The Encroachments on Freedom
A Rhode Islander who was educated at Brown University and Harvard Law School, ZECHARIAH CHAFEE, JR., was appointed to the law faculty at Harvard in 1916. Since 1950 he has been one of Harvard’s University Professors. He is a most trenchant defender of civil rights,and in the paper which follows he shows where and to what extent we have lost ground in recent years. This will appear as a chapter in his forthcoming book, The Blessings of liberty, which Lippincott will publish this month.
by ZECHARIAH CHAFEE, JR.
1
WE HAVE been passing through very troubled years Since Germany and Japan surrendered. Instead of returning to a happy period of unbroken homes and business as usual, for which everybody longed, we had to face almost immediately the threat of Communist power abroad, which broke into actual and protracted fighting in Korea. This unceasing tension in foreign affairs was aggravated by fears of Soviet sympathizers in our midst. It is not surprising, therefore, that influential persons and groups have urged various kinds of abridgments of liberty.
Were these sacrifices of freedom planned wisely? Did they really lessen the dangers from disaffection in the United States? Or were these restrictive measures often adopted in careless haste or out of personal vindictiveness and thirst for popularity? Such questions must be asked. The great ideals and traditions of liberty are in the Constitution because Englishmen and American colonists thought and worked, decade after decade, and were ready to risk prison and death. Shall we abandon them blithely?
In considering civil liberties in this country, I audaciously look forward to a future by no means wholly black. The recent segregation cases in the Supreme Court have begun the destruction of the last legal barriers against citizens who have a strain of color not white. The eventual disappearance of legal differentiations based on race or color will come not only by judicial nullification and legislative repeals but also — what is more important — through notable alterations in public opinion. Common sacrifices in war and other disasters and the experience of working and living together will make Americans regard themselves increasingly as a single people.
Other tangible rights acquiring greater solidity are those giving a fair trial to all persons who have to stand before judges and juries and face the possibility of being punished for crimes. Convictions obtained by mobs dominating the courtroom no longer stand. The Supreme Court has recently strengthened the right to counsel; and provisions for defenders paid out of taxes or community chests are making it easier to obtain a reputable lawyer without great pecuniary sacrifices. The presence of a lawyer in the courtroom greatly increases the practical value of all the constitutional rights of a prisoner on trial.
Abuses of an accused person’s rights before trial such as the brutality called the “third degree” are likely to diminish with the striking progress in police organization and police methods. Even prolonged questioning of a person in custody may be subjected to more regulation.
I find much more cause for apprehension, however, when I think of the more subtle freedoms proclaimed by the First Amendment — those concerned with our believing, our thinking, our expression of our thoughts by voice and print, and our association with others to exchange or promote ideas.
Freedom of religion now appears safe for any man who holds any variety of faith, at least when it does not make it immoral for him to go to war. But what about the atheist or agnostic? The men of fluid beliefs who participated in the Constitution intended to protect him too. Although a churchman myself, I regard it as vital to our national life that a man’s right to hold public office should never be affected by what he believes about his relation to the totality of being. The law may remain as now, but in practice atheists and agnostics are sometimes virtually ineligible as candidates for election or appointment to public office. Though no statute is likely to require church membership as a qualification for teachers in public schools, the same result Can conceivably be attained by determined school committees.
Copyright © 1956, by Zechariah Chafee, Jr.
When we go outside religion, freedom of thought and discussion about controversial issues will, I expect, have to be defended against frequent incursions for many years ahead. In our fear of domestic Communists and our eagerness to identify heterodoxy with spying and sabotage, we have developed vague legal concepts like “ subversive ” and “ disloyalty ” which will trouble us for a long time to come. Our present national policy of driving Communists underground will spread suspicion into new quarters.
