Barsky v. United States ( 1948 )

PRETTYMAN, Associate Justice.

The Supreme Court has denied certiorari, 1948,-U.S.-, 68 S.Ct. 609, in United States v. Josephson, 2 Cir., 1947, 165 F. 2d 82. Nevertheless, because of the nature of the question involved and because we have a division of opinion, we state in full the reasons for our conclusion.

These appellants were indicted, tried before a jury, convicted, and sentenced for willful failure to produce records before a committee of the Congress pursuant to subposnas, in violation of Section 192 of Title 2 of the United States Code Annotated.¹ The indictment alleged that appellants were members of the governing body of an unincorporated association known as the Joint Anti-Fascist Refugee Committee and that, having been subpoenaed by the Congressional Committee known as the Committee on UnAmerican Activities of the House of Representatives, to produce the records of their association relating to the receipt and disbursement of certain money and certain correspondence with persons in foreign countries, they willfully failed to produce those documents.²

Upon the trial it was shown that the Congressional Committee existed by virtue of House Resolution No. 5 of the 79th Congress,³ and that the Joint Anti-Fascist Refugee Committee was a private voluntary association engaged in the collection of funds from the public in this country upon representations that such funds were to be used for relief purposes abroad, and in the disbursement of those funds in foreign countries. It was further shown that the Congressional Committee had received “a large number” of complaints that the funds collected by appellants’ organization were being used for political propaganda and not for relief. It made inquiry of the President’s War Relief Control Board and; consistently with suggestions there obtained, requested that one of its investigators be permitted to examine the records of the collection and disbursement of the funds. This request was denied. Testimony, including that of an official of the State Department and a person who said that she had observed the operation of appellants’ association abroad, was taken. In effect, this testimony sustained the burden of the complaints. Thereupon the Committee issued the subpoenas above described. Appellants appeared before the Committee but declined to produce, or to cause the production of, the described books and documents. They were thereupon indicted, as above described, and appeal from the judgments upon conviction.

Appellants’ first point is that the Resolution creating the Congressional Committee was unconstitutional because it authorized inquiry into political opinion and expression, in violation of the First Amendment.

The Resolution which created this Congressional Committee authorized it by one of three subclauses to investigate “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 form of government as guaranteed by our Constitution”.

These appellants were not asked to state their political opinions. They were asked to account for funds. We are unable to visualize the particular in which civil rights are violated by a requirement that persons who collect funds from the public in this country for relief purposes abroad account for the collection and distribution of such funds. Moreover, the fact of the existence of such official bodies as UNRRA and the President’s War Relief Control Board, and the then-pending proposals for loans to foreign governments, clearly justified Congressional inquiry into the disbursement abroad of private funds collected in this country avowedly for relief but reasonably represented as being spent for political purposes in Europe.

Appellants’ point is not premised upon the specific question asked them but upon the scope of possible inquiry under the Resolution. So we examine the contention in the light of the possibility, indicated by the preliminary data before the Committee, that answers to the inquiry might reveal that appellants were believers in Communism or members of the Communist Party.

The problem thus presented is difficult and delicate. In it we have not only the frequent “real problem of balancing the public interest against private security”, ⁴ but in this instance we must do so in the midst of swirling currents of public emotion in both directions. We are presented with extreme declarations in respect to Communists and equally extreme declarations in respect to the Congressional Committee. The duty of the courts is no less than to render judgment with utter detachment.

Congressional powers of investigation have been explored and debated by scholars for many years in the United States and other countries.⁵ We shall not venture upon a treatise on the subject but confine ourselves to the specific question before us. Nor shall we elaborate by discussion the principles we deem controlling. We state them and leave support of them to the authorities cited.

We think that even if the inquiry here had been such as to elicit the answer that the witness was a believer in Communism or a member of the Communist Party, Congress had power to make the inquiry.

The first phase of the question thus posed concerns the power of the Congress to inquire into the subject described in the above quotation from the Resolution.

Preliminary inquiry has from the earliest times been considered an essential of the legislative process.⁶ By it are to be determined both the advisability for and the content of legislation. So that even as to ordinary subjects, the power of inquiry by the legislature is coextensive with the power of legislation and is not limited to the scope or the content of contemplated legislation. Constitutional legislation might ensue from information derived by an inquiry upon the subject described in the quotation from H.R.Res. No. 5. That potentiality is the measure of the power of inquiry.⁷ The fact is that at least eight legislative proposals have been submitted to the Congress by this Committee as the result of its investigations.⁸ Obviously, the possibility that invalid as well as valid legislation might ensue from an inquiry does not limit the power of inquiry; invalid legislation might ensue from any inquiry.

