Purdue University, Great Issues Lecture
Dr. Harper, Yale University Law School
1954 OCT 19
Thank you Mr. Chairman: It's a tight schedule for me and I understand it
is for you students. I might say that I am rather pleased to be here this
morning having taught a number of generations, that is classes in Indiana.
It's pleasant to be back again. Since I have very little time and I have
a lot to say this morning I'm not going to waste a lot of time with
preliminaries.
I wanted to talk about three or four aspects of freedom and tyranny as we
find it today in our own communities. The first one being the First Amendment
to the Constitution of the United States which guarantees freedom of speech
and of the press. You are all familiar with what's been going on before the
Congressional Committees and perhaps somewhat less familiar with what's been
going on in the courts. The proceedings before Congressional Committees that
are uppermost in the minds of most of us now are concerning ourselves with
this general subject.
The attorneys have been trying since 1947 to persuade the Supreme Court of
the United States to pass upon the issue whether or not the First Amendment
to the Constitution protects a witness before a Congressional Committee when
inquiries are made as to his political, social and economic beliefs. To date
the Supreme Court has declined to review such a case.
The first series of cases back in 1947 when the so called Hollywood Ten appeared
before Congressional Committees and inquiry was made with respect to their
political belief. Namely, were they or had they been members of the Communist
Party. They declined to answer pleading not the Fifth but the First Amendment.
They said, freedom of speech in this context guarantees freedom of silence
when inquiries of this kind are made into the innermost thoughts and beliefs
of the politics, social and economic of a person. And so far as that is concerned
even into their political activities as long as they are political only.
The Hollywood Ten declined to answer, they were convicted of contempt of
court and their conviction was affirmed by the United States Court of Appeals.
The Supreme Court of the United States technically denied which means that
they declined to review it.
There were several other cases including Barsky against the United States.
He was chairman of the anti-fascist Refugee Committee. He was brought before
a Congressional Committee and inquiries were made with respect to the activities
of the Committee and the contributors to the Committee. This Committee among
other things collected a great deal of money for the Spanish Refugees. Barsky
and his associates declined to reveal the sources of their contributions
on the grounds that it would endanger them and declined to name the people
they had helped on the grounds that the latter would endanger their relatives
back in fascist Spain. Several other cases of this character have been brought
to the attention of the Supreme Court and it has declined to review it.
However, now during the last term the court does have three cases before
it. And one is the case of one Julius Impsback who will do as the example.
Impsback pleaded the first Amendment, but also in conjunction with the Fifth
Amendment, so it is not quite certain whether the court will consider only
the First Amendment or the Fifth and First or the First in connection with
the Fifth. It may not be a clean cut decision, and there is similar doubt
as to the other two courses, to be taken in the other two cases.
However, on their way to the Supreme Court, it will undoubtedly get there,
if the court agrees to review, are the cases of one Corliss Lamont and one
Harvey 0'Conner. Lamont and 0'Conner were brought before the McCarthy Committee
and inquiries were made in respect to their political beliefs on the grounds
that some of the books which they had written, neither had ever been employed
by the government of the United States, but they had written bocks and the
books had been sold, and it so happens that the Information Service of the
United States Government overseas had purchased some of these books without
the knowledge of either O'Conner or Lamont for that matter. They pleaded
the First Amendment on the grounds that this involved freedom of speech and
of the press and as authors they could not be interrogated about any of their
political, social, religious or economic beliefs. Those cases will certainly
go to the Supreme Court of the United States and will raise squarely the
question whether the First Amendment affords protection in this context.
Now, another dramatic episode in respect to the First Amendment was the
conviction of the so-called 11 Communist leaders and the Smith Act cases
which have been going on every since and which so far as we can see can go
on ad-infinitum. There have been over 100 persons indicted in violation of
the Smith Act. The main battle was brought out in the Dennis Case. They were
convicted for conspiracy to overthrow the government of the United States
by force on the basis of their membership in activities in the Communist
Party. An appeal was made to the Supreme Court of the United States and the
Supreme Court affirmed the convictions. There have been no acquittals yet
in the Smith Act Cases. There have been convictions in every single case.
Now, one of the issues raised in the Smith Act Case is whether or not membership
in a political organization of this kind is protected by freedom of speech.
