MR. JUSTICE GOLDBERG delivered the opinion of the Court.
This case is the culmination of protracted litigation involving legislative investigating committees of the State of Florida and the Miami branch of the National Association for the Advancement of Colored People.
The origins of the controversy date from 1956, when a committee of the Florida Legislature commenced an investigation of the N. A. A. C. P. Upon expiration of this committee's authority, a new committee was established to pursue the inquiry. The new committee, created in 1957, held hearings and sought by subpoena to obtain the entire membership list of the Miami branch of the N. A. A. C. P.; production was refused and the committee obtained a court order requiring that the list be submitted. On appeal, the Florida Supreme Court held that
Because of the impending expiration of the authority of the 1957 committee, the Florida Legislature in 1959 established the respondent Legislative Investigation Committee to resume the investigation of the N. A. A. C. P. The authorizing statute, c. 59-207, Fla. Laws 1959, defining the purpose and operations of the respondent, declared:
Upon being called to the stand, the petitioner admitted that he was custodian of his organization's membership records and testified that the local group had about 1,000 members, that individual membership was renewed annually, and that the only membership lists maintained were those for the then current year.
The petitioner told the Committee that he had not brought these records with him to the hearing and announced that he would not produce them for the purpose of answering questions concerning membership in
The petitioner's refusal to produce his organization's membership lists was based on the ground that to bring the lists to the hearing and to utilize them as the basis of his testimony would interfere with the free exercise of Fourteenth Amendment associational rights of members and prospective members of the N. A. A. C. P.
In accordance with Florida procedure, the petitioner was brought before a state court and, after a hearing, was adjudged in contempt, and sentenced to six months' imprisonment and fined $1,200, or, in default in payment thereof, sentenced to an additional six months' imprisonment. The Florida Supreme Court sustained the judgment below, 126 So.2d 129, and this Court granted certiorari, 366 U.S. 917; the case was argued last Term and restored to the calendar for reargument this Term, 369 U.S. 834.
We are here called upon once again to resolve a conflict between individual rights of free speech and association and governmental interest in conducting legislative investigations. Prior decisions illumine the contending principles.
This Court has repeatedly held that rights of association are within the ambit of the constitutional protections afforded by the First and Fourteenth Amendments. NAACP v. Alabama, 357 U.S. 449; Bates v. Little Rock, 361 U.S. 516; Shelton v. Tucker, 364 U.S. 479; NAACP v. Button, 371 U.S. 415. The respondent Committee
The First and Fourteenth Amendment rights of free speech and free association are fundamental and highly prized, and "need breathing space to survive." NAACP v. Button, 371 U.S. 415, 433. "Freedoms such as these are protected not only against heavy-handed frontal attack, but also from being stifled by more subtle governmental interference." Bates v. Little Rock, supra, 361 U. S., at 523. And, as declared in NAACP v. Alabama, supra, 357 U. S., at 462, "It is hardly a novel perception that compelled disclosure of affiliation with groups engaged in advocacy may constitute [an] . . . effective. . . restraint on freedom of association . . . . This Court has recognized the vital relationship between freedom to associate and privacy in one's associations. . . . Inviolability of privacy in group association may in many circumstances be indispensable to preservation of freedom of association, particularly where a group espouses dissident beliefs." So it is here.
At the same time, however, this Court's prior holdings demonstrate that there can be no question that the State has power adequately to inform itself—through legislative investigation, if it so desires—in order to act and protect its legitimate and vital interests. As this
Significantly, the parties are in substantial agreement as to the proper test to be applied to reconcile the competing claims of government and individual and to determine the propriety of the Committee's demands. As declared by the respondent Committee in its brief to this Court, "Basically, this case hinges entirely on the question of whether the evidence before the Committee [was] . . . sufficient to show probable cause or nexus between the N. A. A. C. P. Miami Branch, and Communist activities." We understand this to mean—regardless of the label applied, be it "nexus," "foundation," or whatever—that it is an essential prerequisite to 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 overriding and compelling state interest. Absent such a relation between the N. A. A. C. P. and conduct in which the State may have a compelling regulatory concern, the Committee has not "demonstrated so cogent an interest in obtaining and making public" the membership information sought to be obtained as to "justify the substantial abridgment of associational freedom which such disclosures will effect." Bates v. Little Rock, supra, 361 U. S., at 524. "Where there is a significant encroachment upon personal liberty, the State may prevail only upon showing a subordinating interest which is compelling." Ibid.
