Uphaus v. Wyman, 360 U.S. 72 (1959)

Author: Justice Brennan

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Uphaus v. Wyman, 360 U.S. 72 (1959)


The Court holds today that the constitutionally protected rights of speech and assembly of appellant and those whom he may represent are to be subordinated to New Hampshire’s legislative investigation because, as applied in the demands made on him, the investigation is rationally connected with a discernible legislative purpose. With due respect for my Brothers’ views, I do not agree that a showing of any requisite legislative purpose or other state interest that constitutionally can subordinate appellant’s rights is to be found in this record. Exposure purely for the sake of exposure is not such a valid subordinating purpose. Watkins v. United States, 354 U.S. 178, 187, 200; Sweezy v. New Hampshire, 354 U.S. 234; NAACP v. Alabama, 357 U.S. 449. This record, I think, not only fails to reveal any interest of the State sufficient to subordinate appellant’s constitutionally protected rights, but affirmatively shows that the investigatory objective was the impermissible one of exposure for exposure’s sake. I therefore dissent from the judgment of the Court.

I fully appreciate the delicacy of the judicial task of questioning the workings of a legislative investigation. A proper regard for the primacy of the legislative function in its own field, and for the broad scope of the investigatory power to achieve legislative ends, necessarily should constrain the judiciary to indulge every reasonable intendment in favor of the validity of legislative inquiry. However, our frame of government also imposes another inescapable duty upon the judiciary, that of protecting the constitutional rights of freedom of speech and assembly from improper invasion, whether by the national or the state legislatures. See Watkins v. United States, supra; Sweezy v. New Hampshire, supra; NAACP v. Alabama, supra. Where that invasion is as clear as I think this record discloses, the appellant is entitled to our judgment of reversal.

Judicial consideration of the collision of the investigatory function with constitutionally protected rights of speech and assembly is a recent development in our constitutional law. The Court has often examined the validity under the Federal Constitution of federal and state statutes and executive action imposing criminal and other traditional sanctions on conduct alleged to be protected by the guarantees of freedom of speech and of assembly. The role of the state-imposed sanctions of imprisonment, fines and prohibitory injunctions directed against association or speech and their limitations under the First and Fourteenth Amendments has been canvassed quite fully, beginning as early as Gitlow v. New York, 268 U.S. 652, and Near v. Minnesota, 283 U.S. 697. And other state action, such as deprivation of public employment and the denial of admission to a profession, has also been recognized as being subject to the restraints of the Constitution. See, e.g., Wieman v. Updegraff, 344 U.S. 183; cf. Schware v. Board of Bar Examiners, 353 U.S. 232.

But only recently has the Court been required to begin a full exploration of the impact of the governmental investigatory function on these freedoms.{1} Here is introduced the weighty consideration that the power of investigation, whether exercised in aid of the governmental legislative power, see Watkins v. United States, supra, or in aid of the governmental power to adjudicate disputes, see NAACP v. Alabama, supra, is vital to the functioning of free governments, and is therefore necessarily broad. But where the exercise of the investigatory power collides with constitutionally guaranteed freedoms, that power too has inevitable limitations, and the delicate and always difficult accommodation of the two with minimum sacrifice of either is the hard task of the judiciary, and ultimately of this Court.

It was logical that the adverse effects of unwanted publicity -- of exposure -- as concomitants of the exercise of the investigatory power should come to be recognized, in certain circumstances, as invading protected freedoms and offending constitutional inhibitions upon governmental actions. For, in an era of mass communications and mass opinion, and of international tensions and domestic anxiety, exposure and group identification by the state of those holding unpopular and dissident views are fraught with such serious consequences for the individual as inevitably to inhibit seriously the expression of views which the Constitution intended to make free. Cf. Speiser v. Randall, 357 U.S. 513, 526. We gave expression to this truism in NAACP v. Alabama:

This Court has recognized the vital relationship between freedom to associate and privacy in one’s associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs.

357 U.S. at 462.

Of course, the considerations entering into the weighing of the interests concerned are different where the problem is one of state exposure in the area of assembly and expression from where the problem is that of evaluating a state criminal or regulatory statute in these areas. Government must have freedom to make an appropriate investigation where there appears a rational connection with the lawmaking process, the processes of adjudication, or other essential governmental functions. In the investigatory stage of the legislative process, for example, the specific interest of the State and the final legislative means to be chosen to implement it are, almost by definition, not precisely defined at the start of the inquiry, and due allowance must accordingly be made. Also, when exposure is evaluated judicially as a governmental sanction, there should be taken into account the differences between it and the more traditional state-inflicted pains and penalties. True it is, therefore, that any line other than a universal subordination of free expression and association to the asserted interests of the State in investigation and exposure will be difficult of definition; but this Court has rightly turned its back on the alternative of universal subordination of protected interests, and we must define rights in this area the best we can. The problem is one in its nature calling for traditional case-by-case development of principles in the various permutations of circumstances where the conflict may appear. But guide lines must be marked out by the courts.

This is the inescapable judicial task in giving substantive content, legally enforced, to the Due Process Clause, and it is a task ultimately committed to this Court.

