William J. Brennan, Jr.

“ This Court carefully recognized the curbing of associational freedom that the disclosure called for by this inquiry would entail. It then analyzed the relationship between the inquiry and this purpose, and, concluding that there was no rational connection, it held the inquiry constitutionally impermissible. Here the situation is even more extreme; there is no demonstration at all of what the legislative purpose is, outside of the investigation of violations, suspicions of violations, and conduct raising some question of violation of an existing statute. ”

“ The report discloses an investigation in which the processes of lawmaking and law-evaluating were submerged entirely in exposure of individual behavior-in adjudication, of a sort, however much disclaimed, through the exposure process. [8] If an investigation or trial, conducted by any organ of the State, which is aimed at the application of sanctions to individual behavior is to be upheld, it must meet the traditional standards that the common law in this country has established for the application of sanctions to the individual, or a constitutionally permissible modification of them. ”

“ In effect, a roving investigation and exposure of past associations and expressions in the political field is upheld because it might lead to some sort of legislation which might be sustained as constitutional, and the entire process is said to become the more defensible rather than the less because of the vagueness of the issues. The Court says that the appellant cannot argue against the exposure because this is an investigation and the exposure may make the investigation lead somewhere, possibly to leisl ative action. ”

“ Of course, the considerations entering into the weighing of the interests concerned are different where the problem is one of state exposure in the area of assembly and expression from where the problem is that of evaluating a state criminal or regulatory statute in these areas. Government must have freedom to make an appropriate investigation where there appears a rational connection with the lawmaking process, the processes of adjudication, or other essential governmental functions. ”

“ The problem of protecting the citizen's constitutional rights from legislative investigation and exposure is a practical oe, and we must take a practical, realistic approach to it.
Most legislative investigations unavoidably involve exposure of some sort or another. But it is quite clear that exposure was the very core, and deliberately and purposefully so, of the legislative investigation we are concerned with here. The Legislature had passed a broad and comprehensive statute, which included criminal sanctions. ”

“ Daugherty found legislative justification in a congressional inquiry which presented a rather strong element of exposure of past wrongdoing, to be sure. But the possibility of legislation was much more real than is the case here, and the legislative subject matter-control and regulation of the structure and workings of an executive department-was one not fraught with the constitutional problems presented by legislation in the field of political advocacy and assembly. ”

“ For in an era of mass communications and mass opinion, and of international tensions and domestic anxiety, exposure and group identification by the state of those holding unpopular and dissident views are fraught with such serious consequences for the individual as inevitably to inhibit seriously the expression of views which the Constitution intended to make free. ”

“ It is not enough to say, as the Court's position I fear may amount to, that what was taking place was an investigation and until the Attorney General and the Legislature had in all the data, the precise shape of the legislative action to be taken was necessarily unknown. Investigation and exposure, in the area which we are here concerned with, are not recognized as self-contained legislative powers in themselves. ”

“ The Court seems to experience difficulty in discerning that appellant has any standng to plead the rights of free speech and association he does because the material he seeks to withhold may technically belong to World Fellowship, Inc., a corporation, and may relate to the protected activities of other persons, rather than those of himself. ”

“ The sanctions of prosecution of individuals and dissolution of organizations for violation of the 1951 law seem to have been discarded, with the passage of the Resolution, in favor of the sanction of exposure. A provision of the 1951 Act providing for confidential treatment of material reflecting on individuals' loyalty was made inapplicable to the investigation the Attorney General was directed to conduct, and the Attorney General was authorized in sweeping terms to give publicity to the details of his investigation. ”

“ With due respect for my Brothers' views, I do not agree that a showing of any requisite legislative purpose or other state interest that constitutionally can subordinate appellant's rights is to be found in this record. Exposure purely for the sake of exposure is not such a valid subordinating purpose. ”

“ Second. In examining the right of the State to obtain this information from the appellant by compulsory process, we must recollect what we so recently said in N.A.A.C.P. v. State of Alabama:
'Effective advocacy of both public and private points of view, particularly controversial ones, is undeniably enhanced by group association, as this Court has more than once recognized by remarking upon the close nexus between the freedoms of speech and assembly. ”

“ Nor, while it is entitled to weight, is the determination by a state court that the inquiry relates to a valid legislative end conclusive. It is the task of this Court, as the Court recognizes in theory today, to evaluate the facts to determine if there actually has been demonstrated a valid legislative end to which the inquiry is related. With all due respect, the quoted observations of the New Hampshire Supreme Court in the case of Nelson v. Wyman bear little relationship to the course of the inquiry, as revealed by the report published after that decision. ”

“ The most vivid example of this is the material relating to the appellant's group, World Fellowship. After some introductory pages, there comes extensive biographical material relating to the reported memberships, associations, advocacies, and signings of open letters on the part of certain speakers at the World Fellowship camp. A very few had admitted membership in the Communist Party, or had been 'identified' as being members by third persons generally not named. Others were said to be or to have been members of 'Communist influenced,' 'front,' or 'officially cited' groups. ”

“ Inasmuch as no committee or public agency can hope to have all the information in its files concerning all subversive activity all over this country, it is not possible for this office to guarantee that the following individuals do not have such activity in their backgrounds. ”

“ But still the report was made in terms of the activity of named individuals. Of course, if the Attorney General had information relating to guilt under the statute, he was empowered to seek indictment and conviction of the offenders in criminal proceedings, in which of course the normal rights afforded criminal defendants and the normal limitations on state prosecution for conduct related to political association and expression, under the Constitution, would apply. ”

“ The authorizing Resolution requested that the Attorney General address himself to ascertaining whether there were 'subversive persons' in New Hampshire, and the report indicates that this was interpreted as the making of lists of persons who were either classifiable in this amorphous category, or almost so, and the presenting of the result, as a public, official document, to the Legislature, and to the public generally. ”

“ Many of the biographical summaries would strike a discerning analyst as very mild stuff indeed. In many cases, a positive diligence was demonstrated in efforts to add the names of individuals to a list and then render a Scotch verdict of 'not proven' in regard to them. ”

“ A report to the Legislature of the fruits of the investigation was to be made on the first day of the 1955 legislative session; the 1955 extension called for a similar report to the 1957 session. [3] Efforts to obtain from the appellant the disclosures relative to World Fellowship in controversy here began during the period covered by the 1953 Resolution, but his final refusal and the proceeding for contempt under review here occurred during the extension. ”