Sweezy v. New Hampshire

No. 175

Argued March 5, 1957

Decided June 17, 1957

354 U.S. 234

APPEAL FROM THE SUPREME COURT OF NEW HAMPSHIRE

Syllabus



1. This case was brought here on appeal under 28 U.S.C. 1257(2); but the

appellant has failed to meet his burden of showing that jurisdiction by

appeal was properly invoked.  Held:  The appeal is dismissed.  Treating

the papers as a petition for certiorari under 28 U.S.C.  2103,

certiorari is granted.



2. In an investigation conducted by a State Attorney General, acting on

behalf of the State Legislature under a broad resolution directing him

to determine whether there were "subversive persons" in the State and to

recommend further legislation on that subject, appellant answered most

questions asked him, including whether he was a Communist; but he

refused to answer questions related to (1) the contents of a lecture he

had delivered at the State University, and (2) his knowledge of the

Progressive Party of the State and its members.  He did not plead his

privilege against self-incrimination, but based his refusal to answer

such questions on the grounds that they were not pertinent to the

inquiry and violated his rights under the First Amendment.  Persisting

in his refusal when haled into a State Court and directed to answer, he

was adjudged guilty of contempt.  This judgment was affirmed by the

State Supreme Court, which construed the term "subversive persons"

broadly enough to include persons engaged in conduct only remotely

related to actual subversion and done completely apart from any

conscious intent to be a part of such activity.  It also held that the

need of the Legislature to be informed on the subject of

self-preservation of government outweighed the deprivation of

constitutional rights that occurred in the process.  Held:  on the

record in this case, appellant's rights under the Due Process Clause of

the Fourteenth Amendment were violated, and the judgment is reversed.



100 N.H. 103,121 A.2d 783, reversed. [354 U.S. 235]



For the opinions of the Justices constituting the majority of the Court,

see:



Opinion of THE CHIEF JUSTICE, joined by MR. JUSTICE BLACK, MR. JUSTICE

DOUGLAS, and MR. JUSTICE BRENNAN,



Opinion of MR. JUSTICE FRANKFURTER, joined by MR. JUSTICE HARLAN,

concurring in the result, post,



For dissenting opinion of MR. JUSTICE CLARK, joined by MR. JUSTICE

BURTON, see post, WARREN, J., lead opinion



MR. CHIEF JUSTICE WARREN announced the judgment of the Court and

delivered an opinion, in which MR. JUSTICE BLACK, MR. JUSTICE DOUGLAS,

and MR. JUSTICE BRENNAN join.



This case, like Watkins v. United States, 354 U.S. 178, brings before us

a question concerning the constitutional limits of legislative inquiry. 

The investigation here was conducted under the aegis of a state

legislature, rather than a House of Congress.  This places the

controversy in a slightly different setting from that in Watkins.  The

ultimate question here is whether the investigation deprived Sweezy of

due process of law under the Fourteenth Amendment.  For the reasons to

be set out in this opinion, we conclude that the record in this case

does not sustain the power of the State to compel the disclosures that

the witness refused to make.



This case was brought here as an appeal under 28 U.S.C.  1257(2). 

Jurisdiction was alleged to rest upon contentions, rejected by the state

courts, that a statute [354 U.S. 236] of New Hampshire is repugnant to

the Constitution of the United States.  We postponed a decision on the

question of jurisdiction until consideration of the merits.  352 U.S.

812.  The parties neither briefed nor argued the jurisdictional

question.  The appellant has thus failed to meet his burden of showing

that jurisdiction by appeal was properly invoked.  The appeal is

therefore dismissed.  Treating the appeal papers as a petition for writ

of certiorari, under 28 U.S.C.  2103, the petition is granted.  Cf.

Union National Bank v. Lamb, 337 U.S. 38, 39-40.



The investigation in which petitioner was summoned to testify had its

origins in a statute passed by the New Hampshire legislature in 1951. 

It was a comprehensive scheme of regulation of subversive activities. 

There was a section defining criminal conduct in the nature of sedition.

 "Subversive organizations" were declared unlawful and ordered

dissolved.  "Subversive persons" were made ineligible for employment by

the state government.  Included in the disability were those employed as

teachers or in other capacities by any public educational institution. 

A loyalty program was instituted to eliminate "subversive persons" among

government personnel.  All present employees, as well as candidates for

elective office in the future, were required to make sworn statements

that they were not "subversive persons."



In 1953, the legislature adopted a "Joint Resolution Relating to the

Investigation of Subversive Activities."  It was resolved:



That the attorney general is hereby authorized and directed to make full

and complete investigation with respect to violations of the subversive

activities act of 1951 and to determine whether subversive [354 U.S.

237] persons as defined in said act are presently located within this

state.  The attorney general is authorized to act upon his own motion

and upon such information as in his judgment may be reasonable or

reliable. . . . *    *    *    *



The attorney general is directed to proceed with criminal prosecutions

under the subversive activities act whenever evidence presented to him

in the course of the investigation indicates violations thereof, and he

shall report to the 1955 session on the first day of its regular session

the results of this investigation, together with his recommendations, if

any, for necessary legislation.



Under state law, this was construed to constitute the Attorney General

as a one-man legislative committee.  [354 U.S. 238] He was given the

authority to delegate any part of the investigation to any member of his

staff.  The legislature conferred upon the Attorney General the further

authority to subpoena witnesses or documents.  He did not have power to

hold witnesses in contempt, however.  In the event that coercive or

punitive sanctions were needed, the Attorney General could invoke the

aid of a State Superior Court which could find recalcitrant witnesses in

contempt of court.



Petitioner was summoned to appear before the Attorney General on two

separate occasions.  On January 5, 1954, petitioner testified at length

upon his past conduct and associations.  He denied that he had ever been

a member of the Communist Party or that he had ever been part of any

program to overthrow the government by force or violence.  The

interrogation ranged over many matters, from petitioner's World War II

military service with the Office of Strategic Services to his

sponsorship, in 1949, of the Scientific and Cultural Conference for

World Peace, at which he spoke.



During the course of the inquiry, petitioner declined to answer several

questions.  His reasons for doing so were given in a statement he read

to the Committee at [354 U.S. 239] the outset of the hearing.  He

declared he would not answer those questions which were not pertinent to

the [354 U.S. 240] subject under inquiry as well as those which

transgress the limitations of the First Amendment.  In keeping with [354

U.S. 241] this stand, he refused to disclose his knowledge of the

Progressive Party in New Hampshire or of persons with [354 U.S. 242]

whom he was acquainted in that organization.  No action was taken by the

Attorney General to compel answers to these questions.



The Attorney General again summoned petitioner to testify on June 3,

1954.  There was more interrogation about the witness' prior contacts

with Communists.  The Attorney General lays great stress upon an article

which petitioner had co-authored.  It deplored the use of violence by

the United States and other capitalist countries in attempting to

preserve a social order which the writers thought must inevitably fall. 

This resistance, the article [354 U.S. 243] continued, will be met by

violence from the oncoming socialism, violence which is to be less

condemned morally than that of capitalism since its purpose is to create

a "truly human society."  Petitioner affirmed that he styled himself a

"classical Marxist" and a "socialist" and that the article expressed his

continuing opinion.



Again, at the second hearing, the Attorney General asked, and petitioner

refused to answer, questions concerning the Progressive Party, and its

predecessor, the Progressive Citizens of America.  Those were:



Was she, Nancy Sweezy, your wife, active in the formation of the

Progressive Citizens of America?