Sweezy v. New Hampshire, 354 U.S. 234, 267 (concurring opinion). On the facts of this case, I think that New Hampshire’s investigation, as applied to the appellant, was demonstrably and clearly outside the wide limits of the power which must be conceded to the State even though it be attended by some exposure. In demonstration of this, I turn to the detailed examination of the facts which this case requires.

The appellant, Uphaus, is Executive Director of a group called World Fellowship which runs a discussion program at a summer camp in New Hampshire at which the public is invited to stay. Various speakers come to the camp primarily for discussion of political, economic and social matters. The appellee reports that Uphaus and some of the speakers have been said by third persons to have a history of association with "Communist front" movements, to have followed the "Communist line," signed amnesty petitions and amicus curiae briefs, and carried on similar activities of a sort which have recently been viewed hostilely and suspiciously by many Americans. A strain of pacifism runs through the appellant’s thinking, and the appellee apparently would seek to determine whether there should be drawn therefrom an inference of harm for our institutions; he conjectures, officially, whether

the advocacy of this so-called peace crusade is for the purpose of achieving a quicker and a cheaper occupation by the Soviet Union and Communism.

There is no evidence that any activity of a sort that violates the law of New Hampshire or could in fact be constitutionally punished went on at the camp. What is clear is that there was some sort of assemblage at the camp that was oriented toward the discussion of political and other public matters. The activities going on were those of private citizens. The views expounded obviously were minority views. But the assemblage was, on its face, for purposes to which the First and Fourteenth Amendments give constitutional protection against incursion by the powers of government. Cf. Sweezy v. New Hampshire, supra, at 249-251.

The investigation with which this case is concerned was undertaken under authority of a 1953 Resolution of the New Hampshire General Court, N.H.Laws 1953, c. 307, and extended by an enactment in 1955, N.H.Laws, 1955, c. 197. The Resolution directed the Attorney General of the State (appellee here) to make a "full and complete investigation" of

violations of the subversive activities act of 1951"{2} and to determine whether "subversive persons as defined in said act are presently located within the state.

Under New Hampshire law, this constituted the Attorney General (who is ordinarily the chief law enforcement official of the State) a one-man legislative committee. The sanctions of prosecution of individuals and dissolution of organizations for violation of the 1951 law seem to have been discarded, with the passage of the Resolution, in favor of the sanction of exposure. A provision of the 1951 Act providing for confidential treatment of material reflecting on individuals’ loyalty was made inapplicable to the investigation the Attorney General was directed to conduct, and the Attorney General was authorized in sweeping terms to give publicity to the details of his investigation. A report to the Legislature of the fruits of the investigation was to be made on the first day of the 1955 legislative session; the 1955 extension called for a similar report to the 1957 session.{3} Efforts to obtain from the appellant the disclosures relative to World Fellowship in controversy here began during the period covered by the 1953 Resolution, but his final refusal and the proceeding for contempt under review here occurred during the extension.

The fruits of the first two years of the investigation were delivered to the Legislature in a comprehensive volume on January 5, 1955. The Attorney General urges this report on our consideration as extremely relevant to a consideration of the investigation as it relates to appellant. I think that this is quite the case; the report is an official indication of the nature of the investigation and is, in fact, the stated objective of the duty assigned by the Resolution to the Attorney General. It was with this report before it that the Legislature renewed the investigation, and it must be taken as characterizing the nature of the investigation before us. The report proper is divided into numerous sections. First is a series of general and introductory essays by various authors entitled "Pertinent Aspects of World Communism Today." Essays discuss "The Nature of the Russian Threat"; "The Role of the Communist Front Organizations"; "Some Important Aspects of Marxism and Marxism-Leninism"; "The Test of a Front Organization"; and "Communism vs. Religion." General descriptive matter on the Communist Party in New Hampshire follows. It hardly needs to be said that this introductory material would focus attention on the whole report in terms of "Communism" regardless of what was said about the individuals later named. Next comes a general section titled "Communist Influence in a Field of Education," which is replete with names and biographical material of individuals; a similar section on "Communist Influence in the Field of Labor"; and one more generically captioned "Organizations," in which various details as to the appellant, his organization, and others associated in it are presented. Last comes a section entitled "Individuals" in which biographical sketches of 23 persons are presented.

The introductory matter in the volume, to put the matter mildly, showed consciousness of the practical effect of the change of policy from judicial prosecution to exposure by the Attorney General of persons reported to be connected with groups charged to be "subversive" or "substantially Communist-influenced." Virtually the entire "Letter of Transmittal" of the Attorney General addressed itself to discussing the policy used in the report in disclosing the names of individuals. The Attorney General drew a significant distinction as to the names he would disclose:

Persons with past membership or affiliation with the Communist Party or substantially Communist-influenced groups have not been disclosed in this report where those persons have provided assistance to the investigation. It is felt that no good reasons exist requiring a listing of names of cooperative witnesses in these categories.

