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May 27, 1975



Burger, Douglas, Brennan, Stewart, White, Marshall, Blackmun, Powell, Rehnquist

Author: Burger

[ 421 U.S. Page 492]

 MR. CHIEF JUSTICE BURGER delivered the opinion of the Court.

We granted certiorari to decide whether a federal court may enjoin the issuance by Congress of a subpoena duces tecum that directs a bank to produce the bank records of an organization which claims a First Amendment

[ 421 U.S. Page 493]

     privilege status for those records on the ground that they are the equivalent of confidential membership lists. The Court of Appeals for the District of Columbia Circuit held that compliance with the subpoena "would invade the constitutional rights" of the organization, and that judicial relief is available to prevent implementation of the subpoena.


In early 1970 the Senate Subcommittee on Internal Security was given broad authority by the Senate to "make a complete and continuing study and investigation of... the administration, operation, and enforcement of the Internal Security Act of 1950...." S. Res. 341, 91st Cong., 2d Sess., (1970). The authority encompassed discovering the "extent, nature, and effect of subversive activities in the United States," and the resolution specifically directed inquiry concerning "infiltration by persons who are or may be under the domination of... foreign government...." Ibid. See also S. Res. 366, 81st Cong., 2d Sess. (1950). Pursuant to that mandate the Subcommittee began an inquiry into the activities of respondent United States Servicemen's Fund, Inc. (USSF).

USSF describes itself as a nonprofit membership corporation supported by contributions.*fn1 Its stated purpose is "to further the welfare of persons who have served or are presently serving in the military." To accomplish its declared purpose USSF has engaged in various activities*fn2 directed at United States servicemen.

[ 421 U.S. Page 494]

     It established "coffeehouses" near domestic military installations, and aided the publication of "underground" newspapers for distribution on American military installations throughout the world. The coffeehouses were meeting places for servicemen, and the newspapers were specialized publications which USSF claims dealt with issues of concern to servicemen. Through these operations USSF attempted to communicate to servicemen its philosophy and attitudes concerning United States involvement in Southeast Asia. USSF claims the coffeehouses and newspapers became "the focus of dissent and expressions of opposition within the military toward the war in [Southeast Asia]."*fn3

In the course of its investigation of USSF, the Subcommittee concluded that a prima facie showing had been made of the need for further investigation, and it resolved that appropriate subpoenas, including subpoenas duces tecum could be issued. Petitioner Eastland, a United States Senator, is, as he was then, Chairman of the Subcommittee. On May 28, 1970, pursuant to the above authority, he signed a subpoena duces tecum, issued on behalf of the Subcommittee, to the bank where USSF then had an account. The subpoena commanded the bank to produce by June 4, 1970: S

"any and all records appertaining to or involving the account or accounts of [USSF]. Such records to comprehend papers, correspondence, statements, checks, deposit slips and supporting documentation, or microfilm thereof within [the bank's] control or custody or within [its] means to produce."I

From the record it appears the subpoena was never actually served on the bank.*fn4 In any event, before the

[ 421 U.S. Page 495]

     return date, USSF and two of its members brought this action to enjoin implementation of the subpoena duces tecum.

The complaint named as defendants Chairman Eastland, nine other Senators, the Chief Counsel to the Subcommittee, and the bank.*fn5 The complaint charged that the authorizing resolutions and the Subcommittee's actions implementing them were an unconstitutional abuse of the legislative power of inquiry, that the "sole purpose" of the Subcommittee investigation was to force "public disclosure of beliefs, opinions, expressions and associations of private citizens which may be unorthodox or unpopular," and that the "sole purpose" of the subpoena was to "harass, chill, punish and deter [USSF and its members] in their exercise of their rights and duties under the First Amendment and particularly to stifle the freedom of the press and association guaranteed by that amendment."*fn6 The subpoena was issued to the bank rather than to USSF and its members, the complaint claimed, "in order to deprive [them] of their rights to protect their private records, such as the sources of their contributions, as they would be entitled to do if the subpoenas had been issued against them directly." The complaint further claimed that financial support to

[ 421 U.S. Page 496]

     USSF is obtained exclusively through contributions from private individuals, and if the bank records are disclosed "much of that financial support will be withdrawn and USSF will be unable to continue its constitutionally protected activities."*fn7

For relief USSF and its members, the respondents, sought a permanent injunction restraining the Members of the Subcommittee and its Chief Counsel from trying to enforce the subpoena by contempt of Congress or other means and restraining the bank from complying with the subpoena.*fn8 Respondents also sought a declaratory judgment declaring the subpoena and the Senate resolutions void under the Constitution. No damages claim was made.

