Hentoff v. Ichord

• Decision Date: 28 October 1970
• Docket Number: Civ. A. No. 3028-70.
• Citation: 318 F. Supp. 1175
• Parties: Nat HENTOFF et al., Plaintiffs, v. Richard H. ICHORD et al., Defendants.
• Court: U.S. District Court — District of Columbia

318 F. Supp. 1175

Nat HENTOFF et al., Plaintiffs, v. Richard H. ICHORD et al., Defendants.

Civ. A. No. 3028-70.

United States District Court, District of Columbia.

October 28, 1970.

Lawrence Speiser, Hope Eastman, American Civil Liberties Union, Mitchell Rogovin, John Rigby, Arnold & Porter, Jeffrey D. Bauman and Robert D. Rosenbaum, Washington, D. C., for plaintiffs.

Kevin T. Maroney, Deputy Asst. Atty. Gen., Department of Justice, Joseph M. Hannon, Asst. U. S. Atty., Washington, D. C., for defendants.

MEMORANDUM OPINION

GESELL, District Judge.

This is a class action for declaratory judgment and injunctive relief. Plaintiffs seek to enjoin the official publication and distribution of a Report of the Committee on Internal Security of the House of Representatives. The matter is before the Court on affidavits and briefs after full argument. The parties have stipulated that the record before the Court is complete and that the case is in posture for final disposition.

Defendants in this action are the members of the House Committee on Internal Security, its Chief Counsel, the Public Printer and the Superintendent of Documents. The Report in question is entitled "Limited Survey of Honoraria Given Guest Speakers for Engagements at Colleges and Universities," consisting of 25 pages. A copy of the Report as filed with the House of Representatives following the commencement of this action is in evidence. The Public Printer is presently subject to a Temporary Restraining Order issued by this Court, restraining any printing or distribution of the Report which the Chairman of the Committee has released to the press.

A foreword to the Report prepared by the Committee's Chairman states its origin:

Early this year, I became concerned —as did many of my colleagues— with frequent news accounts of inflammatory speeches which were being made to large audiences on college and university campuses by the radical rhetoricians of the New Left promoting violence and encouraging the destruction of our system of government.

At times, reference was made in these reports to the fact that the speakers who preached such a message of hate for America and its institutions often received substantial appearance fees.

A question which persistently confronts our committee is the one of how and where revolutionary movements in the United States obtain the financing for their activities.

The Report presents the results of a survey conducted by the Committee's staff without use of any formal process. The Committee staff by correspondence obtained information from a number of institutions of higher learning, listing speakers who had appeared on their campuses and in some cases the honoraria paid them.

A list of 1168 names thus obtained, as supplemented by newspaper data, was then checked against Committee sources in an effort to determine whether or not any of the speakers had been associated with one or more of 12 organizations.¹ In this fashion the Committee isolated the names of 65 individuals. The Report, after describing the procedures summarized above, listed the names of each of the individuals so chosen, their alleged associations or affiliations, and the honoraria paid them individually where that had been ascertained. The Report raised the inference, without any positive evidence or any effort to obtain such evidence, that the sums paid for the speeches might have been made available, in whole or in part, to the organizations. The Report concludes as follows:

The committee believes that further, more costly, probing of this matter would only add greater detail to the findings—not greater enlightenment. This report, therefore, concludes the committee's inquiry into the question of honoraria paid campus speakers.

No legislation is mentioned or recommended.

When the complaint was filed, the Report was due to be released at noon on the following day. Plaintiffs sought to prevent filing, printing or any republication by a temporary restraining order. On October 13, 1970, the Court enjoined printing and distribution but refused to interfere with the filing of the Report with the House of Representatives or to enjoin any member of the Committee from discussing or disseminating the Report on or off the floor of the House.

Plaintiffs contend that the publication through the Public Printer and wide dissemination of the Report is still contemplated. This is not in dispute. The Printer has been directed initially to print 6,000 copies. Plaintiffs urge that this contemplated publication and distribution will infringe the rights of the 65 listed individuals under the First Amendment, and that it is being undertaken by the Committee without any proper legislative purpose. Plaintiffs ask that the Court enjoin the members of Congress, their agents and representatives and the Public Printer from any publication and distribution of this Report, limiting its disclosure to insertion in the Congressional Record and such discussion as follows in the normal process of any debate on the floor of the House.