A "Foreword" declared that "[t]his report deals with a controversial subject," and, concentrating on the fact that the report contained an extensive list of persons, their addresses, and miscellaneous activities and associations attributed to them, made several disclaimers. The report was not to be considered an indictment of any individual, the Attorney General suitably pointing out that a grand jury was the only authority in New Hampshire having the formal power of indictment. Nor was it "the result of an inquisition. No witness in this investigation has ever at any time, been treated other than courteously." Finally, the Attorney General stressed that "[t]he reporting of facts herein does NOT (nor should it be taken to by any reader) constitute a charge against any witness." He observed that

facts are facts. . . . Conclusions of opprobrium relative to any individual, while within the privilege of personal opinion, are neither recommended nor intended to be encouraged by any phraseology of this report.

In fact, the listing of names might well contain the names of many innocent people, implied the Attorney General. This was permissible, he believed, because, as interpreted in the courts of New Hampshire,

the scope of relevant questioning in the investigation goes far beyond the requirements of individual felonious intention. In fact, the General Court has directed that inquiry be made to determine the extent of innocent or ignorant membership, affiliation or support of subversive organizations. . . .

The report certainly is one that would be suggested by the quoted parts of the foreword. No opinion was, as a matter of course, expressed by the Attorney General as to whether any person named therein was in fact a "subversive person" within the meaning of the statute. The report did not disclose whether any indictments under the 1951 Act would be sought against any person. Its sole recommendations for legislation were for a broad evidentiary statute to be applied in trials of persons under the State Act as "subversive," which cannot really be said to have been the fruit of the investigation, being copied from a then recent Act of Congress,{4} and which made apparently no change in the 1951 law’s standard of guilt, and for an immunity measure calculated to facilitate future investigations. The report, once the introductory material on Communism is done with, contains primarily an assorted list of names with descriptions of what had been said about the named persons. In most cases, the caveat of the Attorney General that the information should not be understood as indicating a violation of the New Hampshire Subversive Activities Act was, to say the least, well taken in the light of the conduct ascribed to them. Many of the biographical summaries would strike a discerning analyst as very mild stuff indeed. In many cases, a positive diligence was demonstrated in efforts to add the names of individuals to a list and then render a Scotch verdict of "not proven" in regard to them. The most vivid example of this is the material relating to the appellant’s group, World Fellowship. After some introductory pages, there comes extensive biographical material relating to the reported memberships, associations, advocacies, and signings of open letters on the part of certain speakers at the World Fellowship camp. A very few had admitted membership in the Communist Party, or had been "identified" as being members by third persons generally not named. Others were said to be or to have been members of "Communist influenced," "front," or "officially cited" groups. Some were said to have signed open letters and petitions against deportations, to have criticized the Federal Bureau of Investigation, to have given free medical treatment to Communist Party officials, and the like. Finally the report addresses itself to the remainder of the speakers:

Information easily available to this office does not indicate records of affiliation with or support of Communist causes on the part of these people. However, due to the burden of work imposed on the staff of the House Committee on Un-American Activities by thousands of such requests received from all over the country, it has not been possible to check each of these persons thoroughly. Inasmuch as no committee or public agency can hope to have all the information in its files concerning all subversive activity all over this country, it is not possible for this office to guarantee that the following individuals do not have such activity in their backgrounds. Therefore, it is necessary to report their identities to the General Court, with the explanation that based upon what information we have been able to assemble, the following individuals would appear at this time to be the usual contingent of "dupes" and unsuspecting persons that surround almost every venture that is instigated or propelled by the "perennials" and articulate apologists for Communists and Soviet chicanery, but of this fact we are not certain. This list does not include the many persons who were merely guests. . . .

The names of 36 persons with their addresses then followed.{5}

The emphasis of the entire report is on individual guilt, individual near-guilt, and individual questionable behavior. Its flavor and tone, regardless of its introductory disclaimers, cannot help but stimulate readers to attach a "badge of infamy," Wieman v. Updegraff, 344 U.S. 183, 190-191, to the persons named in it. The authorizing Resolution requested that the Attorney General address himself to ascertaining whether there were "subversive persons" in New Hampshire, and the report indicates that this was interpreted as the making of lists of persons who were either classifiable in this amorphous category or almost so, and the presenting of the result, as a public, official document, to the Legislature and to the public generally. The main thrust of the Resolution itself was in terms of individual behavior -- violation of the 1951 Act and the presence, in the State, of "subversive persons," were the objects of investigation. The collection of such data, and of data having some peripheral reference to it, with explicit detail as to names and places, was what the Attorney General set himself to doing in response to it. As the report itself stated,

A very considerable amount of questioning is absolutely essential to separate the wheat from the chaff in applying the legislative formula to individual conduct which involves that part of the spectrum very close to the line of subversive conduct. Only through such questioning is it possible to be able to report to the Legislature whether the activity of a given individual has been subversive or not subversive; whether or not intentionally so or knowingly so on his part.

