[Deschler's Precedents, Volume 4, Chapters 15 - 17]
[Chapter 15. Investigations and Inquiries]
[C. Procedure; Hearings]
[§ 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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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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