Libel In News of Congressional Investigating Committees

Libel in News of Congressional Investigating Committees

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Libel IN NEWS OF CONGRESSIONAL INVESTIGATING COMMITTEES

by Harold L. Nelson

THE UNIVERSITY OF MINNESOTA PRESS Minneapolis

© Copyright 1961 by the University of Minnesota All Rights Reserved

PRINTED IN THE UNITED STATES OF AMERICA AT THE LUND PRESS, INC., MINNEAPOLIS

Library of Congress Catalog Card Number: 61-7726

PUBLISHED IN GREAT BRITAIN, INDIA, AND PAKISTAN BY THE OXFORD UNIVERSITY PRESS LONDON, BOMBAY, AND KARACHI, AND IN CANADA BY THOMAS ALLEN, LTD., TORONTO

Preface

THIS study attempts to discover and describe activities of legislative ininvestigating committees that may not furnish a basis for the immunity of the press from liability for libel in reporting such activities. The immunity —by its legal name, qualified privilege —is available where the press reports official proceedings. The question as to what is an official proceeding of an investigating committee arises particularly in the context of the "cold war" between the United States and the Soviet Union following World War II. It was then that national and state investigating committees came to the attention of the country as never before, in their intense, far-ranging inquiry into domestic communism. While the inquiry was at its height, the vast diversity in procedural forms of the committees, and the committees' apparent power to proceed about as they wished, became a matter of excruciating concern to many citizens, who believed that individual liberties were being harmed through careless and irregular procedures. There was almost no attention, however, to the possibility that such irregularity might render a committee's acts something less than "official proceedings" for the purposes of libel, and thus leave the immunity of the press in doubt. At this writing, the "loyalty committees" are far less active than they were four or five years ago. This study focuses on one of those committees (the House Committee on Un-American Activities), which may or may not resume its previous degree of endeavor. Whatever the case, the procedures that it has employed are not entirely peculiar to it, nor is the possibility of libel appearing in hearings and reports. Possibly there is no need to expect a return of committee preoccupation with communism (alv

PREFACE though that seems scarcely a safe prediction); but legislative investigation in general is expanding, not declining. This study raises questions. Generally, the scarcely startling answer that it provides is that there is considerable uncertainty for immunity where the press reports investigating committee action. The uncertainty is partly that expressed by Dean William L. Prosser in his Handbook of the Law of Torts, where he says that "there is a great deal of the law of defamation which makes no sense. It contains anomalies and absurdities for which no legal writer ever has had a kind word. . . ." Even more, uncertainty here stems from a scarcity of cases and precedent, and from the lack of predictability as to what procedures to expect from the committees. Uncertainty in the law of libel is no news to the press. However, describing that uncertainty in circumstances that have been little studied may help reduce it. My debt is greatest to Professors J. Edward Gerald and Robert C. McClure of the University of Minnesota. Their suggestions for this study were fruitful, their criticisms were penetrating, and their support was constant. I am also most grateful for the help of Professors Charles Hulten of the University of California at Berkeley, and Ralph D. Casey of the University of Minnesota. The newsman upon whom I called most freely for aid was Nat Finney, Washington correspondent of the Buffalo Evening News, and he gave it without fail. As critic and as typist, my wife contributed among the most valuable services to the study. Interpretations and errors herein are none of their responsibility, but my own. HAROLD L. NELSON

VI

Table of Contents

I A JUSTIFICATION FOR LIBEL 3 History of the Rationale, 5. Hedging the Immunity, 8. Broadening the Immunity, 10.

II LIBEL, PUBLICITY, AND PROCEDURE 17 "Communist" as Libel, 17. Personalizing and Publicizing "Loyalty" Investigations, 18. Committee Procedures and Privilege for the Press, 22. III COMMITTEE PROCEEDINGS: THE PUBLIC FILES 28 The Files Material, 28. The Public Files in Relation to Court Decisions, 32. News Reports Based on the Public Files, 38. IV COMMITTEE PROCEEDINGS: FILES REPORTS 41 The Files Report, 41. Files Reports in Relation to Court Decisions, 43. Public Files Reports as Legislative Proceedings, 51. Communications Media and the Public Files Report, 54. v

COMMITTEE PROCEEDINGS: INVESTIGATIVE REPORTS 58 Subcommittee "Reports to the Public," 58. Appendix Nine, 67. Employees' Reports, 72.

VI COMMITTEE PROCEEDINGS: CREATION OF SUBCOMMITTEES 76 Committee Practice in Creating Subcommittees, 80. Rules Applying to Creation of Subcommittees, 86. The Courts and Committee Procedure, 94. The Press and the Subcommittee Created by Chairman, 98. VII COMMITTEE PROCEEDINGS: QUORUM 102 The Courts and Committee Quorum, 102. Quorum in the House Committee on Un-American Activities Following the Christoffel Decision, 107. Quorum in Executive Sessions, 111. The Press and the Agency Lacking Quorum, 114. VIII UNCERTAINTY IN THEORY 118 The Theory Ignored, 119. The "Public" Requirement, 122. Identification, 126. The Inadequacy of the Theory, 129. NOTE TO NEWSMEN

135

APPENDIXES

141

NOTES

146

A SELECTED BIBLIOGRAPHY

165

INDEX OF CASES

168

SUBJECT INDEX

171

Libel in News of Congressional Investigating Committees

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I A JUSTIFICATION/or LIBEL

THE United States Senate forsook its tender regard for the secrecy of its deliberations on February 20, 1794, and opened its doors just in time to permit the public gaze to fall upon it in a moment of housekeeping. The view for the public was perhaps neither edifying nor degrading: Senator Albert Gallatin's seat had been questioned by Pennsylvania citizens who declared he was not entitled to represent the state, by reason of too brief residence, and the Senate was considering whether he might continue to sit. It decided he might not; but that — as Gallatin was to point out later — was not particularly important, even to the career of the subsequently distinguished secretary of the treasury. What was important rested in the fact that from then on, open proceedings were the rule rather than the exception for the legislative branch. The House of Representatives having done the same thing in 1789, the full Congress now joined the courts as a branch of government committed to working within the public gaze.1 Access to official legislative activity had been a long time coming. English newsmen had forced the issue and won before many of their American colonial counterparts had the temerity to demand like treatment. Through much of the eighteenth century English editors had been forced to use subterfuge to bring readers reports of Parliament, printing stories of an "imaginary" political club, or of the "Senate of Lilliput." Even these reports came under parliamentary ban, however; and the whip of punishment for contempt of Parliament kept printers in line until 1771 when the Commons capitulated under an assault planned by the unsavory but courageous John Wilkes. The Lords followed suit in 1775. In America, 3

A JUSTIFICATION FOR LIBEL meanwhile, the Continental Congresses were meeting in strict secrecy, and the Constitutional Convention of 1787 did the same.2 Public access to the courts, of course, had come earlier. The Star Chamber of the Tudor and Stuart monarchs may have a blacker name in regard to secrecy than it deserves; but since its death at the hands of the Puritan Parliament in 1641, the principle of open courts that lay in the British common law has held firm in the Anglo-American experience.3 If the rule established in the centuries of the Enlightenment for the western democracies has been one of open official activity, however, there always have been exceptions. Both the English and American legislatures have practiced secrecy at times and so have the courts. Official activity was the public's business, no doubt, but under certain circumstances there was no question in the minds of officials that they could conduct their affairs in seclusion. The House and the Senate retained rules for secret meetings which stand today, although none has been invoked in years; and the committees of both houses have frequently been censured by the press for secrecy. As for the courts, they commonly conduct juvenile cases and domestic relations activity behind closed doors.4 It has been a conviction of American newsmen for a decade that these exceptions to the general rule of public official activity have been increasing at a disturbing rate, particularly in the executive-administrative setting. It is in this regard that the press has raised its loudest cry of abridgment of press freedom since the 1930's, and has entered the lists against secrecy with many of its strongest representatives. It has had a considerable part in bringing pressure on state legislatures to assert in "people's right to know" statutes, the principle that a self-governing society must be able to see at first hand, or to know through press reports, what its officials are doing as they go about their work. Several states passed such statutes in 1957.5 But these statutes are not the only legal expression of the principle that official activity is the business of the people. Long since, it has been embodied in the common law and many state statutes with clear relation to freedom of the press. It arises in the law of libel when the press is reporting official government activity. The reasoning is this: it is so important that the public know what its officials do, that press reports of official activity must not be subject to successful libel suit even if they contain false defamation expressed during the proceeding. The immunity that the press thus enjoys in reporting official activity is 4

