Braden v. United States, 365 U.S. 431 (1961)

MR. JUSTICE STEWART delivered the opinion of the Court.

This case is a companion to Wilkinson v. United States, ante, p. 399. The petitioner was the witness immediately preceding Wilkinson at the hearing of a subcommittee of the House Un-American Activities Committee, in Atlanta, Georgia, on July 30, 1958. He refused to answer many of the questions directed to him, basing his refusal upon the grounds that the questions were not pertinent to a question under inquiry by the subcommittee and that the interrogation invaded his First Amendment rights. He was subsequently indicted and, after a jury trial, convicted for having violated 2 U.S.C. § 192 in refusing to answer six specific questions which had been put to him by the subcommittee.{1} The Court of Appeals affirmed, 272 F.2d 653, relying on Barenblatt v. United States, 360 U.S. 109, and we granted certiorari, 362 U.S. 960.

The principal issues raised by the petitioner are substantially identical to those considered in Wilkinson, and extended discussion is not required in resolving them. Based upon the same record that was brought here in Wilkinson, we conclude for the reasons stated there that the subjects under subcommittee investigation at the time the petitioner was interrogated were Communist infiltration into basic southern industry and Communist Party propaganda activities in the southern part of the United States. We conclude for the same reasons that the subcommittee’s investigation of these subjects was authorized by Congress, that the interrogation was pertinent to a question under subcommittee inquiry,{2} and that the petitioner was fully apprised of its pertinency.{3}

In asserting a violation of his First Amendment rights, the petitioner here points out that he was asked not simply whether he was or had been a Communist Party member, as in Wilkinson and Barenblatt, supra, but whether he was a member "the instant you affixed your signature to that letter." The letter in question, which had admittedly been signed by the petitioner and his wife, urged opposition to certain bills in Congress. The petitioner emphasizes that the writing of such a letter is not only legitimate, but constitutionally protected activity, and points to other evidence in the record to indicate that he had been active in other completely legitimate causes.{4} Based upon these circumstances, he argues that the subcommittee did not have a proper legislative purpose in calling him before it, but that it was bent, rather, on persecuting him for publicly opposing the subcommittee’s activities. He contends that, under such circumstances, an inquiry into his personal and associational conduct violated his First Amendment freedoms. On these grounds, the petitioner would differentiate the constitutional issues here from those that were before the Court in Barenblatt, supra.

But Barenblatt did not confine congressional committee investigation to overt criminal activity, nor did that case determine that Congress can only investigate the Communist Party itself. Rather, the decision upheld an investigation of Communist activity in education. Education, too, is legitimate and protected activity. Communist infiltration and propaganda in a given area of the country, which were the subjects of the subcommittee investigation here, are surely as much within its pervasive authority as Communist activity in educational institutions. The subcommittee had reason to believe that the petitioner was a member of the Communist Party, and that he had been actively engaged in propaganda efforts. It was making a legislative inquiry into Communist Party propaganda activities in the southern States. Information as to the extent to which the Communist Party was utilizing legitimate organizations and causes in its propaganda efforts in that region was surely not constitutionally beyond the reach of the subcommittee’s inquiry. Upon the reasoning and authority of Barenblatt, 360 U.S. at 125-134, we hold that the judgment is not to be set aside on First Amendment grounds.

The petitioner in this case raises two additional issues that were not considered either in Barenblatt, supra, or in Wilkinson, supra. First, he says that it was error for the trial court not to leave it for the jury to determine whether the questions asked by the subcommittee were pertinent to the subject under inquiry. Secondly, he asserts that he could not properly be convicted, because, in refusing to answer the subcommittee’s questions, he relied upon his understanding of the meaning of previous decisions of this Court. We think that both of these contentions have been foreclosed by Sinclair v. United States, 279 U.S. 263.

At the trial, the district judge determined as a matter of law that the questions were pertinent to a matter under inquiry by the subcommittee,{5} leaving to the jury the question whether the pertinence of the questions had been brought home to the petitioner. It is to be noted that counsel made no timely objection to this procedure, and, indeed, affirmatively acquiesced in it.{6} But we need not base rejection of the petitioner’s contention here on that ground, for, in any event, it was proper for the court to determine the question as a matter of law. This is precisely what was held in Sinclair v. United States, where the Court said, at 279 U.S. 299:

The reasons for holding relevancy and materiality to be questions of law . . . apply with equal force to the determination of pertinency arising under section 102 [the predecessor of 2 U.S.C. § 192]. The matter for determination in this case was whether the facts called for by the question were so related to the subjects covered by the Senate’s resolutions that such facts reasonably could be said to be "pertinent to the question under inquiry." It would be incongruous and contrary to well established principles to leave the determination of such a matter to a jury.

During his interrogation, the petitioner was asked:

Now, do I understand that you have refused to answer the question as to whether or not you are now a member of the Communist Party solely upon the invocation of the provisions of the First Amendment, but that you have not invoked the protection of the Fifth Amendment to the Constitution. Is that correct?