One must feel, on reading the report, that the first sentence --

A very considerable amount of questioning is absolutely essential . . . in applying the legislative formula to individual conduct which involves that part of the spectrum very close to the line of subversive conduct

-- is a serious overstatement, because, in the usual citation of a person in the report, no expression of his innocence or guilt or his precise coloration in the Attorney General’s spectrum was given. But still the report was made in terms of the activity of named individuals. Of course, if the Attorney General had information relating to guilt under the statute, he was empowered to seek indictment and conviction of the offenders in criminal proceedings, in which, of course, the normal rights afforded criminal defendants and the normal limitations on state prosecution for conduct related to political association and expression, under the Constitution, would apply. The citation of names in the book does not appear to have any relation to the possibility of an orthodox or traditional criminal prosecution, and the Attorney General seems to acknowledge this. The investigation in question here was not one ancillary to a prosecution -- to grand jury or trial procedure. If it had been, if a definite prosecution were undertaken, we would have that narrowed context in which to relate the State’s demand for exposure. Cf. NAACP v. Alabama, supra, 357 U.S. at 464-465. This process of relation is part and parcel of examining the "substantiality" of the State’s interest in the concrete context in which it is alleged. But here we are without the aid of such a precise issue, and our task requires that we look further to ascertain whether this legislative investigation, as applied in the demands made upon the appellant, is connected rationally with a discernible general legislative end to which the rights of the appellant and those whom he may represent can constitutionally be subordinated.

The Legislature, upon receiving the report, extended the investigation for a further two years. It was during this period that the refusals of the appellant to furnish information with which we are now concerned took place. The Attorney General had already published the names of speakers at the World Fellowship camp. Now he wanted the correspondence between Uphaus and the speakers. The Attorney General admitted that it was unlikely that the correspondence between Uphaus and the speakers was going to contain a damning admission of a purpose to advocate the overthrow of the government (presumably of New Hampshire) by force and violence. He said that it might indicate a sinister purpose behind the advocacy of pacifism -- "the purpose of achieving a quicker and a cheaper occupation by the Soviet Union and Communism." The guest list, the nonavailability of which to the Attorney General was commented on in the passage from the 1955 report quoted above,{6} was also desired. Appellant’s counsel, at the hearing in court giving rise to the contempt finding under review, protested that appellant did not want to allow the Attorney General to have the names to expose them. The Attorney General also wished the names of the nonprofessional help at the camp -- the cooks and dishwashers and the like. It was objected that the cooks and dishwashers were hired from the local labor pool, and that, if such employment were attended by a trip to the Attorney General’s office and the possibility of public exposure, help might become hard to find at the camp. This last objection was sustained in the trial court, but the other two inquiries were allowed, and appellant’s failure to respond to the one relating to the guest list was found contemptuous.

First. The Court seems to experience difficulty in discerning that appellant has any standing to plead the rights of free speech and association he does because the material he seeks to withhold may technically belong to World Fellowship, Inc., a corporation, and may relate to the protected activities of other persons, rather than those of himself. In NAACP v. Alabama, supra, a corporation was permitted to represent its membership in pleading their rights to freedom of association for public purposes. Here, appellant, as a corporate officer, if one will, seeks to protect a list of those who have assembled together for public discussion on the corporation’s premises. Of course, this is not technically a membership list, but to distinguish NAACP v. Alabama on this ground is to miss its point. The point is that, if the members of the assemblage could only plead their assembly rights themselves, the very interest being safeguarded by the Constitution here could never be protected meaningfully, since to require that the guests claim this right themselves would "result in nullification of the right at the very moment of its assertion." Id. at 459. I do not think it likely that anyone would deny the right of a bookseller (including a corporate bookseller) to decline to produce the names of those who had purchased his books. Cf. United States v. Rumely, 345 U.S. 41, 57 (concurring opinion), and the opinion below in that case, 90 U.S.App.D.C. 382, 197 F.2d 166, 172.{7}

Second. In examining the right of the State to obtain this information from the appellant by compulsory process, we must recollect what we so recently said in NAACP v. Alabama:

Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. De Jonge v. Oregon, 299 U.S. 353, 364; Thomas v. Collins, 323 U.S. 516, 530. It is beyond debate that freedom to engage in association for the advancement of beliefs and ideas is an inseparable aspect of the "liberty" assured by the Due Process Clause of the Fourteenth Amendment which embraces freedom of speech. See Gitlow v. New York, 268 U.S. 652, 666; Palko v. Connecticut, 302 U.S. 319, 324; Cantwell v. Connecticut, 310 U.S. 296, 303; Staub v. City of Baxley, 355 U.S. 313, 321. Of course, it is immaterial whether the beliefs sought to be advanced by association pertain to political, economic, religious or cultural matters, and state action which may have the effect of curtailing the freedom to associate is subject to the closest scrutiny.

357 U.S. at 460-461.

And, in examining the State’s interest in carrying out a legislative investigation, as was said in a similar context in United States v. Rumely, supra, at 44, we must strive not to be

that "blind" Court, against which Mr. Chief Justice Taft admonished in a famous passage, . . . that does not see what "[a]ll others can see and understand."

The problem of protecting the citizen’s constitutional rights from legislative investigation and exposure is a practical one, and we must take a practical, realistic approach to it.

