Hugo Black

“ All these statements indicate quite clearly that no matter how often or how quickly we repeat the claim that the Communist Party is not a political party, we cannot outlaw it, as a group, without endangering the liberty of all of us. The reason is not hard to find, for mixed among those aims of communism which are illegal are perfectly normal political and social goals. And muddled with its revolutionary tenets is a drive to achieve power through the ballot, if it can be done. ”

“ For a statute broad enough to support infringement of speech, writtings, thoughts and public assemblies, against the unequivocal command of the First Amendment necessarily leaves all persons to guess just what he law really means to cover, and fear of a wrong guess inevitably leads people to forego the very rights the Constitution sought to protect above all others. ”

“ It is the protection from arbitrary punishments through the right to a judicial trial with all these safeguards which over the years has distinguished America from lands where drumhead courts and other similar 'tribunals' deprive the weak and the unorthodox of life, liberty and property without due process of law. It is this same right which is denied to Barenblatt, because the Court today fails to see what is here for all to see-that exposure and punishment is the aim of this Committee and the reason for its existence. ”

“ Vagueness becomes even more intolerable in this area if one accepts, as the Court today does, a balancing test to decide if First Amendment rights shall be protected. It is difficult at best to make a man guess-at the penalty or imprisonment-whether a court will consider the State's need for certain information superior to society's interest in unfettered freedom. It is unconscionable to make him choose between the right to keep silent and the need to speak when the statute supposedly establishing the 'state's interest' is too vague to give him guidance. ”

“ I do not question the Committee's patriotism and sincerity in doing all this. [38] I merely feel that it cannot be done by Congress under our Constitution. For, even assuming that the Federal Government can compel witnesses to testify as to Communist affiliations in order to subject them to ridicule and social and economic retaliation, I cannot agree that this is a legislative function. Such publicity is clearly punishment, and the Constitution allows only one way in which people can be convicted and punished. ”

“ It was knowledge of this fact, and of its great dangers, that caused the Founders of our land to enact the First Amendment as a guarantee that neither Congress nor the people would do anything to hinder or destroy the capacity of individuals and groups to seek converts and votes for any cause, however radical or unpalatable their principles might seem under the accepted notions of the time. ”

“ It is this right, the right to err politically, which keeps us strong as a Nation. For no number of laws against communism can have as much effect as the personal conviction which comes from having heard its arguments and rejected them, or from having once accepted its tenets and later recognized their worthlessness. ”

“ Finally, I think Barenblatt's conviction violates the Constitution because the chief aim, purpose and practice of the House Un-American Activities Committee, as disclosed by its many reports, is to try witnesses and punish them because they are or have been Communists or because they refuse to admit or deny Communist affiliations. The punishment imposed is generally punishment by humiliation and public shame. There is nothing strange or novel about this kind of punishment. It is in fact one of the oldest forms of governmental punishment known to mankind ”

“ Unless we can rely on these qualities-if, in short, we begin to punish speech-we cannot honestly proclaim ourselves to be a free Nation and we have lost what the Founders of this land risked their lives and their sacred honor to defend. ”

“ It is these interests of society, rather that Barenblatt's own right to silence, which I think the Court should put on the balance against the demands of the Government, if any balancing proces is to be tolerated. Instead they are not mentioned, while on the other side the demands of the Government are vastly overstated and called 'self preservation.' It is admitted that this Committee can only seek information for the purpose of suggesting laws, and that Congress' power to make laws in the realm of speech and association is quite limited, even on the Court's test. ”

“ Our Constitution assumes that the common sense of the people and their attachment to our country will enable them, after free discussion, to withstand ideas that are wrong. To say that our patriotism must be protected against false ideas by means other than there is, I think, to make a baseless charge. ”

“ This would, of course, prevent many workers from getting or holding the only kind of jobs their particular skills qualified them for. The Court, today, barely mentions these statements, which, especially when read in the context of past reports by the Committee, show unmistakably what the Committee was doing. I cannot understand why these reports are deemed relevant to a determination of a congressional intent to investigate communism in education, but irrelevant to any finding of congressional intent to bring about exposure for its own sake or for the purposes of punishment. ”

“ The Court held that the Committee in its investigation of the Jay Cooke bankruptcy was seeking to exercise judicial power, and this, it emphatically said, no committee could do. It seems to me that the proof that the Un- American Activities Committee is here undertaking a purely judicial function is overwhelming, far stronger, in fact, than it was in the Jay Cooke investigation which, moreover, concerned only business transactions, not freedom of association. ”

“ It does this because the Founders believed that punishment was too serious a matter to be entrusted to any group other than an independent judiciary and a jury of twelve men acting on previously passed, unambiguous laws, with all the procedural safeguards they put in the Constitution as essential to a fair trial-safeguards which included the right to counsel, compulsory process for witnesses, specific indictments, confrontation of accusers, as well as protection against self-incrimination, double jeopardy and cruel and unusual punishment-in short, due process of law. ”