A JUSTIFICATION FOR LIBEL related to the "absolute privilege" of the official himself, or of persons required to take part in official proceedings. Except in rare circumstances, the person who falsely defames someone during an official proceeding is immune from findings of slander or libel. He must be free to speak his mind without fear of the consequences. The press that reports such false defamation is protected by an immunity — called "qualified privilege" — from libel findings. It must be free to tell the public what was said in the proceeding without fear of the consequences. Its privilege is "qualified" because it may not print the defamation out of malice (ill will), or it will lose the immunity. Further, its report must be fair and accurate, and without comment from the reporter or others outside the proceeding.6 And so, if George Babbitt is called a Communist in a congressional investigating committee hearing and the press accurately prints the charge, Mr. Babbitt has no libel case against the press. The same is true if the circumstances are changed to a court trial, or a hearing of, say, the Federal Trade Commission. One of Mr. Babbitt's prospective home buyers may have read the charge and believed it, and as a result taken his business to another realtor. Babbitt has been hurt, but he has little or no chance to recover in the courts for damage to his character and to his business. The public's interest in knowing how its officials conduct the public's business overrides the harm done to Babbitt even though his pain and inconvenience may be considerable.

History of the Rationale If this is apparently a case of "no remedy for a real wrong," it may be helpful to examine the development of qualified privilege and see the courts, the accused, and the public in real situations. The rationale was first explained with regard to libelous news reports based on court proceedings, and later was extended to libel taken from legislative and administrative-executive proceedings. Thus in 1795, Mr. Walter of the London Times was sued by Mr. Curry, who asserted that he had been libeled by the Times' story of an application for an information against Curry. The Times had carried the accusations made in court against Curry, who said they were false and injurious to his reputation. There would have been no particular problem for the justices who decided the case of Curry v. Walter if the defamation had not occurred originally in a court of justice. Rules for ordinary civil libel cases had long 5

A JUSTIFICATION FOR LIBEL since been laid down, conflicting and arbitrary though they might be. But the fact that the Times had reported what occurred in court injected an unusual element into the case, and the attorneys found no close precedent. Chief Justice Eyre's decision in the English Reports is unelaborated by reasoning. He held that a report of what happened in a court of justice, if made in good faith, was not actionable so long as Walter proved that the news report was "precisely the substance" of the court proceedings. The defendant gave the proof and was granted the verdict.7 Lacking a statement of reasons, the decision stood as a somewhat obscure exception to the rules of libel of the day. But within five years another decision laid down the reasons for granting to newspapers an immunity from liability for libel that originates in a court of justice. Justice Lawrence explained in King v. Wright in 1799 that while many court proceedings are not published under the sanction of the courts, . . . they are printed for the information of the public. . . . Though the publication of such proceedings may be to the disadvantage of the particular individual concerned, yet it is of vast importance to the public that the proceedings of Courts of Justice should be universally known. The general advantage to the country in having these proceedings made public, more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.8 In short, the press was the instrument for distributing widely the proceedings of courts of justice, which were an important matter of interest to the public. That an individual might be defamed in the process was unfortunate, but the public's interest outweighed the individual's interest. The principle came up for clarification before the House of Lords in 1843, when a committee heard the statement of Lord Denman, chief justice, as it met to consider the whole law of defamation. The immunity of press reports was no doubt prominent in the committee's deliberations: the famous case of Stockdale v. Hansard, which had occupied the courts from 1837 to 1840, had called in question the safety of publishing libel even when ordered to do so by Parliament.9 By statute of 1840 Parliament had cleared the difficulty, but the complexity of the case and its long history had left scars. Lord Denman managed a felicitous paraphrasing of the principle: the immunity, he said, "in reality only extends the area of the court."10 It is impossible for all interested citizens to be present at a court trial,

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A JUSTIFICATION FOR LIBEL and so the newspaper is protected in giving them information that they have an interest in knowing. Denman added other justifications: free reporting of judicial proceedings, he said, sometimes leads to detection of crime or to assisting justice in other ways. Further, he said, the private interest of the party libeled might suffer more from suspicions raised by general knowledge that he was accused, than from full knowledge of all that was material to the case. Clearly the first reason was the most cogent, and a century later it is used by the courts as justification for qualified privilege while others are not. It was forty years later that an American judge stated more precisely a rationale that has served United States courts more frequently, perhaps, than any other decision in the law of qualified privilege in press reports. Judge Oliver Wendell Holmes of the Massachusetts bench delivered the opinion in a libel suit brought by attorney Charles Cowley against publisher Royal Pulsifer. The latter's Boston Herald had printed the content of a petition seeking Cowley's removal from the bar, filed with a court clerk but not acted on in any way by a judge. The Massachusetts Supreme Court held for Cowley in his libel suit because no judge had entered the disbarment case when the story appeared. Holmes explained that the public needs to have accounts of judicial proceedings, not because the controversies of one citizen with another are of public concern, . . . but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.11 The advantage to the country in granting the privilege of press report, Holmes said, was "the security which publicity gives for the proper administration of justice." Thus it was the official's conduct, and not the detail of private lives and disputes in civil cases, that was at stake for the public. And in the case at hand, the libel of Cowley had occurred without the official's having entered the case. This spelling-out of the nature of the public interest involved, at least where the libel was a matter of civil charges, was the reasoning adopted thereafter in case after case. The opinion in Cowley v. Pulsifer took its place as a landmark decision of first importance. State courts (with some exceptions encountered below) and federal courts alike have endorsed the rationale, and one of the latter has applied it also where a false criminal 7

A JUSTIFICATION FOR LIBEL charge, not a charge of civil wrong, was the libel complained of by the plaintiff.12

Hedging the Immunity While there was thus good reason for permitting libel under certain circumstances, the courts were careful to circumscribe the "area of safety" for press reports. It was decided early that the immunity would be lost if the libelous report was not fair and accurate, if it was actuated by malice (ill will) of the publisher toward the libeled, and if it contained comment concerning the official activity by the reporter or publisher.13 Two further limitations — both central to this study — were developed as restrictions on the immunity: the activity reported by the press must be "public," and it must be an "official proceeding."14 The latter two provisions were included in a New York statute of 1854, apparently the first codification in the nation of the common law regarding these points. It provided that "No reporter, editor or proprietor of any newspaper shall be liable to any action . . . for a fair and true report . . . of any judicial, legislative, or other public official proceeding ... ,"15 The statute was copied widely by certain other states, while still others relied on the common law, and together they worked out over succeeding decades some definition of what was "public" and what was a "proceeding." Both in the states that adopted statutes and those that used the common law, the word "public" was interpreted to mean "not secret."16 Possibly the earliest case on the point to arise in the United States was decided in 1865 under the New York statute of only eleven years previous. McCabe v. Cauldwell involved the publication of a libel taken from a grand jury proceeding before the grand jury made its report to the court. The court trying the libel noted that it was a misdemeanor for a grand juror to break the secrecy rule, and said, "certainly if a member of the body is not permitted to divulge what transpires . . . the law did not contemplate that the editor or reporter of a newspaper could."17 Later cases in New York have arisen largely where matrimonial problems were at issue; such cases, under New York Rules of Civil Practice, are to be kept secret by the courts. The most recent case brought from the court of appeals a unanimous decision that records of these cases were not a satisfactory basis for a plea of qualified privilege in press report.18 Under the Wisconsin statute, the court was called on to decide whether 8