Was Nancy Sweezy then working with individuals who were then members of

the Communist Party?



Was Charles Beebe active in forming the Progressive Citizens of America?



Was Charles Beebe active in the Progressive Party in New Hampshire?



Did he work with your present wife -- Did Charles Beebe work with your

present wife in 1947?



Did it (a meeting at the home of Abraham Walenko in Weare during 1948)

have anything to do with the Progressive Party?



The Attorney General also turned to a subject which had not yet occurred

at the time of the first hearing.  On March 22, 1954, petitioner had

delivered a lecture to a class of 100 students in the humanities course

at the University of New Hampshire.  This talk was given at the

invitation of the faculty teaching that course.  Petitioner had

addressed the class upon such invitations in the two preceding years as

well.  He declined to answer the following questions:



What was the subject of your lecture?



Didn't you tell the class at the University of New Hampshire on Monday,

March 22, 1954, that Socialism was inevitable in this country? [354 U.S.

244]



Did you advocate Marxism at that time?



Did you express the opinion, or did you make the statement at that time

that Socialism was inevitable in America?



Did you in this last lecture on March 22 or in any of the former

lectures espouse the theory of dialectical materialism?



Distinct from the categories of questions about the Progressive Party

and the lectures was one question about petitioner's opinions.  He was

asked:  "Do you believe in Communism?"  He had already testified that he

had never been a member of the Communist Party, but he refused to answer

this or any other question concerning opinion or belief.



Petitioner adhered in this second proceeding to the same reasons for not

answering he had given in his statement at the first hearing.  He

maintained that the questions were not pertinent to the matter under

inquiry and that they infringed upon an area protected under the First

Amendment.



Following the hearings, the Attorney General petitioned the Superior

Court of Merrimack County, New Hampshire, setting forth the

circumstances of petitioner's appearance before the Committee and his

refusal to answer certain questions.  The petition prayed that the court

propound the questions to the witness.  After hearing argument, the

court ruled that the questions set out above were pertinent.  Petitioner

was called as a witness by the court and persisted in his refusal to

answer for constitutional reasons.  The court adjudged him in contempt

[354 U.S. 245] and ordered him committed to the county jail until purged

of the contempt.



The New Hampshire Supreme Court affirmed.  100 N.H. 103, 121 A.2d 783. 

Its opinion discusses only two classes of questions addressed to the

witness:  those dealing with the lectures and those about the

Progressive Party and the Progressive Citizens of America.  No mention

is made of the single question concerning petitioner's belief in

Communism.  In view of what we hold to be the controlling issue of the

case, however, it is unnecessary to resolve affirmatively that that

particular question was or was not included in the decision by the State

Supreme Court.



There is no doubt that legislative investigations, whether on a federal

or state level, are capable of encroaching upon the constitutional

liberties of individuals.  It is particularly important that the

exercise of the power of compulsory process be carefully circumscribed

when the investigative process tends to impinge upon such highly

sensitive areas as freedom of speech or press, freedom of political

association, and freedom of communication of ideas, particularly in the

academic community.  Responsibility for the proper conduct of

investigations rests, of course, upon the legislature itself.  If that

assembly chooses to authorize inquiries on its behalf by a legislatively

created committee, that basic responsibility carries forward to include

the duty of adequate supervision of the actions of the committee.  This

safeguard can be nullified when a committee is invested with a broad and

ill-defined jurisdiction.  The authorizing resolution thus becomes

especially significant in that it reveals the amount of discretion that

has been conferred upon the committee.



In this case, the investigation is governed by provisions in the New

Hampshire Subversive Activities Act of [354 U.S. 246] 1951.{10}  The

Attorney General was instructed by the legislature to look into

violations of that Act.  In addition, he was given the far more sweeping

mandate to find out if there were subversive persons, as defined in that

Act, present in New Hampshire.  That statute, therefore, measures the

breadth and scope of the investigation before us.



"Subversive persons" are defined in many gradations of conduct.  Our

interest is in the minimal requirements of that definition, since they

will outline its reach.  According to the statute, a person is a

"subversive person" if he, by any means, aids in the commission of any

act intended to assist in the alteration of the constitutional form of

government by force or violence.{11}  The possible remoteness from armed

insurrection of conduct that could satisfy these criteria is obvious

from the language.  The statute goes well beyond those who are engaged

in efforts designed to alter the form of government by force or

violence.  The statute declares, in effect, that the assistant of an

assistant is caught up in the definition.  This chain of conduct attains

increased significance in light of the lack of a necessary element of

guilty knowledge in either stage of assistants.  The State Supreme Court

has held that the definition encompasses persons engaged in the

specified conduct ". . . whether or not done 'knowingly and willfully.'

. . ."  Nelson v. Wyman, 99 N.H. 33, [354 U.S. 247] 39, 105 A.2d 756,

763.  The potential sweep of this definition extends to conduct which is

only remotely related to actual subversion and which is done completely

free of any conscious intent to be a part of such activity.



The statute's definition of "subversive organizations" is also broad. 

An association is said to be any group of persons, whether temporarily

or permanently associated together, for joint action or advancement or

views on any subject.{12}  An organization is deemed subversive if it

has a purpose to abet, advise or teach activities intended to assist in

the alteration of the constitutional form of government by force or

violence.



The situation before us is in many respects analogous to that in Wieman

v. Updegraff, 344 U.S. 183.  The Court held there that a loyalty oath

prescribed by the State of Oklahoma for all its officers and employees

violated the requirements of the Due Process Clause because it entailed

sanctions for membership in subversive organizations without scienter. 

A State cannot, in attempting to bar disloyal individuals from its

employ, exclude persons solely on the basis of organizational

membership, regardless of their knowledge concerning the organizations

to which they belonged.  The Court said: There can be no dispute about

the consequences visited upon a person excluded from public employment

[354 U.S. 248] on disloyalty grounds.  In the view of the community, the

stain is a deep one; indeed, it has become a badge of infamy. 

Especially is this so in time of cold war and hot emotions, when "each

man begins to eye his neighbor as a possible enemy."  Yet, under the

Oklahoma Act, the fact of association alone determines disloyalty and

disqualification; it matters not whether association existed innocently

or knowingly.  To thus inhibit individual freedom of movement is to

stifle the flow of democratic expression and controversy at one of its

chief sources. 344 U.S. at



The sanction emanating from legislative investigations is of a different

kind than loss of employment.  But the stain of the stamp of disloyalty

is just as deep.  The inhibiting effect in the flow of democratic

expression and controversy upon those directly affected and those

touched more subtly is equally grave.  Yet here, as in Wieman, the

program for the rooting out of subversion is drawn without regard to the

presence or absence of guilty knowledge in those affected.



The nature of the investigation which the Attorney General was

authorized to conduct is revealed by this case.  He delved minutely into

the past conduct of petitioner, thereby making his private life a matter

of public record.  The questioning indicates that the investigators had

thoroughly prepared for the interview, and were not acquiring new

information as much as corroborating data already in their possession. 

