Wilkinson v. United States/Dissent Douglas

by William O. Douglas

United States Supreme Court

365 U.S. 399

Wilkinson  v.  United States

 Argued: Nov. 17, 1960. --- Decided: Feb 27, 1961

Mr. Justice DOUGLAS, with whom THE CHIEF JUSTICE and Mr. Justice BLACK concur, dissenting.

When petitioner was summoned before a subcommittee of the House Committee on Un-American Activities in Atlanta, Georgia, the Staff Director for the Committee made the following statement to him:

'It is the information of the committee or the suggestion of the committee that in anticipation of the hearings here in Atlanta, Georgia, you were sent to this area by the Communist Party for the purpose of developing a hostile sentiment to this committee and to its work for the purpose of undertaking to bring pressure upon the United States Congress to preclude these particular hearings. Indeed it is the fact that you were not even subpenaed for these particular hearings until we learned that you were in town for that very purpose and that you were not subpenaed to appear before this committee until you had actually registered in the hotel here in Atlanta.

'Now, sir, if you will tell this committee whether or not, while you are under oath, you are now a Communist, we intend to pursue that area of inquiry and undertake to solicit from you information respecting your activities as a Communist on behalf of the Communist Party, which is tied up directly with the Kremlin; your activities from the standpoint of propaganda; your activities from the standpoint of undertaking to destroy the Federal Bureau of Investigation and the Committee on Un-American Activities, because indeed this committee issued a report entitled 'Operation Abolition,' in which we told something, the information we then possessed, respecting the efforts of the Emergency Civil Liberties Committee, of which you are the guiding light, to destroy the F.B.I. and discredit the director of the F.B.I. and to undertake to hamstring the work of this Committee on Un-American Activities.

'So if you will answer that principal question, I intend to pursue the other questions with you to solicit information which would be of interest-which will be of vital necessity, indeed-to this committee in undertaking to develop legislation to protect the United States of America under whose flag you, sir, have protection.

'Now please answer the question: Are you now a member of the Communist Party?'

Petitioner answered, 'I am refusing to answer any questions of this committee.'

After a further explanation he was directed to answer. He replied:

'I have the utmost respect for the broad powers which the Congress of the United States must have to carry on its investigations for legislative purposes. However, the United States Supreme Court has held that, broad as these powers may be, the Congress cannot investigate into an area where it cannot legislate, and this committee tends, by its mandate and by its practices, to investigate into precisely those areas of free speech, religion, peaceful association and assembly, and the press, wherein it cannot legislate and therefore it cannot investigate.' ^[1]

The Committee ^[2] is authorized by the Resolution governing it to make investigations of 'the extent, character, and objects of un-American propaganda activities in the United States.'

If it is 'un-American' to criticize, impeach, and berate the Committee and to seek to have it abolished, then the Committee acted within the scope of its authority in asking the questions. But we take a dangerous leap when we reach the conclusion that criticism of the Committee was within the scope of the Resolution.

Criticism of government finds sanctuary in several portions of the First Amendment. It is part of the right free speech. It embraces freedom of the press. Can editors be summoned before the Committee and be made to account for their editorials denouncing the Committee, its tactics, its practices, its policies? If petitioner can be questioned concerning his opposition to the Committee, then I see no reason why editors are immune. The list of editors will be long as is evident from the editorial protests against the Committee's activities, ^[3] including its recent film, Operation Abolition. ^[4]

The First Amendment rights involved here are more than freedom of speech and press. Bringing people together in peaceable assemblies is in the same category. De Jonge v. State of Oregon, 299 U.S. 353, 57 S.Ct. 255, 81 L.Ed. 278. 'The right of peaceable assembly is a right cognate to those of free speech and free press and is equally fundamental.' Id., 299 U.S. at page 364, 57 S.Ct. at page 260. The right to petition 'for a redress of grievances' is also part of the First Amendment; it too is fundamental to 'the very idea of a government, republican in form.' United States v. Cruikshank, 92 U.S. 542, 552, 23 L.Ed. 588. Chief Justice Hughes, speaking for the Court in the De Jonge case involving communist activities no more nor less lawful than those charged here, said:

'The greater the importance of safeguarding the community from incitements to the overthrow of our institutions by force and violence, the more imperative is the need to preserve inviolate the constitutional rights of free speech, free press and free assembly in order to maintain the opportunity for free political discussion, to the end that government may be responsive to the will of the people and that changes, if desired, may be obtained by peaceful means. Therein lies the security of the Republic, the very foundation of constitutional government.' De Jonge v. State of Oregon, supra, 299 U.S. at page 365, 57 S.Ct. at page 260.

These are reasons why I would construe the Resolution narrowly so as to exclude criticism of the Committee. We have customarily done just that, insisting that if 'an inquiry of dubious limits' is to be found in an Act or Resolution, Congress should unequivocally authorize it. United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 546, 97 L.Ed. 770; United States v. Harriss, 347 U.S. 612, 74 S.Ct. 808, 98 L.Ed. 989; Watkins v. United States, 354 U.S. 178, 198, 77 S.Ct. 1173, 1184, 1 L.Ed.2d 1273.

The indictment charged only the failure to answer the one question, 'Are you now a member of the Communist Party?' That question in other contexts might well have been appropriate. We have here, however, an investigation whose central aim was finding out what criticism a citizen was making of the Government. That was the gist of the case presented to the jury. ^[5]

We cannot allow this man to go to prison for 12 months unless we hold that an investigation of those who criticize the Un-American Activities Committee was both authorized and constitutional. I cannot read the Resolution as authorizing that kind of investigation without assuming that the Congress intended to flout the First Amendment.

Notes

1. The Washington Post on January 4, 1961, made a similar criticism of the House Committee on Un-American Activities:
2. The ultimate mandate of the parent Committee at the time of the subcommittee hearing was to be found in paragraph 17(b), Rule XI, Rules of the House of Representatives, H.Res. 5, 85th Cong., 1st Sess., 60 Stat. 828. It provides: 'The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.' The record in this case also contains the mandate of the subcommittee (see note 5, infra), but the terms of the parent Committee's mandate are of course controlling. Of the purposes of the Committee, only the investigation of 'un-American propaganda' activities seems even arguably to authorize the questions asked and the inquiry pursued in this case.
3. See note 1, supra.
4. 360 U.S. 109, 79 S.Ct. 1081.
5. At the trial committee counsel was cross-examined as follows:

'Q. Mr. Arens, you stated before the committee that Mr. Wilkinson had come to Atlanta to stir up hostility to the committee, that he was doing everything he could to prevent these hearings from being held in Atlanta? A. Yes, sir.

'Q. And that you did not subpoena him until you discovered that he had arrived here for that purpose? A. That's correct, sir.

'Q. Now, you state that within the three general categories under which the committee was holding hearings here of colonization in the textile industry, entry and dissemination of foreign propaganda and Communist party propaganda activity in the South, you are stating that Mr. Wilkinson stirring up hostility to the House Committee on Un-American Activities comes within the category of Communist party propaganda activity which justified the House Committee to subpoena him and question him, is that correct? I just want to understand your position. A. Yes, in general I agree with you, yes.'