Most legislative investigations unavoidably involve exposure of some sort or another. But it is quite clear that exposure was the very core, and deliberately and purposefully so, of the legislative investigation we are concerned with here. The Legislature had passed a broad and comprehensive statute, which included criminal sanctions. That statute was, to say the least, readily susceptible of many applications in which it might enter a constitutional danger zone. See Yates v. United States, 354 U.S. 298, 319. And it could not be applied at all insofar as it amounted to a sanction for behavior directed against the United States. Pennsylvania v. Nelson, 350 U.S. 497. Therefore, indictment would be fraught with constitutional and evidentiary problems of an obvious and hardly subtle nature. This may suggest the reason why the pattern of application of the Subversive Activities statute in New Hampshire was not through the processes of indictment. The Resolution was cast in terms of an investigation of conduct restricted by this existing statute. The Resolution and the Attorney General’s implementation of it reveal the making of a choice. The choice was to reach the end of exposure through the process of investigation, backed with the contempt power and the making of reports to the Legislature, of persons and groups thought to be somehow related to offenses under the statute or, further, to an uncertain penumbra of conduct about the proscribed area of the statute. And, as was said of the same investigation in Sweezy v. New Hampshire, supra, at 248:

[T]he program for the rooting out of subversion . . . [was] drawn without regard to the presence or absence of guilty knowledge in those affected.

The sanction of exposure was applied much more widely than anyone could remotely suggest that even traditional judicial sanctions might be applied in this area.

One may accept the Court’s truism that preservation of the State’s existence is undoubtedly a proper purpose for legislation. But, in descending from this peak of abstraction to the facts of this case, one must ask the question: what relation did this investigation of individual conduct have to legislative ends here? If bills of attainder were still a legitimate legislative end, it is clear that the investigations and reports might naturally have furnished the starting point (though only that) for a legislative adjudication of guilt under the 1951 Act. But what other legislative purpose was actually being fulfilled by the course taken by this investigation, with its overwhelming emphasis on individual associations and conduct?

The investigation, as revealed by the report, was overwhelmingly and predominantly a roving, self-contained investigation of individual and group behavior, and behavior in a constitutionally protected area. Its whole approach was to name names, disclose information about those named, and observe that "facts are facts." The New Hampshire Supreme Court has upheld the investigation as being a proper legislative inquiry, it is true. In Nelson v. Wyman, 99 N.H. 33, 38, 105 A.2d 756, 762, 763, it said:

No sound basis can exist for denying to the Legislature the power to so investigate the effectiveness of its 1951 act even though, as an incident to that general investigation, it may be necessary to inquire as to whether a particular person has violated the act. . . . When the investigation provided for is a general one, the discovery of a specific, individual violation of law is collateral and subordinate to the main object of the inquiry.

In evaluating this, it must be admitted that maintenance of the separation of powers in the States is not, in and of itself, a concern of the Federal Constitution. Sweezy v. New Hampshire, supra, at 255; Crowell v. Benson, 285 U.S. 22, 57. But for an investigation in the field of the constitutionally protected freedoms of speech and assemblage to be upheld by the broad standards of relevance permissible in a legislative inquiry, some relevance to a valid legislative purpose must be shown, and certainly the ruling made below, that, under the state law, the Legislature has authorized the inquiry, Wyman v. Uphaus, 100 N.H. 436, 445, 130 A.2d 278, 285, does not conclude the issue here. The bare fact that the Legislature has authorized the inquiry does not mean that the inquiry is for a valid legislative end when viewed in the light of the federal constitutional test we must apply. Nor, while it is entitled to weight, is the determination by a state court that the inquiry relates to a valid legislative end conclusive. It is the task of this Court, as the Court recognizes in theory today, to evaluate the facts to determine if there actually has been demonstrated a valid legislative end to which the inquiry is related. With all due respect, the quoted observations of the New Hampshire Supreme Court in the case of Nelson v. Wyman bear little relationship to the course of the inquiry, as revealed by the report published after that decision. The report discloses an investigation in which the processes of lawmaking and law evaluating were submerged entirely in exposure of individual behavior -- in adjudication, of a sort, however much disclaimed, through the exposure process.{8} If an investigation or trial, conducted by any organ of the State, which is aimed at the application of sanctions to individual behavior is to be upheld, it must meet the traditional standards that the common law in this country has established for the application of sanctions to the individual, or a constitutionally permissible modification of them. Cf. Kilbourn v. Thompson, 103 U.S. 168, 195. As a bare minimum, there must be general standards of conduct, substantively constitutionally proper, applied to the individual in a fair proceeding with defined issues resulting in a binding, final determination. I had not supposed that a legislative investigation of the sort practiced here provided such a framework under the Constitution.