Disputes about the proper ways to deal with radicals in our midst are largely caused by a sharp divergence of opinion about the extent of the danger. One group thinks the country to be in great peril. The other group has confidence in the heartfelt devotion of the American people to our form of government and in their ability to sift good ideas from bad ideas through their own intelligence and common sense without needing legislators and officials to do that job for them. Both groups are obliged to form their opinions without knowing badly needed facts. The basic question in every program of laws against domestic radicals is: How big a danger do they create, beyond what can be met by the ordinary processes of reasoning by voice and print ? It is high time that some authoritative group of dispassionate persons gave us a trustworthy answer to that question.
2
WITHOUT expressing any judgment as to whether or not they were required by national safety, I shall list briefly several of the encroachments on the ideals of freedom of speech, press, and assembly which have taken place since 1945. I shall ignore issues of constitutionality. My only purpose now is to show what is going on.
McCarran Act
In 1950 Congress passed the Mundt-Nixon Bill, usually called the McCarran Act. It sets up a body of officials called the Subversive Activities Control Board, which on finding that groups have specified objectionable purposes can order them to register with the Attorney General and incur very disagreeable legal consequences. This law goes far beyond Communists. The machinery of the McCarran Act operated so slowly that, when nobody had registered by 1954, Congress jumped over the heads of the Board and, by the Communist Control Act, decided that the Communist Party of America had to register and made it an outlaw.
Aliens
Aliens are more and more made deportable by Congress for what they have said, or because of ideas expressed not by them but by other men in groups they have joined. It makes no difference how long an alien has been in this country or how deeply he has put down his roots. The laws began by throwing out anarchists and Communists, but since 1945 many new categories of objectionable ideas have been added. The vital decisions are all made by government officials. These laws apply the same tests of orthodox thought to temporary visitors as to prospective settlers. Over and over again we have harmed ourselves by making if hard for distinguished scientists and scholars to obtain visas in order to give Americans the benefit of their knowledge in our universities and scientific conferences.
Passports
Officials can lock the frontier on both sides. They frequently deny American citizens a passport, which is indispensable for going to Europe but has been considered to be a gracious favor from the State Department, to be withheld whenever the Department did not like a man’s mind. Recently the prospective traveler has been able to get help from the courts, if he wants to use the crowded weeks between engaging his passage and boarding the steamer for a lawsuit and pay a lawyer some of the money he had been saving for the Alps and Italy.
Books and magazines
The frontiers have also been closed by officials against books and magazines. The Customs Bureau has managed to by-pass the valuable law of 1929, which was intended to end its long practice of destroying at will whatever imported books and art it chose to consider indecent. It transferred the control to the courts and thus made possible Judge Woolsey’s famous decision admitting Joyce’s Ulysses. Afterwards the Treasury referred to Huntington Cairns, the secretary of the National Gallery in Washington, all cases where exclusion was possibly required by law. His wise rulings have been so satisfactory to all parties that it was unnecessary to call on the courts. Now, however, the customs officials have joined forces with the postal authorities and, with very dubious statutory authority, are freely seizing incoming material which is neither obscene nor revolutionary, simply because they think it undesirable “ political propaganda ” for Americans to read.
Investigations
Congressional investigations into radicalism were occasionally conducted after 1917 but became continuous in 1938 when the House Committee on UnAmerican Activities was organized. In 1945 it was changed from a special into a permanent committee. Hopes that the Senate was repelled from imitating what was going on in the House have been dashed since the end of the war. Indeed, the Senate now has two committees busy unearthing radicals. The Subcommittee on Internal Security in the Judiciary Committee seems adequate to guard the nation against real dangers, but that is not the view of the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations. This committee (until 1952 entitled Expenditures in the Executive Departments) is charged with all proposed legislation and other matters relating to budget and accounting measures (except appropriations); examining reports of the Comptroller General; studying the operation of government activities at all levels with a view to determining its economy and efficiency; reorganizing the legislative and executive branches; and studying intergovernmental relationships between the nation and states or municipalities, and between the United States and international organizations. One would suppose that these vast ramifications of public affairs would give the committee a gigantic task, but it prefers to spend much of its time investigating workers in private factories and teachers at Harvard.