On the great majority of questions, the witness was cooperative, even

though he made clear his opinion that the interrogation was unjustified

and unconstitutional.  Two subjects arose upon which petitioner refused

to answer:  his lectures at the University of New Hampshire, and his

knowledge of the Progressive Party and its adherents. [354 U.S. 249]



The state courts upheld the attempt to investigate the academic subject

on the ground that it might indicate whether petitioner was a

"subversive person."  What he taught the class at a state university was

found relevant to the character of the teacher.  The State Supreme Court

carefully excluded the possibility that the inquiry was sustainable

because of the state interest in the state university.  There was no

warrant in the authorizing resolution for that.  100 N.H. at 110, 121

A.2d at 789, 790.  The sole basis for the inquiry was to scrutinize the

teacher as a person, and the inquiry must stand or fall on that basis.



The interrogation on the subject of the Progressive Party was deemed to

come within the Attorney General's mandate because that party might have

been shown to be a "subversive organization."  The State Supreme Court

held that the . . . questions called for answers concerning the

membership or participation of named persons in the Progressive Party

which, if given, would aid the Attorney General in determining whether

that party and its predecessor are or were subversive organizations. 100

N.H. at 112, 121 A.2d at 791.



The New Hampshire court concluded that the . . . right to lecture and

the right to associate with others for a common purpose, be it political

or otherwise, are individual liberties guaranteed to every citizen by

the State and Federal Constitutions, but are not absolute rights. . . . 

The inquiries authorized by the Legislature in connection with this

investigation concerning the contents of the lecture and the membership,

purposes, and activities of the Progressive Party undoubtedly interfered

with the defendant's free exercise of those liberties. 100 N.H. at 113,

121 A.2d at 791, 792.



The State Supreme Court thus conceded without extended discussion that

petitioner's right to lecture and his right to associate with others

were constitutionally [354 U.S. 250] protected freedoms which had been

abridged through this investigation.  These conclusions could not be

seriously debated.  Merely to summon a witness and compel him, against

his will, to disclose the nature of his past expressions and

associations in a measure of governmental interference in these matters.

 These are rights which are safeguarded by the Bill of Rights and the

Fourteenth Amendment.  We believe that there unquestionably was an

invasion of petitioner's liberties in the areas of academic freedom and

political expression -- areas in which government should be extremely

reticent to tread.



The essentiality of freedom in the community of American universities is

almost self-evident.  No one should underestimate the vital role in a

democracy that is played by those who guide and train our youth.  To

impose any strait jacket upon the intellectual leaders in our colleges

and universities would imperil the future of our Nation.  No field of

education is so thoroughly comprehended by man that new discoveries

cannot yet be made.  Particularly is that true in the social sciences,

where few, if any, principles are accepted as absolutes.  Scholarship

cannot flourish in an atmosphere of suspicion and distrust.  Teachers

and students must always remain free to inquire, to study and to

evaluate, to gain new maturity and understanding; otherwise, our

civilization will stagnate and die.



Equally manifest as a fundamental principle of a democratic society is

political freedom of the individual.  Our form of government is built on

the premise that every citizen shall have the right to engage in

political expression and association.  This right was enshrined in the

First Amendment of the Bill of Rights.  Exercise of these basic freedoms

in America has traditionally been through the media of political

associations.  Any interference with the freedom of a party is

simultaneously an interference with the freedom of its adherents.  All

political [354 U.S. 251] ideas cannot and should not be channeled into

the programs of our two major parties.  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.  Mere unorthodoxy or dissent

from the prevailing mores is not to be condemned.  The absence of such

voices would be a symptom of grave illness in our society.



Notwithstanding the undeniable importance of freedom in the areas, the

Supreme Court of New Hampshire did not consider that the abridgment of

petitioner's rights under the Constitution vitiated the investigation. 

In the view of that court, the answer lies in a determination of whether

the object of the legislative investigation under consideration is such

as to justify the restriction thereby imposed upon the defendant's

liberties. 100 N.H. at 113-114, 121 A.2d at 791, 792.  It found such

justification in the legislature's judgment, expressed by its

authorizing resolution, that there exists a potential menace from those

who would overthrow the government by force and violence.  That court

concluded that the need for the legislature to be informed on so

elemental a subject as the self-preservation of government outweighed

the deprivation of constitutional rights that occurred in the process.



We do not now conceive of any circumstance wherein a state interest

would justify infringement of rights in these fields.  But we do not

need to reach such fundamental questions of state power to decide this

case.  The State Supreme Court itself recognized that there was a

weakness in its conclusion that the menace of forcible overthrow of the

government justified sacrificing constitutional rights.  There was a

missing link in the chain of reasoning.  The syllogism was not complete.

 There was nothing to connect the questioning of petitioner with this

fundamental interest of the State. Petitioner had been [354 U.S. 252]

interrogated by a one-man legislative committee, not by the legislature

itself.  The relationship of the committee to the full assembly is

vital, therefore, as revealing the relationship of the questioning to

the state interest.



In light of this, the state court emphasized a factor in the authorizing

resolution which confined the inquiries which the Attorney General might

undertake to the object of the investigation.  That limitation was

thought to stem from the authorizing resolution's condition precedent to

the institution of any inquiry.  The New Hampshire legislature specified

that the Attorney General should act only when he had information which

" . . . in his judgment may be reasonable or reliable."  The state court

construed this to mean that the Attorney General must have something

like probable cause for conducting a particular investigation.  It is

not likely that this device would prove an adequate safeguard against

unwarranted inquiries.  The legislature has specified that the

determination of the necessity for inquiry shall be left in the judgment

of the investigator.  In this case, the record does not reveal what

reasonable or reliable information led the Attorney General to question

petitioner.  The state court relied upon the Attorney General's

description of prior information that had come into his possession.{13}

[377 U.S. 253]



The respective roles of the legislature and the investigator thus

revealed are of considerable significance to the issue before us.  It is

eminently clear that the basic discretion of determining the direction

of the legislative inquiry has been turned over to the investigative

agency.  The Attorney General has been given such a sweeping and

uncertain mandate that it is his decision which picks out the subjects

that will be pursued, what witnesses will be summoned, and what

questions will be asked.  In this circumstance, it cannot be stated

authoritatively that the legislature asked the Attorney General to

gather the kind of facts comprised in the subjects upon which petitioner

was interrogated.



Instead of making known the nature of the data it desired, the

legislature has insulated itself from those witnesses whose rights may

be vitally affected by the investigation. Incorporating by reference

provisions from its subversive activities act, it has told the Attorney

General, in effect to screen the citizenry of New Hampshire to bring to

light anyone who fits into the expansive definitions.



Within the very broad area thus committed to the discretion of the

Attorney General, there may be many facts [354 U.S. 254] which the

legislature might find useful.  There would also be a great deal of data

which that assembly would not want or need.  In the classes of

information that the legislature might deem to desirable to have, there

will be some which it could not validly acquire because of the effect

upon the constitutional rights of individual citizens.  Separating the

wheat from the chaff, from the standpoint of the legislature's object,

is the legislature's responsibility, because it alone can make that

judgment.  In this case, the New Hampshire legislature has delegated

that task to the Attorney General.



As a result, neither we nor the state courts have any assurance that the

questions petitioner refused to answer fall into a category of matters

upon which the legislature wanted to be informed when it initiated this

inquiry.  The judiciary are thus placed in an untenable position. 

Lacking even the elementary fact that the legislature wants certain

questions answered and recognizing that petitioner's constitutional

rights are in jeopardy, we are asked to approve or disapprove his

incarceration for contempt.