A JUSTIFICATION FOR LIBEL grand jury material that was for a time on record, but was later stricken from the record, was, while on record, sufficient basis for a plea of qualified privilege from a newspaper. The court held that it was sufficient basis "Until it was subsequently stricken from the files. . . ."19 As for states without statutes on the point, in Alabama it was held as a matter of common law that privilege in press accounts of secret grand jury proceedings "does not attach at all until the report has been duly published by the grand jury itself in open court."20 And in North Dakota, there was no privilege of press report where a complaint against an attorney made before a state bar board meeting in a secret proceeding was the subject of a news story.21 Thus for a century, there has been wide agreement among the courts that the secret proceeding is not a proper basis for a newspaper's claim to qualified privilege.22 The grand jury proceeding that has not been returned to the court;23 material that has been stricken from the record; and records barred by court or legislature from inspection are among the materials that are not "safe" for the newspaper to report. The fact is, of course, that no branch of government concedes that all its activities must or should be carried out in the public view. In support of the position are traditional grounds of public welfare (such as protection of public morals, the reputations of persons accused of crime, and the national security), efficient handling of official business, and the nature of the executive function. Where such considerations are involved, the "people's right to know" sometimes yields to other rights, and the press is not protected by qualified privilege. The second limitation important to the present study denies privilege to press reports of the activity of government officials that escapes definition as "official proceeding," or merely "proceeding." A variety of cases has appeared — largely in the judicial setting — in which the press has been unsuccessful in asserting qualified privilege. Thus, for example, there was not a judicial proceeding where there had been . . . loose statements made by the justice to the reporter of what had previously been said by certain persons in his office, not under oath, and no more a part of any judicial proceeding than is the talk of a crowd around the door of a court-house discussing the merits of a case on trial within.24 Again, the Atlanta Constitution found that a story based on statements of a United States commissioner after an arraignment and outside of the

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A JUSTIFICATION FOR LIBEL court he had held was not a report of a judicial proceeding for the purposes of libel. The story printed by the Constitution said that Otis Wood and his wife were arrested while transporting alcohol illegally. The arrested woman turned out not to be Wood's wife, and his wife won a verdict against the Constitution which had only the statements of the commissioner outside of court as the source for its story.25 In Oregon, a news story based on a deposition before a circuit judge was held actionable and libelous. Under an Oregon statute, a deposition could be taken before a notary public or any officer authorized to administer an oath. The judge was, in effect, "acting as a magistrate and not as a circuit judge," and his act was not a judicial proceeding for the purposes of libel.26 The circumstance which has seemed to courts particularly unsatisfactory as a basis for the grant of immunity in press reports is that which was present in the landmark case of Cowley v. Pulsifer. There, preliminary pleadings were filed with a court clerk by attorneys, and libelous charges were picked up by a newspaper from the pleadings and were printed before the judge entered the case. At base, of course, the Holmes reasoning applied against the grant of privilege to the newspaper: publicity here gave no security for the proper administration of justice. But beyond this, there were other reasons for not granting the privilege of press report in cases of this kind. For one thing, there was too much opportunity for the malicious individual to get false and damaging charges against an enemy aired in a newspaper merely by filing a case, and then dropping it. Furthermore, it was generally felt that even if a case were filed in good faith, but with charges or flaws that amounted to unfairness, there was less likelihood of publicity for such charges if a judge were in control of the case in person.27 The rule was stated early, in 1877: for the immunity to attach, there must have been at least so much of a public investigation as is implied in the submission of the pleadings "to the judicial mind with a view to judicial action."28 As in the case of the rationale for granting the immunity, there have been some states which have not accepted this restriction on the immunity, and they will be treated subsequently.

Broadening the Immunity It was in America that a broadening of the immunity first took place, despite the fact that very few cases arose in the new nation during the first 10

A JUSTIFICATION FOR LIBEL half of the nineteenth century. The English courts had not granted the immunity where the press reported libel from an ex parte judicial proceeding — that in which only one side of an issue at stake was represented in the court. The English judges at first thought it preposterous that news reports of these one-sided proceedings should be protected by immunity. In the earliest case in which the matter was treated in England, it was held that it was highly criminal to publish ex parte evidence in advance of the trial.30 Lord Ellenborough said in 1811 that news reports of preliminary examinations in court have no privilege. "Their only tendency," he said, "is to pre-judge those whom the law still presumes to be innocent, and to poison the sources of justice."31 But the pressures for immunity in reports of ex parte proceedings were building up faster in America. The penny press that burst upon the New York City newspaper scene in the 1830's and 1840's found a whole unexploited world of news in crime and sensation, and a large audience of mechanics and artisans who were eager for news of the police station and police court. The prototype was Benjamin H. Day's Sun, and its star reporter, George Wisner, shaped the staple of the Sun's news from the commitment of Bridget McMunn for drunkenness, and from that of Bill Doty who was similarly inclined and "had the horrors so bad he couldn't keep sober."32 Day and his successor, Moses Beach, built a giant circulation for the Sun. James Gordon Bennett, meanwhile, challenged with his Herald, equally devoted to sensation and to a standard in newsgathering aggressiveness that forced even the staid political journals to stir from their routine of traditional topics. If there is any truth in circulation figures of that day, the Sun and the Herald each had more than 30,000 buyers in 1850, compared to the 4000 claimed by the largest New York City newspaper of twenty years earlier.33 Day had discovered the formula for reaching large groups of readers and claiming their support; one of its parts was news of the petty criminal courts. In this rise of a literature for the masses, Colonel James Watson Webb, one of the most flamboyant, aggressive, and powerful editors of midcentury America, in 1850 was the target of a libel suit based on a news report of an ex parte proceeding. Webb's New York Courier and Enquirer published an account of a steamboat operator's arrest and his charge that his accuser offered to get him freed in return for a bribe. Based on the fact that this news material was from an ex parte court proceeding, the libel 29

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A JUSTIFICATION FOR LIBEL suit against Webb was successful.34 The next year Moses Beach, whose Sun was at the time perhaps the most successful in the nation in fulfilling the desires of the new reading public, lost a suit on the same grounds.35 Three years later the New York legislature passed its law providing immunity for fair and accurate reports of judicial proceedings, making no exception with respect to ex parte proceedings.36 It is hard to escape relationships among these cases (the first of their kind in New York37), the New York libel law of 1854, and the rise of the press for the masses. Without asserting a direct cause-effect relationship, it nevertheless is significant that such publishers as Webb and Beach had behind them the support of a suddenly expanded, news-reading public that wanted reports of crime. To the judge who wrote the decision in Stanley v. Webb, the nature of the public news hunger and its relation to the popular and sensational "penny press" of such recent appearance, were clear. He lectured press and readers: a "sound" public opinion, he said, would dampen the press' tendency to publish ex parte proceedings, because it would frown upon "those who pander to and nourish with daily food that morbid curiosity which finds its ailment in the frailties and vices of our race."38 But public opinion was behind the publishers, and the law of 1854 was passed. The principle of immunity for reports of ex parte proceedings was unrecognized in England for another fourteen years. In 1868, Chief Justice Cockburn took note of the fact that newspapers paid little attention to the old bars to reports of ex parte proceedings, and voiced his clear approval.39 His opinion was dictum, not immediately on the point at issue, but it was not long before English judges granted the protection in ex parte cases.40 In another, and more important, respect the same New York statute went beyond the British law. The legislature's statute of 1854 read: "No reporter, editor or proprietor of any newspaper shall be liable to any action . . . for a fair and true report . . . of any judicial, legislative, or other public official proceeding. . . ."41 In England, only the judicial, and not the legislative and "other public official" proceeding, was at this point an accepted basis for the immunity of press report. Not until the famous and detailed decision in Wason v, Walter of 1868 (in which Cockburn's dictum on ex parte proceedings also was given) was the immunity in England extended to press reports of legislative proceedings. The New York statute has served as a model for many American legislatures, which have used similar wording in establishing statutes for other 12

A JUSTIFICATION FOR LIBEL states. The Cockburn decision, termed "epoch-making," is still relied upon as precedent.43 Despite the earlier recognition of the principle in the New York statute, it is Cockburn's decision that illuminates the reasoning behind the extension of privilege to press reports of legislative proceedings. One of the Walters of the London Times — as in the early landmark case of 1795 — was the defendant in Wason v. Walter** This time, Walter's paper was accused of printing false defamation from a legislative proceeding (a debate in the House of Lords), instead of from a court proceeding. The offending statement said that charges of Wason against the chief baron of the exchequer were unfounded, and accused Wason of falsehood and malignity. Wason sued, his attorneys declaring that a parliamentary proceeding could not serve as the basis of a claim to immunity in the same way that a court proceeding could, because the orders of Parliament did not permit strangers at debates in either house; outsiders attended only because of "a tacit abrogation of the standing orders."45 But Cockburn could see no reasonable distinction between the court proceeding — where it is "well established that faithful and fair reports" are privileged — and the legislative proceeding, so far as the basis of immunity was concerned. To Cockburn it was of "paramount public and national importance that the proceedings of the houses of parliament shall be communicated to the public," whose interest in knowing about the acts of Parliament was of the deepest kind. "What greater anomaly or more flagrant injustice could present itself," he asked, than that while Parliament and public eagerly awaited press reports of debates, the courts would hold the publisher liable for printing part of a debate that called someone's conduct in question? The Chief Justice said with regard to privilege in reports of courts and in reports of legislatures that, "The analogy between the two cases is in every respect complete," and "all the limitations placed on the one . . . will necessarily attach on the other."46 Extension of the immunity to press reports of executive-administrative proceedings was accomplished in America without benefit of a court decision of great weight, detail, and reasoning such as Cockburn's opinion giving immunity to reports of legislative proceedings. There were, of course, statutes derived from New York's law of 1854 on which judges could rely in some cases. But the decisions in cases arising in the executive-administrative setting show little reasoning on the point.47 For example, in a case of 1903 — one of the earliest granting the im42