It is not enough to say, as the Court’s position I fear may amount to, that what was taking place was an investigation and until the Attorney General and the Legislature had in all the data, the precise shape of the legislative action to be taken was necessarily unknown. Investigation and exposure, in the area which we are here concerned with, are not recognized as self-contained legislative powers in themselves. See Watkins v. United States, supra, at 200. Cf. NAACP v. Alabama, supra. Since this is so, it hardly fulfills the responsibility with which this Court is charged, or protecting the constitutional rights of freedom of speech and assembly, to admit that an investigation going on indefinitely in time, roving in subject matter, and cumulative in detail in this area can be in aid of a valid legislative end, on the theory that some day it may come to some point. Even the most abusive investigation, the one most totally committed to the constitutionally impermissible end of individual adjudication through publication, could pass such a test. At the stage of this investigation that we are concerned with, it continued to be a cumulative, broad inquiry into the specific details of past individual and associational behavior in the political area. It appears to have been a classic example of "a fruitless investigation into the personal affairs of individuals." Kilbourn v. Thompson, supra, at 195. Investigation appears to have been a satisfactory end product for the State, but it cannot be so for us in this case as we evaluate the demands of the Constitution. Nor can we accept the legislative renewal of the investigation, or the taking of other legislative measures to facilitate the investigation, as being themselves the legislative justification of the inquiry. The report indicates that it so viewed them; in requesting legislation renewing the investigation and an investigation immunity statute, the Attorney General significantly stated that, if the renewal legislation or some investigatory substitute were not passed, it "would mean no further investigation, no continuing check upon Communist activities. . . ." This is just to admit the continuing existence of the investigation as a self-contained justification for the inquiry. However much the State may be content to rely on the investigation as its own sanction, I think it perfectly plain that it cannot be regarded as a justification here. Nor can the faint possibility that an already questionably broad criminal statute might be further broadened, if constitutionally permissible, be considered the subordinating legislative purpose here, particularly in the light of what the investigation was in fact as revealed by its report. Of course, after further investigation and further reports, legislation of some sort might eventuate, or at least be considered. Perhaps it might be rejected because of serious doubts as to its constitutionality -- which would, I think, underline the point I am making. But, on such airy speculation, I do not see how we can say that the State has made any showing that this investigation, which on its surface has an overwhelming appearance of a simple wide-ranging exposure campaign, presents an implementation of a subordinating lawmaking interest that, as the Court concedes, the State must be shown to have.

This Court’s approach to a very similar problem in NAACP v. Alabama, supra, should furnish a guide to the proper course of decision here. There, the State demonstrated a definite purpose which was admittedly within its competence. That purpose was the ascertainment whether a foreign corporation was unlawfully carrying on local activities within Alabama’s borders, because not qualified to do business in the manner required by state law. In a judicial proceeding having this as its express stated purpose, the State sought to obtain the membership list of the corporation. This Court carefully recognized the curbing of associational freedom that the disclosure called for by this inquiry would entail. It then analyzed the relationship between the inquiry and this purpose, and, concluding that there was no rational connection, it held the inquiry constitutionally impermissible. Here, the situation is even more extreme; there is no demonstration at all of what the legislative purpose is, outside of the investigation of violations, suspicions of violations, and conduct raising some question of violation of an existing statute.{9} It is anomalous to say, as I fear the Court says today, that the vaguer the State’s interest is, the more laxly will the Court view the matter and indulge a presumption of the existence of a valid subordinating state interest. In effect, a roving investigation and exposure of past associations and expressions in the political field is upheld because it might lead to some sort of legislation which might be sustained as constitutional, and the entire process is said to become the more defensible, rather than the less, because of the vagueness of the issues. The Court says that the appellant cannot argue against the exposure because this is an investigation, and the exposure may make the investigation lead somewhere, possibly to legislative action. But this is just to say that an investigation, once under state law it is classified as "legislative," needs no showing of purpose beyond its own existence. A start must be made somewhere, and, if the principles this Court has announced, and to which the Court today makes some deference, are to have any meaning, it must be up to the State to make some at least plausible disclosure of its lawmaking interest so that the relevance of its inquiries to it may be tested. Then the courts could begin to evaluate the justification for the impact on the individual’s rights of freedom of speech and assembly. But here, not only has the State failed to begin to elucidate such an interest; it has positively demonstrated, it appears to me, through its Resolution, the Attorney General’s and the state courts’ interpretation of it, and the Resolution’s reenactment, that what it is interested in is exposure, in lieu of prosecution, and nothing definable else.

The precise details of the inquiry we are concerned with here underlines this. The Attorney General had World Fellowship’s speaker list, and had already made publication of it in the fashion to which I have alluded. He had considerable other data about World Fellowship, Inc., which he had already published. What reason has been demonstrated, in terms of a legislative inquiry, for going into the matter in further depth? Outside of the fact that it might afford some further evidence as to the existence of "subversive persons" within the State, which I have endeavored to show was not in itself a matter related to any legislative function except self-contained investigation and exposure themselves, the relevance of further detail is not demonstrated. But its damaging effect on the persons to be named in the guest list is obvious. And since the only discernible purpose of the investigation on this record is revealed to be investigation and exposure per se, and the relevance of the names to that purpose alone is quite apparent, this discloses the constitutional infirmity in the inquiry which requires us to strike down the adjudication of contempt in question here.