There were reams and reams of evidence introduced in the writings of Carl
Marx, Stalin and Trotsky in the Dennis case. All of them delineating ideas
which were held from time to time and place to place by various groups of
Marxists. This was supposed to be evidence of guilt on the part of the defendants
that they had conspired to overthrow the government of the United States
by force. There was no charge made that they attempted to overthrow the
government by force. The only charge made was that they had conspired to
advocate the overthrow (of) the government of the United States by force.
So, in the last analysis, the decision in the Dennis case came down to this,
whether a conspiracy to advocate, not to overthrow and not to attempt to
overthrow, but whether a conspiracy to advocate the overthrow of the government
of the United States, is a crime and whether or not that advocacy is protected
by the First Amendment to the Constitution, The Supreme Court held that it
was not. The argument on behalf of the defendants was of course that there
was no clear and present danger … involved in this situation.
The clear and present danger test is the test that was invented a generation
ago by the Justices Holmes and Brandize as the only limitation upon the sweeping
mandate of the First Amendment. No law shall be passed which abridges freedom
of speech and of the press. The language is sweeping, universal, general
and all inclusive, but the clear and present danger was devised traditionally
as the one and the only limitation. Laws could be placed, not withstanding
the First Amendment which abridged freedom of speech and the press if there
was a clear and present danger to the security of the United States involved.
The Supreme Court held that although the Communist Party was weak and ineffective
in this country, and although there was no evidence at all of any overt acts
to overthrow the government, although there was nothing but ideas that had
been bandied about by the Communists, nevertheless there was a clear and
present danger because it was proved that these people had agreed at some
future time as soon as future circumstances would permit, I'm quoting the
language, "as soon as circumstances would permit," it did agree to overthrow
the government of the United States at that time.
Now, this gets into a long philosophical discussion as to meanings -- and
freedom of speech. All will agree that the man who cries fire in a crowded
theater is not protected. The answer that the Supreme Court of the United
States would make is that it is a clear and present danger to the security
of the people in the theater. The answer that Eddie would make, is that that
is not speech, it's action. So to translate the clear and present danger
text into more meaningful terms, I would suggest Professor Micheljohn's test.
That is, that all language is protected so long as it' a language, all ideas
are protected, good bad or indifferent, so long as they are ideas that they
are to be compounded only when speech and ideas pass that difficult line
and become a part and parcel of and associated with action that it's impossible
to separate then. The idea is not such a difficult one. A man at the head
of a mob yelling come on, lynch that man is only using words but as the mob
moves and he doesn't and the mob lynches a man, no one denied that he was
part and parcel of the action of the lynching although be lifted no hand
except to point, he only spoke.
The general 15 miles, 20 miles, 50 miles behind the lines directing the movements
of his troops is doing nothing but talking and yet who would deny that he
is part and parcel of the vital movement of the troops and so his speech
becomes so associated with and connected with the action that for any practical
purposes it is impossible to disassociate the two. Now, that seems to many
to be a better test than the clear and present danger test because it is
more meaningful in terms of practical application. The Supreme Court has
defined it.
Now I want to talk another minute or two about the problem of self-incrimination
in actions before Congressional Committees in the courts. You know the Fifth
Amendment of the Constitution of the United States protects the person against
giving evidence against himself. There is a great deal of misunderstanding
about this and understandably so. I'm not only finding it difficult to try
to explain it to my own students but I find difficulty in trying to make
lawyers of long experience understand it. And, I would even go so far as
to charge that as an organization the American Bar Association doesn't understand
it. So, if you have some difficulty with it don't feel that you are alone.
The Fifth Amendment is a very, very old part of our Bill of Rights. It goes
back, historians can probably trace it to the 12th century, as far as the
Magna Carta. It did not come into frequent use until later, until perhaps
during the days of the Star Chamber, and it was first employed to protect
persons against physical torture, against being forced by physical means,
third degree means, a very old practice too, it was used to protect people
against forcing by physical torture confessions out of them. And as everybody
knows who has read the paper what's happened to the war prisoners in the
last war, anybody can be required and forced to confess to anything. Every
man has his breaking point, physically and psychologically. And so, it's
a simple matter of technique, procedures and endurance whether you, and I
speak to everyone in this room, can be forced to confess to anything that
your confessors desire you to confess to.