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A JUSTIFICATION FOR LIBEL munity in the executive-administrative setting — a newspaper ventured that a man believed by a fire marshal to be an incendiary was not an ideal person to organize a fire insurance company. The marshal's opinion had been written on the back of an envelope after he had examined the ruins of a fire. The envelope report was official ("quasi-judicial") and public, said the court in granting immunity to the newspaper, and "a fair report of it was privileged."48 There was no further reasoning. In another case, it was simply held that the rule applying to immunity for press reports of court proceedings "is now extended to executive and legislative proceedings." 49 Immunity thus broadened to news reports of all branches of government was to be extended along other dimensions in a few states before the mid-twentieth century. The decision in Campbell v. New York Evening Post,50 delivered in New York in 1927, started a process which spread to four other states by 1950. The new broadening was done at the expense of the rationale for granting the immunity, expressed by Holmes in 1884 in Cowley v. Pulsifer: the public has a stake in knowledge of the official's conduct (the advantage to the country is "the security which publicity gives for the proper administration of justice").51 Although the New York courts had accepted the reasoning in Cowley v. Pulsifer in previous decisions,52 in the Campbell case the court of appeals ignored it. The court ruled that a pleading which charged fraud, filed but not yet seen by the judge, was sufficient basis to support a plea of qualified privilege by the newspaper that reported the pleading. The decision said that the question was simply whether pleadings filed "may be brought under the head of judicial, public, or official proceedings," as the New York statute required. It found that they might, because in New York "a lawsuit from beginning to end is in the nature of a judicial proceeding," and "with us the act of one party institutes the action."53 The technical requirements of the statute, thus, were what concerned the court; whether publicity was giving security for the proper administration of justice was of no concern to it. This position that ignored theoretical justification for the spreading by newspapers of a libel contained in legal materials was adopted by California in 1935, South Carolina in 1936, Kentucky in 1938, and Georgia in 1950.54 All relied on the Campbell decision. The Campbell decision has not swept all other courts with it. In cases of 1936 and 1952, federal courts showed their reliance on the Cowley 14

A JUSTIFICATION FOR LIBEL position; and in 1945 Massachusetts (which in 1934 had seemed to be moving in the direction of the Campbell decision) reopened the question and stated its approval of Cowley v. Pulsifer,56 The influence of New York on other states in extending the press' immunity— first through the statute of 1854 and then through the Campbell decision of 1927 — may yet present itself in a third way. It remains to be seen whether an important change made by the New York Legislature in its libel law in 1956 will find its way into the laws and common law interpretations of other states. The change apparently represents — as did those of 1854 and 1927 — the considerable effect on the law of newspaper practice and pressure as follows. In 1950 and 1952, appellate courts of the State of New York denied to New York City newspapers the protection of qualified privilege in news stories based on papers filed in separation cases.57 The reasoning was that these cases were not open to the public under the state's Rules of Civil Practice, and so did not meet the requirement of "public" proceedings in the statute granting qualified privilege.58 In 1956, Editor & Publisher, trade publication and perhaps the nearest approach to an "official" voice of the American daily newspaper, reported "an important change" in the New York libel law. The story said: "Drafted as the aftermath to two successful libel suits against New York City newspapers, the statutory revision now provides of [sic] a pleading of privilege on matter in an official proceeding even though the proceeding may not be public."59 The story went on to say that this meant it was now possible for a newspaper to publish an official proceeding with immunity even though it was not public. The legislature changed the law "at the behest of newspaper interests," Editor & Publisher said.60 In this way a provision disappeared that had stood in the New York libel law for 102 years — since the landmark action of the legislature of 1854. 55

Thus the privilege of press report has been justified, circumscribed, and broadened. In major respects, all branches of government have come to be recognized as a proper basis for the claim to privilege of press report, although in minor respects, all have failed to provide the basis. Generally, the process has shown a growing devotion to the principle of an informed public opinion as a necessary part of self-government and democracy. The people need to know how their officials are carrying out the public business; it is their stake in that knowledge which has swept immunity for 15

A JUSTIFICATION FOR LIBEL press reports into the broad principle of freedom of the press. The process has also shown the drive of the press itself and of the public to entertain and to be entertained, whether by news of the police court in 1850, by reports of fraud charges taken from pleadings that had not come before a judge in 1927, or by stories of matrimonial cases in the 1950's. And as with the whole of the law of libel, the decisions granting or refusing the protection of qualified privilege vary from state to state. It is the judicial setting, which the press reports so regularly, that has given rise to most of the libel suits resulting in decisions that define official proceedings and public proceedings. The press has had most of its trouble with these phases of qualified privilege when reporting affairs that stand on the fringes of court-of-law activity. The executive-administrative setting has also originated many cases defining official and public proceedings for libel. But the legislative setting has given rise to few cases which define these proceedings. And it was the legislative branch which, during the first half of the 1950's, displayed a vast variety of unregularized proceedings — both public and secret — that were highly productive of potentially libelous statements. The legislative agency involved was the investigating committee, and the persistent and possibly libelous word was "Communist" and its variants. The chapters that follow will examine the implications of these proceedings for libel in newspapers devoted to coverage of the activities of the investigating committees.

16

II LIBEL, PUBLICITY, and PROCEDURE

YEARS before the word "Communist" had become an epithet to many Americans, newspapers had learned the danger of suggesting that an individual held objectionable economic, political, or social beliefs. The century of the October Revolution had not yet arrived when a false accusation of "anarchist" had been put down by the United States courts as libelous: causing hatred, contempt, or ridicule for the accused.1 To the ordinary citizen, the courts felt, the anarchist would do away with government by any means, and the charge was so opprobrious as to be libel on its face. The same applied to other terms at various times: to "red-tinted agitator" in 1913; and to "Socialist" in 1919.2 The cases were few, however, until the 1940's when the United States was faced with the thrust of expanding totalitarian systems whose names became odious to most Americans. "Communist" as Libel As World War II progressed, false accusations of "Fascist," "Nazi," "pro-Hitler," and "pro-Jap" brought successful libel suits.3 During the late 1940's, as the United States and Russia squared off in the cold war and the domestic Communist party in the United States diligently extended its efforts, the word "Communist" and its relatives caused libel suits. Newspapers, columnists, magazines, corporations, and individuals paid for carelessness in making the charge of "Red," "Communist," or "representative for the Communist Party."4 And whether the accusation was one or another, the difference seemed to be "one of degree only, since the basis for the reproach is a belief that such political affiliations constitute a 17

LIBEL, PUBLICITY, AND PROCEDURE threat to our institutions. . . ."5 The courts were in large, if not entire, agreement. As in all civil libel, the burden in these cases is on the defendant to prove the truth of the charge (unless, of course, the defense of privilege is available). Since "The courts never have looked with any great favor upon the defense of truth . . ."6 it has not ordinarily been enough to prove, say, that a man accused of being a "Communist" merely advocates some of the economic doctrines that communism embraces. Such evidence did not prove the truth of the charge in a recent case by one organization against another that called the first "communist dominated." The evidence included a presidential speech that assailed the profit system and called for cooperative, not corporate farming, a pamphlet that called the profit system vicious and unworkable, and testimony of ex-Communists that several persons had been simultaneously members of the accused organization and the Communist party.7 A $25,000 judgment was upheld. Frequently in political libel cases, the defense of truth is not even attempted, the defendant trying instead to establish that the charge was "fair comment and criticism," a special case of qualified privilege.8 Personalizing and Publicizing "Loyalty" Investigations But while newspapers were learning the danger of printing careless charges of Nazism or communism from many sources, they found and exploited one source of the charge that was particularly fruitful, and, to all appearances, safe. The source was the legislative investigating committee, which, because it was an official government body, furnished in its activities the basis of qualified privilege for press reports. As early as 1919, the Senate had investigated communism. Through the 1920's there were further attempts by congressmen to press the inquiry, but not until 1930, as the great depression deepened and economic hardship turned some eyes toward the collective system as a remedy, was another inquiry approved, this one by the House of Representatives. Then in 1934, responding to fears of the growing power of Hitler and the Nazis and to domestic Fascist activity, the House created the Special Committee on Nazi Propaganda under Representative John W. McCormack.9 All these were preliminaries, however, to the major effort that was launched in 1938 in the form of the Special House Committee on Un-American Activities under Representative Martin Dies of Texas. For seven years, Dies and the press furnished the American people with 18