He gave the following answer:

That is right, sir. I am standing on the Watkins, Sweezy, Konigsberg, and other decisions of the United States Supreme Court which protect my right, and the Constitution as they interpret the Constitution of the United States, protecting my right to private belief and association.

It is now argued that, because he relied upon his understanding of this Court’s previous decisions, he could not be convicted under the statute for failing to answer the questions. An almost identical contention was also rejected in Sinclair v. United States, supra, at 299:

There is no merit in appellant’s contention that he is entitled to a new trial because the court excluded evidence that, in refusing to answer, he acted in good faith on the advise of competent counsel. The gist of the offense is refusal to answer pertinent questions. No moral turpitude is involved. Intentional violation is sufficient to constitute guilt. There was no misapprehension as to what was called for. The refusal to answer was deliberate. The facts sought were pertinent as a matter of law, and section 102 made it appellant’s duty to answer. He was bound rightly to construe the statute. His mistaken view of the law is no defense.{7}

Here, as in Sinclair, the refusal to answer was deliberate and intentional.

Affirmed.

1. The indictment was in six counts, each count setting out a specific question which the petitioner had refused to answer. He was convicted on all six counts, and concurrent sentences were imposed.

2. The questions which were the subjects of the six counts of the indictment were as follows:

And did you participate in a meeting here at that time?

Who solicited the quarters to be made available to the Southern Conference Educational Fund?

Are you connected with the Emergency Civil Liberties Committee?

Did you and Harvey O’Connor, in the course of your conference there in Rhode Island, develop plans and strategies outlining work schedules for the Emergency Civil Liberties Committee?

Were you a member of the Communist Party the instant you affixed your signature to that letter?

I would just like to ask you whether or not you, being a resident of Louisville, Kentucky, have anything to do there with the Southern Newsletter?

The full transcript of the petitioner’s interrogation by the subcommittee, introduced in the District Court, makes intelligible the relevance of these questions. Since concurrent sentences were imposed on the several counts, we need specifically consider here only the question covered by the fifth count, going to the petitioner’s Communist Party membership. See Barenblatt v. United States, 360 U.S. 109, 115; Claassen v. United States, 142 U.S. 140, 147.

3. As in Wilkinson, by the resolution authorizing the subcommittee’s investigation by the statements of the Chairman and other members of the subcommittee, by the tenor of interrogation of prior witnesses, and by a lengthy explanatory statement addressed contemporaneously to the petitioner.

4. For example, the petitioner points out that the "Southern Conference Educational Fund," with which he had been associated, had been active in promoting racial integration in the South. The transcript of the subcommittee hearings makes clear, however, that these activities, as such, were not under investigation. As a member of the subcommittee stated:

What I am interested in is what are you doing on behalf of the Communist Party? We are not going to be clouded, so far as I am concerned, by talking about integration and segregation. This committee is not concerned in that. This committee is concerned in what you are doing in behalf of the Communist conspiracy.

At another point, the following colloquy occurred:

Mr. Braden: Two hundred Negro leaders in the South petitioned the Congress of the United States last week in connection with this hearing in Atlanta.

Mr. Jackson: After looking at some of the names on this list, the letters went into the circular files of many members, because it was quite obvious that a number of names on that letter were names of those that had been closely associated with the Communist Party. Their interest and major part does not lie with honest integration. Their interest lies with the purposes of the Communist Party. And that is what we are looking into, and let us not be clouding this discussion and this hearing this morning by any more nonsense that we are here as representatives of the United States Government to further, or to destroy, or to have anything to do with, integration.

5.

You will note that each count in the indictment alleges that the refusal was with reference to a question pertinent to the matter under inquiry. You will not concern yourselves with this allegation, as it involves a matter of law which it is the Court’s duty to determine, and which has been determined. I have determined as a matter of law that the committee had the right to ask these questions and the defendant had the duty to answer these questions under the conditions that I will later explain.

6. In his opening statement to the jury, counsel for the petitioner said:

As the counsel for the government has properly stated, the question of whether or not those questions were pertinent to the subject matter under inquiry has been ruled to be a question of law for the Court. But whether or not the defendant Carl Braden, at the time he refused to answer those questions, knew that they were pertinent to the subject matter under inquiry is a question of fact which will be submitted by the Court to you gentlemen.

Not until after the concluding arguments and the instructions to the jury did counsel claim for the first time that the question of actual pertinency was not for the court to decide.

7. This was reaffirmed in United States v. Murdock, 290 U.S. 389, 397, where it was said:

The applicable statute did not make a bad purpose or evil intent an element of the misdemeanor of refusing to answer, but conditioned guilt or innocence solely upon the relevancy of the question propounded. Sinclair was either right or wrong in his refusal to answer, and, if wrong, he took the risk of becoming liable to the prescribed penalty.

See also Watkins v. United States, 354 U.S. 178, 208.