Here, however, it is not alleged Communists who are the witnesses before the Committee and it is not discovery of their membership in that party which is the object of the challenged inquiries. Rather, it is the N. A. A. C. P. itself which is the subject of the investigation, and it is its local president, the petitioner, who was called before
Thus, unlike the situation in Barenblatt, Wilkinson and Braden, supra, the Committee was not here seeking from the petitioner or the records of which he was custodian any information as to whether he, himself, or even other persons were members of the Communist Party, Communist front or affiliated organizations, or other allegedly subversive groups; instead, the entire thrust of the demands on the petitioner was that he disclose whether other persons were members of the N. A. A. C. P., itself a concededly legitimate and nonsubversive organization.
In the absence of directly determinative authority, we turn, then, to consideration of the facts now before us. Obviously, if the respondent were still seeking discovery of the entire membership list, we could readily dispose of this case on the authority of Bates v. Little Rock,
Basically, the evidence relied upon by the respondent to demonstrate the necessary foundation consists of the testimony of R. J. Strickland, an investigator for the Committee and its predecessors, and Arlington Sands, a former association official.
Strickland identified by name some 14 persons whom he said either were or had been Communists or members of Communist "front" or "affiliated" organizations. His description of their connection with the association was simply that "each of them has been a member of and/or participated in the meetings and other affairs of the N. A. A. C. P. in Dade County, Florida." In addition, one of the group was identified as having made, at an
We do not know from this ambiguous testimony how many of the 14 were supposed to have been N. A. A. C. P. members. For all that appears, and there is no indicated reason to entertain a contrary belief, each or all of the named persons may have attended no more than one or two wholly public meetings of the N. A. A. C. P., and such attendance, like their membership, to the extent it existed, in the association, may have been wholly peripheral and begun and ended many years prior even to commencement of the present investigation in 1956. In addition, it is not clear whether the asserted Communist affiliations and the association with the N. A. A. C. P., however slight, coincided in time. Moreover, except for passing reference to participation in annual elections, there is no indication that membership carried with it any right to control over policy or activities, much less that any was sought. The reasoning which would find support for the challenged inquiries in Communist attendance at meetings from which no member of the public appears to have been barred is even more attenuated, since the only prerogative seemingly attaching to such attendance was the right to listen to the scheduled speaker or program. Mere presence at a public meeting or bare membership— without more—is not infiltration of the sponsoring organization.
Strickland did refer to one informant as having been instructed to infiltrate the N. A. A. C. P. and "other organizations." But any persuasive impact this recitation might otherwise have had is neutralized by the same informant's disclosure that his response to this command was simply to attend N. A. A. C. P. meetings "on occasions" and by the absence of any other substantial indication of infiltration. This is not a case in which, after a proper foundation has been laid, a Communist is himself interrogated about his own alleged subversive activities or those of the Communist Party, all as part of an inquiry related to what this Court has held to be a legitimate legislative purpose to investigate the activities of the party or its knowing members.
The testimony of Sands, the other assertedly important witness, added not even a semblance of anything more convincing with regard to the existence of a connection between subversion and the N. A. A. C. P. Sands, whose officership in the association predated 1950 and who admitted that he was uncertain even as to his then current membership in the N. A. A. C. P., merely corroborated to some extent certain of Strickland's references to attendance at N. A. A. C. P. meetings by a few of the persons identified as Communists. However, this too must have related to some time in the unspecified past, since Sands admitted that he had not even been to an N. A. A. C. P. meeting in two years. Sands also noted that one of the
Nor does the fact that the N. A. A. C. P. has demonstrated its antipathy to communism and an awareness of its threat by passage of annual antisubversion resolutions carry with it any permissible inference that it has, in fact, been infiltrated, influenced, or in any way dominated or used by Communists. Indeed, given the gross improbability of a Communist dominated or influenced organization denouncing communism, the more reasonable inference would seem to be to the contrary.