LIBEL, PUBLICITY, AND PROCEDURE a dress rehearsal of a drama that was to engross the nation far more fully for a longer period following World War II. Thousands of names of individuals and organizations were linked with Fascist and Communist activity in hearings and reports of the committee.10 Dies' keen interest in Communists was indicated early in the career of the special committee, and in late 1944 when it was breathing its last, he was occupied almost entirely with communism.11 The press would have been taxed strenuously to have reported all the names of individuals and organizations associated with subversion in the special committee's hearings and reports. It managed to carry hundreds, however, with headlines and coverage commensurate with the committee's and readers' interest. And with the coming of the cold war with the Soviet Union following World War II, American newspapers found one of their great running stories in the legislative investigation of Communist activity. This time, the materials of the story were almost inexhaustible. Three congressional committees and at least five state legislatures were hard at work in the hunt for Communists. The House of Representatives furnished a successor to the Dies Committee, in the Permanent Committee on Un-American Activities; the Senate provided the Internal Security Subcommittee of the Judiciary Committee, and the Subcommittee on Investigations of the Committee on Government Operations.12 The best-known state legislative committees and acts on the subject were those in New York, Illinois, Washington, Maryland, and Michigan.13 The "loyalty committees" took a major place in the long, important, and often gaudy career of investigation by legislative committees in the United States. Citizens preoccupied with the flood of print concerning committee activities learned that the committees' forebears went back to a Senate group that deliberated the unhappy campaign of General Arthur St. Clair against the Indians of the Ohio Valley in 1792. With small interruptions through the nineteenth and twentieth centuries, committees investigating a great range of problems came again and again to the attention of the nation. Perhaps six hundred investigations were carried out by congressional committees between that of St. Clair and those of the midtwentieth century; and "there has been no long period without some spectacular inquiry."14 The raid on Harper's Ferry, the scandals of the Grant administration, the bankruptcy of Jay Cooke & Co., scandal again in the Harding administration, the motives and activities during World War I of the munitions industry — these are examples of notable inquiries that 19

LIBEL, PUBLICITY, AND PROCEDURE enlightened, instructed, amused, and shocked government and people through the decades. The committees on communism of the 1940's and 1950's performed nearly all the functions assigned to and acquired by legislative investigation in the course of its history. The three main functions were to obtain information necessary to legislation, to check on administrative agencies created and charged with duties by Congress, and to inform and influence public opinion.15 The first two had the earlier development; the third, which grew as congressmen saw the possibilities of reaching great numbers of people by the press and then by radio and television, received a new impetus with the coming of the committees on communism. These functions became accepted as proper ones over the years, but investigating committees also developed ancillary functions that received far less thoroughgoing approval from students of government. One was to serve the personal political advantage of the self-seeking congressman who might use the committee as a springboard for publicity, power, and advancement; another was to serve the political advantage of the party or the administration, which might use the committee similarly; and a third was to expose, or "punish by publicity," investigated persons thought by the committees to be guilty of antisocial or unlawful acts.16 No one, of course, has been able to say certainly where the accepted function of "informing the public" ends and the questioned function of "grabbing headlines" begins; but on the other hand, few have doubted that the latter motive has at times influenced legislators and parties. As for exposure, it has been asserted as a central function by some committee members who have felt it justifiable and important;17 but recently it has been criticized by the Supreme Court as being an improper legislative purpose.18 The "loyalty committees," full of prestige and established as members of a long-used agency of the legislative branch, were highly aware of the "public informing/influencing" and the "publicity" functions that were theirs. Press, radio, and television were at hand. And responding and adding to the intense public interest and alarm at the prospect of widespread subversion implied in these investigations, the newspapers filled countless columns with the subject. In accord with the committees' attitude toward their subject, and with its own definition of news, the press stressed personalities — the names of the accused. This "personalizing" of the investigation into communism — which 20

LIBEL, PUBLICITY, AND PROCEDURE many of the committees' critics decried, saying it should be replaced with a search for conditions underlying whatever attractiveness communism held — demonstrated one remarkable identity of interest in the committees and the press.19 Repeatedly, committee members and chairmen said that their purpose was to lay before the public the names of those whom they considered Communists, fellow travelers, subversives, or persons tainted by association with communism. "The chief function of the committee [House Committee on Un-American Activities] . . . has always been the exposure of un-American individuals and their un-American activities," said one chairman.20 At the same time, any tyro newsman knew that there were few more successful formulas for wide readership of a story than associating a name (and the bigger the name the better) with a sensational charge. Thus committees and newspapers helped each other. There is no need here to call the roll of famous persons associated with communism, subversion, or disloyalty in the committees during the postWorld War II years. From 1948 until 1955, prominent names provided at least an annual sensation for the hunt. They included government administrators, clergymen, labor leaders, entertainers, educators, and others, running to scores or hundreds depending on one's definition of "prominent." They were faithfully carried in headlines and stories by newspapers, whether to help committees "punish by publicity," to keep up circulation, to do their job of reporting the news, or all three. Vastly greater in number than the famous were the names of persons undistinguished by position or prestige but sought by the committees as being part of the Communist effort. Their numbers under the early Dies Committee had reached thousands, and as the postwar committees went to work, the figures were multiplied. In 1947, the House Committee on Un-American Activities heard Walter S. Steele link thousands of individuals and hundreds of organizations with subversive activity;21 in 1950, the same committee took the testimony of Matthew Cvetic about hundreds of persons whom he identified with communism in western Pennsylvania;22 in 1954, hundreds were named by Miss Barbara Hartle.23 These amounted to only a few of a total too great by far for the press to carry exhaustively. But if such hearings produced relatively obscure names, the numbers alone constituted news that was often worth page one headlines and stories that contented themselves with a dozen or two names. 21

LIBEL, PUBLICITY, AND PROCEDURE Committee Procedures and Privilege for the Press Almost as engrossing to many newspapers as the parade of names associated with communism was the intense, nationwide controversy that grew over methods and procedures of the committees. The traditional procedural controversy that has swirled around legislative investigation almost since its start now developed into an uproar such as had not been heard before. The outpouring of news stories and editorials, speeches, panel discussions, popular and serious magazine articles, scholarly studies, books, and official documents and deliberations concerning procedures of the investigators reached flood stage. An index to the intensity appeared in 1954 in a bibliography of materials on the committee procedures, listing hundreds of works, the bulk of which was prepared after 1948.24 The charge was that lack of committee concern with procedural rules endangered and violated rights of persons under investigation. What was needed, many argued, was a minimum standard to be set up by each house of Congress, a standard that would provide some uniformity and predictability as to what might confront witnesses when they appeared before the committees. The danger of abuse, it was asserted, could not even be met in part "as long as investigating committees are free to make their own rules of procedure, and change or disregard them at will. . . ."25 Without such a standard, they said, mechanical irregularity in the handling of committee hearings and studies made nonsense of the maxim that "liberty is secreted in the interstices of procedure."26 As for rules laid down by the committees and subcommittees themselves, they were rare. Between 1948 and 1950, one student found, three subcommittees adopted written codes of procedure; and by 1954, after intense agitation by the public, the press, and members of Congress, approximately nine committees and subcommittees had adopted them.27 But these were exceptions, or were very late arriving, and a large majority of the committees of Congress operated according to tradition which indicated that: . . . there are no ... rules except those which the committee may establish as occasion arises. The hearings contain many allegations with respect to the precedents and to "regular practice" but on these matters the records contain no data. Particular committees may by resolution establish rules governing their hearings but they are not printed in the records and the records do not indicate that the committees do otherwise than make rules from case to case.28 22

