A RE-BIRTH OF FREEDOM
A Re-Birth of Freedom THE venomous fury of the current assault on the United States Supreme Court constitutes one of the most shameful chapters in recent American history. Because it dared reassert...
...But he refused to give the names of persons who had once been Communists but who had, to his knowledge, broken with that movement...
...And he refused to discuss the contents of a lecture he had given to a class at the University of New Hampshire, except to deny that the lecture included any advocacy of overthrow of the government...
...No one who reads the decision can escape the conclusion that this is total misrepresentation...
...Justices of the nation's highest tribunal were flooded with vituperative mail, some of it obscene, most of it anonymous, and much of it so vitriolic that "dirty Communist" was the mildest epithet used...
...It ordered these five discharged...
...The absence of such voices would be a symptom of grave illness in our society...
...The government's principal witnesses, Harvey Matusow and John Ford, both former undercover informers for the FBI, testified they had known Jencks as a Communist...
...There is no general authority to expose the private affairs of individuals without justification in terms of the functions of Congress...
...Scholarship cannot flourish in an atmosphere of suspicion and distrust...
...The uproar generated by this decision resulted from the widely circulated misinterpretation that the Court had destroyed the power of Congress to investigate...
...The major issue in Yates strikes at the very heart of what the Smith Act prohibits...
...Counsel for Jencks demanded that the FBI produce the informers' reports, but the trial judge rejected the motion...
...That cannot be inflated into a general power to expose where the predominant result can only be an invasion of the private rights of individuals...
...The four cases analyzed here were not the only ones resolved in favor of freedom by the Supreme Court during its recent term...
...Congress may investigate only those matters about which it needs to know to perform its constitutional legislative functions...
...History has amply proved the virtue of political activity by minority, dissident groups, who innumerable times have been in the vanguard of democratic thought and whose programs were ultimately accepted...
...Watkins did not claim the immunity of the Fifth Amendment...
...The fallacious outcry that the Jencks decision would cripple the FBI and destroy its usefulness in the struggle against subversion was paralleled shortly afterward when press, politicians, and professional patriots pilloried the Supreme Court for its decision in the case of Watkins v. United States...
...He declined to discuss his association in 1948 with the Progressive Party, claiming that the state had no right to inquire into his activities in support of a lawful political party...
...At this moment in history when materialism rampantly dominates our lives, when results, and only results seem to count, it is heartening to have our Supreme Court beckon us back to the spiritual values of first principles by counseling us that means are at least as important as ends, and that those who would fight fire with fire run the terrible risk of burning the book they live by...
...Despite the bitter outcry based on shabby reporting in many newspapers, the Court did not, as widely charged, go chasing off on new legal tangents and disregard long established precedents...
...Many Congressmen and newspaper editors, most of whom seem not to have bothered to read the text of the Court's decision, interpreted this conclusion of the Court as a mandate that the FBI must bring all its "raw files" into Court and that everything it has learned from informers must be made public...
...Committee members] may act pursuant to motives that seem to them of the highest...
...The conclusion seems clear enough: The decision emphatically does not mean that the FBI must open all its files to the accused...
...In another notable case, Sweezy v. New Hampshire, the Supreme Court reinforced constitutional safeguards for academic freedom and freedom of political belief...
...Professor Paul M. Sweezy, Marxist author and lecturer, had been summoned twice before Attorney General Louis C. Wyman of New Hampshire, to whom the legislature had delegated its powers to investigate subversion...
...But on two topics he refused to answer questions...
...The Supreme Court reversed the New Hampshire judiciary's conviction for contempt, but produced no majority decision...
...otherwise our civilization will stagnate and die...
...The Smith Act, he pointed out, does not prohibit mere "teaching of forcible overthrow as an abstract principle, divorced from any effort to instigate action to that end...
...There were a number of others ranging over a wide variety of issues...
...That charge to the jury was upheld in the famous Dennis case...
...Speaking for the majority, Chief Justice Earl Warren held that the investigative powers of Congress "are broad but not unlimited...
...Said the Chief Justice: "To impose any straitjacket upon the intellectual leaders in our colleges and universities would imperil the future of our nation...
...Equally manifest as a fundamental principle of a democratic society is political freedom of the individual...
