THE ASSAULT ON LIBERTY
Black, Justice Hugo L
The Assault on LIBERTY by JUSTICE HUGO L. BLACK The United States Supreme Court recently refused, for the second time, to void the conviction by the state of New Hampshire of Dr. Willard...
...The result was that he was put through a kind of trial and sentenced to prison for holding "several unlawful religious meetings...
...Uphaus to produce only the names of the guests...
...Udall, like Dr...
...Thus, a distinct possibility exists that this man who, at least so far as these records show, has never committed a single crime, nor even so much as an immoral act, faces imprisonment for the rest of his life...
...The brief filed by the Attorney General of New Hampshire makes it appear that he has every intention of doing just that...
...My Lords, this is a most exquisite dilemma, from which there is no escaping...
...but to swear to accuse myself or others, I think you have no law for it...
...Uphaus will be subjected to new questioning and forced into a new "contempt" as soon as he serves out this year's imprisonment...
...In Bunyan's case the imprisonment lasted twelve years, and it was during those twelve years that he gave to the world The Pilgrim's Progress...
...Such retrogression, of course, follows naturally from the Court's recent trend toward substituting for the plain language of the commands of the Bill of Rights elastic concepts which permit the Court to uphold direct abridgments of liberty unless the Court views those abridgments as "arbitrary," "unreasonable," "offensive to decency," or "unjustified on balance," for these concepts reduce the absolute commands of the Constitution to mere admonitions...
...1think the summary dismissal of this appeal [by a majority of the United States Supreme Court] without even so much as the benefit of oral argument, when the abridgment of the rights of free speech and assembly is so obvious, is a sad indication of just how far this Court has already departed from the protections of the Bill of Rights and an omen of things yet to come...
...Portions of that dissent appear below.—The Editors...
...He expressed a complete willingness to answer any question concerning himself, including any views he might hold or any actions he might have taken with regard to any subject...
...My guess is that history will look with no more favor upon the imprisonment of Willard Uphaus than it has upon that of Udall, Bunyan, or the many others like them...
...Uphaus has at some time been in the company of Communists, or that the people who have been in his camp have been in the company of Communists...
...it is as bad persecution as the bed of Procrustes: If they are too short, stretch them...
...it is wrong to bear false witness against my brother...
...In addition, he expressed a willingness to give the Attorney General any information which might be wanted in regard to the subject matter of any speeches made at World Fellowship...
...Almost immediately upon his arrival at World Fellowship, Dr...
...it is a trap a man cannot get out of...
...He died in prison within a few years...
...He refused to be coerced into silence...
...Uphaus was imprisoned for his failure to comply with it...
...He holds a degree as a Doctor of Theology...
...Uphaus persisted, he could not do, resting his refusal upon the following reasons, to which he has adhered throughout this long ordeal: (1) because "by the direct teachings of the Bible...
...I think it is time for all who cherish the liberties guaranteed by the Bill of Rights to look closely at the disastrous consequences upon those liberties which have resulted from the Court's use of such concepts...
...They held it to be inconsistent with the Toleration Act by which Parliament had guaranteed religious freedom even though the terms of that guarantee were far less sweeping and more limited in application than the absolute commands of our First Amendment...
...Nonetheless, the order to produce was upheld and Dr...
...make another, to punish them for not serving...
...Uphaus...
...It would not be difficult to point out many other cases such as that of Udall, but I will content myself with one other...
...I do not suggest, of course, that this imprisonment of Dr...
...Uphaus is without precedent in history...
...The dilemma is truly one "from which there is no escaping" for a man who, like Dr...
...But even if it is true and those associates are as bad as they are suspected to be, it is my belief that our Constitution with its Bill of Rights absolutely forbids the imposition of pains and penalties upon him for peaceably assembling with them...
...The grounds urged by the Attorney General of New Hampshire here are, as shown by the cases of Udall and Bunyan, precisely those that have always been urged for throwing dissenters in jail, namely, that they are a menace to the community and it is dangerous to leave them free...
...This Court, by its action today, necessarily takes the position that this serious abridgment of the rights of free speech and peaceable assembly does not even raise a substantial Federal question...
...Uphaus as an individual...
...The dilemma of the dissenter was vividly described by Lord Mansfield in stating his views on the case: "Make a law to render them incapable of office...
...This, Dr...
...The record further indicates, without dispute, that he is a man whose life has been dedicated to the principles of his religion...
...For there, nearly two hundred years ago and in England where there was no Bill of Rights, the House of Lords refused to countenance the use of that technique...
...if they are too long, lop them...
...Uphaus may be likened to that of the defendant in the famous Sheriff's Case before the House of Lords in 1767...
...Udall was called before a court in connection with the investigation of the authorship of certain religious tracts which, in the words of one of the judges, "tend[ed] to the overthrowing of the State, and the moving of Rebellion...
...if they refuse, punish them...
...Eventually he was called before the Attorney General to testify...
...That great charter was drafted by men who were well aware of the constant danger to individual liberty in a country where public officials are permitted to harass and punish people on nothing more than charges that they associate with others labeled by the government as publicans and sinners...
...That case also serves to highlight a most unfortunate aspect of the decision in this case...
...This in the very face of the indisputable historical fact that one of the primary reasons for the establishment of this country was the desire of early settlers to escape religious persecution...