The Court describes the inquiry we must make in this matter as a balancing of interests. I think I have indicated that there has been no valid legislative interest of the State actually defined and shown in the investigation as it operated, so that there is really nothing against which the appellant’s rights of association and expression can be balanced. But if some proper legislative end of the inquiry can be surmised, through what must be a process of speculation, I think it is patent that there is really no subordinating interest in it demonstrated on the part of the State. The evidence inquired about was simply an effort to get further details about an activity as to which there already were considerable details in the hands of the Attorney General. I can see no serious and substantial relationship between the furnishing of these further minutiae about what was going on at the World Fellowship camp and the process of legislation, and it is the process of legislation, the consideration of the enactment of laws, with which ultimately we are concerned. We have a detailed inquiry into an assemblage the general contours of which were already known, on the one hand, and, on the other, the remote and speculative possibility of some sort of legislation -- albeit legislation in a field where there are serious constitutional limitations. We have this in the context of an inquiry which was, in practice, being conducted in its overwhelming thrust as a vehicle of exposure, and where the practice had been followed of publishing names on the basis of a "not proven" verdict. We are not asked to hold that the State cannot carry on such factfinding at all, with or without compulsory process. Nor are we asked to hold that, as a general matter, compulsory process cannot be used to amass facts whose initial relevance to an ultimate legislative interest may be remote. Cf. McGrain v. Daugherty, 273 U.S. 135, 176-180.{10} We deal with a narrow and more subtle problem. We deal here with inquiries into the areas of free speech and assemblage where the process of compulsory disclosure itself tends to have a repressive effect. Cf. Speiser v. Randall, supra. We deal only with the power of the State to compel such a disclosure. We are asked, in this narrow context, only to give meaning to our statement in Watkins v. United States, supra, at 198, "that the mere semblance of a legislative purpose would not justify an inquiry in the face of the Bill of Rights." Here, we must demand some initial showing by the State sufficient to counterbalance the interest in privacy as it relates to freedom of speech and assembly. On any basis that has practical meaning, New Hampshire has not made such a showing here. I would reverse the judgment of the New Hampshire Supreme Court.

MR. JUSTICE BLACK, and MR. JUSTICE DOUGLAS would decide this case on the ground that appellant is being deprived of rights under the First and Fourteenth Amendments, for the reasons developed in Adler v. Board of Education, 342 U.S. 485, 508 (dissenting opinion); Beauharnais v. Illinois, 343 U.S. 250, 267, 284 (dissenting opinions). But they join MR. JUSTICE BRENNAN’s dissent because he makes clear to them that New Hampshire’s legislative program resulting in the incarceration of appellant for contempt violates Art. I, § 10 of the Constitution, which provides that "No state shall . . . pass any bill of attainder." See United States v. Lovett, 328 U.S. 303, 315-318, and cases cited; Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 142-149 (concurring opinion).

1. The two leading earlier cases relate generally to the congressional power to investigate, and were not required to explore it in the contexts of freedom of speech and of assembly. Kilbourn v. Thompson, 103 U.S. 168; McGrain v. Daugherty, 273 U.S. 135. See the opinion in the latter case, ibid. at 175-176.

2. The Act was c. 193 of the Laws of New Hampshire, 1951. After an extensive preamble, § 1 provided various definitions, including definitions of "subversive organization" and "foreign subversive organization"; the definition of "subversive person," also provided, was:

any person who commits, attempts to commit, or aids in the commission, or advocates, abets, advises or teaches, by any means any person to commit, attempt to commit, or aid in the commission of any act intended to overthrow, destroy or alter, or to assist in the overthrow, destruction or alteration of, the constitutional form of the government of the United States, or of the state of New Hampshire, or any political subdivision of either of them, by force, or violence; or who is a member of a subversive organization or a foreign subversive organization.

For a discussion of the breadth of this definition, see Sweezy v. New Hampshire, supra, at 246-247.

Section 2 of the Act defines the crime of sedition. The definition is based on the quoted definition of "subversive person," except that the final "membership clause" is omitted and a "clear and present danger" test is introduced in regard to advocacy, abetting, advising and teaching. Assisting in the formation of a subversive organization or foreign subversive organization, managing one, contributing to its support, destroying its papers, or hiding its funds, "knowing said organization to be a subversive organization or a foreign subversive organization" also constitutes the offense, which is punishable by twenty years’ imprisonment or a fine of $20,000, or both. Those who become or remain members of a subversive organization or a foreign subversive organization, after certain dates, "knowing said organization to be a subversive organization or a foreign subversive organization," under § 3, are liable to five years’ imprisonment or a $5,000 fine, or both. Section 4 disqualifies those convicted under § 2 or § 3 from public office or employment, and § 9 erects a similar disqualification in the case of all "subversive persons." Section 5 provides for the dissolution of subversive organizations and foreign subversive organizations functioning in New Hampshire.

3. None appears to have been made.

4. The Communist Control Act of 1954, § 5, c. 886, 68 Stat. 776, 50 U.S.C. § 814.

5. Although the nature of the investigation of individuals in difficult to convey without reproduction of the full report, two individual write-ups from other sections of the book (the names are used in the report, but not here) are illustrative.

A two-page item is entitled "The Matter of . . . (X)." It begins:

In recent years, there has been opposition to legislative investigations in some academic circles. Charges have been made, usually without an accompanying scintilla of evidence, that "hysteria" rules the country and that teachers are afraid to teach "the truth" because of the "witch hunters." This line is repeated ad infinitum in the Communist "Daily Worker."

In New Hampshire, during the course of this investigation, a case did arise where rumors were circulated concerning a teacher. . . .