In our view, the answer is clear.  No one would deny that the

infringement of constitutional rights of individuals would violate the

guarantee of due process where no state interest underlies the state

action.  Thus, if the Attorney General's interrogation of petitioner

were in fact wholly unrelated to the object of the legislature in

authorizing the inquiry, the Due Process Clause would preclude the

endangering of constitutional liberties.  We believe that an equivalent

situation is presented in this case.  The lack of any indications that

the legislature wanted the information the Attorney General attempted to

elicit from petitioner must be treated as the absence of authority.  It

follows that the use of the contempt power, notwithstanding the

interference with constitutional rights, [354 U.S. 255] was not in

accordance with the due process requirements of the Fourteenth

Amendment.



The conclusion that we have reached in this case is not grounded upon

the doctrine of separation of powers.  In the Federal Government, it is

clear that the Constitution has conferred the powers of government upon

three major branches:  the Executive, the Legislative and the Judicial. 

No contention has been made by petitioner that the New Hampshire

legislature, by this investigation, arrogated to itself executive or

judicial powers.  We accept the finding of the State Supreme Court that

the employment of the Attorney General as the investigating committee

does not alter the legislative nature of the proceedings.  Moreover,

this Court has held that the concept of separation of powers embodied in

the United States Constitution is not mandatory in state governments. 

Dreyer v. Illinois, 187 U.S. 71; but cf. Tenney v. Brandhove, 341 U.S.

367, 378.  Our conclusion does rest upon a separation of the power of a

state legislature to conduct investigations from the responsibility to

direct the use of that power insofar as that separation causes a

deprivation of the constitutional rights of individuals and a denial of

due process of law.



The judgment of the Supreme Court of New Hampshire is reversed.



Reversed.



MR. JUSTICE WHITTAKER took no part in the consideration or decision of

this case. FRANKFURTER, J., concurring



MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN joins, concurring in

the result.



For me, this is a very different case from Watkins v. United States, 354

U.S. 178.  This case comes to us solely through the limited power to

review the action of the [354 U.S. 256] States conferred upon the Court

by the Fourteenth Amendment.  Petitioner claims that respect for

liberties guaranteed by the Due Process Clause of that Amendment

precludes the State of New Hampshire from compelling him to answer

certain questions put to him by the investigating arm of its

legislature.  Ours is the narrowly circumscribed but exceedingly

difficult task of making the final judicial accommodation between the

competing weighty claims that underlie all such questions of due

process.



In assessing the claim of the State of New Hampshire to the information

denied it by petitioner, we cannot concern ourselves with the fact that

New Hampshire chose to make its Attorney General in effect a standing

committee of its legislature for the purpose of investigating the extent

of "subversive" activities within its bounds.  The case must be judged

as though the whole body of the legislature had demanded the information

of petitioner.  It would make the deepest inroads upon our federal

system for this Court now to hold that it can determine the appropriate

distribution of powers and their delegation within the forty-eight

States.  As the earlier Mr. Justice Harlan said for a unanimous Court in

Dreyer v. Illinois, 187 U.S. 71, 84: Whether the legislative, executive

and judicial powers of a State shall be kept altogether distinct and

separate, or whether persons or collections of persons belonging to one

department may, in respect to some matters, exert powers which, strictly

speaking, pertain to another department of government, is for the

determination of the State.  And its determination one way or the other

cannot be an element in the inquiry whether the due process of law

prescribed by the Fourteenth Amendment has been respected by the State

or its representatives when dealing with matters involving life or

liberty. [354 U.S. 257]



Whether the state legislature should operate largely by committees, as

does the Congress, or whether committees should be the exception, as is

true of the House of Commons, whether the legislature should have two

chambers or only one, as in Nebraska, whether the State's chief

executive should have the pardoning power, whether the State's judicial

branch must provide trial by jury, are all matters beyond the reviewing

powers of this Court.  Similarly, whether the Attorney General of New

Hampshire acted within the scope of the authority given him by the state

legislature is a matter for the decision of the courts of that State, as

it is for the federal courts to determine whether an agency to which

Congress has delegated power has acted within the confines of its

mandate.  See United States v. Rumely, 345 U.S. 41.  Sanction of the

delegation rests with the New Hampshire Supreme Court, and its

validation in Nelson v. Wyman, 99 N.H. 33, 105 A.2d 756, is binding

here.



Pursuant to an investigation of subversive activities authorized by a

joint resolution of both houses of the New Hampshire legislature, the

State Attorney General subpoenaed petitioner before him on January 8,

1954, for extensive questioning.  Among the matters about which

petitioner was questioned were: details of his career and personal life,

whether he was then or ever had been a member of the Communist Party,

whether he had ever attended its meetings, whether he had ever attended

meetings that he knew were also attended by Party members, whether he

knew any Communists in or out of the State, whether he knew named

persons with alleged connections with organizations either on the United

States Attorney General's list or cited by the Un-American Activities

Committee of the United States House of Representatives or had ever

attended meetings with them, whether he had ever taught or supported the

[354 U.S. 258] overthrow of the State by force or violence or had ever

known or assisted any persons or groups that had done so, whether he had

ever been connected with organizations on the Attorney General's list,

whether he had supported or written in behalf of a variety of allegedly

subversive, named causes, conferences, periodicals, petitions, and

attempts to raise funds for the legal defense of certain persons,

whether he knew about the Progressive Party, what positions he had held

in it, whether he had been a candidate for Presidential Elector for that

Party, whether certain persons were in that Party, whether Communists

had influenced or been members of the Progressive Party, whether he had

sponsored activities in behalf of the candidacy of Henry A. Wallace,

whether he advocated replacing the capitalist system with another

economic system, whether his conception of socialism involved force and

violence, whether, by his writings and actions, he had ever attempted to

advance the Soviet Union's "propaganda line," whether he had ever

attended meetings of the Liberal Club at the University of New

Hampshire, whether the magazine of which he was co-editor was "a

Communist-line publication," and whether he knew named persons.



Petitioner answered most of these questions, making it very plain that

he had never been a Communist, never taught violent overthrow of the

Government, never knowingly associated with Communists in the State, but

was a socialist believer in peaceful change who had at one time belonged

to certain organizations on the list of the United States Attorney

General (which did not include the Progressive Party) or cited by the

House Un-American Activities Committee.  He declined to answer as

irrelevant or violative of free speech guaranties certain questions

about the Progressive Party and whether he knew particular persons.  He

stated repeatedly, however, that [354 U.S. 259] he had no knowledge of

Communists or of Communist influence in the Progressive Party, and he

testified that he had been a candidate for that Party, signing the

required loyalty oath, and that he did not know whether an alleged

Communist leader was active in the Progressive Party.



Despite the exhaustive scope of this inquiry, the Attorney General again

subpoenaed petitioner to testify on June 3, 1954, and the interrogation

was similarly sweeping.  Petitioner again answered virtually all

questions, including those concerning the relationship of named persons

to the Communist Party or other causes deemed subversive under state

laws, alleged Communist influence on all organizations with which he had

been connected including the Progressive Party, and his own

participation in organizations other than the Progressive Party and its

antecedent, the Progressive Citizens of America.  He refused, however,

to answer certain questions regarding (1) a lecture given by him at the

University of New Hampshire, (2) activities of himself and others in the

Progressive political organizations, and (3) "opinions and beliefs,"

invoking the constitutional guarantees of free speech.