The permissible breadth of governmental investigation was indicated many years ago when the Supreme Court held that “the requiring of information concerning a business is not regulation of that business”,⁹ and refused to confine investigation to activities which might be regulated. And that breadth has increased considerably in recent years.¹⁰ The Supreme Court has recently held¹¹ that the First Amendment does not preclude a subpoena by an administrative official requiring a newspaper to disclose the interstate distribution of its paper, dissemination of its news, or the source and receipt of its advertisements;¹² that it is not necessary that a charge of violation of law be pending, or that the inquiry be limited by “forecasts of the probable results of the investigation”. The official might, the Court held, make “preliminary investigation of possibly existing violations”, so long as the investigation be for a lawfully authorized purpose within the power of Congress to command. The power of Congress to investigate by means of a Committee of its own can be no less restricted than the power which it may validly confer upon an administrative official. In the case at bar we do not approach the wide boundaries indicated by the Supreme Court in that case.

Moreover, the power to inquire into the subject described in this Resolution rests upon a foundation deeper than a mere auxiliary to the ordinary legislative or administrative process. Direct reference to fundamentals is justified in this connection.

The basic concept of the American system, both historically and philosophically, is that government is an instrumentality created by the people, who alone are the original possessors of rights and who alone have the power to create government.¹³ The choice of the existing form of government was by the people, and resulted from a conviction on their part that it was the best for the purposes of government. That this was a deep conviction and not a temporary fancy is evidenced conclusively by even a casual examination of the historical facts, beginning with the original settlements and extending through the adoption of the Federal Constitution. The prime function of government, in the American concept, is to preserve and protect the rights of the people. The Congress is part of the government thus established for this purpose.

This existing machinery of government has power to inquire into potential threats to itself, not alone for the selfish reason of self-protection, but for the basic reason that having been established by the people as an instrumentality for the protection of the rights of people, it has an obligation to its creators to preserve itself. Moreover, the process whereby a change in the form of government can be accomplished has been prescribed by the people in the same document which records the establishment of the presently existing machinery, and that process requires the Congress to initiate proposed amendments.¹⁴ We think that inquiry into threats to the existing form of government .by extra-constitutional processes of change is a power of Congress under its prime obligation to protect for the people that machinery of which it is a part, and inquiry into the desirability vel non of other forms of government is a power of Congress under its mandate to initiate amendments if such become advisable.

Moreover, Congress is charged with part of the responsibility imposed upon the federal government by that clause of the Constitution which provides that “The United States shall guarantee to every State in this Union a Republican Form of Government * * Art. 4, § 4. This clause alone would supply the authority for Congressional inquiry into potential threats to the republican forms of the governments of the States.

If Congress has power to inquire into the subjects of Communism and the Communist Party, it has power to identify the individuals who believe in Communism and those who belong to the party. The nature and scope of the program and activities depend in large measure upon the character and number of their adherents. Personnel is part of the subject. Moreover, the accuracy of the information obtained depends in large part upon the knowledge and the attitude of the witness, whether present before the Committee or represented by the testimony of another. We note at this point that the arguments directed to the invalidity of this inquiry under the First Amendment would apply to an inquiry directed to another person as well as to one directed to the individual himself. The right to refuse self-incrimination is not involved. The problem relates to the power of inquiry into a matter which is not a violation of law.

The Congressional power of inquiry is not unrestricted.¹⁵ One obvious limitation upon this particular sort of inquiry is that some reasonable cause for concern must appear. We are referred to the “clear and present danger” rule expressed by Mr. Justice Holmes in Schenck v. United States ¹⁶ and extending through the line of cases cited and discussed in Bridges v. State of California.¹⁷ But all those cases dealt with statutes which actually imposed a restriction upon speech or publication. In our view, it would be sheer folly as a matter of governmental policy for an existing government to refrain from inquiry into potential threats to its existence or security until danger was clear and present. And for the judicial branch of government to hold the legislative branch to be without power to make such inquiry until the danger is clear and present, would be absurd. How, except upon inquiry, would the Congress know whether the danger is clear and present? There is a vast difference between the necessities for inquiry and the necessities for action. The latter may be only when danger is clear and present, but the former is when danger is reasonably represented as potential.