Finally, the Committee can find no support for its inquiry into the membership list from Strickland's suggestion that Sands had once uncertainly told him (Strickland) that one or possibly two of the group of 14 may have "made a talk" to the local N. A. A. C. P. chapter, again at some unspecified time in the past. There is no indication that the subject of the "talks" was in any way improper and, in any event, such isolated incidents cannot be made to do the work of substantial evidence of subversive influence or infiltration. The same is true of the few additional vague and somewhat unspecific references to other minor and nondirective participation in the affairs of the local group.
This summary of the evidence discloses the utter failure to demonstrate the existence of any substantial relationship
On the other hand, there was no claim made at the hearings, or since, that the N. A. A. C. P. or its Miami branch was engaged in any subversive activities or that its legitimate activities have been dominated or influenced by Communists. Without any indication of present subversive infiltration in, or influence on, the Miami branch of the N. A. A. C. P., and without any reasonable, demonstrated factual basis to believe that such infiltration or influence existed in the past, or was actively attempted or sought in the present—in short without any showing of a meaningful relationship between the N. A. A. C. P., Miami branch, and subversives or subversive or other illegal activities—we are asked to find the compelling and subordinating state interest which must exist if essential freedoms are to be curtailed or inhibited. This we cannot do. The respondent Committee has laid no adequate foundation for its direct demands upon the officers and records of a wholly legitimate organization for disclosure of its membership; the Committee has neither demonstrated nor pointed out any threat to the State by virtue of the existence of the N. A. A. C. P. or the pursuit of its activities or the minimal associational ties of the 14 asserted Communists. The strong associational interest in maintaining the privacy of membership lists of groups engaged in the constitutionally protected free trade in ideas and beliefs may not be substantially infringed upon
Of course, a legislative investigation—as any investigation —must proceed "step by step," Barenblatt v. United States, supra, 360 U. S., at 130, but step by step or in totality, an adequate foundation for inquiry must be laid before proceeding in such a manner as will substantially intrude upon and severely curtail or inhibit constitutionally protected activities or seriously interfere with similarly protected associational rights. No such foundation has been laid here. The respondent Committee has failed to demonstrate the compelling and subordinating governmental interest essential to support direct inquiry into the membership records of the N. A. A. C. P.
Nothing we say here impairs or denies the existence of the underlying legislative right to investigate or legislate with respect to subversive activities by Communists or anyone else; our decision today deals only with the manner in which such power may be exercised and we hold simply that groups which themselves are neither engaged
To permit legislative inquiry to proceed on less than an adequate foundation would be to sanction unjustified and unwarranted intrusions into the very heart of the constitutional privilege to be secure in associations in legitimate organizations engaged in the exercise of First and Fourteenth Amendment rights; to impose a lesser standard than we here do would be inconsistent with the maintenance of those essential conditions basic to the preservation of our democracy.
The judgment below must be and is
MR. JUSTICE BLACK, concurring.
I concur in the Court's opinion and judgment reversing the judgment of the Supreme Court of Florida although, for substantially the same reasons stated by MR. JUSTICE DOUGLAS in his concurring opinion, I would prefer to reach our decision by a different approach. I agree with MR. JUSTICE DOUGLAS that the Fourteenth Amendment makes the First Amendment applicable to the States and protects the freedoms of religion, speech, press, assembly, and petition from state abridgment with the same force and to the same degree that the First Amendment protects them from federal abridgment. That, as the cases cited by MR. JUSTICE DOUGLAS show, is what this Court has previously held. I agree also that these Amendments
MR. JUSTICE DOUGLAS, concurring.
I join the opinion of the Court, because it is carefully written within the framework of our current decisions. But since the matters involved touch constitutional
We deal here with the authority of a State to investigate people, their ideas, their activities. By virtue of the Fourteenth Amendment
When the State or Federal Government is prohibited from dealing with a subject, it has no constitutional privilege to investigate it. An investigation to permit a legislature properly to perform its powers of internal management is of course allowed. See Barry v. Cunningham, 279 U.S. 597, 613. But otherwise the power to investigate is only an adjunct of the power to legislate—an auxiliary power "necessary and appropriate to that end." McGrain v. Daugherty, 273 U.S. 135, 175. Investigation to determine how constitutional laws are being administered marks one limitation. The other is an investigation to determine what constitutional laws should be passed.