The Attorney General then petitioned the Superior Court to order

petitioner to answer questions in these categories.   The court ruled

that petitioner had to answer those questions pertaining to the lectures

and to the Progressive Party and its predecessor, but not those

otherwise pertaining to "opinions and beliefs."  Upon petitioner's

refusal to answer the questions sanctioned by the court, he was found in

contempt of court and ordered committed to the county jail until purged

of contempt.



The Supreme Court of New Hampshire affirmed the order of the Superior

Court.  It held that the questions at issue were relevant, and that no

constitutional provision permitted petitioner to frustrate the State's

demands.  100 N.H. 103, 121 A.2d 783. [354 U.S. 260]



The questions that petitioner refused to answer regarding the university

lecture, the third given by him in three years at the invitation of the

faculty for humanities, were:



What was the subject of your lecture?



Didn't you tell the class at the University of New Hampshire on Monday,

March 22, 1954, that Socialism was inevitable in this country?



Did you advocate Marxism at that time?



Did you express the opinion, or did you make the statement at that time

that Socialism was inevitable in America?



Did you, in this last lecture on March 22 or in any of the former

lectures, espouse the theory of dialectical materialism?



I have in the file here a statement from a person who attended your

class, and I will read it in part because I don't want you to think I am

just fishing.  "His talk this time was on the inevitability of the

Socialist program.  It was a glossed-over interpretation of the

materialist dialectic."  Now, again I ask you the original question.



In response to the first question of this series, petitioner had said at

the hearing:



I would like to say one thing in this connection, Mr. Wyman.  I stated

under oath at my last appearance that, and I now repeat it, that I do

not advocate or in any way further the aim of overthrowing

constitutional government by force and violence.  I did not so advocate

in the lecture I gave at the University of New Hampshire.  In fact, I

have never at any time so advocated in a lecture anywhere.  Aside from

that, I have nothing I want to say about the lecture in question.



The New Hampshire Supreme Court, although recognizing that such

inquiries (100 N.H. 113, 114, 121 A.2d 792) "undoubtedly interfered with

[354 U.S. 261] the defendant's free exercise" of his constitutionally

guaranteed right to lecture, justified the interference on the ground

that it would occur in a limited area in which the legislative committee

may reasonably believe that the overthrow of existing government by

force and violence is being or has been taught, advocated or planned, an

area in which the interest of the State justifies this intrusion upon

civil liberties. According to the court, the facts that made reasonable

the committee's belief that petitioner had taught violent overthrow in

his lecture were that he was a Socialist with a record of affiliation

with groups cited by the Attorney General of the United States or the

House Un-American Activities Committee and that he was co-editor of an

article stating that, although the authors hated violence, it was less

to be deplored when used by the Soviet Union than by capitalist

countries.



When weighed against the grave harm resulting from governmental

intrusion into the intellectual life of a university, such justification

for compelling a witness to discuss the contents of his lecture appears

grossly inadequate.  Particularly is this so where the witness has sworn

that neither in the lecture nor at any other time did he ever advocate

overthrowing the Government by force and violence.



Progress in the natural sciences is not remotely confined to findings

made in the laboratory.  Insights into the mysteries of nature are born

of hypothesis and speculation.  The more so is this true in the pursuit

of understanding in the groping endeavors of what are called the social

sciences, the concern of which is man and society.  The problems that

are the respective preoccupations of anthropology, economics, law,

psychology, sociology and related areas of scholarship are merely

departmentalized dealing, by way of manageable division of analysis,

with interpenetrating aspects of holistic perplexities.  [354 U.S. 262]

For society's good -- if understanding be an essential need of society

-- inquiries into these problems, speculations about them, stimulation

in others of reflection upon them, must be left as unfettered as

possible.  Political power must abstain from intrusion into this

activity of freedom, pursued in the interest of wise government and the

people's wellbeing, except for reasons that are exigent and obviously

compelling.



These pages need not be burdened with proof, based on the testimony of a

cloud of impressive witnesses, of the dependence of a free society on

free universities.  This means the exclusion of governmental

intervention in the intellectual life of a university.  It matters

little whether such intervention occurs avowedly or through action that

inevitably tends to check the ardor and fearlessness of scholars,

qualities at once so fragile and so indispensable for fruitful academic

labor.  One need only refer to the address of T. H. Huxley at the

opening of Johns Hopkins University, the Annual Reports of President A.

Lawrence Lowell of Harvard, the Reports of the University Grants

Committee in Great Britain, as illustrative items in a vast body of

literature.  Suffice it to quote the latest expression on this subject. 

It is also perhaps the most poignant because its plea on behalf of

continuing the free spirit of the open universities of South Africa has

gone unheeded.



In a university, knowledge is its own end, not merely a means to an end.

 A university ceases to be true to its own nature if it becomes the tool

of Church or State or any sectional interest.  A university is

characterized by the spirit of free inquiry, its ideal being the ideal

of Socrates -- "to follow the argument where it leads."  This implies

the right to examine, question, modify or reject traditional ideas and

beliefs.  Dogma and hypothesis are incompatible, and the concept of an

immutable doctrine is repugnant [354 U.S. 263] to the spirit of a

university.  The concern of its scholars is not merely to add and revise

facts in relation to an accepted framework, but to be ever examining and

modifying the framework itself. *    *    *    *



Freedom to reason and freedom for disputation on the basis of

observation and experiment are the necessary conditions for the

advancement of scientific knowledge.  A sense of freedom is also

necessary for creative work in the arts which, equally with scientific

research, is the concern of the university. *    *    *    *



. . .  It is the business of a university to provide that atmosphere

which is most conducive to speculation, experiment and creation.  It is

an atmosphere in which there prevail "the four essential freedoms" of a

university -- to determine for itself on academic grounds who may teach,

what may be taught, how it shall be taught, and who may be admitted to

study. The Open Universities in South Africa 10-12.  (A statement of a

conference of senior scholars from the University of Cape Town and the

University of the Witwatersrand, including A. v. d. S. Centlivres and

Richard Feetham, as Chancellors of the respective universities.)



I do not suggest that what New Hampshire has here sanctioned bears any

resemblance to the policy against which this South African remonstrance

was directed.  I do say that in these matters of the spirit inroads on

legitimacy must be resisted at their incipiency.  This kind of evil

grows by what it is allowed to feed on.  The [354 U.S. 264] admonition

of this Court in another context is applicable here. It may be that it

is the obnoxious thing in its mildest and least repulsive form, but

illegitimate and unconstitutional practices get their first footing in

that way, namely, by silent approaches and slight deviations from legal

modes of procedure. Boyd v. United States, 116 U.S. 616, 635.



Petitioner stated, in response to questions at the hearing, that he did

not know of any Communist interest in, connection with, influence over,

activity in, or manipulation of the Progressive Party.  He refused to

answer, despite court order, the following questions on the ground that,

by inquiring into the activities of a lawful political organization,

they infringed upon the inviolability of the right to privacy in his

political thoughts, actions and associations:



Was she, Nancy Sweezy, your wife, active in the formation of the

Progressive Citizens of America?



Was Nancy Sweezy then working with individuals who were then members of

the Communist Party?



Was Charles Beebe active in forming the Progressive Citizens of America?



Did he work with your present wife -- id Charles Beebe work with your

present wife in 1947?



