(dissenting).
In my opinion the House Committee’s investigation abridges freedom of speech and inflicts punishment without trial; and the statute the appellants are convicted of violating provides no ascertainable standard of guilt. It follows that the convictions should be reversed on constitutional grounds.
I.
The First Amendment forbids Congress to make any law “abridging the freedom of speech, or of the press.” If this “is to mean anything, it must restrict powers which' are * * * granted by the Constitution to Congress.”1 Legislation abridging the freedoms guaranteed by the First Amendment is not made valid by the *253fact that it would be valid if it did not abridge them.
The Murdock, Opelika, and Busey cases make this plain. Clear and necessary as the taxing power is, it does not extend to sales of propaganda not made for profit; a license tax, although imposed for the legitimate purpose of raising revenue, is unconstitutional in its application to such sales.2 And this is true even if “it has not been proved that the burden of the tax is a substantial clog” on the circulation of propaganda;3 “it may not be said that proof is lacking that these license taxes * * * are likely to restrict petitioners’ * * * activities. On their face they are a restriction of the free exercise of those freedoms which are protected by the First Amendment. * * * A community may not suppress, or the state tax, the dissemination of views because they are unpopular, annoying or distasteful. If that device were ever sanctioned, there would have been forged a ready instrument for the suppression of the faith which any minority cherishes but which does not happen to be in favor. That would be a complete repudiation of the philosophy of the Bill of Rights.” 4
The Murdock and Opelika cases dealt with municipal legislation. The First! Amendment applied only indirectly, by way of the due process clause of the Fourteenth Amendment. Here, as in the Busey case,5 it applies directly.
It was not the weakness of the taxing power but the strength of the First Amendment that made the Murdock and Opelika taxes unconstitutional.6 Yet this court now holds that the First Amendment, which restricts the express power of taxation, does not restrict the implied power of investigation. Investigation in general, and this investigation in particular, is not more necessary than taxation. There is no basis in authority, policy, or logic for holding that it is entitled to a preferred constitutional position. “Freedoms of speech, press, and religion are entitled to a preferred constitutional position.”7 The power of investigation, like the power of taxation, stops short of restricting the freedoms protected by the First Amendment.
Quite as clearly as the taxes in the Murdock, Opelika, and Busey cases, the House Committee’s investigation is on its “face * * * a restriction of the free exercise of those freedoms,” It actually *254restricts them and puts a substantial clog upon them. It is therefore more clearly unconstitutional than the taxes.
The investigation restricts the freedom of speech by uncovering and stigmatizing expressions of unpopular views. The Committee gives wide publicity to its proceedings. This exposes the men and women whose views are advertised to risks of insult, ostracism, and lasting loss of employment.8 Persons disposed to express unpopular views privately or to a selected group are often not disposed to risk the consequences to themselves and their families that publication may entail.9 The Committee’s practice of advertising and stigmatizing unpopular views10 is therefore a strong deterrent to any expression, however private, of such views.
The investigation also restricts freedom of speech by forcing people to express views. Freedom of speech is freedom in respect to speech and includes freedom not to speak. “To force an American citizen publicly to profess any statement of belief” is to violate the First Amendment. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” That is the rule of the Barnette case,11 which involved pressure on school children to profess approved beliefs. Witnesses before the House Committee are under pressure to profess approved beliefs. They cannot express others without exposing themselves to disastrous consequences. Yet if they have previously expressed others they cannot creditably or credibly profess those that are approved. If they decline “publicly to profess any statement of belief” they invite punishment for contempt. The privilege of choosing between speech that means ostracism and speech that means perjury is not freedom of speech.
“Under our traditions beliefs are personal and not a matter of mere association.” 12 Yet the House Committee attributes unpopular and “communistic” beliefs to persons and groups on the basis of mere association with other persons and groups.13 By this device it greatly extends the restraining effect of its investigation. Its *255treatment of the Southern Conference for Human Welfare14 illustrates its practice.15 It further extends the restraining effect of its investigation by stigmatizing a remarkably wide range of beliefs as un-American.16
That the Committee’s investigation does in fact restrict speech17 is too clear for dispute. The prosecution does not deny it and the court concedes it. The effect is not limited to the people whom the Committee stigmatizes or calls before it, but extends to others who hold similar views and to still others who might be disposed to adopt them. It is not prudent to hold views or to join groups that the Committee has condemned. People have grown wary of expressing any unorthodox opinions. No one can measure the inroad the Committee has made in the American sense of freedom to speak. There has been some suggestion that it restrains only timid people. I think it nearer the truth to say that, among the more articulate, it affects in one degree or another all but the very courageous, the very orthodox, and the very secure.18 But nothing turns on this question of fact. The views of timid people are not necessarily worthless to society. No one needs self-expression more. The Constitution protects them as it protects others. If it be true that the Committee’s investigation would not restrain a determined man, this matters no more than the fact that the taxes in the Murdock and Opelika cases would not restrain a rich man. Some people speak freely whatever it costs, but this does not mean that speech is free whatever it costs.
