[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[Â§ 10. First Amendment]
[From the U.S. Government Publishing Office, www.gpo.gov]


[Page 2363-2365]
 
                               CHAPTER 15
 
                      Investigations and Inquiries
 
                         C. PROCEDURE; HEARINGS
 
Sec. 10. --First Amendment

    Claims involving freedom of association, belief, expression, and 
petition under the first amendment have sometimes been asserted in 
cases arising out of congressional investigations, though such claims 
are less frequent than those involving the privilege against self-
incrimination.(7) The Supreme Court has recognized the 
applicability of the first amendment to investigations:
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 7. See, for example, Moreland, Allen B., Congressional Investigations 
        and Private Persons, 40 So. Cal. L. Rev. 189, 260-265 (1967), 
        and Bendich, A. M., First Amendment Standards for Congressional 
        Investigations, 51 Calif. L. Rev. 267 (1963), for discussion of 
        the First Amendment.
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        Clearly an investigation is subject to the command that the 
    Congress shall make no law abridging freedom of speech or press or 
    assembly. While it is true that there is no statute to be reviewed, 
    and that an investigation is not a law, nevertheless an 
    investigation is part of lawmaking. It is justified solely as an 
    adjunct to the legislative process. The First Amendment may be 
    invoked against infringement of the protected freedoms by law or by 
    rule-making.(8)
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 8. Watkins v United States, 354 U.S. 178, 197 (1957); see note 31, 
        inserted at this point in the Watkins opinion, which listed 
        other cases supporting this principle, including United States 
        v Rumely, 345 U.S. 41, 43 (1953); Lawson v United States 176 
        F2d 49, 51, 52 (D.C. Cir. 1949); Barsky v United States, 167 
        F2d 241, 244-250 (D.C. Cir. 1948), cert. denied 334 U.S. 843 
        (1948); and United States v Josephson, 165 F2d 82, 90-92 (2d 
        Cir. 1947), cert. denied 333 U.S. 858 (1948).

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[[Page 2364]]

    In determining whether to accept a first amendment claim in a 
particular instance, courts balance the witness' right of privacy 
against the government's need to obtain the information:

        Accommodation of the congressional need for particular 
    information with the individual and personal interest in privacy is 
    an arduous and delicate task for any court. . . . It is manifest 
    that despite the adverse effects which follow upon compelled 
    disclosure of private matters, not all such inquiries are barred. . 
    . . The critical element is the existence of, and the weight to be 
    ascribed to, the interest of the Congress in demanding disclosures 
    from an unwilling witness.(9)
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 9. Watkins v United States, 354 U.S. 178, 198 (1957).
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        Undeniably, the First Amendment in some circumstances protects 
    an individual from being compelled to disclose his associational 
    relationships. However, the protections of the First Amendment, 
    unlike a proper claim of the privilege against self-incrimination 
    under the Fifth Amendment, do not afford a witness the right to 
    resist inquiry in all circumstances. Where First Amendment rights 
    are asserted to bar governmental interrogation, resolution of the 
    issue always involves a balancing by the courts of the competing 
    private and public interests at stake in the particular 
    circumstances shown.(10)
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10. Barenblatt v United States, 360 U.S. 109, 126 (1959).
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    The decision to use a balancing test followed several developments 
in earlier cases. For example, courts refused to apply the ``clear and 
present danger'' rule, the traditional first amendment test, to 
congressional inquiries because such inquiries help determine the 
existence of a danger to national security and possible responses to 
such a danger; (11) not allowing Congress to investigate a 
potential danger until it had become ``clear and present'' would be 
``absurd'' and impair the ability to respond.(12) Thus, for 
example, the power to inquire into whether a subpenaed witness was a 
member of the Communist Party or a believer in its principles received 
judicial approval.(13)
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11. United States v Josephson, 165 F2d 82 (2d Cir. 1947), cert. denied 
        333 U.S. 858 (1948).
12. Barsky v United States, 167 F2d 241, 246, 247 (D.C. Cir. 1948), 
        cert. denied 334 U.S. 843 (1948); reh. denied 339 U.S. 971, 972 
        (1950).
13. Lawson v United States, 176 F2d 49, 52 D.C. Cir. 1949).
            In a later case, the right to petition and freedom of 
        persons who had actively criticized the actions of the 
        Committee on Un-American Activities were not deemed to have 
        been infringed when the committee subpenaed them to testify 
        about their activities in the Communist Party. Braden v United 
        States, 365 U.S. 431 (1961); Wilkinson v United States, 365 
        U.S. 399 (1961).

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[[Page 2365]]

    The revision of the doctrine of presumption of legislative purpose 
and the recognition of the need for a lucid expression of 
authorization,(14) as well as imposition of the requirement 
that the delegation of power to investigate must be clearly revealed in 
the committee's authorizing resolution whenever first amendment rights 
are threatened, contributed to adoption of the balancing 
test.(15)
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14. United States v Rumely, 345 U.S. 41 (1953).
15. Watkins v United States, 354 U.S. 178 (1937).
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    One formulation of the test to be applied by courts is the 
following, from a case which found an infringement of first amendment 
rights:

        [I]t is an essential prerequisite of the validity of an 
    investigation which intrudes into the area of constitutionally 
    protected rights of speech, press, association, and petition that 
    the State convincingly show a substantial relation between the 
    information sought and a subject of overruling and compelling state 
    interest.(16)
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16. Gibson v Florida Legislative Committee, 372 U.S. 539, 546 (1963).
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    But it should be remembered that one consequence of the balancing 
test is a general reluctance to interfere with pending congressional 
investigations on the ground that the witness may present first 
amendment claims before the committee or subcommittee, before the House 
or Senate, at trial, and on appeal.(17) Accordingly, courts 
will not interfere with legislative investigations unless the threat 
posed thereby to first amendment freedoms is sufficiently compelling 
and concrete, and the witness would be denied a remedy in the absence 
of such intervention.(18)
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17. See, for example, Sanders v McClellan, 463 F2d 894 (D.C. Cir. 
        1972); Ansara v Eastland, 442 F2d 751 (D.C. Cir. 1971); Shelton 
        v United States, 404 F2d 1292 (D.C. Cir. 1968) cert. denied 393 
        U.S. 1024 (1969) and Pauling v Eastland, 288 F2d 126 (D.C. Cir. 
        1960). But see Stamler v Willis, 415 F2d 1365 (7th Cir. 1969), 
        cert. denied sub. nom. Ichord v Stamler, 399 U.S. 929 (1970), 
        which held that witnesses against whom criminal charges for 
        contempt were pending could, nonetheless, challenge alleged 
        committee infringements on free expression in a civil action.
18. See, for example, Pollard v Roberts, 393 U.S. 14 (1968), per curiam 
        affirmance of the three judge District Court for the Eastern 
        District of Arkansas, 283 F Supp 248 (1968); Gibson v Florida 
        Legislative Committee, 373 U.S. 539 (1963); Louisiana ex rel. 
        Germillion v NAACP, 366 U.S. 293 (1961); Bates v Little Rock, 
        361 U.S. 516 (1960); NAACP v Alabama, 357 U.S. 449 (1958); 
        Sweezy v New Hampshire, 354 U.S. 234 (1957), which involve 
        infringements of the right of association by states; they did 
        not arise as contempt proceedings from congressional 
        investigations.

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