Did it [a meeting at the home of one Abraham Walenko] have anything to

do with the Progressive Party? [354 U.S. 265]



The Supreme Court of New Hampshire justified this intrusion upon his

freedom on the same basis that it upheld questioning about the

university lecture, namely, that the restriction was limited to

situations where the Committee had reason to believe that violent

overthrow of the Government was being advocated or planned.  It ruled: .

. .  That he [the Attorney General] did possess information which was

sufficient to reasonably warrant inquiry concerning the Progressive

Party is evident from his statement made during the hearings held before

him that considerable sworn testimony has been given in this

investigation to the effect that the Progressive Party in New Hampshire

has been heavily infiltrated by members of the Communist Party, and that

the policies and purposes of the Progressive Party have been directly

influenced by members of the Communist Party. 100 N.H. 111, 121 A.2d

790.



For a citizen to be made to forego even a part of so basic a liberty as

his political autonomy, the subordinating interest of the State must be

compelling.  Inquiry pursued in safeguarding a State's security against

threatened force and violence cannot be shut off by mere disclaimer,

though, of course, a relevant claim may be made to the privilege against

self-incrimination.  (The New Hampshire Constitution guarantees this

privilege.)  But the inviolability of privacy belonging to a citizen's

political loyalties has so overwhelming an importance to the wellbeing

of our kind of society that it cannot be constitutionally encroached

upon on the basis of so meagre a countervailing interest of the State as

may be argumentatively found in the remote, shadowy threat to the

security of New Hampshire allegedly presented in the origins and

contributing elements of the Progressive Party and in petitioner's

relations to these. [354 U.S. 266]



In the political realm, as in the academic, thought and action are

presumptively immune from inquisition by political authority.  It cannot

require argument that inquiry would be barred to ascertain whether a

citizen had voted for one or the other of the two major parties either

in a state or national election.  Until recently, no difference would

have been entertained in regard to inquiries about a voter's

affiliations with one of the various so-called third parties that have

had their day, or longer, in our political history.  This is so even

though adequate protection of secrecy by way of the Australian ballot

did not come into use till 1888.  The implications of the United States

Constitution for national elections and "the concept of ordered liberty"

implicit in the Due Process Clause of the Fourteenth Amendment as

against the States, Palko v. Connecticut, 302 U.S. 319, 325, were not

frozen as of 1789 or 1868, respectively.  While the language of the

Constitution does not change, the changing circumstances of a

progressive society for which it was designed yield new and fuller

import to its meaning.  See Hurtado v. California, 110 U.S. 516, 

McCulloch v. Maryland, 4 Wheat. 316.  Whatever, on the basis of massive

proof and in the light of history, of which this Court may well take

judicial notice, be the justification for not regarding the Communist

Party as a conventional political party, no such justification has been

afforded in regard to the Progressive Party.  A foundation in fact and

reason would have to be established far weightier than the intimations

that appear in the record to warrant such a view of the Progressive

Party.  This precludes the questioning that petitioner resisted in

regard to that Party.



To be sure, this is a conclusion based on a judicial judgment in

balancing two contending principles -- the right [354 U.S. 267] of a

citizen to political privacy, as protected by the Fourteenth Amendment,

and the right of the State to self-protection.  And striking the balance

implies the exercise of judgment.  This is the inescapable judicial task

in giving substantive content, legally enforced, to the Due Process

Clause, and it is a task ultimately committed to this Court.  It must

not be an exercise of whim or will.  It must be an overriding judgment

founded on something much deeper and more justifiable than personal

preference.  As far as it lies within human limitations, it must be an

impersonal judgment.  It must rest on fundamental presuppositions rooted

in history to which widespread acceptance may fairly be attributed. 

Such a judgment must be arrived at in a spirit of humility when it

counters the judgment of the State's highest court.  But, in the end,

judgment cannot be escaped -- the judgment of this Court.  See

concurring opinions in Haley v. Ohio, 332 U.S. 596, 601; Louisiana ex

rel. Francis v. Resweber, 329 U.S. 459, 466,  Malinski v. New York, 324

U.S. 401, 412, 414-417.



And so I am compelled to conclude that the judgment of the New Hampshire

court must be reversed. CLARK, J., dissenting



MR. JUSTICE CLARK, with whom MR. JUSTICE BURTON joins, dissenting.



The Court today has denied the State of New Hampshire the right to

investigate the extent of "subversive activities" within its boundaries

in the manner chosen by its legislature.  Unfortunately there is no

opinion for the Court, for those who reverse are divided and they do so

on entirely different grounds.  Four of my Brothers join in what I shall

call the principal opinion.  They hold that the appointment of the

Attorney General to act as a committee for the legislature results in a

separation of its power to investigate from its "responsibility to

direct the use of that power," and thereby "causes a deprivation [354

U.S. 268] of the constitutional rights of individuals and a denial of

due process. . . ."  This theory was not raised by the parties and is,

indeed, a novel one.



My Brothers FRANKFURTER and HARLAN do not agree with this opinion,

because they conclude, as do I, that the internal affairs of the New

Hampshire State Government are of no concern to us.  See Dreyer v.

Illinois, 187 U.S. 71, 84 (1902).  They do join in the reversal,

however, on the ground that Sweezy's rights under the First Amendment

have been violated.  I agree with neither opinion.



The principal opinion finds that [t]he Attorney General has been given

such a sweeping and uncertain mandate that it is his decision which

picks out the subjects that will be pursued, what witnesses will be

summoned and what questions will be asked. The New Hampshire Act clearly

indicates that it was the legislature that determined the general

subject matter of the investigation, subversive activities; the

legislature's committee, the Attorney General, properly decided what

witnesses should be called and what questions should be asked.  My

Brothers surely would not have the legislature as a whole make these

decisions.  But they conclude, nevertheless, that it cannot be said that

the legislature "asked the Attorney General to gather the kind of facts

comprised in the subjects upon which petitioner was interrogated."  It

follows, says this opinion, that there is no "assurance that the

questions petitioner refused to answer fall into a category of matters

upon which the legislature wanted to be informed. . . ."  But New

Hampshire's Supreme Court has construed the state statute.  It has

declared the purpose to be to investigate "subversive" activities within

the State; it has approved the use of the "one-man" technique; it has

said the questions were all relevant to the legislative purpose.  In

effect, the state court says the Attorney General was "directed" to

inquire as he did.  [354 U.S. 269] Furthermore, the legislature renewed

the Act in the same language twice in the year following Sweezy's

interrogation.  N.H.Laws 1955, c. 197.  In ratifying the Attorney

General's action, it used these words: The investigation . . . provided

for by chapter 307 of the Laws of 1953, as continued by a resolution

approved January 13, 1955, is hereby continued in full force and effect,

in form, manner and authority as therein provided. . . . (Emphasis

added.)  We are bound by the state court findings.  We have no right to

strike down the state action unless we find not only that there has been

a deprivation of Sweezy's constitutional rights, but that the interest

in protecting those rights is greater than the State's interest in

uncovering subversive activities within its confines.  The majority has

made no such findings.



The short of it is that the Court blocks New Hampshire's effort to

enforce its law.  I had thought that, in Pennsylvania v. Nelson, 350

U.S. 497 (1956), we had left open for legitimate state control any

subversive activity leveled against the interest of the State.  I, for

one, intended to suspend state action only in the field of subversion

against the Nation, and thus avoid a race to the courthouse door between

federal and state prosecutors.  Cases concerning subversive activities

against the National Government have such interstate ramifications that

individual state action might effectively destroy a prosecution on the

national level.  I thought we had left open a wide field for state

action, but implicit in the opinions today is a contrary conclusion. 