This court is ruling that although restraint results from the Committee’s investigation it is not forbidden by the Constitution. But the mere fact that restraint is likely to result from the investigation is more than enough to bring it within the condemnation of the Murdock and Opelika cases.
The case is stronger than Murdock and Opelika not only because the investigation actually and greatly restrains speech but in other respects as well. In the Murdock and Opelika cases there was no purpose to restrain and no singling out of propaganda for special treatment. License taxes on sales, imposed in general terms and for the legitimate purpose of raising revenue, were unconstitutional in failing to exempt sales of propaganda not made for profit. . The mere incidental inclusion of propaganda among activities burdened only incidentally to a proper legislative purpose was bad. But in the present case neither the inclusion nor the burdening of propaganda is incidental. The House Committee’s enabling Act concerns, specifically and exclusively, “propaganda activities,” and the Committee’s principal purpose is to restrain them. *256Its purpose is shown clearly by its acts and conclusively by its statements. The Committee and its members have repeatedly said in terms or in effect that its main purpose is to do by exposure and publicity what it believes may not validly be done by legislation.19 This is as much as to say that its purpose is to punish or burden propaganda.20 . The Committee has “embarked upon a systematic campaign to suppress freedom of political and economic opinion.” 21
What Congress may not restrain, Congress may not restrain by exposure and obloquy. If it be thought that the Committee’s purpose does not include “punishment, in the ordinary sense,” this is immaterial to_ the present point.22 The First Amendment forbids Congress purposely to burden forms of expression that it may not punish.23
It is said that Congress may punish propaganda that advocates overthrow of the government by force or violence; that it may therefore investigate to determine whether such legislation is necessary; and *257that it may do this even if the investigation burdens such propaganda and is intended to do so. In short, it is said that the House Committee’s investigation is a necessary means to a constitutional end and is therefore constitutional. To this there are at least three answers.
(1) Investigation of possible need for legislation making it unlawful to advocate overthrow of the government by force or violence has not been necessary and has not been among the purposes of Congress or of the House Committee at any time since 1940. On the contrary, the broadest possible legislation of that sort was passed in that year and is still on the books.24
(2) The Committee’s enabling Act25 says nothing about force or violence or overthrow of the government. It is broad enough to include investigation of propaganda advocating such things, but it is not by any means limited to such propaganda, and neither is the Committee’s actual investigation. Though the Committee has concerned itself largely with communism, and formerly with fascism, it has also concerned itself with propaganda unrelated to any possible overthrow of the government by force and plainly beyond any power of Congress to burden or restrain. “In the course of its inquiries such diverse groups have come under its scrutiny as the American Civil Liberties Union, the C.I.O., the National Catholic Welfare Conference, * * * the Farmer-Labor party, sit-down strikes, the Federal Theatre Project, consumers’ organizations, * * * the magazine Time.” Among various “other criteria which the Committee or its agents have from time to time suggested as indicative of activity within the scope of its inquiries are: opposition to ‘the American system of checks and balances,’ opposition to the protection of property rights, belief in dictatorship, opposition to the Franco government of Spain, opposition to General MacArthur, advocacy of a world state, advocacy of the dissolution of the British Empire, criticism of members of Congress, and criticism of the Committee on Un-American Activities.” 26 Obviously there could be no necessity for many of the Committee’s activities, and no excuse for the restraints they impose, even if the Act of 1940 were not on the books.