These three congressional investigating committees have received more attention in the news than any other method by which our government has been restricting freedom of expression by American citizens, either singly or in groups. Some of their work has been devoted to the Communist Party and real Communists, but a great deal to socalled Communist-front organizations, subversive individuals, fellow travelers, and so on. For example, the most flamboyant and widely publicized hearings were held at Washington in October, 1947, to investigate the motion-picture industry. Representative Rankin, the moving force, spoke of “ the loathsome, filthy, insinuating, un-American undercurrents that are running through various pictures.” A notable film, The Best Years of Our Lives, was condemned because a banker hesitated to give a loan to a veteran (who eventually got it). If an occasional misleading radical photoplay gets past the gantlet of producers, banker pressure, the Hays-Johnston Office, and the Catholic Legion of Decency, will the harm be very great? We need creative art, not controlled art. Leave that to the U.S.S.R.
No doubt, bodies which hold so many sessions as these three committees do must occasionally run across something of value, but the voluminous press reports are mainly concerned with their resemblance to circuses and publish very little carefully considered information from them about the extent of the Communist danger. The impression is left that a large amount of the money of American taxpayers has been spent fishing in dirty waters for cast-off rubbers and battered tin cans.
The book-burnings
In the spring of 1953 the State Department, at the behest of staff members of a Senate investigating committee, took hundreds of books out of our very serviceable Information Libraries in foreign cities and junked them, not because of anything these books said, but because their authors were alleged to be subversive. It was considered perilous for foreigners to read books like Alan Barth’s The Loyalty of Free Men and Dashiell Hammett’s The Maltese Falcon, a thrilling crime story as remote from politics as Sherlock Holmes. While the State Department was thus alienating European lovers of liberty, President Eisenhower told the students at Dartmouth, “ Don’t join the book-burners.” It is good to have a President who does not preach what his subordinates practice.
Loyalty programs
The loyalty and security-risk program came into extensive operation in April, 1947, through an executive order by President Truman. It called for every federal official to be investigated by the FBI and his superiors, so that disloyal or untrustworthy persons might be weeded out of the public service. There was a good deal to be said for screening men in sensitive positions like work for the Atomic Energy Commission, but the job did not stop there and it did not stop with possible Communists. Everybody had to stand before the searchlight and let it play over his whole life, his opinions, his family and friends, the books and magazines he read, and the opinions he held. Thus when it was discovered that the mother of a bootblack in the Pentagon had given $10 to the Scottsboro Defense Fund before he was born, seventy interviews by the FBI were required to find him worthy to shine the shoes of army officers.
After immense work and the outlay of millions of dollars, a very small percentage of the total number of officials were dismissed and the rest were cleared. Yet there were grave doubts whether the program had accomplished either of Mr. Truman’s declared objectives in his order, that “[1] maximum protection must be afforded the United States against infiltration of disloyal persons into the ranks of its employees, and [2] equal protection from unfounded accusations of disloyalty must be afforded the loyal employees of the government.”
Mr. Truman’s opponents showed no confidence whatever in the first objective. When Mr. Eisenhower came to the White House, he issued a different order and then pretty much the whole thing was gone through again. And some of the best men in public service have felt that the government is slighting the second objective of “ protection from unfounded accusations of disloyalty.” Dr. Vannevar Bush, the head of the Office of Scientific Research and Development in World War II, told the House Government Operations Committee in October, 1954, that the security-risk program had demoralized the scientific community and hindered the nation’s program of research into weapons. He testified that the mutual respect between the military services and the scientific community achieved during World War II has been “almost destroyed, and one of the primary reasons was the security system. ” He added that although scientists are still continuing to serve the military department, their morale is so low that they are doing the job “ without enthusiasm and without fruitful inspiration. They go on working, but they feel that they are not welcome; that they are regarded with suspicion; that some of the men who led them through the war are now being questioned and their security and loyalty are in doubt.”
