Lawyer Discusses Government Investigations of Colleges

To the Editors of the CRIMSON:

Recently Professor Chafee and others have discussed in your columns the propriety of an ascription in congressional hearings of the constitutional privilege against self-incrimination. I suggest that the following analysis may be helpful in solving the broader problem of academic freedom from governmental restraint.

(1) The House Un-American Activities (Velde) Committee and the Senate Judiciary Committee (Jenner) subcommittee on Internal Security are now investigating our colleges. Distinguished philosophers, physicists and mathematicians have been subpoenaed and interrogated privately and publicly with respect to past and present associations. There are indications that the committees are interested in the composition of the faculties, the textbooks used and the curricula. In the instance of at leant one college professor, a student has been subpoenaed for the purpose of repeating classroom discussions. . .

Congress Out of Bounds

(2) The current congressional investigations are not bona fide hearings for legislative purposes within the constitutional of local education, Congress cannot legislates in this field of local education, are has it over sought to do so. Historically public educational institutions have been regulated locally by municipalities and states. Private institutions have been subject to no governmental control with respect either to their faculties or curricula.

(3) In any event, the kind of legislation that would emerge from hearings of this type would certainly do violence to basic principles of academic freedom and to First Amendment rights under the Constitution. As Dr. Conant has said: "The colleges of the United States have nothing to hide, but their independence as corporate, scholarly organizations is of supreme importance. One need hardly argue this point in view of the dramatic examples of what occurred under the Nazi and Fascist regimes as well as what is now going on in totalitarian nations."

The Aim of the Hearings

(4) The objectives of the Velde and Jenner hearings is not to legislate but to root out dissent. The means used are to expose and humiliate nonconformists (a term explicitly including New Dealers), to compel confession, to create informers, to deprive the stiff-necked of their jobs, to terrorize the un subpoenaed members of the educational community, and to use the committee bearings as a sounding beard for the speeches of the Congressmen. These conclusions are supported by the frequent committee assertion that it possesses the information it seeks; by the committee practice of holding first an executive session and then a public hear in gin which the witness must state his address so that he can be subjected to community pressure; by Congressman Velde's statement that while the Jenner committee is investigating Communism, his committee's function is to express the individual Communists on the campuses, and by the House Un-American Activities Committee's self-description in its 1948 Interim Report: "It functions to permit the greatest court in the world--the court of American public opinion--to have an undirected, uncensored and unprejudiced opportunity to render a continuing verdict on all of its public officials and to evaluate the merit of many in private life who were openly associating and assisting disloyal groups or covertly operating as members or fellow-travelers of such organizations". . .

(5) One plain purpose of these committees is particularly reprehensible: subpoenaing witnesses in order to entrap them by interrogation into the minutest details in the long distant past and not their political beliefs so as to subject them to contempt or perjury indictments. The most notorious example is that of the Internal Security Subcommittee in the Lattimore case.

(6) Messrs. Velde and Jenner may claim that Communism is always a sufficient reason for hearings on any subject. But we have abundant legislation, both state and federal, on this subject. No investigator has doubted its sufficiency or propriety. It would require the utmost ingenuity to think of legislation more drastic than the McCarran Internal Security Law, the Smith Act, the McCarran-Walter Immigration Law, and other contemporaneous related statutes.

Hearings Resemble Oath Test

(7) The current hearings are merely an aggravated form of the test oath. All of the objections to this oath which were asserted in the University of California fight and in the recent Oklahoma litigation apply in much greater degree to congressional bearings in which one is first compelled to reiterate his loyalty under oath an then to submit to an elaborate cross-examination on his beliefs, friends, and support of liberal causes in the committee's effort to break him down. Mr. Justice Black has said that "Test oaths are notorious tools of tyranny. When used to shackle the mind they are, or at least should be, unspeakably odious to a free people." The hearings accentuate the evil.

(8) Both legal right and moral duty require us to resist the oppressive actions of these committees. No great legal rights have been secured or preserved by submission to tyranny; constitutional rights are never above the level of those who receive their protection. The imprisonment of countless Puritans gave rise to the constitutional right not to be a witness against oneself. Many editors went to prison during the period of the Alien and Sedition's Laws, thereby establishing more firmly the freedom of the press. The abolitionists who stood up to statute, decision and administrative and mob action are responsible in great part for the ultimate end of slavery. In the present instance, the academic community has a special duty to resist because it knows the effects of loyalty purges in the field of education's, in this country as well as elsewhere. These who resist congressional hearings of the present stamp are doing so loss for themselves than for their students to whom they have a major responsibility.