Legislative action that restrains constitu*258tionally protected speech along with other speech cannot be enforced against either. Legislation is unconstitutional as a whole if it “does not aim specifically at evils within the allowable area of state control but * * * sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press. The existence of such a statute * * * results in a continuous and pervasive restraint on all freedom of discussion that might reasonably be regarded as within its purview. * * * An accused, after arrest and conviction under such a statute, does not have to sustain the burden of demonstrating that the State could not constitutionally have written a different and specific statute covering his activities as disclosed by the charge and the evidence introduced against him. * * * Where regulations of the liberty of free discussion are concerned, there are special reasons for observing the rule that it is the statute, and not the accusation or the evidence under it, which prescribes the limits of permissible conduct and warns against transgression.” 27
Even if the views the House Committee sought to elicit from .these appellants had been of a sort that Congress might properly restrain, by investigative or other action aimed specifically at such views, the appealed convictions would have to be reversed. “The statute, as construed and applied, amounts merely to a dragnet which may enmesh anyone who agitates for a change of government * * 28
(3) The problem is not, as the court suggests, that of balancing public or social interests against private interests. “The principle on which speech is classified as lawful or unlawful involves the balancing against each other of two very important social interests, in public safety and in the search for truth. * * * Imprisonment of 'half-baked’ agitators for ‘foolish talk’ may often discourage wise men from publishing valuable criticism of governmental policies. * * * The great interest in free speech should be sacrificed only when the interest in public safety is really imperiled. * * * The American policy is to meet force by force, and talk by talk.” 29
This policy is embodied in American constitutional law. “The penalizing even of utterances of a defined character must find its justification in a reasonable apprehension of danger to organized government.” 30 “The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent”;31 “danger of action of a -kind the State is empowered to prevent and punish.” 32
There is no evidence in the record that propaganda has created danger, clear and present or obscure and remote, that the government of the United States or any government in the United States will be overthrown by force or violence. “When legislation appears on its face to affect the use of speech, press, or religion, and when its validity depends upon the existence of facts which are not proved, their existence *259should not be presumed * * *.” 33 “The usual presumption supporting legislation is balanced by the preferred place given in our scheme to the great, the indispensable democratic freedoms secured by the First Amendment.” 34
The court asks “How, except upon inquiry, would the Congress know whether the danger is clear and present ?” The context shows that this means “How, except upon congressional inquiry * * * ?” The answer is: through the Department of Justice, whose duty it is, if clear and present danger can be discovered, to enforce the law of 1940 which makes it a crime to advocate overthrow of the government by force;35 through the intelligence services; and through any new agency that Congress may think it useful to create. As the House Committee’s history shows, no dangerous propaganda that eludes other agencies is likely to be discovered by a congressional inquiry. But a congressional inquiry, however superfluous, to discover whether there is clear and present danger, could be authorized and could be conducted without violating the First Amendment. The premise that the government must have power to protect itself by discovering whether it is in clear and present danger of overthrow by violence is sound. But it does not support the conclusion that Congress may compel men to disclose their personal opinions, to a committee and also to the world, on topics ranging from communism, however remotely and peaceably achieved, to the “American system of checks and balances,” the British Empire, and the Franco government of Spain. Since the premise does not support this conclusion it has nothing to do with this case. It justifies no punitive exposure. It justifies a very different investigation from the one the House Committee conducts. The investigation the Committee conducts is unsupported by any color of necessity. As the fact that some taxation is necessary does not validate everything done in the name of taxation, the fact that some investigation is necessary does not validate everything done in the name of investigation. So far from being necessary to the safety of the government, the Committee’s investigation weakens the government by effectively warning the unorthodox, some of whom are conspicuous for ability and patriotism, to avoid government service.
The free speech point comes to this. Congressional action that is either intended or likely to restrict expression of opinion that Congress may not prohibit violates the First Amendment. Congressional action in the nature of investigation is no exception. Civil liberties may not be abridged in order to determine whether they should be abridged. The House Committee’s investigation is both intended and likely to restrict expression of opinion that Congress may not prohibit. That it actually does so is clear and undisputed. If all this were otherwise the investigation might perhaps be within legislative power.36 But that is immaterial, like the fact that a tax restricting non-profit sales of propaganda, or intended to restrict circulation of newspapers, would be within legislative power if if had no such effect or purpose.
Congress has ratified the Committee’s course by renewing its appropriations and extending its life. However, the question is whether the Committee’s investigation is constitutional, not whether it is authorized as between the Committee and Congress. Since Congress could not authorize it, whether or when Congress intended to do so is immaterial. “In passing upon constitutional questions * * * the statute must be tested by its operation and effect.”37 The case is as if the enabling Act read *260“The Committee shall expose unorthodox propaganda in order to restrain and punish it.” The issue is whether Americans maybe fined and imprisoned for- passive resistance to this inquest into their political and economic views. No one denies that the inquest is an effective instrument of restraint. I hope the last word has not been said on the question whether it is a legal one.
II.
“An act of Congress which proposed to adjudge a man guilty of a crime and inflict the punishment, would be conceded by all thinking men to be unauthorized by anything in the Constitution.” 38 “Legislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution.” 39 A punitive statute is no better if it creates the offense, or authorizes a committee to create it; delegates to the committee the ascertainment of individuals to be punished and the infliction of punishment; provides no standard of guilt; compels the individual, in the committee’s discretion, to testify against himself; deprives him of the right to testify in his own defense; and deprives him also of the right to counsel, the right to call witnesses, and the right to cross-examine opposing- witnesses. The House Committee’s enabling Act, as the Committee has construed and applied it, does all that.