Apart from important questions as to procedure of the loyalty-security program, the main point for the government and the public to remember is that any possible risk from retaining a man who has performed good service in the past is not the sole consideration; it should always be balanced against the sure loss his dismissal will cause, by cutting off his future contributions to the national welfare. Most of the reasons given for denying J. Robert Oppenheimer access to classified information about nuclear physics related to events in his life before 1941. If the men who ousted him from public service in 1954 had been exercising authority at the time of Pearl Harbor, there would have been no danger from Dr. Oppenheimer and the United States would not have won the race for the atomic bomb.
The current satisfaction of politicians over the number of federal employees who have been dismissed for disloyalty is badly misplaced if in a considerable fraction of those cases the charges were improperly proved or insubstantial and the government has thrown out honest citizens. Somebody ought to count the number of devoted public servants who have resigned in disgust. Nobody can count the much larger number of able men who have decided not to enter government departments during the years since the loyalty-security program began because, as is the way of able men, they prefer to be part of an enterprise which is built on trust.
Subversive organizations
The Attorney General’s list took shape under President Truman as an auxiliary to the loyaltysecurity program: —
Activities and associations of an applicant or employee which may be considered in connection with the determination of disloyalty may include one or more of the following:
. . . f. Membership in, affiliation with or sympathetic association with any foreign or domestic organization, association, movement, group or combination of persons, designated by the Attorney General as totalitarian, fascist, communist, or subversive, or as having adopted a policy of advocating or approving the commission of acts of force or violence to deny other persons their rights under the Constitution . . . or as seeking to alter the form of government of the United States by unconstitutional means.
Although the executive order made this list only one piece of evidence against an official, it is not so treated in the administration of the loyalty program; instead it usually raises a prima-facie case of his disloyalty. Moreover, the list was compiled only to guide this federal program, and yet it has been widely employed by states and cities and even byprivate organizations as proof of the disloyalty of teachers and employees. The radio industry has accepted it as a basis for canceling the contracts of its performers. The list has accordingly become a powerful weapon for injuring any group there named or any individual who belongs to such a group.
Nevertheless, the reliability of this list is seriously undermined by the fact that most of the organizations on it were singled out by government officials as they pleased without giving the organization any notice or any hearing. Thus there was no chance for the heads of a group to state objections, to offer evidence, or to examine the Attorney General’s evidence and argue against its trustworthiness or value.
Since the Attorney General’s list is my only point of personal contact with contemporary restrictions on freedom of speech, some firsthand information may not be out of place. Occasionally somebody calls me a member of the Citizens Committee to Free Earl Browder, which is on this list as Communist. Hence I am said to be a bad security risk, next door to a Communist. Here is what happened. Around 1941, some people whose names I have forgotten wrote asking me to sign a petition to Attorney General Biddle for Browder’s release from prison. I replied that I would not sign it because it said that Browder ought not to have been convicted. He had lied to his government on a passport application, and I believe that a citizen ought to tell the truth to his government. However,
I thought four years in prison a very severe punishment. Browder had already served over two years, which seemed to me tough enough. I never knew Browder, but I was reliably informed that he was not a violent revolutionary and that bis release would help our relations with the Soviet Union, then our ally, which were in a ticklish state. So I sent these views in a personal letter to Francis Biddle, whom I knew, who, as Attorney General, was charged by the Constitution with the duty of advising the President on legal matters. I do not know whether Mr. Biddle mentioned my request to Mr. Roosevelt; but I do know that the President, under Article II, section 2, of the Constitution, has “Power to grant Reprieves and Pardons for Offenses.” And President Roosevelt did pardon Browder. If this be treason, make the most of it!
State laws
Thus far I have dealt only with restrictions by the national government on freedom of thought and speech. Meanwhile, the legislatures of numerous states have been imitating Congress by passing all sorts of anti-Communist laws and setting up their own investigating committees. It is an important question whether the time has not come for state legislatures to give up concerning themselves with subversive activities and entrust the whole matter of the safety of the nation to the government of the nation. Obviously, nobody has the slightest chance of overthrowing the government of Massachusetts by force and violence unless, at the same time, he succeeds in overthrowing the government of the whole United States. Although Senators and Representatives with large powers to cut down our fundamental freedoms are a serious cause for anxiety, the petty imitators who follow in their train are even worse.