There was justification here, within the bounds of the foregoing restriction, for the exercise of the power of inquiry. The President, pursuant to the constitutional requirement that “He shall from time to time give to the Congress Information of the State of the Union” (Art. II, Sec. 3), has announced to the Congress the conclusion that aggressive tendencies of totalitarian regimes imposed on free peoples threaten the security of the United States,¹⁸ and he mentioned the activities of Communists in that connection. That proposition underlies much of the current foreign policy of the Government.¹⁹ It is also the premise upon which much important legislation is now pending. These culminations of responsible governmental consideration sufficiently demonstrate the necessity for Congressional knowledge of the subject and so justify its course in inquiring into it.

Moreover, that the governmental ideology described as Communism and held by the Communist Party is antithetical to the principles which underlie the form of government incorporated in the Federal Constitution and guaranteed by it to the States, is explicit in the basic documents of the two systems; and the view that the former is a potential menace to the latter is held by sufficiently respectable authorities, both judicial and lay,²⁰ to justify Congressional inquiry into the subject. In fact, the recitations in the opinion of the Supreme Court in Schneiderman v. United States, 1943, 320 U.S. 118, 63 S.Ct. 1333, 87 L.Ed. 1796, are sufficient to justify inquiry. To remain uninformed upon a subject thus represented would be a failure in Congressional responsibility.

The next phase of the problem is whether the power of inquiry was validly delegated by the Congress to the Committee.

It is said that the Resolution is too vague to be valid. Perhaps the one phrase “un-American propaganda activities”, taken alone as it appears in subclause (i) of the Resolution, would be subject to that condemnation. But the clause, above-quoted, “subversive and un-American propaganda that * * * attacks the principle of the form of government as guaranteed by our Constitution”, which is subclause (ii), is definite enough. It conveys a clear meaning, and that is all that is required. The principles which underlie the form of the existing government in this country are well-enough defined in basic documents preceding the Constitution,²¹ are obvious in the undebated unanimity which prevailed on many basic propositions in the Convention of 1787,²² were stated during the consideration of the adoption of the Constitution,²³ are stated in countless scholarly works upon principles of government,²⁴ and, indeed, are taught even to high school students in our schools. Aliens seeking naturalization are required to swear that they are “attached to the principles of the Constitution of the United States”. 8 U.S. C.A. § 732(a) (17). If the part of the Resolution involved in the instant case be clear and certain, it is of no importance that another part, not here involved, is vague or uncertain.

Appellants argue that because the Resolution is not on its face directly and exclusively concerned with such activities as may be constitutionally restricted, it is unconstitutional. Cases are cited to the point,²⁵ but they are all criminal cases and dealt with the requirements in penal statutes. There is a difference between the particularity required in the specification of a criminal act and that required in the authorization of an investigation, as a comparative examination of the''cases cited by appellants and the cases dealing with investigations, above mentioned, readily shows.

Appellants say that the vagueness of the Resolution made it impossible for them to determine with precision whether they could or could not lawfully refuse to answer questions which might be asked them. They say that they were liable for contempt only if they refused to answer a pertinent question and, therefore, had a right to know with precision what was pertinent, lest they unwittingly commit an offense. But pertinency relates to the particular question asked and not to unasked possibilities, and we have said enough to show that the question addressed to these appellants was pertinent to the subject described in the above-quoted sub-clause of the Resolution. The Supreme Court held in the Sinclair case ²⁶ that the facts there sought were pertinent as a matter of law and that “He [the accused] was bound rightly to construe the statute.” ²⁷ Here, as in that case, “There was no misapprehension as to what was called for.”

It is vigorously pressed upon us that the whole gamut of the rights of minorities to freedom of thought is involved in this case. The answer to that insistence is the simple fact that we are here considering a specific inquiry. The general question of minority rights is not here, and we will not generalize. We do not have before us the question of how much or how little a Congressional Committee can ask of a private citizen. Minorities are infinite in nature. Activity is different from thought. Any attempt to generalize that all minority right to thought or activity outweighs all public interest, or vice versa, would be impossible and the result unsound; at the least, it would be judicial obiter. Moreover, there is no such rule without exception. As thought and activity differ among minorities, so may their relative weight with the public interest differ. None of the fundamental rights is absolute; the public interest may under some circumstances outweigh even the right to life itself. It is so in respect to the right to freedom of speech. 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. The answer depends upon the present nature of Communism and the Communist Party and its position in world and domestic affairs, as respectably indicated to the Congress. We are not here concerned with general rights or general powers.