LIBEL, PUBLICITY, AND PROCEDURE With committee chairmen and members thus exercising a vast freedom as to what was "due process" in legislative investigation, with wide-ranging examination into people's lives and beliefs, with diversity and unpredictability of form in handling hearings, the critics charged that the "loyalty committees" . . . can assume the aspects of a trial without the safeguards to the individual of regular court proceedings; that legislators appear in the role of judges and combine the functions of prosecuting and judging which should be separated; that as a result of the publicity of committee hearings witnesses may be exposed to such penalties as dismissal from their jobs . . . character assassination, or injury to their reputations; that exposure through public hearings can be substituted, in certain types of cases, for regulation by law, enforced by the courts; that this process of control by exposure before an investigating committee is not subject to special rules of procedure laid down by Congress; that the legal rights of individuals, guaranteed by the Bill of Rights, are in practice abridged by congressional investigations; and that conformity to prevailing ideas is enforced by fear of censure.29 Supporters of the committees countered with arguments that the seriousness of the threat of subversion and conspiracy justified extraordinary measures; that placing the committees under tightly drawn rules of procedure such as those in use in the law courts would hamstring the investigative work; and that exposure protects against waste, corruption, and the hardening of bureaucratic forms in government, against malpractices in private life, and against divisive and antisocial drift in the community.30 Some supporters of the committees agreed that procedural niceties were not attended to by the committees, but added that the peril to the nation justified ignoring such refinements. That procedural irregularity had implications for the rights of citizens was plain to many newspapers. But that it might have serious implications for the newspaper itself, in respect to protection under the libel laws, seemed less evident to the press. There was little awareness of the relation between similar words: procedural irregularity, and official proceeding necessary to the immunity of qualified privilege in libel. That the former might destroy the latter, and with it the protection of qualified privilege in news reports of committee activity, received only the scantest attention from newsmen. It is likely that many newsmen sensed that if an official person spoke in a plainly nonofficial setting — say a press conference or a lecture hall — 23

LIBEL, PUBLICITY, AND PROCEDURE there was no official proceeding in progress, and no defamation immunity could be expected if his words were reported. Thus when Senator Joseph R. McCarthy offered on a television program to make public the names of persons accused in secret, provided newspapers would agree to print the names, the newspapers refused. "There would be no immunity from libel suits if newspapers published material obtained in this way. . . ." one newspaper said.31 But the nicer problems involved where there was only a color of official proceeding escaped the notice of almost all the press. One Washington correspondent was very much alone in expressing concern about the problem. In a talk before members of the legal profession, he said of the House Committee on Un-American Activities that "no one knows with any clear certainty what part of the [committee's] record is official and therefore privileged, and what part is simply undigested files."32 What of the vast storehouse of information and speculation on "subversives," compiled under the auspices of the committee, could be published by newspapers with fair confidence that their reports would be protected by qualified privilege? It is by no means accurate to say that the press can have no assurance of the protection of qualified privilege any time it reports the activity of a committee which operates with loose procedures. In the first place, there is some guide in the activity of the legislator himself. He is protected in freedom of expression by "absolute privilege," sought in the teeth of English monarchical opposition for centuries and finally established as a sine qua non for the legislative process in the Bill of Rights that followed the Glorious Revolution in 1689.33 It was adopted in the American Constitution and in state constitutions a century later.3* Presumably, the legislator knows something about the limits of his own privilege and guards his expression accordingly; and it may be argued that where absolute privilege for the legislator leads, qualified privilege for the press that reports his words should follow. If the social good is promoted by freedom of expression for the legislator supposedly engaged in seeking "legislative truth," it is also promoted by freedom of expression in telling the public how the legislator comports himself.35 This reasoning, however, is not entirely safe for the press to rely on. For while the matter has not been settled by cases arising in the legislative setting, it is quite clear that in the judicial setting, qualified privilege for the press does not always follow where absolute privilege leads. For exam24

LIBEL, PUBLICITY, AND PROCEDURE pie, the attorney is protected by absolute privilege in the materials which he files with the court clerk, however defamatory; but the press which publishes that defamation ordinarily is not protected by qualified privilege if the judge has not entered the case.36 As will be demonstrated later, this judicial situation is paralleled in the legislative setting. Furthermore, the logical deduction is not a complete guide because it is not entirely clear how far the first immunity—the legislator's — extends. In broad terms, it extends to the following general situations: The legislator may speak as he likes on the floor of his house, without fear,37 and his words may be quite irrelevant to the issue at hand.38 Whatever he can get inserted into the Appendix to the Congressional Record as an "extension of remarks," not made in speech or debate on the floor, is equally immune to libel suit, as is that which he says in committee session.39 One decision has granted qualified privilege to a senator's oral statement to the press, concerning a secret executive session of a committee that had met just before the press conference.40 Finally, for what it is worth, there is dictum from a law case now 150 years old, in which Chief Justice Parsons of the Massachusetts bench said he felt the immunity should extend to the legislator " . . . for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules."41 If Parsons' statement were more than dictum, the legislator might say anything while breaking the rules of his house, and not fear for the loss of his immunity. But the question has not been up for a decision in the courts. If irregular committee procedure amounts to breaking the rules of the committee's house, what are the consequences for the legislator's privilege? Had this question been answered, the press would have a better guide to its own immunity. If the legislator's absolute privilege is a kind of guide (however incomplete) for the press, there is also guidance in court decisions granting qualified privilege where the press reports judicial proceedings. As was pointed out previously, in Wason v. Walter Justice Cockburn said that, as between privilege in news reports of courts and news reports of legislative bodies, "The analogy is in every respect complete," and "all the limitations placed on the one . . . will necessarily attach on the other."42 Since then, the courts usually have not distinguished between the two instances, "treating 25

LIBEL, PUBLICITY, AND PROCEDURE the privileges, as well as the limitations on them, as different aspects of the same problem."43 It is well established that reports of all courts, superior and inferior, and courts of record or not of record, are privileged; that reports of grand juries, at least if they have been returned in court, are privileged; that reports of all parts of a trial after the judge enters the case, except stricken material, are privileged; and that ex parte or preliminary proceedings, if occurring before a judge, are privileged.44 Where parallel proceedings take place in the legislative branch, the press may with some certainty expect the protection of privilege in its reports. Finally, there is a guide for the press in a few cases where qualified privilege has been granted news reports of legislative proceedings. It is clear that the press may rely on privilege in reporting words spoken on the floor of Congress and other legislative bodies.45 Also, the protection has been granted where the press has reported legislative committee proceedings and a senator's oral summary of committee proceedings,46 although there has been no detailed definition in these cases of a committee proceeding. And the lack of that definition returns us to the question of the "undigested files" of the House Committee on Un-American Activities: What is the status of these files as "legislative proceedings"; and are there other phases of legislative committee activity that are uncertain as legislative proceedings? Besides the question of the Washington newsman as to the files, a somewhat fuller statement of the danger to the press that reports activity of investigating committees is this: A newspaper prints at its peril reports of statements which were not made during an official proceeding, though made in connection with or with regard to it. Thus the existing cases indicate that statements to the press or conversations among participants in a legislative hearing, though directly concerning the matter under investigation, would not be privileged if made before, after, or in some other way outside the hearing itself. The major problem, of course, is that of defining the boundaries of the hearing.47 As the sequel will show, somewhat more is involved in the problem than "defining the boundaries of the hearing." With the rather-too-long background established, it may be well to restate the question with which the coming chapters will be concerned and indicate the method by which partial answers will be sought. The question: Are there committee activities that are so weak as "leg26

LIBEL, PUBLICITY, AND PROCEDURE islative proceedings" that they might fail as basis for a plea of qualified privilege in press reports? Committee procedures given special attention will be creation and appointment of subcommittees; establishing and maintaining quorum; and establishing and using files, records, and reports. The method appears partly in analogy with the many libel cases that have arisen in press reports of defamation issuing from judicial proceedings. That which is a judicial proceeding has been defined in some detail; and as between qualified privilege in press reports of judicial and legislative proceedings, "The analogy . . . is in every respect complete," and "the limitations placed on the one . . . will necessarily attach on the other." Further analogy is available in another area where the courts have ruled as to procedural tests for committees. Thus where perjury before a committee is at issue, "The legal consequences of the lack of quorum are drastic,"48 and a committee without a quorum is not the "competent tribunal" required by federal statute before a perjury conviction may be had.49 Lack of committee quorum may have implications for "legislative proceeding" in libel as it does for "competent tribunal" in perjury. Finally, committee practice may be examined according to a committee's own procedural rules, and according to rules prescribed by Congress itself. The study focuses primarily on the House Committee on Un-American Activities. This committee presents the longest continuous record of activity of the group of "loyalty committees." It started as a special House committee under Representative Martin Dies of Texas in 1938, was reconstituted as a standing committee in 1945, and has pursued its efforts to the present. Activities of about a dozen other committees and subcommittees are examined also.