Punishment is harm intentionally inflicted because of conduct. Intentionally inflicted loss of employment is punishment, as the Court held in the Lovett case.40 Sometimes, as in that case, the Committee intentionally inflicts dismissal from employment. It intentionally and directly inflicts publicity and opprobrium. That these may be damaging is both obvious and recognized by law, including the law of libel. Publicity and opprobrium that are intended as an “effective weapon” against activities that cannot be reached by legislation 41 are intended to inflict damage. They are damaging in fact as well as intention. The Court implied in the Lovett case that no “congressional action, aimed at * * * named individuals, which stigmatized their reputation and seriously impaired their chance to earn a ■ living” can be sustained. The Committee takes such action. Even courts, to which the Constitution entrusted the function of punishment, “were commanded to stay their hands until and unless certain tested safeguards were observed. An accused in court must be tried by an impartial jury, has a right to be represented by counsel, he must be clearly informed of the charge against him, the law which he is charged with violating must have been passed before he committed the act charged, he must be confronted by the witnesses against him, he must not be compelled to incriminate himself * * 42 The Committee inflicts punishment for • unorthodox opinions or associations without any of these safeguards. To say that it may do so because it is not a court is to say that many vital constitutional rights mp.y be denied because another and a most vital one is also denied.
III.
“Statutes defining crimes may fail of their purpose if they do not provide some reasonable standards of guilt. * * * Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused.” On these grounds the Supreme Court, in the recent Musser case, vacated a conviction under a Utah statute punishing conspiracy “to commit any act injurious to the public health, to public morals, or to trade or commerce, or for the perversion or obstruction of justice or the due administration of the laws * * Unlimited by its context or by judicial construction, the Court found this statute so indefinite as to cover “agreement to do al*261most any act which a judge and jury might find at the moment contrary to his or its notions of what was good for health, morals, trade, commerce, justice or order.” Since such notions are highly various, the statute is too vague to support a criminal conviction.43
It would be hard to find a clearer instance of this principle than the one before us. The Act under which appellants were convicted makes it a misdemeanor to fail to produce papers “upon any matter under inquiry” before a congressional committee or refuse to answer any question “pertinent to the question under inquiry.” 44 “A witness rightfully may refuse to answer where * * * the questions are not pertinent to the matter under inquiry.” 45 The matter under inquiry before the House Committee is thus described in its enabling Act and in earlier resolutions: “(i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the fonn of government as guaranteed by oxw Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation.”46 Under each of these three clauses, the matter under inquiry is limited by the term “un-American.” If that term is so indefinite as to cover “almost any act which a judge and jury [or the Committee] might find at the moment contrary to his or its notions of what was good if if if» £ke ]y[usser case requires reversal of the present convictions. For then the matter under inquiry is similarly indefinite; a witness before the committee cannot know whether a question or demand is “pertinent to the matter under inquiry”; and he cannot know whether or not he will be committing a crime if he fails to respond.47
The term un-American is completely indefinite. Government counsel do not attempt to define it and concede that they cannot define it. In effect, though not in purpose, they thereby confess error.
In a literal sense whatever occurs in America-is American. The President’s Advisory Committee on Universal Training, in response to the contention that universal military training was un-American, said “An epithet is not an argument. ‘UnAmerican’ means simply that it has not been done before in America.” 48 But obviously Congress employed a different usage, and meant the term un-American to connote some propaganda that does occur in America. Just as obviously Congress did not mean it to cover all propaganda that occurs here, including e. g. the usual campaign literature of the major parties. The question is, what line did Congress draw? Congress drew none.
Once the literal sense, which Congress plainly did not intend, is left behind, the term un-American is one of the vaguest in the language. It may suggest what is not customary or popular here. But different persons have very different ideas of what is not customary or popular. It seems probable that Congress used the term in some undisclosed sense that includes only some unidentified part of this field and is therefore even more indefinite. The House Committee may perhaps be said to have interpreted the term in practice as including, though not always limited to, (1) “communistic” (and, *262formerly, “fascistic”) ideas, (2) ideas commonly called radical, and (3) ideas com-' monly called liberal. The Committee’s practice has made this usage somewhat familiar. But in a different usage that is at least as familiar the term un-American includes, without being limited to, ideas commonly called undemocratic. And even if it were conceded that Congress intended the suggested interpretation of the Committee’s interpretation, the term un-American would still be too vague for criminal purposes because (a) nothing in the enabling Act informs the public that such an interpretation is intended, (b) the words communistic, fascistic, radical, and liberal are themselves too vague for criminal purposes, and (c) the suggested interpretation is not limited to those words.