Joining a lawful organization, like attending a church, is an associational activity that comes within the purview of the First Amendment, which provides in relevant part: "Congress shall make no law . . . 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." "Peaceably to assemble" as used in the First Amendment necessarily involves a coming together, whether regularly or spasmodically. Historically the right to assemble was secondary to the right to petition, the latter being the primary right.
Schlesinger, The Rise of the City (1933), reviews the zeal with which Americans in the last century became the world's greatest "joiners":
"It is not surprising, therefore, to find that at least five thousand national associations exist in the United States." Robison, Protection of Associations From Compulsory Disclosure of Membership, 58 Col. L. Rev. 614, 622.
A coming together is often necessary for communication —for those who listen as well as for those who speak.
In my view, government is not only powerless to legislate with respect to membership in a lawful organization; it is also precluded from probing the intimacies of spiritual and intellectual relationships in the myriad of such societies and groups that exist in this country, regardless of the legislative purpose sought to be served. "[T]he provisions of the First Amendment . . . of course reach and limit . . . investigations." Barenblatt v. United States, 360 U.S. 109, 126. If that is not true, I see no barrier to investigation of newspapers, churches, political parties, clubs, societies, unions, and any other association for their political, economic, social, philosophical, or religious views. If, in its quest to determine whether existing laws are being enforced or new laws are needed, an investigating committee can ascertain whether known Communists or criminals are members of an organization not shown to be engaged in conduct properly subject to regulation, it is but a short and inexorable step to the conclusion that
It is no answer to the conclusion that all such investigations are illegal to suggest that the committee is pursuing a lawful objective in the manner it has determined most appropriate. For, as Laurent Frantz, The First Amendment in the Balance, 71 Yale L. J. 1424, 1441, has so persuasively shown, "it does not follow that any objective can ever be weighed against an express limitation on the means available for its pursuit. The public interest in the suppression of crime, for example, cannot be weighed against a constitutional provision that accused persons may not be denied the right to counsel." When otherwise valid legislation is sought to be applied in an unconstitutional manner we do not sustain its application. See, e. g., Yick Wo v. Hopkins, 118 U.S. 356. A different test should not obtain for legislative investigations. "[A]ny constitutional limitation serves a significant function only insofar as it stands in the way of something which government thinks ought to be done. Nothing else needs to be prohibited."
The problem was exposed again in Russell v. United States, 369 U.S. 749, where the press was being investigated. What I said there seems germane here. Since what an editor writes or thinks is none of the Government's business—except, of course, that Congress could punish the breach of a carefully drawn security law; see Near v. Minnesota, 283 U.S. 697, 715-716—it has no
Bryant v. Zimmerman, 278 U.S. 63, 72, held that the Due Process Clause of the Fourteenth Amendment did not prevent a State from compelling a disclosure of the membership lists of the Ku Klux Klan. That decision was made in 1928 and it is unnecessary to decide now whether its vitality has survived such cases as NAACP v. Alabama, 357 U.S. 449; Bates v. Little Rock, 361 U.S. 516; and Louisiana v. NAACP, 366 U.S. 293, for we distinguished that case in NAACP v. Alabama, supra, at 465, saying, inter alia, "The decision was based on the particular character of the Klan's activities, involving acts of unlawful intimidation and violence." Moreover, the incorporation of the First Amendment into the Fourteenth had only recently been adumbrated (see Gitlow v. New York, 268 U.S. 652, 666) and the full exposition of the right of association that is part of the periphery of the
The right of association has become a part of the bundle of rights protected by the First Amendment (see, e. g., NAACP v. Alabama, supra), and the need for a pervasive right of privacy against government intrusion has been recognized, though not always given the recognition it deserves.
There is no other course consistent with the Free Society envisioned by the First Amendment. For the views a citizen entertains, the beliefs he harbors, the utterances he makes, the ideology he embraces and the people he associates with are no concern of government.