()bject ion able ideas
Combined national and state attacks on objectionable ideas have produced a mass of restrictions which reach into almost every human activity. Loyalty oaths have been required of candidates for election, occupants of public offices, teachers in public schools, labor union officials bargaining under the Wagner Act, students in state colleges and universities, applicants for unemployment compensation, and prospective jurors. California requires such oaths from all institutions seeking exemption from taxes. Congress has excluded from federal housing projects “a person who is a member of any organization designated as subversive by the Attorney General,” and thousands of occupants have been required to furnish certificates of nonmembership. One court had difficulty in seeing how the efforts of subversives would be combated “by compelling them to live in slums.”
Pennsylvania denies poor relief to persons actively seeking to change the form of government by unconstitutional means, perhaps thereby making unhelped paupers see the benefits of the existing system. California tried to prohibit the use of public schoolhouses by “ subversive ” groups, though opening them for other meetings. The Georgia. Board of Education allows local school authorities to revoke, perhaps for life, the license of any teacher who supports the idea of non-segregated schools or agrees to teach in such a school. In 1953 the legislature of Alabama and Texas required all school textbooks to bear certificates stating that the authors were not Communists or ex-Communists and whether they had belonged to an organization on the Attorney General’s list. Any schoolboy in Louisiana who advocates the violent overthrow of the government will be expelled.
Recently, after Albert Sprague Coolidge, Harvard chemist and skilled amateur musician, had been asked to succeed his mother as trustee of a fund for chamber music which she had given to the Library of Congress, the appointment was withdrawn for security reasons. Because he had joined years ago an organization opposed to the totalitarian dictatorship of Franco, his judgment on string quartets might be infected with disloyalty.
As a striking example of what is going on, a doctor was suspended for practicing medicine in New York because he had served six months in jail for failing, on advice of counsel, to produce papers to the House Un-American Activities Committee relating to the activities of his organization in rescuing and healing victims of the totalitarian government of Spain. So the New York State authorities reduced him to idleness for six months more. The highest court in New York and the Supreme Court of the United States were helpless to give him relief. But Justice Douglas observed: —
So far as I know, nothing in a man’s political beliefs disables him from setting broken bones or removing ruptured appendixes safely and efficiently.
. . . When a doctor cannot save lives in America because he is opposed to Franco in Spain, it is time to call a halt and look critically at the neurosis which has possessed us.
3
THE zeal of those in power to protect the nation from ideas they detest has imperiled more than the First Amendment. It has weakened great policies which underlie several other parts of the Constitution.
The strongest safeguard of human rights in the Constitution is the habeas corpus clause. It protects the liberty of the person by usually enabling a judge to release an imprisoned man at once, unless he has been convicted or ought to be held to stand trial for a crime. Thus it prevents officials from jailing anybody because they think he might possibly commit a crime someday. The Constitution specifies only two emergencies which will justify the suspension of habeas corpus — “ Rebellion or Invasion.” The McCarran Act of 1950 by-passes this clause. It produces the effect of suspending habeas corpus by allowing American citizens who have committed no crime to be shut up in a concentration camp in any war, even if it be a localized conflict thousands of miles from our shores without the slightest danger of an invasion.
The President and the Attorney General can imprison any person “ as to whom there is reasonable ground to believe that [he] probably will engage in acts of espionage or sabotage” or will conspire with others for that purpose. Other officials can review this decision, but there is very little likelihood that any court can reverse it. In 1942 civil and military officials tore scores of thousands of American citizens of Japanese descent from their homes because, so the officials asserted, they might commit sabotage and spying. Yet “ not one person of Japanese ancestry was accused or convicted of sabotage after Pearl Harbor while they were still free.” Here is a sample of official reasoning. “ The very fact that no sabotage has taken place to date is a disturbing and confirming indication that such action will be taken.”
Officials whose minds work like that will easily find a “ reasonable ground to believe” that anybody whose views they happen to dislike is a potential spy or saboteur.