Refusal to Cooperate

(9) In refusing to cooperate with the Velde and Jenner committees the witnesses are asserting their constitutional right to freedom of speech, belief, conscience and assembly. The Supreme Court has not consented to hear such First Amendment claims in recent cases involving congressional investigations. That is not a reason for failing to assert rights which the individual citizen believes that he possesses. The denial of certiorari, we are told repeatedly, is not an adjudication by the Supermen Court. The Court has frequently changed its mind in the past where it has come to realize the significance of the problem presented to it.

(10) From a technical point of view, a witness who relies excessively upon the First Amendment may not avoid a committee citation for contempt. Hence, so many witnesses in recent years have relied upon the Fifth Amendment to the United States Constitution, which states that persons may not be required to act as witnesses against themselves. It is particularly appropriate to assert the privilege here since it had its origins in the protection of political and religious dissidence in the Puritan period in England. The First Amendment rights of freedom of speech, belief and religion were protected by the Puritans' refusal to bear witness against themselves in proceedings before the High Commission and the Star Chamber of England.

Defense In Fifth Amendment

(11) The only complete legal defense to these committee hearings rests, therefore, in the Fifth Amendment. This Amendment has historically been recognized as a method of protecting the innocent from false accusations and tyrannical prosecutions. The courts have repeatedly pointed out how even in cases of ordinary crime, innocent persons may be trapped into incriminating admissions. But in political cases the possibilities of entrapment are multiplied ad infinitum. The dangers are increased by (1) the grand juries an deposit juries; (2) the amorphous character of the crimes; vide the Lattimore indictment involving the alleged promotion of Communist interests; (3) the use of the conspiracy concept of which we were warned by Justice Jackson in the Krulewitch case; (4) the governmental use of informers paraded from case in case; (5) the disregard of basic principles of double jeopardy, as in the second Remington case; (6) by the extraordinary breadth of evidence permitted to go to a jury--as in the Bridges case where the charge of Communist membership was regarded as supported by his views on trade with China, and the recent Rosenberg case where the activity of the defendants in the Spanish refugee campaign was considered somehow relevant to the charges that these congressional committees, by the nature of their methods, objectives and subject matter, constitute breeding grounds for criminal prosecutions.

Contrary to Moral Values

(12) Failure to assert the constitutional privilege means that the witness must relate to Messrs. Velde and Jenner all he knows about his friends and family. Is this not contrary to basic moral values? I take my teaching here from Professor Chafee, who has told us of Francis Jenks, who had criticized the policies of Charles the Second at a public meeting. When the King demanded his advisors' names, he said: "To name any particular person (if there were such) would be a mean and unworthy thing, therefore I desire to be excused from all farther answer to such questions." (6 How. St. Tr. 1189, 1194 (1676).) Professor Chafee, attributing to this silence a part in the passage of the Habeas Corpus Act of 1679, adds: "It is this small 'mean and unworthy' thing which investigators are now trying to force citizens to do, in the name of Americanism. The only sure way to evade this dirty questions is to remain silent throughout the whole hearing, through claiming a privilege against self-incrimination regardless of the very damaging effect of such a claim upon a person's career" (Chafee, "Thirty-Five Years with Freedom of Speech," 1952).

Historic Defense

(13) Under these circumstances, must educators limit themselves to vigorous resolutions of opposition to the inquisitorial committees and then appear like sheep for the slaughter? Or may they invoke the historic means of protest against aggression wherever it is found? I see nothing dishonorable in the assertion of the constitutional privilege any more than in reliance on the Fourth Amendment right to suppress evidence unlawfully seized or the Sixth Amendment right to counsel and a jury trial. Were the Puritans dishonorable in refusing to testify against themselves? Could we have censured Professor Lattimores if gifted with foresight, he had assorted the privilege instead of volunteering an opinion for which he was indicted? We have no moral right to dictate the form of the resistance whether it be an appeal to public support, a suit to vacate a subpoena or a silence supported by the First or Fifth Amendments. But resistance, in one from or another, is recognition of a preceptors' duty to his students. The faculties must make it clear long before the arrival of the inquisitors that they will not cooperate with them, that they will assert their constitutional right to refuse to answer questions concerning political beliefs and associations, so dangerous in the present climate, and that they will oppose administrative punishment of their colleagues who have taken this forthright position. It this is not done, the cost is too ghastly to contemplate. Leonard B. Boudin