As MR. JUSTICE BLACK said (dissenting) in Barenblatt v. United States, supra, 150-151:
If a group is engaging in acts or a course of conduct that is criminal, it can be prosecuted, and it and its members can be investigated, save as the Self-Incrimination
The Florida court in this case said that a requirement of nondisclosure would provide an "ideological asylum for those who would destroy by violence the very foundations upon which their governmental sanctuary stands." 126 So.2d 129, 132. But there is no showing here that the N. A. A. C. P. is engaged in any criminal activity of any kind whatsoever. The Florida Supreme Court in Graham v. Florida Legislative Investigation Committee, 126 So.2d 133, 136, conceded that the N. A. A. C. P. is "an organization perfectly legitimate but allegedly unpopular in the community." Whether it has members who have committed crimes is immaterial. One man's privacy may not be invaded because of another's perversity. If the files of the N. A. A. C. P. can be ransacked because some Communists may have joined it, then all walls of privacy are broken down. By that reasoning the records of the confessional can be ransacked because a "subversive" or a criminal was implicated. By that reasoning an entire church can be investigated because one member was an ideological stray or had once been a Communist or because
In sum, the State and the Federal Governments, by force of the First Amendment, are barred from investigating any person's faith or ideology by summoning him or by summoning officers or members of his society, church, or club.
Government can intervene only when belief, thought, or expression moves into the realm of action that is inimical to society. That was Jefferson's view. In his Bill for Establishing Religious Freedom he spoke primarily of religious liberty but in terms applicable to freedom of the mind in all of its aspects. It was his view that in the Free Society men's ideas and beliefs, their speech and advocacy are no proper concern of government. Only when they become brigaded with action can government move against them. Jefferson said:
Madison too knew that tolerance for all ideas across the spectrum was the only true guarantee of freedom of the mind:
Once the investigator has only the conscience of government as a guide, the conscience can become "ravenous," as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show:
Where government is the Big Brother,
MR. JUSTICE HARLAN, whom MR. JUSTICE CLARK, MR. JUSTICE STEWART, and MR. JUSTICE WHITE join, dissenting.
The difficulties with this decision will become apparent once the case is deflated to its true size.
The essential facts are these. For several years before petitioner was convicted of this contempt, the respondent,
Having failed to obtain from prior witnesses, other than its own investigator, any significant data as to the truth or falsity of this information, the Committee, in 1959, summoned the petitioner to testify, also requiring that he bring with him the membership records of the branch. Petitioner, a Negro clergyman, was then and for the past five years had been president of the local branch, and his custodianship of the records stands conceded.
On his appearance before the Committee petitioner was asked to consult these records himself and, after doing so, to inform the Committee which, if any, of the 52 individually identified persons were or had been members of the N. A. A. C. P. Miami Branch. He declined to do this on two grounds. First, he said that the N. A. A. C. P. itself had already undertaken action "excluding from our ranks any and all persons who may have subversive tendencies."
The petitioner was then asked to state from recollection the N. A. A. C. P. membership vel non of the 14 persons mentioned above, photographs of each being exhibited to him. But he was unable to supply any information, disclaiming even knowledge of most of the names. He was then again asked to utilize the membership records as a testimonial aid, it having been earlier made clear to him that the Committee itself did not propose to look at the records:
Petitioner persisted in his refusal. This contempt charge and conviction, and its affirmance by the Supreme Court of Florida, 126 So.2d 129, followed.
This Court rests reversal on its finding that the Committee did not have sufficient justification for including
The Court's reasoning is difficult to grasp. I read its opinion as basically proceeding on the premise that the governmental interest in investigating Communist infiltration into admittedly nonsubversive organizations, as distinguished from investigating organizations themselves suspected of subversive activities, is not sufficient to overcome the countervailing right to freedom of association. Ante, pp. 547-549. On this basis "nexus" is seemingly found lacking because it was never claimed that the N. A. A. C. P. Miami Branch had itself engaged in subversive activity, ante, pp. 554-555, and because none of the Committee's evidence relating to any of the 52 alleged Communist Party members was sufficient to attribute such activity to the local branch or to show that it was dominated, influenced, or used "by Communists." Ante, pp. 550-555.
But, until today, I had never supposed that any of our decisions relating to state or federal power to investigate in the field of Communist subversion could possibly be taken as suggesting any difference in the degree of governmental investigatory interest as between Communist infiltration of organizations and Communist activity by organizations. See, e. g., Barenblatt v. United States, 360 U.S. 109 (infiltration into education); Wilkinson v. United States, 365 U.S. 399, and Braden v. United States, 365 U.S. 431 (infiltration into basic industries); Russell v. United States, 369 U.S. 749, 773 (infiltration of newspaper business).