This does not begin to exhaust the ordinary varieties of usage of the term unAmerican. Since some connotation of odium is common to most of them, “un-American propaganda” might perhaps be said to mean “odious propaganda.” But this again would not do for criminal purposes. Witnesses before the Committee cannot be required to decide whether or not demanded evidence relates to propaganda that is odious, on pain of criminal punishment if they think it does not and a court thinks it does. And the basic question, whether demanded evidence relates to propaganda that is unAmerican, is vaguer still, since the answer depends not only upon applying but also upon selecting one of the vague and various meanings of un-American.
The enabling Act uses the word “subversive,” the word “attacks,” and the words “the principle of the form of government as guaranteed by our Constitution,” but it uses none of them independently of the word un-American. Moreover, the quoted words themselves have no reasonably clear meaning. Does “the principle of the form of government” here mean the republican or democratic principle only, or does it include e. g. the constitutional duty of courts not to enforce unconstitutional legislation? This court puts a plural where Congress put a singular, and - says “the principles * * * are obvious.” To me it is not obvious how much Congress meant by “the principle,” or how much the court means by “the principles,” or that the two meanings are identical. Both because “the principle” is vague and because “attacks” is vague, I do not know whether propaganda “attacks the principle” if, e. g., it advocates a constitutional amendment replacing the American principle of judicial review by the British principle of legislative supremacy. Neither do I know whether the kind of propaganda with which the House Committee undertook to connect the appellants through their records “attacks the principle.” A member of the Communist Party who advocates sweeping constitutional changes may, in the Supreme Court’s view, be “attached to the principles of the Constitution” within the meaning of those words in a naturalization act: “As Justice Holmes said, ‘Surely it cannot show lack of attachment to the principles of the Constitution that * * * [one] thinks that it can be improved. * * * If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought— not free thought for those who agree with us but freedom for the thought that we hate.’ ”49 But we do not know that Congress intended the House Committee’s enabling Act to be interpreted in accordance with that view. The Committee interprets it differently.
Apparently Congress did not even intend to give the Committee a definite function. “The purpose seems to have been to give the Committee a roving commission to inquire into any propaganda activities which a majority of the Committee thought warranted investigation.” 50 At all events the statutory language, like that held bad in the Musser case, covers “almost any act which a judge and jury [or the Committee] might find at the moment contrary to his or its notions of what was good * * A court might as well be asked to enforce “a statute which in terms merely penalized and punished all acts detrimental to the public interest * * *. So vague and indeter*263mínate are the boundaries thus set to the freedom of speech * * * that the law necessarily violates the guarantees of liberty * * *.”51 In so ruling in the Herndon case the Court did not add: “unless the defendant’s act seems to the Court clearly on the penalized side of the vague and indeterminate boundaries.” I understand this court to hold that the Committee’s demand for appellants’ records was clearly within the limits, however vague, of the enabling Act, and that appellants are .therefore punishable for not producing them. I have tried to show that the court’s premise is erroneous. The Musser and Herndon cases show that it does not support the court’s conclusion.
IV.
Appellants appeared and testified before the Committee but did not produce the demanded records. The court says “These appellants were not asked to state their political opinions. They were asked to account for funds.” This distinction merely makes any possible pertinence to the Committee’s investigation the more remote. The appellants were asked to account for funds in order to reveal their political opinions. Accordingly the court says: “We are considering a specific question only, which is whether this Congressional Committee may inquire whether an individual is or is not a believer in Communism or a member of the Communist Party.” That specific question is before us, if at all, as an aspect of the larger question whether courts may punish individuals for not responding to an inquiry by this Committee into their political opinions. My answer to both questions is no. The Committee’s specific inquiry abridged appellants’ freedom of speech and attempted to inflict punishment without trial. The Committee’s entire investigation was unconstitutional both as abridging freedom of speech and as attempting to punish without trial; and there is no duty to respond to inquiries in an unconstitutional proceeding. The statute the appellants are convicted of violating provides no ascertainable standard of guilt.
I do not consider other alleged errors. Legislation restraining speech, which is excepted from the principle that constitutionality is presumed, should for similar reasons be excepted from the related principle that no ruling on constitutionality is made when a case can be decided on other grounds.
Chafee, Free Speech in the United States, 30-31.
Jones v. City of Opelika, 319 U.S. 103, 63 S.Ct. 890, 87 L.Ed. 1290; Murdock v. Commonwealth of Pennsylvania, 319 U.S. 105, 63 S.Ct. 870, 875, 87 L. Ed. 1292, 146 A.L.R. 81; Busey v. District of Columbia, infra, note 5.
Jones v. City of Opelika, 316 U.S. 584, 604, 62 S.Ct. 1231, 1242, 86 L.Ed. 1691, 141 A.L.R. 514. The dissent of Chief Justice Stone, here quoted, and the other dissents filed at the same time, were afterwards adopted as opinions of the Court. Jones v. City of Opelika, 319 U.S. 103, 104, 63 S.Ct. 890, 87 L.Ed. 1290.