27

III Committee Proceedings: THE PUBLIC FILES

To BEGIN with the question that agitated reporter Nat Finney, what can be said of the "undigested files" of the Un-American Activities Committee as legislative proceedings? Are they official? Are they public? Could a reporter who wrote his story from materials in these files count on the protection of qualified privilege in case a libel suit ensued? There is little doubt that newsmen sometimes have based stories on materials from these files and from the files of other committees. There seems to be reason to question the files as public and official legislative proceedings. The Files Material The material which the committee has called its "public files" has been described in committee reports, by students of the committee, and by persons whose names have appeared in the files and whose file dossiers have been released. Cards and folders for thousands of organizations and for perhaps more than one million individuals are kept in the public files of the committee.1 Included are records of individuals, histories of organizations, reports, pamphlets, photostats, periodicals, documents, books, letterheads, newspaper clippings, and similar materials, all of which, the committee says, "could be compiled by personal research on the part of any individual."2 The files also contain "records turned over to the committee by other agencies, and information compiled by law-enforcement agencies in many states," as well as "copies of hearings held by other groups investigating subversive activities."3 It is not entirely clear whether these latter materials are part of the public files or are kept separately. They may possibly be maintained in files distinguished by the committee 28

THE PUBLIC FILES as the "investigative files," which contain materials available only to the committee investigators themselves.4 This conglomerate has been variously described as an "unexcelled storehouse of information concerning subversive individuals and organizations in the United States";5 a "voluminous mass of miscellaneous, undigested materials and information";6 and "the basis of ... blackmail."7 Some of it is contributed voluntarily by groups or individuals.8 Perhaps much more is gleaned by the committee staff itself, working in such places as Washington, D. C., New York City, Chicago, and Los Angeles.9 The committee is clearly proud of its collection of dossiers, which is undoubtedly large. Size aside, however, the files elicit from the committee a somewhat ambiguous estimate. Volunteered information for the files, the committee reports, is "adequately checked [by committee staff] to insure its accuracy and validity"; but in the next paragraph it quotes the warning attached to each report based on the files—that the report must not be construed as "representing the ... findings of ... this committee." 10 What "accuracy and validity" means to the committee thus seems somewhat vague. It may mean that the committee staff checks to learn whether a quote that has fallen into its hands actually has appeared in print as represented. This would not, of course, refer to the truth of the quote itself. Undoubtedly much of the material in the files is accurate in whatever sense one wishes to use the word, although it is impossible to say whether "much" is 40 per cent or 80 per cent. Undoubtedly, also, some of the material is inaccurate in fact and in meaning. Various persons have criticized the content and use of the files, one of the most articulate and convincing of whom is Bishop G. Bromley Oxnam of the Methodist Church.11 Oxnam presents the following critique of a report, based on the files, concerning him: The committee report on me consists of 305 typewritten lines. Of these: Two are introduction; Sixteen are a summary of the organizations mentioned in the report; One hundred twenty-eight concern organizations never listed as subversive, or quotations from journals that are not related to subversive organizations or activities; Seventy-two are from an obscure newspaper in Princeton, 111., the utter falsity of which might have been disclosed in half an hour's conversation had a committee investigator bothered to walk the 300 yards from the Capitol to my office; 29

COMMITTEE PROCEEDINGS Sixty-four are devoted to organizations which I never belonged to; Twenty-three refer to organizations listed as Communist fronts to which I once belonged but from which I had resigned prior to the publication of the Attorney General's list of subversive organizations and concerning which I have made full explanation above.12 Besides size and accuracy, the characteristic of balance may be used as a basis for analyzing the files. The great stress in the committee's statements concerning its files is on the collection of evidence associating groups or individuals with subversive or un-American activity.13 There is small indication that it seeks evidence for the files that might serve to counterbalance the "un-American" evidence and show the "whole man." Committee member Donald Jackson has been quoted as saying that the committee "accumulates all pertinent information relative to any given individual," in order to determine his "philosophical bent."14 Pertinent information, he seemed to feel, was of the kind which associates the individual with "Communist fronts," or "Communist Party or Communist front publications," and which indicates he opposes loyalty oaths, anti-Communist legislation, or "any form of military training."15 The closest student of the files makes this statement as to their balance: . . . the decision to include or exclude a basic fact does involve a good deal of editorial discretion. A has addressed the League of American Women for Constitutional Government, an organization viewed by the committee as a Communist front. But the facts that his subject was "The Importance of Supporting the United Nations' Appeal for Children" and that the speaker also addressed the New York State Chamber of Commerce . . . on the same subject may well not be recorded by the committee. Clearly, these additional bits of information are highly relevant if the committee's files are intended to tell a full and accurate story of a person.16 Imbalance in the files themselves may, of course, be reflected in reports based on them. One item of the file report on Oxnam said that he was a member of the American Civil Liberties Union, and then, as interpretation, listed the judgments of two agencies as to the ACLU. One was the judgment of the Special Committee to Investigate Communist Activities in the United States (Fish Committee) of 1931: that the ACLU was "closely affiliated with the Communist movement . . . and fully 90 percent of its efforts are on behalf of Communists."17 The other was in a statement by the Special Un-American Activities Committee of January 1939, which said "we are not in a position to definitely state whether or 30

THE PUBLIC FILES not this organization can properly be classed as a Communist organization." 18 As Oxnam pointed out, the report did not carry the fact that following the above special committee statement of 1939, the permanent Un-American Activities Committee itself said on two occasions — one as late as 1952 — that the ACLU was not a Communist organization, and that no official organization investigating subversive activity had ever cited it as Red-dominated.19 Another basis for analysis of the public files is a quality of particular importance to this study: their official character. As pointed out above, files material may be contributed by persons not connected with the committee or the government, or may be gathered and filed by the committee staff of research and file clerks. The daily activities of "an incredibly large number of Americans" are watched by the staff: Every time such a person makes a speech, publishes a book or article, lends his name as a sponsor to some organizational activity . . . or engages in some similar activity which is reported in the press or otherwise comes to the attention of the committee staff and seems significant to them, another entry is added. . . .20 Employees in the committee's research unit gather and receive such material, and engage in the discretionary activity of selecting, while file unit employees maintain the records in convenient and orderly condition.21 There is no indication that any of the material placed in the public files — which even a decade ago may have filled 200 to 600 filing cabinets22— is seen by a member of the committee before it is entered, although it is plain that members and investigators refer to and use the material as they need it. 23 Representative Francis E. Walter, chairman of the committee since 1955, has said that the files material is "raw information" that "has not been evaluated" by the committee.24 Nevertheless, he says, the public files are "an official record" of the committee.25 It would serve no purpose to quarrel with his use of the word "official"; but it is important to point out that the committee's attitude toward its files may be interpreted as meaning something less than "official." Every written report based on public files information, the committee says, carries a disclaimer saying the public files include the enclosed information, and that This report should not be construed as representing the results of an investigation by, or findings of, this committee. It should be noted that the 31

COMMITTEE PROCEEDINGS individuals and/or organization referred to above are not necessarily Communist, Communist sympathizers, or fellow travelers, unless otherwise indicated.26 The evidence indicates that the files are the work of clerks, and that whatever "official" character they possess is drawn primarily from their relationship to clerks in an official setting. Quantitatively, then, the public files of the committee are impressive. Qualitatively, the files information may be questioned on the grounds of accuracy, balance, and official character. 27 The Public Files in Relation to Court Decisions State laws have generally granted the protection of qualified privilege to any "fair and true report, without malice, of a judicial, legislative, or other public official proceeding."28 These laws give statutory expression to the common law, which furnished the protection where judicial and legislative proceedings were concerned, generally before the statutes were adopted. "Other official proceedings" include executive and administrative proceedings. As pointed out above, legislative proceedings have not been defined in detail by court tests; and the public files discussed here are among the materials as yet undefined. But it is plainly pertinent to seek in judicial proceedings for situations that have implications for legislative proceedings: "The analogy [between qualified privilege in reports of judicial and of legislative proceedings] . . . is in every respect complete," and "the limitations placed on the one . . . will necessarily attach on the other."29 Furthermore, it may be fruitful to draw parallels between legislative and executive-administrative proceedings, for some definition of the latter has taken place in court cases. The question is this: Are the "public files" legislative proceedings that would satisfy the requirements of the law relating to qualified privilege? JUDICIAL AND LEGISLATIVE PROCEEDINGS COMPARED