Considering the number of congressional inquiries that have been conducted in the field of "Communist infiltration" since the close of World War II, affecting such
Given the unsoundness of the basic premise underlying the Court's holding as to the absence of "nexus," this decision surely falls of its own weight. For unless "nexus" requires an investigating agency to prove in advance the very things it is trying to find out, I do not understand how it can be said that the information preliminarily developed by the Committee's investigator was not sufficient to satisfy, under any reasonable test, the requirement of "nexus."
Apart from this, the issue of "nexus" is surely laid at rest by the N. A. A. C. P.'s own "Anti-Communism" resolution, first adopted in 1950, which petitioner had voluntarily furnished the Committee before the curtain came down on his examination:
It hardly meets the point at issue to suggest, as the Court does (ante, p. 554), that the resolution only serves to show that the Miami Branch was in fact free of any Communist influences—unless self-investigation is deemed constitutionally to block official inquiry.
I also find it difficult to see how this case really presents any serious question as to interference with freedom of association. Given the willingness of the petitioner to testify from recollection as to individual memberships in the local branch of the N. A. A. C. P., the germaneness of the membership records to the subject matter of the Committee's investigation, and the limited purpose for which their use was sought—as an aid to refreshing the witness' recollection, involving their divulgence only to the petitioner himself (supra, pp. 577-578) —this case of course bears no resemblance whatever to NAACP v. Alabama, 357 U.S. 449, or Bates v. Little Rock, 361 U.S. 516. In both of those cases the State had sought general divulgence of local N. A. A. C. P. membership lists without any showing of a justifying state interest. In effect what we are asked to hold here is that the petitioner had a constitutional right to give only partial or inaccurate testimony, and that indeed seems to me the true effect of the Court's holding today.
I have scrutinized this record with care to ascertain whether any unfairness in the Committee's proceedings could be detected. I can find none. In the questioning and treatment of witnesses, explanations of pertinency, rulings on objections, and general conduct of the inquiry, I perceive nothing in this record which savors of other than a decorous attitude on the part of the Committee and a lawyerlike and considerate demeanor on the part of its counsel. Nor do I find in the opinion of the Florida Supreme Court the slightest indication of anything other than a conscientious application of the constitutional principles governing cases such as this.
There can be no doubt that the judging of challenges respecting legislative or executive investigations in this sensitive area demands the utmost circumspection on the
I would affirm.
MR. JUSTICE WHITE, dissenting.
In my view, the opinion of the Court represents a serious limitation upon the Court's previous cases dealing with this subject matter and upon the right of the legislature to investigate the Communist Party and its activities. Although one of the classic and recurring activities of the Communist Party is the infiltration and subversion of other organizations, either openly or in a clandestine manner, the Court holds that even where a legislature has evidence that a legitimate organization is under assault and even though that organization is itself sounding open and public alarm, an investigating committee is nevertheless forbidden to compel the organization or its members to reveal the fact, or not, of membership in that organization of named Communists assigned to the infiltrating task.
While the Court purports to be saving such a case for later consideration, it is difficult for me to understand how under today's decision a Communist in the process of performing his assigned job could be required to divulge not only his membership in the Communist Party but his membership or activities in the target organization as well. The Court fails to articulate why the State's interest is any the more compelling or the associational rights any the less endangered when a known Communist is asked whether he belongs to a protected association than
On the other hand, should a legislature obtain ostensibly reliable information about the penetration of Communists into a particular organization, information which in the course of things would be placed on public record like the testimony here, there could no longer be a weighty interest on the part of that organization to refuse to verify that information or to brand it as false. This is particularly true here where an officer of the association is willing to identify persons from memory and where the organization itself has called upon its own members to root out Communists who are bent upon using the association to serve the goals of the Communist Party. Unbending resistance to answering, one way or the other, a legislative committee's limited inquiries in the face of already public information to the same effect reduces the association's interest in secrecy to sterile doctrine. I would have thought that the freedom of association which is and should be entitled to constitutional protection would be promoted, not hindered, by disclosure which permits members of an organization to know with whom they are associating and affords them the opportunity to make an intelligent choice as to whether certain of their associates who are Communists should be allowed to continue their membership. In these circumstances, I cannot join the Court in attaching great weight to the organization's interest in concealing the presence of infiltrating Communists, if such be the case.