The report proceeds:

The teacher concerning whom the rumors were circulated was (X), a teacher in the (Y city) public school system. When the rumors concerning Mr. (X) came to the attention of this office, he was invited to testify. . . .

The report relates that X appeared "voluntarily" and testified "fully" that he was not a member of any organization on the Attorney General’s list, and never had been.

This office was prepared to make full investigation of the facts and to make public the results of such an investigation if it would effectuate the purposes of the current probe. (X) resigned and secured employment outside the state. Had (X) not decided to submit his resignation, such a course of action would have been taken, but facilities were not available for inquiring into moot problems. . . .

The report, after noting that none of its available usual informants had anything damaging to say about X, concludes its discussion of this "matter":

It should be clear to factions who oppose per se any legislative investigation into subversion that such investigations can serve the purpose of insuring legitimate academic interests against unfounded rumor or gossip.

We are left to conjecture whether Mr. X would subscribe to the Attorney General’s conclusion.

An 11-page write-up is the story of Y, a Chief of Police in a New Hampshire municipality. Y admitted having been a Communist from 1936 till 1944, but said that he withdrew then, and currently regarded the Communist Party as something on a par with Hitler. A witness said that Y’s name was on a secret Communist Party list after then. Pages of the details of inconclusive statements and counterstatements in this regard follow, including a "confrontation" of Chief Y and a witness in the Attorney General’s office at which were present the Board of Selectmen of the town for which he was Police Chief. The report then lists various "situations in which Chief (Y) was not able to be of assistance to this investigation," and finally comes to the "Conclusion":

Due to the conspiratorial, clandestine, and currently underground nature of the Communist Party, as well as the inability to force witnesses to testify concerning subversive activities, the above conflicts in testimony here have not been resolved, and are presented as they exist on the record, without further comment. . . .

The usual individual biography is shorter and less detailed than this; many just state the individual’s name and street address, set forth a reference to him in the Daily Worker or an "identification" with the Communist Party at some date or with a "front" group, and state that the subject invoked or took refuge in the privilege against self-incrimination when questioned before the Attorney General.

6. See p. 92, supra.

7. The Court apparently draws some support from the New Hampshire lodging house registration statute for its conclusions about the lack of substantiality of the guests’ interests in nondisclosure. Since the statute admittedly would not cover what the Attorney General desired to obtain, and since the New Hampshire courts themselves did not rest on it, it is difficult to find any basis for this reliance. It would be time enough to deal with a production order based on that statute when it arose.

8. While, as a general matter, it is true that a State can distribute its governmental powers as it sees fit, as far as the Federal Constitution is concerned, it is also true that (regardless of what organ exercises the functions) different constitutional tests apply in examining state legislative and state adjudicatory powers. See Bi-Metallic Investment Co. v. State Board of Equalization, 239 U.S. 441.

9. Cf. the address of Mr. William T. Gossett, Vice-President and General Counsel of Ford Motor Company at the Annual Brotherhood Dinner, Detroit, Michigan, November 20, 1958, in which he said:

We must urge upon our lawmakers a scrupulous exactness, particularly in the exercise of their investigative powers. When we are frustrated by the feeling that certain people -- suspected subversives, gangsters or labor racketeers, for example -- have flaunted society with impunity, it is tempting to pillory them through prolonged public exposure to hearsay testimony, intemperate invective, and other forms of abuse. But to try by such means to destroy those whom we are unable to convict by due process of law may destroy, instead, the very safeguards that protect us all against tyranny and arbitrary power.

10. McGrain v. Daugherty found legislative justification in a congressional inquiry which presented a rather strong element of exposure of past wrongdoing, to be sure. But the possibility of legislation was much more real than is the case here, and the legislative subject matter -- control and regulation of the structure and workings of an executive department -- was one not fraught with the constitutional problems presented by legislation in the field of political advocacy and assembly. And the inquiry itself, most significantly, was not directed at private assembly and discussion, but at the conduct of a public official in office; it did not have the inhibitory effect on basic political freedoms that the inquiry we are here concerned with presents. Cf. Watkins v. United States, supra, at 200, note 33. The Daugherty case is basically, then, one relating to the distribution of powers among branches of the Federal Government.


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Chicago: Brennan, "Brennan, J., Dissenting," Uphaus v. Wyman, 360 U.S. 72 (1959) in 360 U.S. 72 360 U.S. 83–360 U.S. 99. Original Sources, accessed September 24, 2018, http://www.originalsources.com/Document.aspx?DocID=D24MJFV9HQCTH5P.

MLA: Brennan. "Brennan, J., Dissenting." Uphaus v. Wyman, 360 U.S. 72 (1959), in 360 U.S. 72, pp. 360 U.S. 83–360 U.S. 99. Original Sources. 24 Sep. 2018. www.originalsources.com/Document.aspx?DocID=D24MJFV9HQCTH5P.

Harvard: Brennan, 'Brennan, J., Dissenting' in Uphaus v. Wyman, 360 U.S. 72 (1959). cited in 1959, 360 U.S. 72, pp.360 U.S. 83–360 U.S. 99. Original Sources, retrieved 24 September 2018, from http://www.originalsources.com/Document.aspx?DocID=D24MJFV9HQCTH5P.