...The court, apparently viewing the request of the Attorney General for the names of the camp's dishwashers and floor sweepers as totally unreasonable and being uncertain as to the legal amenability to subpoena of the correspendence, ordered Dr...
...Willard Uphaus, seventy-year-old lay minister who completed his year in prison December 11...
...His plight, however, is even worse than would normally be indicated by that sentence in that there can be no assurance at all that he will be released at the end of the year specified...
...But he absolutely refused to give the Attorney General: (1) a list of the nonprofessional employees of the camp...
...The defense was that the Corporation Act would have made it a crime for a dissenter to serve in that office for it required an oath from all officeholders that they had taken the sacraments of the Church of England within the year...
...Throughout the nearly seventy years of his life, evidently from early boyhood, he has been a deeply religious person...
...to the great disturbance and distraction of the good subjects of this kingdom...
...Uphaus to produce these items...
...It may be true, as the Attorney General of New Hampshire suspects, that Dr...
...Indeed, I am painfully aware that there are a multitude of such precedents extending from many centuries back in the past and continuing forward in an almost unbroken line to the present day...
...and (3) because "I love this document [the Bill of Rights] and I propose to uphold it with the full strength and power of my spirit and intelligence...
...I will take an oath of allegiance to her majesty, wherein I will acknowledge her supremacy according to statute, and promise my obedience as becometh a subject...
...if he refuses to testify, he goes to jail...
...He was arrested for preaching and efforts were made to get him to agree not to preach any more...
...Uphaus...
...The present case graphically illustrates those consequences when it is stripped of the ambiguous legal formulations which have been imposed upon it and considered in the context in which it actually arose—the conduct of Dr...
...This technique of putting unorthodox groups into a position where their only real choice is between various alternative punishments (a technique the prevalence of which today extends far beyond the borders of New Hampshire) is strikingly similar to that being utilized here against Dr...
...There is, for example, the case of the Puritan minister John Udall in 1590, a case which bears a strong similarity to that of Dr...
...In my view, the majority's disposition of this case, reducing as it does those absolute commands to mere admonitions, means that our First Amendment amounts to something less as a charter of freedom than England's Toleration Act was held to be...
...It was this belief which led him, in 1952, to become the director of World Fellowship, Inc., a summer camp operated, he says, in the interest of promoting the ideas of pacifism...
...For this is another of that ever-lengthening line of cases where people have been sent to prison and kept there for long periods of their lives because their beliefs were inconsistent with the prevailing views of the moment...
...If they accept, punish them...
...and in particular, it condemns guilt by association...
...That court sought to force Udall to disclose the identity of other Puritans so that it might question them as to the authorship of the tracts...
...Some seventy years after John Udall's experiences, there was a dissenting preacher in England named John Bunyan...
...As a result, he has been in jail since December 14, 1959, under a judgment which sentenced him to imprisonment for one year or until such time as he would comply with the order to produce...
...But such coercion was as ineffective in that case as it has been to date in this...
...The record shows his active membership in and official service for various Methodist churches in the communities where he has lived...
...As a result, it is entirely possible that Dr...
...I believe the First and Fourteenth Amendments were intended to prevent any such imprisonments in this country...
...Uphaus, was sentenced to jail for civil contempt under a judgment which ordered his imprisonment until such time as he would consent to testify...
...2) a list of all the guests who had stayed at the camp...
...Udall's dauntless spirit was never broken even though his body was...
...Uphaus or like the religious dissenter in the Sheriff's Case, cannot bring himself to sacrifice either his religious principles or his legal rights...
...The Attorney General of New Hampshire insists, notwithstanding the recent legislation reducing his powers, that he has a right to continue all investigations presently pending, and the Supreme Court of New Hampshire apparently agrees with him...
...2) because "the social teachings of the Methodist Church teach us clearly and specifically that we in the United States should stand up and uphold civil and religious rights...
...He is a citizen of this country by birth...
...He taught religious education at Yale University and was associated with the Religion and Labor Foundation for a number of years...
...In refusing to divulge the demanded names, Udell gave his reasons in a statement not unlike that of Dr...
...In tones that rang with passion, and sometimes with anger, Justice Hugo L. Black delivered a memorable dissenting opinion in which Chief Justice Earl Warren and Justice William O. Douglas concurred...
...and inasmuch as I have no reason to believe that any of these persons whose names have been called for have in any sense hurt this state or our country, I have reason to believe that they should not be in the possession of the Attorney General...
...and (3) his personal correspondence with the speakers who had appeared at the camp...
...Uphaus came under the fire of an investigation conducted by the Attorney General of New Hampshire, apparently on the theory that World Fellowship was frequented by "subversive" persons...
...Upon being met with this refusal, the Attorney General sought a court order requiring Dr...
...This simply because he has refused to violate his religious principles and sacrifice his constitutional rights by disclosing the names of those with whom he has peaceably assembled to discuss public affairs in this country...
...The predicament of Dr...
...if they say, yes, punish them...
...if they say, no, punish them...
...There the City of London sought to prosecute a religious dissenter for refusing to serve in the office of sheriff as required by its by-laws...
...Over the years, his religious faith manifested itself in an increasing opposition to war...
...If he testifies, his friends will suffer...
...Uphaus before the New Hampshire court...
Vol. 25 • January 1961 • No. 1