Now actually the First Amendment and the Fifth were employed, this may be
a coincidence of history, were employed originally when it became really
frequently in vogue to protect the guilty. It was employed to protect heretics,
people who were accused of having heretical religious beliefs, the puritans
and their predecessors, their forefathers. They were guilty of heresy many
of them and so it came into use, it worked its way into the British Constitution
as a device to protect such guilty people. Now it soon became clear that
it was equally effective to protect innocent people and in our juris prudence
today it still serves the dual function. The Fifth Amendment is designed
to protect the guilty and the innocent, or if you want to put it the other
way the innocent as well as the guilty or the guilty as well as the innocent.
Frequently the argument is made that a man who has nothing to hide will not
use the Fifth Amendment. There are many situations in which a man, an innocent
man, may properly plead the Fifth Amendment in self preservation. You can
think of a million if I start you thinking.
The only reason the argument seems to have any force, if a man doesn't have
anything to hide why does he have to plead the Fifth Amendment, is because
you have to say it very fast and then go on to think about something else
because if you stop to think about that proposition very shortly you will
begin to see many instances. Suppose for example an officer of a Lafayette
Bank has to catch a night airplane for New York for business conferences
in the morning, has social engagements or something so that he can't get
into Chicago until the late plane. As his wife is packing his bag as like
most people she discovers that he's forgotten one of his most important papers,
one that he must have. Where is it? It's in the bank, I'll have to go down
and get it, of course he has access to it. He calls a taxi, gets the paper
and goes on his trip. The next morning the newspaper read that the First
Bank, which is his bank, has been robbed and that it is obviously an inside
job because no safes were cracked, no doors were broken, an inside job. He
is called before a grand jury, he's indicted, he's brought into court, be
pleads the Fifth Amendment. To admit that he was there at the bank that night
would weave a chain of circumstances around him that some other crime of
evidence no jury would be afraid to convict him.
So, if you just stop and use your imagination there are any number of situations
in which a man can by coincidence or accident, and they don't happen only
in movies, can be caught in such a situation where if he admits the truth,
even if he is perfectly innocent, be will build up a chain of circumstances
which are almost certain to convict him in the absence of any definite evidence
on his part which he can produce to disprove his guilt. Let me remind you
that one of the most difficult things in the world in logic or law to do,
is to sustain the burden of proof on a negative proposition to prove he didn't
do something, to prove that you weren't a member of this organization. Not
a soul in this room can prove conclusively that you were not at one time
a member of the Communist Party. You know you weren't but you can't prove
it. And that is why a presumption of innocence has been one of the bulwarks
of our liberties for so many years. Man is presumed innocent until he is
proved guilty. Because, it is not logically or legally impossible to prove
that a man did commit a crime but it's practically impossible for him to
prove that he didn't.
Now, the Fifth Amendment then was a legitimate defense, it's a part of the
Constitution. It's as much a part of the Constitution as any other clause.
And, what have you to say for people who make a shambles of the Constitution
of the United Sates which is precisely what's been done by a number of our
Congressional Committees.
You see the Constitution cannot only be repealed by the people, it can be
so mutilated a little at a time until it's practically written out. I submit
that there is a great deal of subversion and sabotage in the United States
today. But, it's not the kind you normally think of. It's the kind of sabotage
that consists of mutilating the Constitution an Amendment at a time. And
what are the results of this?
Senator McCarthy did not dig up a single member of the Communist Party, that
has been proved by the fan-fare about Monmoth. Never has it been proved that
there was one member of the Communist Party, much less a spy or traitor.
All he succeeded in doing was to get what he called Fifth Amendment Communists,
mainly people who take advantage of the Constitution of the United States
of an Amendment which was especially put there for their protection and which
has been in the British Constitution for hundreds of years. Secretary of
Defense testified before a Congressional Appropriations Committee that Senator
McCarthy never sent a single name to the Defense Department as a result of
the Monmoth investigation that the army and the signal corps did not know
about already and that had already been under investigation. And I should
suppose that very few people in their right minds would think that a senator
holding hearings before television cameras with a staff of 12 or 14 consultants
paid and unpaid, could dig up traitors, and spies and saboteurs which the
FBI with all of their millions of dollars of appropriation and trained personnel
were unable to find. Now think about it a minute. But don't think about it
long now because we have to go on.
I want to talk next about the little problem of listing. Listing organizations
somebody thinks are subversive, the attorney general thinks is subversive.