Appellants argue that since an answer that the witness is a Communist would subject him to embarrassment and damage, the asking of the question is an unconstitutional burden upon free speech. It is no doubt true that public revelation at the present time of Communist belief and activity on the part of an individual would result in embarrassment and damage. This result would not occur because of the Congressional act itself; that is, the Congress is not imposing a liability, or attaching by direct enactment a stigma. The result would flow from the current unpopularity of the revealed belief and activity. Contra, it is suggested that since the pressure of unpopularity affects only sensitive or timid people, there need be less concern, on the theory that democratic processes must necessarily contemplate rugged courage on the part of those who hold convictions, or even beliefs, on government. But it is true, realistically, that even one fully equipped to formulate a personal preference for a system of government at odds in basic respects with that presently existing, may be deterred from his conclusion by fear of, or distaste for, the unpopularity attached to it. We proceed upon the theory that even the most timid and sensitive cannot be unconstitutionally restrained in the freedom of his thought. But this consideration does not solve the problem, because the problem is the relative necessity of the public interest as against the private rights. Even assuming private rights of the timid to be of the fullest weight, the problem remains whether they outweigh the public necessities in this matter.²⁸ That the protection of private rights upon occasion involves an invasion of those rights is in theory a paradox but, in the world as it happens to be, is a realistic problem requiring a practical answer.²⁹ That invasion should never occur except upon necessity, but unless democratic government (by which we mean government premised upon individual human rights) can protect itself by means commensurate with danger, it is doomed. That it cannot do so is the hope of its opponents, the query of its skeptics, the fear of its supporters. While we will not give less consideration to the private rights involved because they may be those of the more sensitive or less courageous, on the other hand we cannot say that merely because those affected are of less courage or greater sensitivity than the average, therefore the public interest must be waived or given less consideration.

It is urged by the appellee Government that freedom of speech does not encompass freedom to remain silent. There is justification for the contention that the latter is a freedom of privacy, different in characteristics and governed by different considerations from the constitutionally protected freedom of speech. At least, the basic public policies which underlie the two are different. The public policy which supports freedom of speech is that the safety of democratic government lies in open discussion — discussion of grievances, remedies, of “noxious doctrine” as well as of popular preferences.³⁰ The public interest in privacy, however, is premised upon the individual’s right to the pursuit of happiness.³¹ But we do not consider that question and do not rest this decision in any respect upon it. We assume, without deciding, for purposes of this case, that compulsion to answer the question asked by the Congressional Committee would impinge upon speech and not merely invade privacy.³²

Appellants press upon us representations as to the conduct of the Congressional Committee, critical of its behavior in various respects. Eminent persons have stated similar views.³³ But such matters are not for the courts. We so held in Townsend v. United States,³⁴ citing Hearst v. Black.³⁵ The remedy for unseemly conduct, if any, by Committees of Congress is for Congress, or for the people; it is political and not judicial. “It must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”³⁶ The courts have no authority to speak or act upon the conduct by the legislative branch of its own business, so long as the bounds of power and pertinency are not exceeded,³⁷ and the mere possibility that the power of inquiry may be abused “affords no ground for denying the power.”³⁸ The question presented by these contentions must be viewed in the light of the established rule of absolute immunity of governmental officials, Congressional and administrative, from liability for damage done by their acts or speech, even though knowingly false or wrong.³⁹ The basis of so drastic and rigid a rule is the overbalancing of the individual hurt by the public necessity for untrammeled freedom of legislative and administrative activity, within the respective powers of the legislature and the executive.

We hold that in view of the representations to the Congress as to the nature, purposes and program of Communism and the Communist Party, and in view of the legislation proposed, pending and possible in respect to or premised upon that subject, and in view of the involvement of that subject in the foreign policy of the Government, Congress has power to make an inquiry of an individual which may elicit the answer that the witness is a believer in Communism or a member of the Communist Party. And we further hold that the provision we have quoted from House Resolution No. 5 is sufficiently clear, definite and authoritative to permit this particular Committee to make that particular inquiry. We hold no more than that.

