Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
As discussed in an earlier essay, Congress possesses an inherent power of investigation in aid of legislation.1 Nonetheless, the government’s power of investigation is subject to First Amendment restrictions when the power as exercised results in deterrence or penalization of protected beliefs, associations, and conduct. In early cases, the Supreme Court narrowly construed the authority of congressional committees in order to avoid First Amendment infringement.2 Later cases introduced a test that balanced the interests of the legislative bodies in inquiring about both protected and unprotected associations and conduct against what were perceived to be limited restraints upon the speech and association rights of witnesses, and upheld committee investigations.3 Later, the Court articulated the balance somewhat differently and required that the investigating agency show “a subordinating interest which is compelling” to justify the inquiry’s restraint on First Amendment rights.4
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Footnotes
- 1
- See ArtI.S8.C18.7.3 Congress’s Investigation and Oversight Powers (1787–1864) to ArtI.S8.C18.7.7 Constitutional Limits of Congress’s Investigation and Oversight Powers.
- 2
- See United States v. Rumely, 345 U.S. 41, 44–46 (1953); Watkins v. United States, 354 U.S. 178, 197–98 (1957); Sweezy v. New Hampshire, 354 U.S. 234, 249–51 (1957).
- 3
- Barenblatt v. United States, 360 U.S. 109 (1959); Uphaus v. Wyman, 360 U.S. 72 (1959); Wilkinson v. United States, 365 U.S. 399 (1961); Braden v. United States, 365 U.S. 431 (1961).
- 4
- Gibson v. Fl. Legis. Investigation Comm., 372 U.S. 539 (1963). See also DeGregory v. Att’y Gen. of N.H., 383 U.S. 825 (1966).