In the Fifth Amendment, we are departing from the tradition that no person shall “be twice put in jeopardy” for the same offense. Technically, of course, the clause applies only to criminal prosecutions. Still, the human values are just as great when any other serious penalty is involved. You get a happier civilization if a man who has been forced to go through a grueling legal proceeding in order to keep his job can say, after being acquitted of wrongdoing, “ That’s over,” and then go back to untroubled work. Serenity is impossible if he knows that he may have to rebut the same charges and go through all the agony again, perhaps even many times. Yet that is the situation under the loyalty program. Nobody is ever really cleared. In a recent case reported to the Hennings Committee, a naturalized Austrian was dismissed by the State Department for close association with his wife, although he had been cleared on substantially the same charges the year before. This man had been officially cited for standing up under Nazi tortures, from which he escaped through barbed wire. There is no lasting escape through red tape.
We have been creating a new kind of second-class citizen out of naturalized Americans. More and more they are denaturalized and then deported. The final step was to strip citizenship from nativeborn Americans. In 1954 Congress turned everybody convicted under the Smith Act into a Man Without a Country.
Finally, where the radical opinions of citizens and their affiliations are concerned, we are abandoning the American ideals of a fair trial, proclaimed by the Sixth Amendment. Of course, it begins “In all criminal prosecutions,” and hence its provisions are not constitutionally applicable to congressional investigations or the loyalty program. Nevertheless a loyalty board can deprive a public employee of his livelihood, and a congressional committee frequently takes away a man’s good name and perhaps his job too. These consequences may be worse than a fine or a jail sentence. Conclusions which are so damaging to a citizen ought to be reached with the utmost care to determine the truth.
Proper safeguards for a fair trial are embodied in the Sixth Amendment. They are essentials of decent procedure in any inquiry which may result in punishment. Consequently, even though this amendment is not binding in a departmental or legislative inquiry, it is wise that the same essentials should be substantially observed in order to prevent unfairness and grievous mistakes.
Two principles in the Sixth Amendment are especially desirable in departmental or congressional inquiries into a man’s loyalty. First, he ought “to be informed of the nature of the accusation.” Many trials before the Star Chamber and other groups of bishops and royal officials show the intensity with which our ancestors objected to answering roving questions. Second, it is of the highest importance that the suspected man should “be confronted with the witnesses against him.” Perhaps the most besetting sin in non-judicial trials is for the deciding officials to make use of information which is not communicated to the person whom they have power to condemn. For instance, in the Dreyfus case the army officers on the court-martial read secret army papers which were kept back from Dreyfus.
One important benefit from confronting the suspect with his accusers is the opportunity to crossexamine them and rigorously test any dubious statement. Add to that the old-fashioned value of putting people face to face out in the open. An honest witness may feel quite differently when he has to repeat his story looking at the man whom he will harm greatly by distorting or mistaking the facts. He can now understand what sort of human being that man is. As for the false witness, the tribunal can learn ever so much more by looking at him than by reading an FBI abstract of his story. The pathological liar and the personal enemy can no longer hide behind a piece of paper.
No doubt, police are helped by concealment of the names of the men who supply evidence used by congressional committees and loyalty boards. Still, the question is whether official secrecy excuses unjust condemnations. No such excuse for hiding spies and taletellers will be listened to by a judge in a criminal prosecution. Either the informant must take the stand and be cross-examined, or what he said cannot be used in the trial at all. Is an inquiry which may take away a man s lifetime job or his good name really different ?
My great confidence in the American people, in their love of liberty and their good sense, makes me believe that their fit of tantrums about disloyalty among our fellow citizens will end before long. Even though relations with the Communist countries continue strained, as seems probable, we may appreciate the advantages of a united nation and stop increasing suspicion of one another. And, in government as in any sensibly run business, we may learn to trust the judgment of the men who select officials and the wisdom of the superiors who are in close contact with the work of subordinates day in and day out. Once more we shall be content to meet bad talk not with force but with plenty of good talk. The blessings of liberty, though weakened, are ours if we want them, to hold and make strong.