fronts will merge to avoid exposure or prosecution. At times they have been known to assume a name similar to some well-known and respectable organization. An example is the Methodist Federation for Social Action which has no official connection with the Methodist Church. * * *' Pp. 91, 95.
The Methodist Federation for Social Action filed a complaint in the District Court against the members of the Senate Subcommittee, the Public Printer, and the Superintendent of Documents. The complaint says the charge that the plaintiff is a Communist front is false as well as defamatory, was made without a hearing, and causes irreparable injury. It says the Concurrent Resolution abridges the plaintiff's rights of free speech, assembly, press and religion, deprives the plaintiff of liberty and property without due process of law, and is a bill of attainder. It asks a declaration that the Concurrent Resolution is unconstitutional, an order enjoining the defendants from printing and distributing the Senate Document, and a temporary restraining order.
On May 3, 1956 Judge Wilkin in the District Court issued a temporary restraining order against the Public Printer and the Superintendent of Documents. He also asked for the appointment of this three-judge District Court in accordance with 28 U.S.C. § 2282, 62 Stat. 968. In his view, which we have adopted, the restraining order expired when this court convened.
The Public Printer and the Superintendent of Documents have answered the complaint, and have also filed a motion to dismiss or in the alternative for summary judgment. No appearance has been entered on behalf of the members of the Senate Subcommittee. Whatever the facts may be, for the purpose of deciding whether the complaint should be dismissed we must assume that its factual assertions are true.
By express provision of the Constitution, members of Congress, 'for any Speech or Debate in either House * * * shall not be questioned in any other Place.' Art. I, § 6. It would be paradoxical if members could be questioned in any other place for statements in a document which both houses have ordered published.
Nothing in the Constitution authorizes anyone to prevent the President of the United States from publishing any statement. This is equally true whether the statement is correct or not, whether it is defamatory or not, and whether it is or is not made after a fair hearing. Similarly, nothing in the Constitution authorizes anyone to prevent the Supreme Court from publishing any statement. We think it equally clear that nothing authorizes anyone to prevent Congress from publishing any statement.
No previous case has been called to our attention in which it has even been attempted to prevent publication of anything Congress has ordered published. In Hearst v. Black, 66 App.D.C. 313, 87 F.2d 68, the plaintiff sought among other things to enjoin the members of a Senate Committee from publishing telegrams alleged to have been obtained in violation of his constitutional rights. The United States Court of Appeals for the District of Columbia said in denying relief: 'If a court could say to the Congress that it could use or could not use information in its possession, the independence of the Legislature would be destroyed and the constitutional separation of the powers of government invaded.' 66 App.D.C. at pages 316-317, 87 F.2d at pages 71-72. Since Congress has ordered publication of the Senate Document involved in this case, and had not ordered publication of the telegrams involved in the Hearst case, it is even plainer here than there that a judgment for the plaintiff would invade the constitutional separation of powers.
The premise that courts may refuse to enforce legislation they think unconstitutional does not support the conclusion that they may censor congressional language they think libelous. We have no more authority to prevent Congress, or a committee or public officer acting at the express direction of Congress, from publishing a document than to prevent them from publishing the Congressional Record. If it unfortunately happens that a document which Congress has ordered published contains statements that are erroneous and defamatory, and are made without allowing the persons affected an opportunity to be heard, this adds nothing to our authority. Only Congress can deal with such a problem.
The constitutional history called to our attention includes no instance in which an English court has attempted to restrain Parliament, or an American court to restrain Congress, from publishing any statement. This history therefore tends to confirm our view.
In Joint Anti-Fascist Refugee Committee v. McGrath, 341 U.S. 123, 71 S. Ct. 624, 95 L. Ed. 817, neither the President nor Congress had directed the Attorney General to take the particular action which the Court restrained him from taking; and the action restrained was an adverse ruling that had legal consequences, not a mere defamatory publication.
We need not consider whether an injunction would violate the First Amendment as well as the prerogative of Congress.
As to the members of the Senate Subcommittee, the complaint is dismissed for lack of jurisdiction. Cf. Hearst v. Black, supra. As to the Public Printer and the Superintendent of Documents, the complaint is dismissed for failure to state a claim on which relief can be granted.