CRS Annotated Constitution

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Legislative Investigations and the First Amendment.—The power of inquiry by congressional and state legislative committees in order to develop information as a basis for legislation62 is subject to some uncertain limitation when the power as exercised results in deterrence or penalization of protected beliefs, associations and conduct. While the Court initially indicated that it would scrutinize closely such inquiries in order to curb First Amendment infringement,63 later cases 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[p.1079]upheld wide–ranging committee investigations.64 More recently, the Court has placed the balance somewhat differently and required that the investigating agency show “a subordinating interest which is compelling” to justify the restraint on First Amendment rights which the Court found would result from the inquiry.65 The issues in this field, thus, must be considered to be unsettled pending further judicial consideration.

Interference With War Effort.—Unlike the dissent to United States participation in World War I, which provoked several prosecutions,66 the dissent to United States action in Vietnam was subjected to little legal attack. Possibly the most celebrated governmental action, the prosecution of Dr. Spock and four others for conspiring to counsel, aid, and abet persons to evade or to refuse obligations under the Selective Service System, failed to reach the Supreme Court.67 Aside from a comparatively minor case,68 the Court’s sole encounter with a Vietnam War protest allegedly involving protected “symbolic conduct” was United States v. O’Brien.69 That case affirmed a conviction and upheld a congressional prohibition against destruction of draft registration certificates; O’Brien had publicly burned his card. “We cannot accept the view that an apparently limitless variety of conduct can be labeled ‘speech’ whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O’Brien’s conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity. This Court has held that when ‘speech’ and ‘nonspeech’ elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on[p.1080]First Amendment freedoms.”70 Finding that the Government’s interest in having registrants retain their cards at all times was an important one and that the prohibition of destruction of the cards worked no restriction of First Amendment freedoms broader than that needed to serve the interest, the Court upheld the statute. More recently, the Court upheld a “passive enforcement” policy singling out for prosecution for failure to register for the draft those young men who notified authorities of an intention not to register for the draft and those reported by others.71

Suppression of Communist Propaganda in the Mails.—A 1962 statute authorizing the Post Office Department to retain all mail from abroad which was determined to be “communist political propaganda” and to forward it to an addressee only upon his request was held unconstitutional in Lamont v. Postmaster General.72 The Court held that to require anyone to request receipt of mail determined to be undesirable by the Government was certain to deter and inhibit the exercise of First Amendment rights to receive information.73 Distinguishing Lamont, the Court in 1987 upheld statutory classification as “political propaganda” of communications or expressions by or on behalf of foreign governments, foreign “principals,” or their agents, and reasonably adapted or intended to influence United States foreign policy.74 “The physical detention of materials, not their mere designation as ‘communist political propaganda,’ was the offending element of the statutory scheme [in Lamont].”75

Exclusion of Certain Aliens as a First Amendment Problem.—While a nonresident alien might be able to present no claim, based on the First Amendment or on any other constitutional provision, to overcome a governmental decision to exclude him from the country, it was arguable that United States citizens who could[p.1081]assert a First Amendment interest in hearing the alien and receiving information from him, such as the right recognized in Lamont, could be able to contest such exclusion.76 But the Court declined to reach the First Amendment issue and to place it in balance when it found that a governmental refusal to waive a statutory exclusion77 was on facially legitimate and neutral grounds; the Court’s emphasis, however, upon the “plenary” power of Congress over admission or exclusion of aliens seemed to indicate where such a balance might be drawn.78


62 Supra, pp.93–105.
63 See United States v. Rumely, 345 U.S. 41 (1953) ; Watkins v. United States, 354 U.S. 178, 197–98 (1957) ; Sweezy v. New Hampshire, 354 U.S. 234, 249–51 (1957) . Concurring in the last case, Justices Frankfurter and Harlan would have ruled that the inquiry there was precluded by the First Amendment. Id. at 255.
64 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) . Chief Justice Warren and Justices Black, Douglas, and Brennan dissented in each case.
65 Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1963) . Justices Harlan, Clark, Stewart, and White dissented. Id. at 576, 583. See also DeGregory v. Attorney General of New Hampshire, 383 U.S. 825 (1966) .
66 Supra, pp.1036–38.
67 United States v. Spock, 416 F.2d 165 (1st Cir. 1969).
68 In Schacht v. United States, 398 U.S. 58 (1970) , the Court reversed a conviction under 18 U.S.C. Sec. 702 for wearing a military uniform without authority. The defendant had worn the uniform in a skit in an on–the–street anti–war demonstration, and 10 U.S.C. Sec. 772 (f) authorized the wearing of a military uniform in a “theatrical production” so long as the performance did not “tend to discredit” the military. This last clause the Court held unconstitutional as an invalid limitation of freedom of speech.
69 391 U.S. 367 (1968) .
70 Id. at 376–77. For recent cases with suggestive language, see Snepp v. United States, 444 U.S. 507 (1980) ; Haig v. Agee, 453 U.S. 280 (1981) .
71 Wayte v. United States, 470 U.S. 598 (1985) . The incidental restriction on First Amendment rights to speak out against the draft was no greater than necessary to further the government’s interests in “prosecutorial efficiency,” obtaining sufficient proof prior to prosecution, and promoting general deterrence (or not appearing to condone open defiance of the law). See also United States v. Albertini, 472 U.S. 675 (1985) (order banning a civilian from entering military base valid as applied to attendance at base open house by individual previously convicted of destroying military property).
72 381 U.S. 301 (1965) . The statute, Pub. L. 87–793, Sec. 305, 76 Stat. 840 , was the first federal law ever struck down by the Court as an abridgment of the First Amendment speech and press clauses.
73 Id. at 307. Justices Brennan, Harlan, and Goldberg concurred, spelling out in some detail the rationale of the protected right to receive information as the basis for the decision.
74 Meese v. Keene, 481 U.S. 465 (1987) .
75 Id. at 480.
76 The right to receive information has been prominent in the rationale of several cases, e.g., Martin v. City of Struthers, 319 U.S. 141 (1943) ; Thomas v. Collins, 323 U.S. 516 (1945) ; Stanley v. Georgia, 394 U.S. 557 (1969) .
77 By §§ 212(a)(28)(D) and (G) of the Immigration and Nationality Act of 1952, 8 U.S.C. §§ 1182 (a)(28)(D) and (G), aliens who advocate or write and publish “the economic, international, and governmental doctrines of world communism” are made ineligible to receive visas and are thus excluded from the United States. Upon the recommendation of the Secretary of State, however, the Attorney General is authorized to waive these provisions and to admit such an alien temporarily into the country. INA Sec. 212(d)(3)(A), 8 U.S.C. Sec. 1182 (d)(3)(A).
78 Kleindienst v. Mandel, 408 U.S. 753 (1972) .
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