...In a six to one decision, Justice Clark again dissenting, the Supreme Court reversed this conviction...
...In reversing the judgment of the lower court and ordering a new trial, the nation's highest tribunal held, seven to one, Justice Tom Clark dissenting, that when government witnesses testify in court that they have made reports of the events and activities related to their testimony, the defendant is entitled to inspect these reports to see if they are inconsistent with the witnesses' testimony on the stand...
...It has helped immeasurably to sustain and strengthen the institutions of democracy for the great ideological struggle with Communism...
...The Court found that in the case of five of the defendants there was a complete absence of evidence from which a jury, properly charged, could find any attempt at incitement...
...These comments were but a trickle in the torrent of abuse that roared around the Court...
...Senator Thomas C. Hennings, Jr., Missouri Democrat and the highly respected chairman of the Senate Constitutional Rights Subcommittee, put it this way: "It is not the Supreme Court that should be criticized in the present circumstances...
...2) "organize or help to organize" any group that advocates the violent overthrow of the government, and (3) belong to any such group "knowing the purpose thereof...
...Their decisions, nevertheless, can lead to ruthless exposure of private lives in order to gather data that is neither desired by Congress nor useful to it...
...Senator Strom Thurmond, South Carolina Democrat, characterizing the Court as "a great menace to this country," called for the impeachment of the justices...
...In the case of the other nine a new trial was ordered because the Court found there was some evidence which a jury should weigh as to incitement...
...Examined at great length, Sweezy answered most of the questions put to him...
...All political ideas cannot and should not be channeled into the programs of our two parties...
...Who can define the meaning of 'un-American...
...Moreover, the Court held that the demand may not extend to "statements taken from persons or informants not offered as witnesses...
...Representative Joseph W. Martin, Jr., and David Lawrence, editor and columnist, shared the grim conviction that the Court had "crippled" the investigating committees of Congress...
...And Representative Clare Hoffman, Michigan Republican, was convinced that the Supreme Court is attempting to overthrow the government...
...John T. Watkins, a labor official, had been summoned before the House Un-American Activities Committee in April, 1954...
...It is the unconstitutional and unlawful procedures which have been permitted to develop in this country that should be criticized...
...This great principle was best stated by the late Justice Sutherland when he wrote that the interest of the United States in a criminal prosecution "is not that it shall win a case, but that justice shall be done...
...But even the most casual reading of the full text a the decision makes it clear that the Court did not in the slightest degree curtail the Congressional investigative power when it is used constitutionally—to acquire data to guide the House or Senate in legislating...
...The public is, of course, entitled to be informed concerning the workings of its government...
...Chief Justice Warren responded to this contention with an unusually eloquent opinion in which he found that the questions asked Sweezy "unquestionably [constituted] an invasion of petitioner's liberties in the areas of academic freedom and political expression—areas in which the government should be extremely precent to tread...
...Senator Hennings, one of the few liberal members of Congress to speak up in support of the Court's decisions, declared that the Supreme Court "should be praised for fulfilling its function as the ultimate guardian of human rights and freedom in our society...
...Far from authorizing a fishing expedition among the raw files of the FBI, the Court specifically limited the right of the defendant to examine the files only of those informants the prosecution chooses to call as witnesses in open court, and to examine only those portions of the reports which are directly and specifically related to counts on which the defendant was indicted...
...Writing for the majority, Justice John M. Harlan drew the fundamental distinction between "advocacy of abstract doctrine" and "advocacy directed at promoting unlawful action...
...Under cross-examination, however, they said they could not remember exactly what they had told the FBI about Jencks' activities...
...it merely reaffirmed the principles of the Bill of Rights from which we had strayed for so long...
...Because it dared reassert the rights and liberties of the individual in a series of memorable decisions that called a halt to a ten-year wave of repression, the Court has been subjected to a torrent of vilification almost without parallel in modern times...
...Moreover—and this is the heart of the Watkins case—just as a criminal statute must be definite enough so that a person can tell whether the conduct he is considering would be criminal, so also the constitutional guarantee of due process of law requires that witnesses before Congressional committees be advised as to the claimed pertinency to legislative purpose of the questions asked them, so that they may have a fair opportunity to decide whether they would be within their rights in refusing to answer...
