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June 11, 1957

Seymour PECK

The opinion of the court was delivered by: YOUNGDAHL

The defendant, Seymour Peck, was convicted of 'contempt of Congress' *fn1" on March 26, 1957. In view of the recent decision of the Supreme Court of the United States in Watkins v. United States, *fn2" he has moved for judgment of acquittal. *fn3"

Seymour Peck is a newspaperman employer by the 'New York Times'. By the use of compulsory process, the Internal Security Subcommittee of the United States Senate required Peck to appear as a witness before it. He freely answered all questions concerning his own activities, frankly admitted his past Communist affiliations, explained the reasons therefor, told the Subcommittee that he had fully terminated these affiliations in 1949, seven years prior to the date of his appearance before it, and added that in the seven years immediately preceding 1949 his associations with the Communist movement were virtually negligible. However, Peck refused to answer the questions which would have required him to identify others as Communists.

 In the Watkins case, supra, the Supreme Court explicitly set forth the framework for judicial evaluation of prosecutions for contempt of Congress. The Court said, 'In the decade following World War II, there appeared a new kind of congressional inquiry unknown in prior periods of American history. Principally this was the result of the various investigations into the threat of subversion of the United States Government, but other subjects of congressional interest also contributed to the changed scene. This new phase of legislative inquiry involved a broad-scale intrusion into the lives and affairs of private citizens. It brought before the courts novel questions of the appropriate limits of congressional inquiry. * * * The emphasis shifted to problems of accommodating the interest of the Government with the rights and privileges of individuals. The central theme was the application of the Bill of Rights as a restraint upon the assertion of governmental power in this form.' *fn4" The Supreme Court forthrightly explained the reason for this shift in emphasis by setting forth the evils which result from abuses of the congressional power to investigate. The Supreme Court stated that these abuses not only invade the freedoms of the individual summoned as a witness, but that they adversely affect the general public as well by impeding freedom of thought and association. *fn5"

 This case exemplifies the abuses the Supreme Court sought to curtail. The Senate Internal Security Subcommittee conducted investigations which were indistinguishable in scope or nature from those the Supreme Court condemned. In addition, the particular series of hearings here involved constituted an even more serious threat to freedom of thought and expression. For these hearings consisted of the questioning of persons employed in the newspaper field, in radio and television. The danger inherent in such an investigation is found not only in the effect upon those investigated but also in the potential effect upon others in the same field. *fn6" There is no need to stress the importance to our society of a free press -- and, therefore, of the necessity of enabling writers to formulate ideas and associations freely and without fear of governmental retribution by investigation or otherwise. History is replete with instances in which writers and philosophers have been penalized by the state, but it is always the writers and philosophers who are remembered and admired, never their prosecutors or inquisitors. It is difficult to draw the line between investigations of the political beliefs of newspapermen and investigations of newspapers. For newspapers consist of news stories and editorials; and news stories and editorials are written by newspapermen. To inhibit the freedom of thought and association of newspapermen is to infringe upon the freedom of the press. It is also a temptation to those investigating newspapermen to wander into the field of press content, and at times during these hearings the Subcommittee was unable to resist even this direct invasion. This Court said at the time of the trial that it had grave doubts as to the constitutionality of such a series of hearings, particularly under a resolution which does not contain specific authority therefor. *fn7" This Court added, however, that it felt that earlier opinions of the United States Court of Appeals for the District of Columbia had foreclosed that question. *fn8" At that time the Watkins case had been decided by the United States Court of Appeals for the District of Columbia in the government's favor and the Supreme Court had not yet spoken. The Supreme Court's opinion, however, reopens this field to consideration as a result of the restoration of concern for individual liberties to its traditional high place in the judicial system, and the recognition of the practical effects of such investigations. Nevertheless, the instant case is not to be determined by the Subcommittee's violation of freedom of the press, for of even greater importance is the fact that Peck was deprived of the rights to which all witnesses, whatever their occupations, are entitled.

 The questions which Peck refused to answer infringed upon his basic First Amendment freedoms. Peck did not refuse to answer questions relating to espionage, sabotage, or the overthrow of the government by force and violence. In fact he informed the Subcommittee that he possessed no information whatever on those subjects and said that he would be willing to volunteer any such information to his government at any time -- that he considered it his duty as a citizen to do so. The infringement stems from the Subcommittee's action in summoning an individual, compelling him to disclose his past political associations, and insisting that he reveal the views and associations of his friends and colleagues. In so doing, the Subcommittee invaded the individual's protected freedoms of privacy, thought, and association. *fn9" The effects of such an invasion upon the life of an individual, his family, and his friends, are often disastrous and the community as a whole is seriously harmed. Yet under certain circumstances the Congress may infringe upon an individual's First Amendment freedoms, but only when the national interest clearly justifies such drastic action, *fn10" and only when there is strict compliance with all procedural requirements. *fn11"

 Peck was asked to identify persons who belonged to groups at a time when those groups constituted legitimate political associations and when many Americans who would have violently opposed the overthrow of the government by force were members. These questions related to periods which were remote in time and in which a different political climate prevailed. There had not yet occurred any armed conflict between American and Communist armies. The witness was asked to name his fellow members of the Young Communist unit at Hearns Department Store (in 1937-42) and the Communist party unit at a now defunct newspaper 'The New York Star' (in late 1948 and early 1949). *fn12" There is little, if any, national interest to be served by engaging in so indiscriminate a resurrection of the political past -- and whatever interest there is, is more than counterbalanced by the deprivation of First Amendment rights. So, too, with regard to the other questions Peck refused to answer. He declined to reveal whether he knew Mathilda Landsman to be a Communist either at the time he testified or when she worked as secretary to newspaper editors. The Subcommittee already had received information from a so-called 'friendly' witness that Landsman was a 'Communist'. Thus Peck's confirmation, if in fact he could confirm this information, could be of little help to the Subcommittee in its efforts to identify 'subversives'. The Subcommittee already had all the information it needed to justify calling Landsman to question her about any 'subversive activities'. If upon questioning, Landsman denied the accusation, and the government considered prosecuting her for perjury, that would be time enough for the executive branch of the government to question her associates in order to determine its course of action. Nor was there any other valid national security interest great enough to justify the Subcommittee's requiring Peck to answer the question. The desire to check upon the reliability of a friendly witness is insufficient.