We find ourselves in agreement with the Circuit Court of Appeals for the Second Circuit upon the foregoing phase of this case.⁴⁰

Appellants’ next point is that the trial court erred in refusing to admit evidence which they say tended to prove that the House Committee used its investigatory power in a politically discriminatory manner, and that the administration of the Resolution resulted in an illegal discrimination which amounted to an unequal protection of the laws. The evidence tendered would have shown, appellants say, that the Committee treated in different fashion other persons, such as Fascists, conservatives, reactionaries, and certain named individuals. We find no error in this ruling of the trial court. The mere attitude of the Committee is not for the court, and the fact that the Committee chose not, or chose not at the time, to inquire into other matters is not pertinent to the validity of its inquiry into this one. Glassification is permitted even in statutes, and surely Congress had a broad power of selectivity in its investigations. The issue presented upon the trial in the present case was specific. At the very least, to support a claim of discrimination, evidence would have to be tendered that the other matters mentioned were equally as pertinent to the subject of the Resolution as was this subj ect, and that the Committee clearly and intentionally forbore from inquiry there to the detriment of appellants. Snowden v. Hughes,⁴¹ cited to us by appellants in support of their position, does not seem to us to be in point.

We find no error in the trial court’s characterization as “subpoenas” of the documents served upon appellants.

Appellants’ next point is that the trial court erred in denying their motion for a directed verdict of acquittal, since there was no evidence that these appellants had “custody” of the documents sought; and also erred in charging the jury that among the elements which the Government must prove as to each defendant was “That the defendant, alone or in concert with one or more of the defendants, had custody or dominion and control over such records.” The indictment was joint and several. The argument is, first, that appellants did not have custody of the documents and there was no evidence that they had “dominion” or “control” over them, and, second, that custody and not merely dominion or control is essential to require compliance with a subpoena duces tecum. The evidence was that the Committee had subpoenaed the executive secretary and then the chairman of the organization of which appellants were the governing body, that they had refused to produce the records, and that the Committee had then issued the subpoenas to the other members of the executive board. There was sufficient evidence to go to the jury under the instruction. On the point of law, no case involving an unincorporated association is cited to us in the briefs, but it seems to us that the doctrine laid down in Wilson v. United States,⁴² in respect to a subpoena addressed to a corporation, must govern. There the Supreme Court said: “A command to the corporation is in effect a command to those who are officially responsible for the conduct of its affairs. If they, apprised of the writ directed to the corporation, prevent compliance or fail to take appropriate action within their power for the performance of the corporate duty, they, no less than the corporation itself, are guilty of disobedience, and may be punished for contempt.”

We do not have the question whether a subpoena addressed merely to an unincorporated association as such would be valid, and we express no opinion upon that. But we think that subpoenas addressed to all the members of the governing body of such an association are valid under the Wilson case ruling.

Appellants next contend that they were not “willfully” in default, because no specific criminal intent was shown; but we passed adversely upon that contention in Fields v. United' States.⁴³

The next point is whether the trial court erred in admitting in evidence a transcript of the proceedings of the Congressional Committee when appellants were before that Committee and refused to produce the subpoenaed records. Appellants’ point is based upon Section 634 of Title 28 of the United States Code Annotated,⁴⁴ which provides that no testimony given by a witness before a committee of the House shall be used as evidence in any criminal proceeding against him in any court except in a prosecution for perjury committed in giving such testimony. The trial judge rendered a careful and exhaustive opinion in passing upon the admissibility of this evidence. We agree with his reasoning and conclusion. In sum, we think it must be that accurate and authoritative evidence of what transpired which constituted an alleged contempt, must be admissible when one is charged.with that contempt.