Since the return date on the subpoena was June 4, 1970, three days after the action was begun, enforcement of the subpoena was stayed*fn9 in order to avoid mootness and to prevent possible irreparable injury. The District Court then held hearings and took testimony on the matter. That court ultimately held*fn10 that respondents

[ 421 U.S. Page 497]

     had not made a sufficient showing of irreparable injury to warrant an injunction. The court also purported to strike a balance between the legislative interest and respondents' asserted First Amendment rights, NAACP v. Alabama, 357 U.S. 449 (1958). It concluded that a valid legislative purpose existed for the inquiry because Congress was pursuing its functions, under Art. I, § 8, of raising and supporting an army, and had a legitimate interest in "scrutiniz[ing] closely possible infiltration of subversive elements into an organization which directly affects the armed forces of this country."*fn11 Relying on Barenblatt v. United States, 360 U.S. 109 (1959), the District Court concluded that the legislative interest must prevail over respondents' asserted rights, and denied respondents' motions for preliminary and permanent injunctions. It also dismissed as to the petitioner Senators after concluding that the Speech or Debate Clause immunizes them from suit. Dombrowski v. Eastland, 387 U.S. 82 (1967).

The Court of Appeals reversed, holding first that, although courts should hesitate to interfere with congressional actions even where First Amendment rights clearly are implicated, such restraint could not preclude judicial review where no alternative avenue of relief is available other than "through the equitable powers of the court." 159 U.S. App. D.C. 352, 359, 488 F.2d 1252, 1259 (1973). Here the subpoena was directed to a third party which could not be expected to refuse

[ 421 U.S. Page 498]

     compliance; unless respondents could obtain judicial relief the bank might comply, the case would become moot, and the asserted violation of respondents' constitutional rights would be irreparable. Because the subpoena was not directed to respondents, the Court of Appeals noted, the traditional route for raising their defenses by refusing compliance and testing the legal issues in a contempt proceeding was not available to them. Ansara v. Eastland, 143 U.S. App. D.C. 29, 442 F.2d 751 (1971).

Second, the Court of Appeals concluded that if the subpoena were obeyed respondents' First Amendment rights would be violated. The court said: S

"The right of voluntary associations, especially those engaged in activities which may not meet with popular favor, to be free from having either state or federal officials expose their affiliation and membership absent a compelling state or federal purpose has been made clear a number of times. See NAACP v. Alabama, 357 U.S. 449; Bates v. Little Rock, 361 U.S. 516; Louisiana ex rel. Gremillion v. NAACP, 366 U.S. 293 (1961); Gibson v. Florida Legislative Committee, 372 U.S. 539 (1962); Pollard v. Roberts, 393 U.S. 14 (1968), affirming the judgment of the three-judge district court for the Eastern District of Arkansas, 283 F. Supp. 248 (1968)." 159 U.S. App. D.C., at 364, 488 F.2d, at 1264.I

In this case that right would be violated, the Court of Appeals held, because discovery of the identities of donors was the admitted goal of the subpoena, id., at 367, 488 F.2d, at 1267, and that information could be gained as easily from bank records as from membership lists. Moreover, if donors' identities were revealed, or if donors reasonably feared that result, USSF's contributions would

[ 421 U.S. Page 499]

     decrease substantially, as had already occurred merely because of the threat posed by the subpoena.*fn12

The Court of Appeals then fashioned a remedy to deal with the supposed violation of rights. It ordered the District Court to "consider the extent to which committee counsel should properly be required to give evidence as to matters without the 'legislative sphere.'" Id., at 370, 488 F.2d, at 1270.*fn13 It also ordered that the court should "be liberal in granting the right of amendment" to respondents to add other parties if thereby "the case can better proceed to a decision on the validity of the subpoena." Ibid. Members of Congress could be added as parties, the Court of Appeals said, if their presence is "unavoidable if a valid order is to be entered by the court to vindicate rights which would otherwise go unredressed." Ibid. The Court of Appeals concluded that

[ 421 U.S. Page 500]

     declaratory relief against Members is "preferable" to "any coercive order." Ibid. The clear implication is that the District Court was authorized to enter a "coercive order" which in context could mean that the Subcommittee could be prevented from pursuing its inquiry by use of a subpoena to the bank.

One judge dissented on the ground that the membership-list cases were distinguishable because in none of them was there a "showing that the lists were requested for a proper purpose." Id., at 377, 488 F.2d, at 1277. Here, on the other hand, the dissenting judge concluded, "there is a demonstrable relationship between the information sought and the valid legislative interest of the federal Congress" in discovering whether any money for USSF activities "came from foreign sources or subversive organizations," id., at 377, 378, 488 F.2d, at 1277, 1278; whether USSF activities may have constituted violations of 18 U.S.C. § 2387(a), which prohibits interference with the loyalty, discipline, or morale of the Armed Services; or whether the anonymity of USSF donors might have disguised persons who had not complied with the Foreign Agents Registration Act of 1938, 22 U.S.C. § 611 et seq. ...

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