 The balancing of the 'Congressional need for particular information with the individual and personal interest in privacy is an arduous and delicate task for any court.' *fn13" But it is a task which courts must perform. Failure to do so would be to 'abdicate the responsibility placed by the Constitution upon the judiciary to insure that the Congress does not unjustifiably encroach upon an individual's right to privacy nor abridge his liberty of speech, press, religion or assembly.' *fn14" In performing the judicial function, courts do not invade the legislative preserve. They do not tell the Congress what it may investigate or how it must proceed. They merely insist that individuals not be punished for actions which are not legally punishable.

 But even if the interests of national security could be said to justify requiring Peck to answer the questions, the conviction could not stand. For the procedural defects inherent in the Subcommittee's investigations are such as to render unconstitutional any infringement of a witness' First Amendment rights.

 The major defect in the investigations of the Internal Security Subcommittee is the vagueness of the resolution pursuant to which they were conducted. Although a pre-Watkins divided Court of Appeals decided that this resolution was sufficiently specific to meet the standards then deemed controlling as to authorizing resolutions, *fn15" it is abundantly clear that the resolution can no longer be said to avoid 'the vice of vagueness'. *fn16" In Watkins, the Supreme Court found that the authorizing resolution of the Un-American Activities Committee of the House of Representatives is of 'confusing breadth' and that 'its * * * boundaries are so nebulous' *fn17" that it is impossible for courts to determine when the Committee has exceeded its authority. The Court's conclusion was based on three factors: (1) the indefiniteness inherent in the term 'un-American activities', (2) the wide 'range of activity' of past Communist inquiries, and (3) the probe into the past 'to collect minutiae'. *fn18"

 It seems unnecessary to explore in detail the nature of the authorizing resolution herein involved, the scope of the Subcommittee's previous investigations, or to belabor its propensity for equating the past with the present. It seems manifest that the vices to be found in the House Un-American Activities Committee's authorizing resolution are equally present in the charter of the Senate Internal Security Subcommittee. The Senate Resolution is composed of three sections, two of which relate to the study of internal security laws. The third section, however, purports to grant the authority to investigate 'subversive activities'. *fn19" The Supreme Court has clearly indicated that such a grant of authority must fail for want of definiteness. In Watkins the Court noted that the Chairman of the Un-American Activities Committee had announced that the scope of the investigation was 'subversion and subversive propaganda'. The Court then said, 'This is a subject at least as broad and indefinite as the authorizing resolution of the Committee, if not more so.' *fn20"

 In its resolution, the Senate did not undertake the troublesome task of defining 'subversive activities'. The Senate did explicitly state, however, that the investigation was not limited to 'movement(s) seeking to overthrow the Government of the United States by force and violence.' But no indication is given as to what else is deemed 'subversive', nor is the Court aware of a satisfactory definition. What may be a fit subject for investigation one day may be tomorrow's sacred cow. What is the height of orthodoxy today may be viewed as 'un-American' tomorrow. Nor is there any individual who can be certain that he is not considered 'subversive' by some of his fellow citizens. Who is to say, for example, whether one who is openly dedicated to depriving his neighbors of their 14th Amendment rights under the Federal Constitution is a 'subversive'? The dangers of classifying certain forms of belief or political activity as 'subversive' are all too apparent from the recent history of this country. It is too easy for one segment of public opinion to smear with that label those who hold opinions which are unpopular. Such labeling by means of legislative investigations constitutes a drastic form of Governmental sanction. *fn21" When that labeling is done in the manner utilized by the Senate Internal Security Subcommittee it becomes intolerable. Democracy deals with unpopular views by offering better ideas and programs, not by outlawing those views or penalizing their adherents.

 The resolution cannot be saved by reference to the first two sections, which concern investigations of the Internal Security Act and laws relating to espionage and sabotage. Nor can it be saved by construing the third section to include only such 'subversive activities' as are comprehended within the 'including but not limited to' clause. *fn22" For the history of the Subcommittee's investigations *fn23" shows that it conceived its mission to be the broad task of rooting out 'subversives' or Communists wherever if found them. The Subcommittee made no effort to distinguish among the several sections of its authorizing resolution in conducting its investigations, and thus the resolution must be evaluated as a whole. The Court must view it in the light of the Subcommittee's understanding of its mandate -- to root out subversion. A comparison of the Subcommittee's reports with those of the Un-American Activities Committee demonstrates an identity of understanding as to the sweeping mission to be accomplished. Each conceived of itself as the nation's watchdog. Each thought that it was capable of determining what was 'Un-American', what was 'subversive'. Each failed to distinguish between innocent associations with groups which were legitimate at the time of membership and knowing adherence to a criminal conspiracy. Neither restricted its ...

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