They destroy the factfinding power of the State in this field, and I

dissent from this wide sweep of their coverage.



The principal opinion discusses, by way of dictum, due process under the

Fourteenth Amendment.  Since the basis of the opinion is not placed on

this ground, I would not think it necessary to raise it here.  However,

my Brothers say that the definition of "subversive person" [354 U.S.

270] lacks "a necessary element of guilty knowledge. . . ."  Wieman v.

Updegraff, 344 U.S. 183 (1952), is heavily depended upon as authority

for the view expressed.  I do not so regard it.  I authored that

opinion.  It was a loyalty oath case in which Oklahoma had declared ipso

facto disqualified any employee of the State who failed to take a

prescribed oath that, inter alia, he belonged to no subversive

organizations.  We struck down the Act for lack of a requirement of

scienter.  We said there that "constitutional protection . . . extend[s]

to the public servant whose exclusion pursuant to a statute is patently

arbitrary or discriminatory."  Id. at 192.  But Sweezy is not charged as

a "subversive person," and the Committee has made no finding that he is.

 In fact, had he been found to be such a person, there is no sanction

under the Act.  New Hampshire is invoking no statute like Oklahoma's. 

Its Act excludes no one from anything.  Updegraff stands for no such

broad abstraction as the principal opinion suggests.



Since the conclusion of a majority of those reversing is not predicated

on the First Amendment questions presented, I see no necessity for

discussing them.  But since the principal opinion devotes itself largely

to these issues, I believe it fair to ask why they have been given such

an elaborate treatment when the case is decided on an entirely different

ground.  It is of no avail to quarrel with a straw man.  My view on

First Amendment problems in this type of case is expressed in my dissent

in Watkins, decided today.  Since a majority of the Court has not passed

on these problems here, and since I am not convinced that the State's

interest in investigating subversive activities for the protection of

its citizens is outweighed by any necessity for the protection of

Sweezy, I would affirm the judgment of the New Hampshire Supreme Court.

Footnotes WARREN, J., lead opinion (Footnotes)



1. N.H.Laws 1951, c. 193; now N.H.Rev.Stat.Ann.1955, c. 588,  1-16.



2. N.H.Laws 1953, c. 307.



3. The authority of the Attorney General was continued for another

two-year period by N.H.Laws 1955, cc. 197, 340.



4. Having determined that an investigation should be conducted

concerning a proper subject of action by it, the Legislature's choice of

the Attorney General as its investigating committee, instead of a

committee of its own members or a special board or commission, was not,

in and of itself, determinative of the nature of the investigation.  His

position as the chief law enforcement officer of the State did not

transform the inquiry which was otherwise legislative into executive

action. Nelson v. Wyman, 99 N.H. 33, 38, 105 A.2d 756, 762, 763.



The Attorney General of New Hampshire is appointed to office by the

Governor and the State Council, a group of five persons who share some

of the executive responsibilities in the State Government.  The

principal duties of the Attorney General are set forth in

N.H.Rev.Stat.Ann.1955, c. 7,  6-11.  He represents the State in all

cases before the State Supreme Court.  He prosecutes all criminal cases

in which the accused is charged with an offense punishable by

twenty-five years in prison or more.  All other criminal cases are under

his general supervision.  He gives opinions on questions of law to the

legislature, or to state boards, departments, commissions, officers,

etc., on questions relating to their official duties.



5. Whenever any official or board is given the power to summon witnesses

and take testimony, but has not the power to punish for contempt, and

any witness refuses to obey such summons, either as to his appearance or

as to the production of things specified in the summons, or refuses to

testify or to answer any question, a petition for an order to compel him

to testify or his compliance with the summons may be filed in the

superior court, or with some justice thereof. N.H.Rev.Stat.Ann.1955, c.

491,  19. Upon such petition the court or justice shall have authority

to proceed in the matter as though the original proceeding had been in

the court, and may make orders and impose penalties accordingly. Id., 

20.  See State v. Uphaus, 100 N.H. 1, 116 A.2d 887.



6.



Those called to testify before this and other similar investigations can

be classified in three categories.



First there are Communists and those who have reason to believe that,

even if they are not Communists, they have been accused of being and are

in danger of harassment and prosecution.



Second, there are those who approve of the purposes and methods of these

investigations.



Third, there are those who are not Communists and do not believe they

are in danger of being prosecuted, but who yet deeply disapprove of the

purposes and methods of these investigations.



The first group will naturally, and I think wholly justifiably, plead

the constitutional privilege of not being witnesses against themselves.



The second group will equally naturally be cooperative witnesses.



The third group is faced with an extremely difficult dilemma.  I know,

because I belong to this third group, and I have been struggling with

its problems for many weeks now.  I would like to explain what the

nature of that dilemma is.  I think it is important that both those

conducting these inquiries and the public should understand.



It is often said:  if a person is not a Communist and has nothing to

fear, why should he not answer whatever questions are put to him and be

done with it?  The answer, of course, is that some of us believe these

investigations are evil and dangerous, and we do not want to give our

approval to them, either tacitly or otherwise.  On the contrary, we want

to oppose them to the best of our ability and persuade others to do

likewise, with the hope of eventually abolishing them altogether.



Our reasons for opposing these investigations are not captious or

trivial.  They have deep roots in principle and conscience.  Let me

explain with reference to the present New Hampshire investigation.  The

official purpose of the inquiry is to uncover and lay the basis for the

prosecution of persons who in one way or another promote the forcible

overthrow of constitutional forms of government.  Leaving aside the

question of the constitutionality of the investigation, which is now

before the courts, I think it must be plain to any reasonable person who

is at all well informed about conditions in New Hampshire today that

strict adherence to this purpose would leave little room for

investigation.  It is obvious enough that there are few radicals or

dissenters of any kind in New Hampshire; and if there are any who

advocate use of force and violence, they must be isolated crackpots who

are no danger to anyone, least of all to the constitutional form of

government of state and nation.  The Attorney General should be able to

check these facts quickly and issue a report satisfying the mandate laid

upon him by the legislature.



But this is not what he has done.  We do not know the whole story, but

enough has come out to show that the Attorney General has issued a

considerable number of subpoenas and has held hearings in various parts

of the state.  And so far as the available information allows us to

judge, most of those subpoenaed have fallen into one or both of two

groups:  first professors at Dartmouth and the University of New

Hampshire who have gained a reputation for liberal or otherwise

unorthodox views, and second, people who have been active in the

Progressive Party.  It should be specially noted that whatever may be

thought of the Progressive Party in any other respect, it was certainly

not devoted to violent overthrow of constitutional forms of government,

but, on the contrary, to effecting reforms through the very democratic

procedures which are the essence of constitutional forms of government.



The pattern I have described is no accident.  Whatever their official

purpose, these investigations always end up by inquiring into the

politics, ideas, and beliefs of people who hold what are, for the time

being, unpopular views.  The federal House Committee on Un-American

Activities, for example, is supposed to investigate various kinds of

propaganda, and has no other mandate whatever.  Over the years, however,

it has spent almost no time investigating propaganda, and has devoted

almost all of its energies to "exposing" people and their ideas, their

affiliations, their associations.  Similarly, this New Hampshire

investigation is supposed to be concerned with violent overthrow of

government, but it is actually turning out to be concerned with what few

manifestations of political dissent have made themselves felt in the

state in recent years.