Murdock v. Commonwealth of Pennsylvania, supra, note 2, 319 U.S. at pages 114, 116, 63 S.Ct. at pages 875, 876.
The Supreme Court’s mandate in Busey v. District of Columbia, 319 U.S. 579, 63 S.Ct. 1277, 87 L.Ed. 1598, required us to apply the principle of Murdock and Opelika to a tax imposed by .Act of Congress. Busey v. District of Columbia, 78 U.S.App.D.C. 189, 188 F.2d 592.
The First Amendment similarly restricts legislative power to regulate e. g. public education, West Virginia State Board of Education v. Barnette, 319 U. S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; People of State of Illinois ex rel. McCollum v. Board of Education, 68 S.Ct. 461; labor unions, Thomas v. Collins. 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed. 430; use of streets, Schneider v. State of New Jersey (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 84 L. Ed. 155.
Busey v. District of Columbia, 78 U. S.App.D.C. 189, 192, 138 F.2d 592, 595. We based our ruling on Palko v. State of Connecticut, 302 U.S. 819, 58 S.Ct. 149, 82 L.Ed. 288; Cantwell v. State of Connecticut, 310 U.S. 206, 60 S.Ct. 960, 84 L.Ed. 1213, 128 A.L.R. 1352; West Virginia State Board of Education v. Barnette, 319 U.S. 024, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674; and United States v. Carolene Products Co., 304 U.S. 144, 152, 58 S.Ct. 778, 82 L. Ed. 1234. Cf. Schneider v. State of New Jersey (Town of Irvington), 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155; Thornhill v. State of Alabama, 310 U.S. 88, 95-96, 60 S.Ct. 736, 84 L.Ed. 1093; Thomas v. Collins, 323 U.S. 516, 529-530, 65 S.Ct. 315, 89 L.Ed. 430.
“Hollywood Fires 10 Cited in Contempt. Film Heads Rule They Must Swear They’re Not Reds To Be Rehired”. Head and subhead in Washington Post, Nov. 26, 1947, p. 1, col. 4.
“Patently, if it is well known that expressing novel political ideas and advocating certain types of change in government frequently subject individuals to burdensome investigation and disparaging publicity, many persons might be constrained to refrain from such activity.” Note, Constitutional Limitations on the Un-American Activities Committee, 47 Col.L.Rev. 416, 428.
The President’s Committee on Civil Rights has proposed “legislation requiring all groups, which attempt to influence public opinion, to disclose the pertinent facts about themselves through systematic registration procedures.” To Secure These Rights, p. 164. Sound or unsound, this proposal raises different questions from those before us. The proposed “registration procedures” would be confined to fact, without inference or epithet; would have no punitive purpose; would apply to all groups that attempt to influence public opinion, not to groups selected in order to be stigmatized; and would not apply to groups that do not attempt to influence public opinion.
West Virginia State Board of Education v. Barnette, 319 U.S. 624, 634, 642, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A.L.R. 674.
“It would seem that involuntary affirmation could be commanded only on even more immediate and urgent grounds than silence.” 319 U.S. page 633, 63 S. Ct. page 1183.
Schneiderman v. United States, 320 U.S. 118, 336, 63 S.Ct. 1333, 1342, 87 L.Ed. 1796.
Robert E. Cushman, Goldwin Smith Professor of Government in Cornell University, has said: “Under the guise of attacking Communism [Mr. Dies] was able to attack all so-called liberal ideas in the field of politics and economics. This was done by pinning the label of Communism on all persons who belonged to any society or organization in which there ever had been any Communist member, or any idea, theory, or action of which any Communist had ever approved.” Civil Liberty and Public Opinion; in Safeguarding Civil Liberty Today, Bernays lectures of 1944 at Cornell University, 81,100.
One suspicious circumstance, in the Committee’s view, was that an entertainer at one meeting of the Conference was employed by a New York night club whose owner’s brother was a Communist. H. Rep. No. 592, 80th Cong., 1st Sess., 10 (1947). Professor Gellhorn of Columbia University has made a thorough study of this Report. Gellhorn, Report on a Report of the House Committee on Un-American Activities, 60 Harv.L. Rev. 1193.
Of. a subcommittee’s action on Dr. Condon, Director of the National Bureau of Standards; reported in Washington Post, (Washington) Evening Star, March 5, 1948.