Appellants raise several further points directed to rulings and events during the trial. They urge error because the court failed to direct a mistrial when in his closing argument the prosecuting attorney told the jury that they were “not expected to close your eyes to what goes on in the courtroom” in passing upon the reputation which appellants had put in issue. Counsel for appellants objected because, he said at that time, the prosecutor had commented on appellants’ failure “to stand”. The prosecutor made no such comment, and in view of the defense testimony as to reputation for frankness and forthrightness, admitted over objection of the prosecutor, the latter was entitled to discuss it in addressing the jury. Appellants say that the court erred in failing to include in its charge to the jury “detailed instructions from the court as to each item of evidence” so as to separate the evidence on the conspiracy count. No such instructions were asked at the time, so far as the record shows. Appellants say that “The Trial Court Made Various Other Reversible Errors.” They say, for example, that error was committed in rulings upon pertinency and state that the Congressional Committee, according to its Chairman, acted “solely on the basis of certain anonymous ‘postcards’ ”. We have read the record as cited, but find no such testimony. They say that the testimony of Miss Mitchell was taken by the Committee “after the investigation began”. That is true, reading “investigation” to mean the whole course of inquiry, but it was taken before these subpoenas were issued, being given on January 23-24, 1946, and the subpoenas being issued in April, 1946, except that directed to Dr. Barsky, which was issued January 25, 1946, and served January 28, 1946. Appellants urge error in an instruction that “if one person aids or abets, advises, or counsels, or eñcoürages another to commit an offense, he is equally liable under the criminal law with the one who physically commits it.” The instruction was in accordance with the Criminal Code,⁴⁵ and we find no error in it. Counsel cannot claim surprise, in that the court correctly instructed the jury on the law of appellants’ guilt as a principal under a joint indictment. The cases cited by appellants do not support their contention.

It follows that the judgments of the District Court, must be, and they are

Affirmed.

1 1938, 52 Stat. 942.

2 The indictment, in another count, also charged the defendants with conspiracy-to defraud the United States and willfully to make default of the subpoenas of the Congressional Committee, but the trial court directed entry of judgment of acquittal upon that count, and so that feature of the original ease is not before us.

3 79th Cong., 1st Sess., 90 Cong.Rec. 10, 15 (1945). The Resolution was carried into the Rules of the House as Rules X(a)-17 and XI(q)-l and into the Legislative Reorganization Act of 1948, CO Stat. 812, S2S.

4 Mr. Justice Rutledge, in Oklahoma Press Pub. Co. v. Walling, 1946, 327 U. S. 186, 203, 68 S.Ct. 494, 502, 90 L.Ed. 614,166 A.L.R. 531.

5 Some outstanding examples, which include many other references, are: Ehrmann, The Duty of Disclosure in Parliamentary Investigation, 11 Chi.L.Rev. I, 117 (1943); Gose, The Limits of Congressional Investigating Power, 10 Wash. L.Rev. 61 (1935); Hamilton, The Inquisitorial Power of Congress, 23 A.B.A. J. 511 (1937); Comment, 19 Ill.L.Rev. 432 (1925); Loring, Powers of Congressional Investigation Committees, 8 Minn. L.Rev. 595 (1924); Coudert, Congressional Inquisition vs. Individual Liberty, 15 Va.L.Rev. 537 (1929); Stebbins, Limitations of the Powers of Congressional Investigating Committees, 16 A.B.A.J. 425 (1930); Herwitz and Mulligan, The Legislative Investigating Committee, 33 Col.L.Rev. 4 (1933); Landis, Constitutional Limitations on the Congressional Power - of Investigation, 40 Harv.L.Rev. 153 (1926).

6 Fields v. United States, 1947, 82 U. S.App.D.C. 354, 164 F.2d 97, and authorities there cited; Landis, supra note 5.

7 McGrain v. Daugherty, 1927, 273 U. S. 135, 177-179, 47 S.Ct. 319, 71 L.Ed. 580, 50 A.L.R. 1.

8 H. R. Rep. No. 2742, 79th Cong., 2d Sess. (1947).

9 Interstate Commerce Commission v. Goodrich Transit Co., 1912, 224 U.S. 194, 211, 32 S.Ct. 436, 440, 56 L.Ed. 729, 736.

10 See the exhaustive study of the cases in Davis’s “The Administrative Power of Investigation” in the Yale Law Journal, Vol. 56, p. 1111 (1947).

11 Oklahoma Press Pub. Co. v. Walling, 1946, 327 U.S. 186, 66 S.Ct. 494, 509, 90 L.Ed. 614, 166 A.L.R. 531. See also United States v. Darby, 1941, 312 U.S. 100, 124, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430.