...Clinton E. Jencks, president of Local 890, International Union of Mine, Mill and Smelter Workers, had been convicted on two counts of perjury in filing a non-Communist affidavit under the Taft-Hartley Act...
...For the majority of the Supreme Court, speaking through Justice Brennan, clearly emphasized that the demand of the defendant must be "for production of . . . specific documents" and that it must not "propose any broad or blind fishing expedition among documents possessed by the government on the chance that something impeaching might turn up...
...In handing down this judgment the Supreme Court was merely affirming one of the most ancient and honored principles of American law—that in a criminal proceeding a man whose life or liberty is at stake is entitled to all evidence in the hands of the prosecution that is relevant and essential to his defense...
...In the initial test of the law, the trial of eleven top Communist leaders in 1949, Judge Medina instructed the jury that in order to find the defendants guilty, it must find not merely that defendants had advocated and taught forcible overthrow of the government, but must find as well that defendants had sought to incite action toward that end...
...It was this refusal, based on his conviction that such questions are not "relevant to the work of the Committee," that led to the contempt citation by Congress and conviction in the lower court...
...The New Hampshire Supreme Court, in upholding the citation for contempt, had agreed that the questioning of Sweezy trespassed on freedom of speech and academic freedom, but said these freedoms must yield to the right of the state to meet subversion...
...The last of the four historic decisions to draw venomous criticism from the professional patriots was the case of Yates v. United States, involving 14 second-string Communists convicted on the West Coast for violation of the Smith Act...
...Our form of government is built on the premise that every citizen shall have the right to engage in political expression and association...
...The Supreme Court has paved the way for a re-birth of freedom in the United States...
...But the trial judge in the Yates case delivered no such charge to the jury, and did not require it to find the defendants were actually trying to incite action...
...Teachers and students must always remain free to inquire, to study, and to evaluate, to gain new maturity and understanding...
...Mere unorthodoxy of dissent from the prevailing mores is not to be condemned...
...The Supreme Court held that the failure to include the element of "incitement" in the charge was a reversible error...
...What had the Court done to provoke this storm of hate bordering on hysteria...
...This law, passed in 1940, makes it a crime to (1) "advocate overthrowing any government in the United States, by force or violence...
...As for the specific committee and its purpose—the House Un-American Activities Committee, which has been going its ruthless, sometimes lawless way unmolested for two decades— Justice Warren concurred with countless Americans when he observed that "It would be difficult to imagine a less explicit authorizing resolution...
...on the contrary, he testified freely about himself and his own past associations with Communists, and he readily agreed to identify any persons he had known to be Communists and who still were...
...Particularly is this so in the social sciences, where few, if any, principles are accepted as absolutes...
...No field of education is so thoroughly comprehended by man that new discoveries cannot be made...
...Altogether they added up to far and away the most hopeful development in the field of civil liberties since the wave of hysterical repression swept the nation more than a decade ago...
...Justices Frankfurter and Harlan filed a separate opinion invalidating the state court's decision, and Justices Clark and Burton dissented...
...The Chief Justice and his five concurring colleagues made it clear that since there are limits on the investigative power of Congress, a witness before the Congressional committee has the right not to answer questions which go beyond these limits...
...The Court resolved no constitutional issue, for it said that reversal of the lower court was required merely by the meaning of the statute...
...We do not conceive of any circumstance where a state interest would justify infringement of rights in these fields...
...On the principal issue, the Court merely made applicable to that holy of holies, the FBI, a long accepted principle of law...
...Why...
...Representative George W. Andrews, Alabama Democrat, cried out that "I fear more the Supreme Court as presently constituted than I do Russia...
...It performed a memorable achievement in nourishing and enriching the very soul of American society—individual liberty...
...He responded freely to all questions about the Communist Party, and denied he was a member of it...
...We have no doubt that there is no Congressional power to expose for the sake of exposure...
...Chief Justice Warren filed an opinion which was concurred in by Justices Black, Douglas, and Brennan...
...For the most part the Supreme Court charted no new course...
...The Committee is allowed, in essence, to determine its own authority...
...It all began with the case of Jencks v. United States, certainly the most criticized—and most misunderstood— of the court's recent decisions...
Vol. 21 • August 1957 • No. 8