Infra at note 26. Professor Cushman says: “The opprobrious epithet ‘un-American’ was applied to all those who indulged in any open criticism of our existing institutions, our so-called American way of life, or of Mr. Dies. * * * Good loyal American citizens who ought to know better were persuaded to give their support to the suppression of free speech and free press on the grotesque theory that they were thereby showing their loyalty to the basic principles of American democracy. Bigotry was made not merely respectable but noble. By the skillful use of labels, or slogans, American public opinion was inoculated with the dangerous idea that true Americanism consists in the stalwart defense of the status quo and the suppression of those dangerous and disloyal people who are unpatriotic enough to want to criticize it or suggest any change in it.” Op. eit. supra note 13, at 100.
Its effect on people in the moving picture industry has been described in the newspapers and in a report in the New Yorker of Feb. 21, 1948, p. 32.
Even in 1943, after less than five years of existence, the Committee had accumulated a file of over 1,000,000 cards containing information on individuals and organizations. H. Rep. No. 2748, 77th Gong., 2d Sess., 2 (1043).
When the House of Representatives first authorized the Committee as a special committee Mr. Dies, its first chairman, said “I am not in a position to say whether we can legislate effectively in reference to this matter, but I do know that exposure in a democracy of subversive activities is the most effective weapon we have in our possession.” 83 Cong. Rec. 7570 (1938). Some years later Mr. Mundt said: “The country might as well be told first as last that our committee is in this fight to expose unAmerican activities to the finish. By your votes today we ask you to give evidence of your support.” 92 Cong.Ree. 3767 (1946). Mr. Rankin has said,' in the present record, that the Committee is a “grand jury” to which “defense counsel” should not be admitted. See also 91 Cong.Ree. 275 (1945).
The Committee’s Reports declare its purpose. “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. Rep. No. 2, 76th Cong., 1st Sess., 13 (1939). “ * * * Investigation to inform the American people * * * is the real purpose of the House Committee. * * * The committee conceives its principal task to have been the revelation of the attempts now being made by extreme groups in this country to deceive the great mass of earnest and devoted American citizens. * * * The purpose of this committee is the task of protecting our constitutional democracy by * * * pitiless publicity. * * * ” H. Rep. No. 1476, 76th Cong., 3d Sess., 1, 3, 24 (1940). “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.” H. Rep. No. 1, 77th Cong., 1st Sess., 24 (1941). Tha Committee is “empowered to explore and expose activities by un-American individuals and organizations which, while sometimes being legal, are nonetheless inimical to our American concepts and our American future.” H. Rep. No. 2742; 79th Cong., 2d Sess., 16 (1947). The Committee regards discovery and exposure as its “special function” by mandate from the House. H. Rep. No. 2748, 77th Cong., 2d Sess., 2 (1943). Accordingly it made public the names, positions,' and salaries of some 563 government employees as members of the American League for Peace and Democracy. “The committee felt that the Congress and the people were entitled to know who they were.” Ibid, pp. 4-5.
Chairman Thomas recently said in a radio address: “The chief function of the committee, however, has always been the exposure of un-American activities. This is based upon the conviction that •the American public will not tolerate efforts to subvert or destroy the American system of government, once such efforts have been pointed out. The Congress’ right to investigate and expose undemocratic forces is as established and untrammeled as our Constitution.” Cong. Rec., 80th Cong., 1st Sess., A4606 (Nov. 20, 1947).
Some of the phrases quoted in the preceding footnote, e. g., “effective weapon,” “grand jury,” “protecting our constitutional democracy by * * * pitiless publicity,” “the American public will not tolerate,” express this purpose even more directly.
Cushman, op. cit. supra note 13, at 100.
Near v. State of Minnesota, 283 U.S. 697, 711, 51 S.Ct. 625, 629, 75 L.Ed. 1357.
A purpose to reduce the circulation of newspapers makes a tax law unconstitutional. Grosjean v. American Press Co., 297 U.S. 233, 250, 56 S.Ct. 444, 80 L.Ed. 660.
The so-called Alien Registration Act of 1940 contains provisions having nothing to do with registration and not limited to aliens, but applicable to all persons, that make it “unlawful for any person— (1) to knowingly or willfully advocate, abet, advise, or teach the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence, or by the assassination of any officer of any such government; (2) with the intent to cause the overthrow or destruction of any government in the United States, to print, publish, edit, issue, circulate, sell, distribute, or publicly display any written or printed matter advocating, advising, or teaching the duty, necessity, desirability, or propriety of overthrowing or destroying any government in the United States by force or violence; (3) to organize or help to organize any society, group, or assembly of persons who teach, advocate, or encourage the overthrow or destruction of any government in the United States by force or violence; or to be or become a member of, or affiliate with, any such society, group, or assembly of persons, knowing the purpose thereof.” 54 Stat. 671, § 2(a), 18 Ü.S.C.A. § 10.
Quoted infra at note 46.
Supra note 9, at 418, 422 — 423. The quoted statements are supported by specific references.