12 Oklahoma Press Pub. Co. v. Walling, 10 Cir., 1945, 147 F.2d 658, 659.

13 1 DeTocqueville, Democracy in America, e. 4 (1875); 1 Bryce, The American Commonwealth, c. 3 (1923); 2 Id. c. 77; Woodrow Wilson, Character of Democracy in the United States, and Government Under the Constitution, in Selected Literary and Political Papers, Vol. III; Hicks, The Federal Union, c. 9 (1937); Curtis, Constitutional History of the United States, cc. 18, 19, 32 (18S9); Beck, The Constitution of the United States, c. 17 (1925).

14 We mean to be specific in this reference. We are dealing only with inquiry into forms and basic principles of government. We do not intend any inference as to powers incident to the initiation of other possible amendments.

15 Kilbourn v. Thompson, 1881, 103 U. S. 168, 26 L.Ed. 377, lays down one rule of restriction, which, however, is applicable to an inquiry into subjects far distant from that here involved. See also McGrain v. Daugherty, supra note 7.

16 1919, 249 U.S. 47, 52, 39 S.Ct. 247, 249, 63 L.Ed. 470, 473.

17 1941, 314 U.S. 252, 62 S.Ct. 190, 86 L.Ed. 192, 159 A.L.R. 1346; see also Thomas v. Collins, 1945, 323 U.S. 516, 530, 65 S.Ct. 315, 89 L.Ed. 430.

18 Message of March 12, 1947, H. R. Doc. No. 171, 80th Cong., 1st Sess., 93 Cong. Rec. 1999-2000; Message of December 19, 1947, H. R. Doc. No. 478, 93 Cong. Rec. 11873 et seq.

19 Speeches of Secretary of State George C. Marshall, at Harvard University on June 5, 1947, N. Y. Times, June 6, 1947, p. 2; at the General Assembly of the United Nations on Sept. 17, 1947, N. Y. Times, Sept. 18, 1947, p. 3; at Chicago, Ill., on Nov. 18, 1947, N. Y. Times, Nov. 19, 1947, p. 8; of Under Secretary of State Dean Acheson, at Middletown, Conn., on June 15, 1947, N. Y. Times, June 16, 1947, pp. 1, 3 (not in whole text).

20 Gitlow v. People of State of New York, 1925, 268 U.S. 652, 45 S.Ct. 625, 69 L.Ed. 1138; Whitney v. People of State of California, 1927, 274 U.S. 357, 363 et seq., 47 S.Ct. 641, 71 L.Ed. 1095; Skeffington v. Katzeff, 1 Cir., 1922, 277 F. 129; Antolish v. Paul, 7 Cir., 1922, 283 F. 957; Ungar v. Seaman, 8 Cir., 1924, 4 F.2d 80; a symposium inserted in the Congressional Record, including statements by J. Edgar Hoover, William Green, William Z. Foster, John L. Lewis, Herbert Hoover, Adna Wright Leonard, Matthew Woll, and others (92 Cong. Rec. App. pp. A4117 et seq. (1946)); Spellman, Communism Is Un-American, 92 Cong. Rec. App. p. A4651 (1946); 25 Foreign Affairs 566 (July 1947); 25 id. 1 (Oct. 1946); 24 id. 290 (Jan. 1946); Lyons, Stalin (1940); Dallin, The Real Soviet Russia c. 5 (1947); Eastman, Stalin’s Russia and the Crisis in Socialism (1940); Walsh, Fall of the Russian Empire (1928) and Last Stand (1931); 2 Informationes et Notitiae (Nov. 1936). Certainly the thesis of ultimate destruction of existing systems of government is in The Communist Manifesto.

21 E. g., Declaration and Resolves of the First Continental Congress, Oct. 14, 1774; Declaration of Independence, July 4, 1776; the various colonial and state constitutions prior to 1787.-

22 Elliot’s Debates, particularly Madison’s Reports.

23 The Federalist, particularly No. 38 et seq.

24 See note 13 supra for a few examples.

25 Thornhill v. State of Alabama, 1940, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093; Carlson v. People of State of California, 1940, 310 U.S. 106, 60 S.Ct. 746, 84 L. Ed. 1104; Lovell v. City of Griffin, 1938, 303 U.S. 444, 58 S.Ct. 666, 82 L.Ed. 949; Herndon v. Lowry, 1937, 301 U.S. 242, 57 S.Ct. 732, 81 L.Ed. 1066; Stromberg v. People of State of California, 1931, 2S3 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117, 73 A.L.R. 1484.