If all this is so, and if the very first principle of the American

constitutional form of government is political freedom -- which I take

to include freedoms of speech, press, assembly, and association -- then

I do not see how it can be denied that these investigations are a grave

danger to all that Americans have always claimed to cherish.  No rights

are genuine if a person, for exercising them, can be hauled up before

some tribunal and forced under penalties of perjury and contempt to

account for his ideas and conduct.



Let us now return to the problem of the witness who would have nothing

to fear from being what is nowadays styled a "friendly" witness, but who

feels deeply that to follow such a course would be a betrayal of his

principles and repugnant to his conscience.  What other courses are open

to him?



He can claim the privilege not to be a witness against himself, and thus

avoid a hateful inquisition.  I respect the decision of those who elect

to take this course.  My own reason for rejecting it is that, with

public opinion in its present state, the exercise of the privilege is

almost certain to be widely misinterpreted.  One of the noblest and most

precious guarantees of freedom, won in the course of bitter struggles

and terrible suffering, has been distorted in our own day to mean a

confession of guilt, the more sinister because undefined and indeed

undefinable.  It is unfortunate, but true, that the public at large has

accepted this distortion, and will scarcely listen to those who have

invoked the privilege.



Alternatively, the witness can seek to uphold his principles and

maintain his integrity not by claiming the protection of the Fifth

Amendment (or the Fifteenth Article of the New Hampshire Bill of

Rights), but by contesting the legitimacy of offensive questions on

other constitutional and legal grounds.



Just how far the First Amendment limits the right of legislative inquiry

has not been settled.  The Supreme Court of the United States is at this

very moment considering a case (the Emspak case) which may do much to

settle the question.  But even before the Court has handed down its

decision in the Emspak case, it is quite certain that the First

Amendment does place some limitations on the power of investigation, and

it is always open to a witness to challenge a question on the ground

that it transgresses these limitations and, if necessary, to take the

issue to the courts for decision.



Moreover, a witness may not be required to answer questions unless they

are "pertinent to the matter under inquiry" (the words are those of the

United States Supreme Court).



What is the "matter under inquiry" in the present investigation? 

According to the Act of the New Hampshire legislature directing the

investigation, its purpose is twofold:  (1) "to make full and complete

investigation with respect to violations of the subversive activities

act of 1951," and (2) "to determine whether subversive persons as

defined in said act are presently located within this state."



I have studied the subversive activities act of 1951 with care, and I am

glad to volunteer the information that I have absolutely no knowledge of

any violations of any of its provisions; further, that I have no

knowledge of subversive persons presently located within the state.



That these statements may carry full conviction, I am prepared to answer

certain questions about myself, though in doing so I do not mean to

concede the right to ask them.  I am also prepared to discuss my views

relating to the use of force and violence to overthrow constitutional

forms of government.



But I shall respectfully decline to answer questions concerning ideas,

beliefs, and associations which could not possibly be pertinent to the

matter here under inquiry and/or which seem to me to invade the freedoms

guaranteed by the First Amendment to the United States Constitution

(which, of course, applies equally to the several states).



7. The Progressive Party offered a slate of candidates for national

office in the 1948 presidential election.  Henry A. Wallace, former Vice

President of the United States, was the party's selection for the

presidency.  Glen Taylor, former United States Senator, was the

vice-presidential nominee of the party.  Nationwide, the party received

a popular vote of 1,156,103.  Of this total, 1,970 votes for Progressive

Party candidates were cast in New Hampshire.  Statistics of the

Presidential and Congressional Election of November 2, 1948, pp. 24,

48-49.



8. See note 5, supra.



9. The court made a general ruling that questions concerning the

opinions or beliefs of the witness were not pertinent.  Nevertheless, it

did propound to the witness the one question about his belief in

Communism.



10. See note 1, supra.



11.



"Subversive person" means any person who commits, attempts to commit, or

aids in the commission, or advocates, abets, advises or teaches, by any

means any person to commit, attempt to commit, or aid in the commission

of any act intended to overthrow, destroy or alter, or to assist in the

overthrow, destruction or alteration of, the constitutional form of the

government of the United States, or of the state of New Hampshire, or

any political subdivision of either of them, by force, or violence; or

who is a member of a subversive organization or a foreign subversive

organization. N.H.Rev.Stat.Ann.1955, c. 588,  1.



12.



For the purpose of this chapter "organization" means an organization,

corporation, company, partnership, association, trust, foundation, fund,

club, society, committee, political party, or any group of persons,

whether or not incorporated, permanently or temporarily associated

together for joint action or advancement of views on any subject or

subjects.



"Subversive organization" means any organization which engages in or

advocates, abets, advises, or teachers, or a purpose of which is to

engage in or advocate, abet, advise, or teach activities intended to

overthrow, destroy or alter, or to assist in the overthrow, destruction

or alteration of, the constitutional form of the government of the

United States, or of the state of New Hampshire, or of any political

subdivision of either of them, by force, or violence. Ibid.



13. The State Supreme Court illustrated the "reasonable or reliable"

information underlying the inquiries on the Progressive Party by quoting

from a remark made by the Attorney General at the hearing in answer to

petitioner's objection to a line of questions.  The Attorney General had

declared that he had . . . considerable sworn testimony . . . to the

effect that the Progressive Party in New Hampshire has been heavily

infiltrated by members of the Communist Party, and that the policies and

purposes of the Progressive Party have been directly influenced by

members of the Communist Party. 100 N.H. at 111, 121 A.2d at 790, 791. 

None of this testimony is a part of the record in this case.  Its

existence and weight were not independently reviewed by the state

courts.



The court did not point to anything that supported the questioning on

the subject of the lecture.  It stated that the Attorney General could

inquire about lectures only if he . . . possesses reasonable or reliable

information indicating that the violent overthrow of existing government

may have been advocated or taught, either "knowingly and wilfully" or

not. 100 N.H. at 110, 121 A.2d at 789, 790.  What, if anything,

indicated that petitioner knowingly or innocently advocated or taught

violent overthrow of existing government does not appear.  At one point

in the hearing, the Attorney General said to petitioner: I have in the

file here a statement from a person who attended your class, and I will

read it in part because I don't want you to think I am just fishing. 

"His talk this time was on the inevitability of the Socialist program. 

It was a glossed-over interpretation of the materialist dialectic." R.

107.  The court did not cite this statement. FRANKFURTER, J., concurring

(Footnotes)



1. The Hon. A. v. d. S. Centlivres only recently retired as Chief

Justice of South Africa, and the Hon. Richard Feetham is also an eminent

retired South African judge.



2. Inclusion of this question among the unanswered questions appears to

have been an oversight in view of the fact that petitioner attempted to

answer it at the hearing by stating that he had never to his knowledge

known members of the Communist Party in New Hampshire.  In any event,

petitioner's brief states that he is willing to repeat the answer to

this question if the Attorney General so desires.  This is consistent

with his demonstrated willingness to answer all inquiries regarding the

Communist Party, including its relation to the Progressive Party.



3. The Progressive Party was on the ballot in forty-four States,

including New Hampshire, in 1948, and in twenty-six States in 1952.