“ The notion that despite the First Amendment's command Congress can abridge speech and association if this Court decides that the governmental interest in abridging speech is greater than an individual's interest in exercising that freedom, (B) the Government's right to 'preserve itself,' (C) the fact that the Committee is only after Communists or suspected Communists in this investigation. ”

“ It is enough to cite the experience of a man who masqueraded as a Communist for the F.B.I. and who reported to this same Committee that since 1952 when his 'membership' became known he has been unable to hold any job. [31] To accomplish this kind of result, the Committee has called witnesses who are suspected of Communist affiliation, has subjected them to severe questioning and has insisted that each tell the name of every person he has ever known at any time to have been a Communist, and, if possible, to give the addresses and occupations of the people named. ”

“ Ultimately all the questions in this case really boil down to one-whether we as a people will try fearfully and futilely to preserve democracy by adopting totalitarian methods, or whether in accordance with our traditions and our Constitution we will have the confidence and courage to be free. ”

“ We kept the spotlight of publicity focused upon the American Youth Congress, and today it is clear to all that, in spite of a degree of participation in its activities by many fine young people, it was never at its core anything less than a tool of Moscow'. 'This committee is the only agency of Government that has the power of exposure * * *. There are many phases of un-American activities that cannot be reached by legislation or administrative action. ”

“ The fact is that once we allow any group which has some political aims or ideas to be driven from the ballot and from the battle for men's minds because some of its members are bad and some of its tenets are illegal, no group is safe. Today we deal with Communists or suspected Communists. In 1920, instead, the New York Assembly sspe nded duly elected legislators on the ground that, being Socialists, they were disloyal to the country's principles. ”

“ It goes without saying that a law to be valid must be clear enough to make its commands understandable. For obvious reasons, the standard of certainty required in criminal statutes is more exacting than in noncriminal statutes. ”

“ In 1946 Harold Laski and socialists generally were attacked for their 'impertinence in suggesting that the United States should trade its system of free economy for some brand of Socialism.' The Committee deemed it 'imperative' that it ascertain the 'methods used to enable Mr. ”

“ In substance it authorizes the Committee to compel witnesses to give evidence about all 'un-American propaganda,' whether instigated in this country or abroad. [6] The word 'propaganda' seems to mean anything that people say, write, think or associate together about. The term 'un-American' is equally vague. ”

“ This result, whose importance cannot be overestimated, is doubly crucial when it affects the universities, on which we must largely rely for the experimentation and development of new ideas essential to our country's welfare. ”

“ History should teach us then, that in times of high emotional excitement minority parties and groups which advocate extremely unpopular social or governmental innovations will always be typed as criminal gangs and attempts will always be made to drive them out. ”

“ Besides, Juries being birthright, and the other but new and temporary, men do not, nor, as we humbly conceive, ever will acquiesce in the one as in the other; from whence it is not altogether so much to be wondered at, if upon dissatisfactions, there have been such frequent printing of men's cases, and dealings of Committees, as there have been ”

“ IV Plutarch's Lives (Clough, New Nat. ed. 1914) 43-44.↑ In its very first report it stated, 'The committee has felt that it is its sworn duty and solemn obligation to the people of this country to focus the spotlight of publicity upon every individual and organization engaged in subversive activities regardless of politics or partisanship.' It further claimed that, 'While Congress does not have the power to deny to citizens the right to believe in, teach, or advocate, communism, fascism, and nazism, it does have the right to focus the spotlight of publicity upon their activities.' H.R.Rep. No. ”

“ Among the distinguished sponsors of the group listed by the committee was the late Prof. Zechariah Chafee. The Committee, nevertheless advised 'the American public that individuals who knowingly and actively support such a propaganda outlet * * * are actually aiding and abetting the Communist program in the United States.' H.R.Rep. No. 3248, 81st Cong., 2d Sess. 1, 11-12, 15. See also, Gellhorn, Report on a Report of the House Committee on Un-American Activities, 60 Harv.L.Rev. ”

“ For a discussion of state laws requiring a minimum percentage of the votes cast to remain on the ballot, see Note, 57 Yale L.J. 1276.↑ See O'Brian, Loyalty Tests and Guilt by Association, 61 Harv.L.Rev. 592, 593. Signicantly the action of the New York Assembly was strongly condemned by Charles Evans Hughes, then a former Associate Justice of this Court, and later its Chief Justice.↑ See generally, McCarthy, The Antimasonic Party: A Study of Political Antimasonry in the United States, 1827-1840. H.R.Doc. No. ”

“ Cowley resigned his position with the Federal Government'; 'On March 28, 1942, the chairman wrote a letter to the * * * Chairman of the Board of Economic Welfare, and called attention to * * * eight of its employees and made particular reference to one Maurice Parmelee * * *. ”