26 Sinclair v. United States, 1929, 279 U.S. 263, 299, 49 S.Ct. 268, 274, 73 L.Ed. 692.

27 To the same effect is Townsend v. United States, 1938, 68 App.D.C. 223, 95 F.2d 352.

28 Other requirements having similar restrictive effects upon the less hardy have been sustained in the public interest. For example, newspapers are required to publish their ownership, and to reveal the sources of. their income to governmental inspection. An interesting light upon these contentions is cast by the history of our method of elections. The right of a qualified citizen to vote as he pleases is certainly a fundamental right and is a basic concept in our system of government. Public voting subjected even the most hardy to pressure and also to violence. But it was never thought, or suggested, that public voting violated constitutional rights. The secret ballot does not seem to have appeared in this country until February, 1888, when the newly-devised Australian system was adopted for municipal elections in Louisville, Kentucky. On this subject see Wigmore’s Australian Ballot System.

29 West Virginia State Board of Education v. Barnette, 1943, 319 U.S. 624, 636, 637, 63 S.Ct. 1178, 87 L.Ed. 1628, 147 A. L.R. 674.

30 See Mr. Justice Brandeis, concurring in Whitney v. People of State of California, 1927, 274 U.S. 357, 375, 377, 47 S.Ct. 641, 71 L.Ed. 1095; dissenting in Pierce v. United States, 1920, 252 U.S. 239, 267, 270, 272, 40 S.Ct. 205, 64 L.Ed. 542, 555, 556, 557; Thornhill v. State of Alabama, supra note 25, 310 U.S. at pages 102, 103, 60 S.Ct. at page 744, 84 L. Ed. 1093.

31 See Mr. Justice Brandeis, dissenting in Olmstead v. United States, 1928, 277 U.S. 438, 473 et seq., 48 S.Ct. 564, 72 L. Ed. 944, 66 A.L.R. 376.

32 Schneiderman v. United States, supra, 320 U.S. at page 138, 63 S.Ct. at page 1343, 87 L.Ed. 1796; United States v. Ballard, 1944, 322 U.S. 78, 86, 87, 64 S.Ct. 882, 88 L.Ed. 1148.

33 E. g., Gellhorn, Report on a Report of the House Committee on UnAmerican Activities, 60 Harv.L.Rev. 1193 (1947); Letter to the President by Members of Tale Faculty of Law, 34 A.B.A. J. 15, 16 (1948).

34 Supra note 27.

35 1936, 66 App.D.C. 313, 87 F.2d 68.

36 Mr. Justice Frankfurter, concurring in United States v. Lovett, 1946, 328 U. S. 303, 319, 66 S.Ct. 1073, 1080, 90 L.Ed. 1252, quoting Mr. Justice Holmes in Missouri, K. & T. Ry. of Texas v. May, 1904, 194 U.S. 267, 270, 24 S.Ct. 638, 48 L.Ed. 971, 973.

37 McGrain v. Daugherty, supra note 7, 273 U.S. at pages 175, 176, 47 S.Ct. at page 329, 71 L.Ed. 580, 50 A.L.R. 1.

38 Id., 273 U.S. at page 175, 47 S.Ct. at page 329.

39 U.S.Const. Art. I, § 6; Kilbourn v. Thompson, supra note 15; Cochran v. Couzens, 1930, 59 App.D.C. 374, 42 F.2d 783, certiorari denied, 1930, 282 U.S. 874, 51 S.Ct. 79, 75 L.Ed. 772; Spalding v. Vilas, 1896, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780; Glass v. Ickes, 1940, 73 App.D.C. 3, 117 F.2d 273, 132 A.LR, 1328; Jones v. Kennedy, 1941, 73 App.D.C. 292, 121 F.2d 40.

40 United States v. Josephson, supra.

41 1944, 321 U.S. 1, 64 S.Ct. 397, 88 L.Ed. 497.

42 1911. 221 U.S. 361. 374. 376. 31 S. Ct. 538, 543, 55 L.Ed. 771, 777, Ann. Cas.l912D, 558.

43 Supra note 6.

44 Rev.Stat. § 859.

45 Criminal Code § 332, 35 Stat. 1152 (1909), 18 U.S.C.A. § 550.