The Committee has also scrutinized, e. g., radio commentators who have changed their names or who “can hardly speak English,” and Army orientation material which “sought to teach that any person who claimed to be any one or all of the following was a Fascist, or was likely to become a Fascist very shortly: ‘100 percent American, anti-Jew, anti-Negro, anti-labor, anti-foreign-born, anti-Catholic.’ ” H. Rep. No. 2233, 79th Cong., 2d Sess., 9-13, 14 (1946). The Committee said in its first Report: “* * * (5) Any organization or individual who believes in or advocates a system of political, economic, or social regimentation based upon a planned economy is un-American. (6) Any organization or individual who believes in or advocates the destruction of the American system of checks and balances with its three independent coordinate branches of government is un-American.” H. Rep. No. 2, 76th Cong., 1st Sess., 12 (1939).
Thornhill v. State of Alabama, 310 U.S. 88, 97-98, 60 S.Ct 736, 742, 84 L.Ed. 1093. Cf. Yu Cong Eng v. Trinidad, 271 U.S. 500, 523, 46 S.Ct. 619, 70 L.Ed. 1059.
Herndon v. Lowry, 301 U.S. 242, 263, 57 S.Ot 732,742, 81 L.Ed. 1066. The Court continued: “if a jury can be persuaded that he ought to have foreseen his words would have- some effect in the future conduct of others.” The present statute contains no such qualification, either on its face or as construed and applied.
Chafee, op. cit. supra note 1, at 35 ix, 180.
Herndon v. Lowry, supra note 28, 310 U.S. at page 258, 57 S.Ct. at page 739.
Schenck v. United States, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470.
West Virginia State Board of Education v. Barnette, supra note 11, 319 U.S. at page 633, 63 S.Ot. at page 1183, 87 L.Ed. 1628, 147 A.L.R. 674. “What finally emerges from the ‘dear and present danger’ cases is a working principle that the substantive evil must be extremely serious and the degree of imminence extremely high before utterances can be punished.” Bridges v. State of California, 314 U.S. 252, 263, 62 S.Ct. 190, 194, 86 L.Ed. 192, 159 A.L, R. 1346.
Busey v. District of Columbia, supra note 7, 78 U.S.App.D.C. at page 192, 138 F.2d 595.
Thomas v. Collins, 323 U.S. 516, 529-530, 65 S.Ct. 315, 322, 89 L.Ed. 430. Cf. other cases cited in note 7 supra.
Quoted above, note 24.
But investigation must be related to a matter with which Congress has power to deal directly and exposure is not a legislative power. Kilbourn v. Thompson, 103 U.S. 168, 190, 26 L.Ed. 377; McGrain v. Daugherty, 273 U.S. 135, 173-174, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1.
Near v. State of Minnesota, supra note 22, 283 U.S. at page 708, 51 S.Ct. at page 628, 75 L.Ed. 1357.
Kilboum v. Thompson, supra note 36, 103 U.S. at page 182, 26 L.Ed. 377.
United States v. Lovett, 328 U.S. 303, 315-316, 66 S.Ct. 1073, 1079, 90 L. Ed. 1252,
Id.
Supra, note 19.
United States v. Lovett, supra note 39, 328 U.S. at pages 314, 317, 66 S.Ct. 1078, 1080.
Musser v. State of Utah, 333 U.S. 95, 97, 68 S.Ct. 397, 398.
R.S. § 102, 52 Stat. 942, 2 U.S.C.A. § 192.
McGrain v. Daugherty, 273 U.S. 135, 176, 47 S.Ct. 319, 329, 71 L.Ed. 580, 50 A.L.R. 1.
60 Stat. 828. Italics supplied. Of. note 3 of the prevailing opinion.
In a prosecution under R.S. § 102, pertinence is part of the government’s case, but is a question of “law” for the court. Sinclair v. United States, 279 U. S. 263, 296, 298, 49 S.Ct. 268, 73 L.Ed. 692. It does not follow, as the government suggests, that pertinence which cannot be determined by any ascertainable standard will do. On the contrary, in the recent Musser case, quoted above, the Court declared that reasonable standards are necessary not only “to give adequate guidance to those who would be law-abiding” but also “to guide courts in trying those who áre accused.”
A Program for National Security, Report of the President’s Advisory Committee on Universal Training (1947) 39.
Schneiderman v. United States, supra note 12, 320 U.S. 118, 138, 63 S.Ct 1333, 1343, 87 L.Ed. 1796.
Supra note 9, at 422.
Herndon, v. Lowry, supra note 28, 301 U.S. at pages 263, 264, 57 S.Ct. at pages 741, 742, 81 L.Ed. 1066. Cf. Thornhill v. State of Alabama, supra note 27.