It got its great vogue under the Truman administration when the first loyalty
order was signed, a Truman executive order in which among other things he
authorized the Attorney General of the United States to make a list of
organizations deemed to be subversive. This was to be employed as evidence
of lack of loyalty with respect to government employees who belonged to any
of these. The Attorney drew up a list as long as your arm of organizations
he said were subversive and therefore in the line of the investigation of
any government employee if he was found to belong to any of these organizations
that can be grounds for dismissal. The Attorney General made lists and he
still is making these and they add to them all the time. Clinical parties
seem to be vying with each other to see how long they can make this list
and then everyone else starts to make a list. Chairmen of committees, state's
Attorneys General, little unamerican activities committees set up in states,
Veterans of Foreign Wars make lists, the American Legion makes lists until
you have lists all over the place.
Congress in the Constitution bides that Congress shall pass no bill of attainder
or ex post facto law. The Constitution also provides that no state shall
pass a bill of attainder or ex post facto. A bill of attainder is action
which makes criminal, which convicts of a crime, a person without a hearing
and after he has committed it when it was not a crime at the time. An ex
post facto is a criminal retroactive law, Now, persons who have been members
of these organizations put on the Attorney General's list in 1945, '46 and
'47 have been dismissed from the government because they have been members
in 1940, l938 and 1937. An organization that was formed in 1939 to raise
money for the Spanish Loyalists, but perhaps out of existence for the last
6 years, a man joined that in 1939 and withdrew or took active part of it
in 1941, still if it was put on the Attorney General's list, as you can be
assured it is, in 1947 he can be dismissed from government service for
disloyalty. Now that comes as close to being a bill of attainder or an ex
post facto as you can imagine.
If for a moment you can take a bit of whimsy along with the serious matter,
here I'd like to read to you a little poem which in a facetious moment I
composed not long ago. It was a part of a whimsy about a modern 1954 adventure
of Alice in Wonderland. Alice went to the looking glass and wondered around
meeting various interesting persons in the form of animals and trees, discussing
with them there their political problems and she found much to her consternation
that they had political problems very much as we had and among other
conversations she bad a conversation in the forest with the maple tree. She
was at the edge of the forest and looking across the field to the barn yard.
She asked the large maple tree what that peculiar looking animal was over
there. The answer was, "That's our attorney general in Wonderland." "And
who's the animal next to him?"
"Why he's the chairman of our internal security." "And what are they doing?"
"Well, they are investigating people." "Oh you mean they make lists?" "Lists,"
he said, "I should say they do," and then all the trees in the forest start
to sway back and forth and sing in unison this song:
He's got a list, a big long list
And hardly anything is missed.
The oak, the pine, the spruce, the birch
There's not a tree that he won't smirch.
The apple, plum, pear and peach
The dogwood, hickory and beech,
He even lists the birds and bees,
The honey suckle and sweet peas.
He's listed animals galore,
And everyday he lists some more.
The elephants and the kangaroo,
He's got whole families listed too.
He lists professors and their wives
And if a college president survives
the Fifth Amendment jibes and sneers
He gets the Fifth Amendment sneers.
But with all the people on this list
You'd think that nothing would be missed,
But you would be amazed to know
It's hard to grant it yet it's so,
That on that entire mile long list,
There's not a single Communist. |
One more problem. I've already approached it, I've sneaked up on it, now
lets go right up and face. it. Loyalty in government. The loyalty program.
The Sixth Amendment to the Constitution as you know provides that in criminal
prosecutions a person is entitled to be tried by jury, to be confronted with
witnesses, to have compulsory service to obtain witnesses in his favor. You
also know perhaps that the Fifth Amendment in addition to the provision against
self-incrimination, provides for due process of law. Due process of law
traditionally in our system has included adequate notice, counsel of your
own choosing, opportunity to cross examine your witnesses. Now let's talk
about loyalty. I'll tell you the legal situation, it's very interesting.
Four years ago, I believe, Bailey v. Richardson, Richardson being then the
chairman of the loyalty review board, since deceased, Bailey being a young
woman who worked for the employment service, then Federal Security Agency
now Department of Health Education and Welfare. Miss Bailey had belonged
to some organizations which were on the lists. She was charged with disloyalty.
And the way it's done is this. The employer receives a letter saying that
the Department has information with respect to your loyalty and would like
for you to answer the following interrogatories. They list a list of questions.
