please the Court, I would remind the Court with deference and respect that the issue in this case is not the wisdom of this act of this committee, but the power.

And that if this Court, after consideration of all of the considerations advanced in — by argument in the Government’s brief, comes to the conclusion that this committee and the Congress did have the power to exact answers to this question, then no — no conviction however, firmly held as to the unwisdom of this action should deter it from upholding this conviction.

Thank you.

Earl Warren:

We’ll adjourn now.