By motion to dismiss, the Department of Justice, which appears on behalf of all defendants,² raises a series of objections which place in focus the difficult constitutional issues presented by this action. Defendants assert that the publication and distribution of the Report is protected both by the Speech or Debate Clause of the Constitution and by the doctrine of separation of powers. Further, defendants claim that the Report was prepared for a proper legislative purpose, but that in any event the Court is wholly without power to prohibit the printing and distribution of any report on any subject prepared by any committee of Congress for any purpose where the information contained in the report has been gathered by the committee without use of process or other legal compulsion. Thus the issues as framed relate to whether the Court has any authority to entertain the complaint in any of its aspects and, if so, the extent of relief which is appropriate under the Constitution.

Before turning to a review of the authorities, it is important to emphasize that this litigation unquestionably presents an immediate issue of free speech and assembly. The Report is exclusively concerned with speakers on college campuses who appeared there by invitation or otherwise and discussed issues of current importance in our society. It is not suggested in the Report that the speeches in any instance presented any clear or immediate danger, but simply that the speakers are "Pied Pipers of pernicious propaganda." They are listed in the so-called "blacklist" merely because they spoke and are believed to have been at some time associated with an organization distasteful to the Committee.

The Committee listed speakers in the report apparently with the hope and expectation that college officials, alumni and parents would bring social and economic pressures upon the institutions that had permitted these speeches in order to ostracize the speakers and stultify further campus discussion. The Report states:

If, in a sampling of 3½% of the institutions of higher education, funds in this volume $108,967.85 are derived by such persons, the people of the United States have a right to conclude that the campus-speaking circuit is certainly the source of significant financing for the promoters of disorderly and revolutionary activity among students. Speaking appearances are not only revenue-producing, but afford a forum where the radicalization process may be continually expanded.

* * * * * *

The committee believes that the limited sampling made is sufficient to alert college and university administrators, alumni, students, and parents to the extent of campus speaking in promoting the radical revolutionary movement. * * *

Thus, whether or not the Report was prepared pursuant to a proper legislative purpose, a matter which will be considered below, there can be no question as to its impact upon the right of free speech and assembly. This is an area that our form of government, our Constitution and decisions of the Supreme Court emphasize is entitled to the closest scrutiny and the broadest possible protection. See, e. g., Bates v. City of Little Rock, 361 U.S. 516, 80 S.Ct. 412, 4 L.Ed.2d 480 (1960); West Virginia State Board of Education v. Barnette, 319 U.S. 624, 63 S.Ct. 1178, 87 L.Ed. 1628 (1943); Abrams v. United States, 250 U.S. 616, 40 S.Ct. 17, 63 L.Ed. 1173 (1919) (Holmes, J. and Brandeis, J., dissenting). Recent history is full of instances where disregard for these basic freedoms has done damage to individuals and corroded our institutions. See, e. g., Barenblatt v. United States, 360 U.S. 109, 147-159, 79 S.Ct. 1081, 3 L.Ed.2d 1115 (1959) (Black, J. dissenting); Appendices 4 and 5 to Jurisdictional Statement filed in the Supreme Court in the case of Stamler v. Willis, 393 U.S. 407, 89 S.Ct. 677, 21 L.Ed.2d 627 (filed herein as Plaintiffs' Exhibit 1). Plaintiffs clearly demonstrate that they are faced with irreparable injury if publication of the "blacklist" under the auspices of the Congress is allowed, and accordingly defendants must demonstrate a constitutionally protected justification for publication.

First it is suggested that the publication of this Report is protected by the Speech or Debate Clause of the Constitution. Article I, Section 6, Clause 1, of the Constitution reads in pertinent part:

The Senators and Representatives * * * for any Speech or Debate in either House * * * shall not be questioned in any other Place.

In considering the application of this Clause to the issues here presented, it should be noted that no injunction is sought to prevent any members of the Committee or other members of the House or Senate from discussing the Report, its contents or its import on the floor of Congress. Nor is any injunction sought which will prohibit placing the Report in the Congressional Record for the information of all members of Congress. Plaintiffs...