Did you belong to the American Soviet Friendship Committee, did you belong
to the League Against War and Fascism, did you belong to the League of Women
Shoppers? and so on and so forth, on down the list. Did you know so in so?
Did you ever associate with (a) member of the Communist Party? and the like.
Answers are given and then they receive in due course if the loyalty board
of the agency is not satisfied that charges are being preferred and they
are enclosed. And then the charges are brought first one usually that you
are a member of the Communist Party, other charges largely in the nature
that you've associated with Communists, that you belong to this, that and
the other organization etc. On such and such a date at such and such a time
there will be a hearing. You may come and you may have council and you may
present any material that you choose to present. That way you'll be given
a chance to prove that you're none of these things you've been charged. Now
when Miss Bailey or any other federal employee gets before the loyalty board
at the hearing the charges are read and then they say, you may present anything
that you want to present. Well, Miss Bailey or any other government employee's
attorney will usually say, what evidence does the government have that any
of these things are true. Sometimes, quite frequently the government will
tell this much, that unidentified, unnamed, anonymous informer reported to
the FBI that he saw you at a meeting of the Communist party or what is more
frequent he reported that you were known to him as a Communist. That's the
usual phrase of the informer. You were known to him as a Communist. That's
about all. Then the employee can do the best that he or she can to prove
that she's not a member of the Communist Party or that she's not a traitor
or disloyal. And then waits until the verdict comes in, and in Miss Bailey's
case it was that she was disloyal and she was fired. The case was hailed
by an eminent law firm in Washington, Arnold, Fortis and Porter who carried
her case all the way through the courts alleging that this procedure was
a violation of the Fifth Amendment due process of law, it was a violation
of the Sixth Amendment that it was a bill of attainder, it was also in violation
of certain executive orders of the President. The court of appeal sustained
the conviction. The District Court sustained the conviction. The Court of
Appeals in Washington, which sits as a panel of three judges, affirmed by
2 to 1 vote. The case then went to the Supreme Court of the United States
and the Justices divided evenly 4 to 4, Justice Clark disqualifying himself
because he had drafted the order and presumably having passed upon its
constitutionality when he drafted it would be improper for him now as a Justice
of the Supreme Court to pass on it again. So the Justices dividing 4 and
4 means that there's no decision in the Supreme Court of the United States,
which means that they didn't pass on it one way or another which of course
with the inevitable result that the decision of the court would stand. So,
Miss Bailey lost her job with the government. The constitutionality of this
entire procedure was upheld by a 2 to 1 vote in the. court of appeals, the
Supreme Court dividing evenly.
There is another case now pending in the Supreme Court of the United States
named Peters v. Hoby. Curiously enough they're the same agency, only now
it's the Dept. of Health, Education and Welfare which the Secretary is Ovita
Colt Hoby. Peters v. Hoby is identical with Bailey and so stipulated by counsel.
In other words, and if it means anything, the attorney for Dr. Peters who
is an eminent physician and professor in an eastern medical school, counsel
for Dr. Peters are Arnold Fortis and Porter. The stipulation was made with
the government that this case is identical with Bailey v. Richardson. Therefore
the court must overrule Bailey v. Richardson in order to decide for. Dr.
Peters. It will be a clean cut decision if it comes. In the mean time Chief
Justice Vincent who is one of the four to vote to uphold the loyalty order
has been replaced by Chief Justice Warren. Justice Clark is presumably just
as disqualified now as he was in the previous case. Justice Jackson, who
by the way voted against the constitutionality of the loyalty order in the
Bailey case has died, so your guess is as good as mine as to what the result
of the case will be. It's almost impossible to believe that Justices Douglass,
Black and Frankfurter would change their minds, it's equally difficult to
imagine that Justices Mint Reed and Burton would change theirs.
So, what the position the Chief Justice takes on this rather vital question
and the position of the unknown replacement for Justice Jackson will determine
the validity of the loyalty program, which seems to me to be one of the most
important issues now before the courts of our country in this whole area.
Because loyalty programs such as we have today inevitably will discourage
men of imagination, men of talent, men of ambition to go into the government,
because the premium now is put upon conformity and orthodoxy and unless you
are willing to conform with the views of the majority, unless you are willing
to accept orthodoxy as the status quo and as the future, it's going to be
difficult for you to take a job in the United States Government and hold
it so long as the type of loyalty program about which I've spoken continues
to be in effect. |