As stated by MR. JUSTICE BLACK in Speiser v. Randall, 357 U.S. 513, 530 (concurring opinion):
"[T]he First Amendment . . . of course is applicable in all its particulars to the States. See, e. g., Staub v. City of Baxley, 355 U.S. 313; Poulos v. New Hampshire, 345 U.S. 395, 396-397; Everson v. Board of Education, 330 U.S. 1, 8; Thomas v. Collins, 323 U.S. 516; Board of Education v. Barnette, 319 U.S. 624, 639; Douglas v. Jeannette, 319 U.S. 157, 162; Martin v. Struthers, 319 U.S. 141; Murdock v. Pennsylvania, 319 U.S. 105, 109; Chaplinsky v. New Hampshire, 315 U.S. 568, 571; Bridges v. California, 314 U.S. 252, 263; Cantwell v. Connecticut, 310 U.S. 296, 303; Schneider v. State, 308 U.S. 147, 160; Lovell v. Griffin, 303 U.S. 444, 450; De Jonge v. Oregon, 299 U.S. 353, 364; Gitlow v. New York, 268 U.S. 652, 666."
These cases are inconsistent with the view that First Amendment rights protected against state invasion by the Due Process Clause of the Fourteenth Amendment are a watered-down version of what the First Amendment guarantees.
"I have indeed two great measures at heart, without which no republic can maintain itself in strength. 1. That of general education, to enable every man to judge for himself what will secure or endanger his freedom. 2. To divide every county into hundreds, of such size that all the children of each will be within reach of a central school in it. But this division looks to many other fundamental provisions. Every hundred, besides a school, should have a justice of the peace, a constable and a captain of militia. These officers, or some others within the hundred, should be a corporation to manage all its concerns, to take care of its roads, its poor, and its police by patrols, etc. (as the selectmen of the eastern townships). Every hundred should elect one or two jurors to serve where requisite, and all other elections should be made in the hundreds separately, and the votes of all the hundreds be brought together. Our present captaincies might be declared hundreds for the present, with a power to the courts to alter them occasionally. These little republics would be the main strength of the great one. We owe to them the vigor given to our revolution in its commencement in the Eastern States, and by them the Eastern States were enabled to repeal the embargo in opposition to the Middle, Southern and Western States, and their large and lubberly division into counties which can never be assembled. General orders are given out from a centre to the foreman of every hundred, as to the sergeants of an army, and the whole nation is thrown into energetic action, in the same direction in one instance and as one man, and becomes absolutely irresistible. Could I once see this I should consider it as the dawn of the salvation of the republic, and say with old Simeon, `nunc dimittis Domine.' " 12 Writings of Thomas Jefferson (Mem. ed. 1904) 393-394.
And see letter to John Cartwright, June 5, 1824, 16 Jefferson, op cit., supra, 42, 44-46; letter to Samuel Kercheval, July 12, 1816, 15 Jefferson, op. cit., supra, 32-44; and letter to Samuel Kercheval, September 5, 1816. Id., at 70-71.
A part of the philosophical basis of this right has its roots in the common law. As Warren and Brandeis, The Right to Privacy, 4 Harv. L. Rev. 193, 196, stated:
"The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury."
See also Olmstead v. United States, 277 U.S. 438, 471, 472-479 (dissenting opinion, Brandeis, J.); Poe v. Ullman, 367 U.S. 497, 509, 515-522 (dissenting opinion).
Whether the problem involves the right of an individual to be let alone in the sanctuary of his home or his right to associate with others for the attainment of lawful purposes, the individual's interest in being free from governmental interference is the same, and, except for the limited situation where there is "probable cause" for believing that he is involved in a crime, the government's disability is equally complete.
"Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty. To courageous, self-reliant men, with confidence in the power of free and fearless reasoning applied through the processes of popular government, no danger flowing from speech can be deemed clear and present, unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion. If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence. Only an emergency can justify repression. Such must be the rule if authority is to be reconciled with freedom. . . ." Whitney v. California, 274 U.S. 357, 375, 377 (concurring opinion of Mr. Justice Brandeis).