The opinion of the court was delivered by: KEECH
This cause came on for hearing on defendant's motion to dismiss, motion to take testimony in aid of motion to dismiss, and motion to inspect the minutes of the Grand Jury, and the memorandum of the Government in opposition thereto, as well as lengthy argument of counsel.
In substance, the motion to dismiss is reducible to the following points:
1. House Resolution 5 of the 80th Congress is unconstitutional in so far as it continues the House Committee on Un-American Activities.
2. The House Committee on Un-American Activities, before which defendant was summoned to appear, was not a committee of the House of Representatives, in that it did not consist exclusively of members of the House of Representatives, but included one who was not legally a member of the Congress, hence not a proper party to be a member of the Committee.
3. The indictment fails to set forth an offense.
4. Section 192 of Title 2 U.S.C.A., as construed and applied together with House Resolution No. 5, is violative of the Constitution.
5. The indictment fails to show compliance with Section 194 of Title 2 U.S.C.A.
1. Counsel for defendant attacks the constitutionality of House Resolution 5, 80th Congress, which continued in effect Rule XI of the House of Representatives as enacted in Public Law 601, c. 753, 79th Congress, approved August 2, 1946, 60 Stat. 812, 828, creating and defining the duties of the House Committee on Un-American Activities. The pertinent paragraphs of that Act provide:
'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 Committee on Un-American Activities shall report to the House (or to the Clerk of the House if the House is not in session) the results of any such investigation, together with such recommendations as it deems advisable.' Section 121, rule 11(q).
It is contended that the resolution purports to create a committee to consider matters outside the express powers delegated to the Congress by the Constitution, and that the Congress cannot appoint a committee of inquiry outside the power to legislate, to judge of the elections or qualifications of its members, or to impeach. It is further argued that the resolution purports to create a committee to exercise powers expressly reserved to the people by the Tenth Amendment and in violation of the First Amendment, and that it sets up no recognizable standards either for the scope of the investigation or for the conduct of the committee and therefore violates the Fifth Amendment of the Constitution.
Counsel for defendant argues that, as the Constitution contains no reference to Congressional authority to deal with either 'propaganda' or 'propaganda activities', no such authority exists.
The subject matter of the investigations by the House Committee on Un-American Activities, authorized by Rule XI, namely, 'the extent, character, and objects of un-American propaganda activities in the United States', and '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,' is comparable to that dealt with by the Foreign Agents Registration Act of 1938, as amended April 29, 1942, 22 U.S.C.A. § 611 et seq., which was enacted 'to protect the national defense, internal security, and foreign relations of the United States by requiring public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the Government and the people of the United States may be informed of the identify of such persons and may appraise their statements and actions in the light of their associations and activities.' Prosecutions under the Registration Act have been sustained by the Supreme Court. Viereck v. United States, 78 U.S.App.D.C. 279, 139 F.2d 847; certiorari denied 321 U.S. 794, 64 S. Ct. 787, 88 L. Ed. 1083.
It is further contended that 'propaganda is speech' and any legislation which might result from the Committee's activities would therefore violate the First Amendment to the Constitution, which guarantees the right of free speech. In support of this position it is stated that the Committee, in more than ten years of existence, ...