Analogous to the committee's public files in the legislative setting are certain records in the judicial setting. The committee's files contain statements of many kinds as to individuals' associations with Communist activity, currently considered antisocial or worse by some persons, but nevertheless not criminal activity. The statements in the files may be compared to complaints or charges against individuals accused of criminal activity 32

THE PUBLIC FILES or of private wrong, complaints which are lodged with personnel in the judicial branch. Lodging the complaint or charge in the judicial setting is a formalized, regularized process. In case of criminal charge or complaint by a citizen, it may begin at the police station, but until it has been acted on by a magistrate it is ordinarily not a "judicial proceeding," affording qualified privilege to a newspaper report.30 In case of private wrong, the complaint starts at the attorney's office and reaches the judicial setting in the form of highly formalized pleadings prepared by the attorney and filed with the clerk of court. Again, the complaint in the form of pleadings is not, in most states, a judicial proceeding offering protection to a newspaper report until the judge himself enters the case.31 Statements in pleadings have been a rather fruitful basis for libel actions against newspapers. The frequently stated rule is that before qualified privilege attaches, there must be "at least so much of a public investigation as is implied in a submission [of the pleadings] to the judicial mind with a view to judicial action."32 A recent decision puts it this way: "The public needs to know what goes on in court but does not need to know that A has slandered or libelled B outside of court."33 It is particularly important that the attitude of the federal courts toward qualified privilege in press reports of pleadings be examined here. A libel suit growing out of a newspaper story that took its information from public files of the House Committee on Un-American Activities might well be brought in federal court. A citizen living in one state might be libeled in a publication published in another state and take his suit to a federal court under the diversity of citizenship provision for handling such cases. It has been said that the federal jurisdictions are among those that recognize privilege in press reports of pleadings not acted upon by the judge.3* This appeared to be so for a decade following the Washington Times Co. v. Hines case, decided in a federal appeals court in 1925.35 The court reversed a trial court and held that a directed verdict should have been granted to a newspaper that was sued for libel contained in a story based on a divorce bill filed in equity. It does not appear that a judge entered the divorce case before the newspaper story was published, and on the surface, it would seem that the appeals court ruling upheld qualified privilege in press reports of pleadings filed but not acted on by a judge. However, there was no consideration of pleadings as "judicial proceedings" in the decision. The whole issue turned on whether the newspaper 33

COMMITTEE PROCEEDINGS story conveyed the same meaning as was intended in the bill for divorce (was a "fair and true report," as required where qualified privilege is to attach). The court found that the story did carry the same meaning as did the bill, and on that ground held for the newspaper. It was as though the appeals court assumed that qualified privilege attached to reports of pleadings, although at this point in time there was only the weakest of precedent to support the position,36 and much to refute it. It seems unlikely that a federal appeals court would have knowingly flown in the face of virtually all precedent without having stated a rationale for doing so. A decade later, in Washington Times Co. v. Bonner, a federal appeals court decision demonstrated clearly that the Hines decision had not settled the point so far as federal courts were concerned.37 The Bonner decision related to qualified privilege in press reports of executive proceedings, and the court noted the following: By the weight of authority the qualified privilege to publish reports of judicial proceedings does not arise until there has been official action by the magistrate or court in question. . . . The basis of the privilege, according to the majority rule, is the need of the public to know what its courts do, and therefore it is said that there is no justification for the report of the mere filing of papers or charges and that the privilege arises only when they are actually brought to the attention of the judicial officer and some action or hearing is had thereon. . . . This limitation upon the privilege . . . has . . . been rejected in New York and ignored in Pennsylvania. . . . We do not decide whether the majority or minority rule should be followed in the District of Columbia.38 The last above-quoted sentence shows that the court considered the question still open. It did not cite the Hines case. Nor has it been cited since in federal cases involving the point. In a 1951 case,39 the trial court based its finding for the plaintiff entirely on the note in the Bonner case. When the newspaper appealed, the court again relied on the Bonner case statement and said, "The public needs to know what goes on in court but does not need to know that A has slandered or libelled B outside of court."40 There is little doubt that the federal courts have veered away from any tendency to grant qualified privilege to reports of pleadings, if, indeed, the 1925 case indicated a tendency to grant it. The federal courts support the "majority rule" which holds in all but approximately eight states.41 To the extent that public files not acted on by the committee are analogous to pleadings not acted on by a judge in the majority of states, there 34

THE PUBLIC FILES is no basis for considering newspaper stories based on the files to be within the protection of qualified privilege. What, however, of the "minority rule" jurisdictions that recognize a claim to qualified privilege in newspaper reports of pleadings filed but not seen by the judge? In those jurisdictions, might not newspaper reports based on committee files of the kind herein described warrant the claim to privilege? The answer is highly uncertain. The reasoning for the abandonment by these jurisdictions of the requirement that a judge must enter a case before qualified privilege attaches to press stories, is that the requirement of the "barest judicial action" leads to incongruous results. It is said that no sensible distinction exists, for example, between pleadings not acted on by a judge, and pleadings "officialized" by a judge's hearing an ex parte application for an injunction. The judge's act is of very small significance, and why should his act make the pleadings "official" and thus privileged for the press? In the words of the leading decision among the minority rule jurisdictions, "We are not bound to keep up such frivolous legal fictions." 42 Drawn-out speculation where there is great uncertainty is hardly in order. Yet, it should be pointed out that the pleadings which are a sufficient basis for press immunity in the minority states seem to have a much higher claim to "officiality" than do clippings sent to the committee by citizens, or cut from copies of the Daily Worker by committee clerks. The pleadings are prepared by an "officer of the court" — the attorney — according to prescribed rules of the jurisdiction in which he practices. Regularized and formalized, they are placed on file with a clerk of court. This act of one party "institutes the action" which is a judicial proceeding in the minority states; and it seems to bear little resemblance to the casting and drawing of a dragnet of doubtful discriminatory qualities by investigating committee friends and clerks. Aside from the official character (or lack of it) of the files, what of their character as public proceedings under the law of qualified privilege? Although they are called "public files" they are clearly not open to the general public. As pointed out above, the committee says that the files are open to committee staff and members and to authorized representatives of the executive branch. As will be pointed out below, it appears that an occasional member of the press has had access to the files, although by precisely what method is not clear. 35

COMMITTEE PROCEEDINGS Traditionally, privilege has not attached to libel taken from nonpublic proceedings, of course. The "public" requirement is laid down in the statutes of many jurisdictions;43 and secret proceedings in some commonlaw states have been held insufficient basis for a claim to qualified privilege, as, for example, where grand jury reports not yet published in open court have been involved.44 In the state of New York, where court decisions had perhaps most clearly denied privilege in press reports of nonpublic proceedings,45 the traditional position apparently no longer holds. It was there, in 1956, that the legislature decided no longer to require by statute that the proceeding be public to furnish a satisfactory basis for a plea of privilege. It deleted from the statute the "public" requirement that had stood for more than a century.46 Whether other states will follow suit and abandon the traditional position, or will merely use the New York decisions as precedent for denying privilege where the official proceeding is not public, remains to be seen. Certainly, an early and universal solution to the question is not to be expected. In short, the evidence indicates that the "public files" of the Committee on Un-American Activities are heavily restricted as to public access, and by analogy with secret court proceedings give uncertain promise of immunity to the newsman who might extract from them materials for a story. EXECUTIVE-ADMINISTRATIVE AND LEGISLATIVE PROCEEDINGS COMPARED

If cases from the judicial setting seem to leave the public files an uncertain basis for a newpaper's claim to immunity, what of the cases from the executive-administrative setting? Immunity of press report, it may be remembered, was not transferred by analogy from the judicial setting to the executive-administrative, as it was to the legislative, through a decision of vast weight and authority.47 Rather, American courts in the early 1900's were likely to find justification in the "quasi-judicial" character of executive-administrative proceedings.48 One merely stated that privilege in reports of courts was well established, and "the rule now is extended to executive proceedings."49 Gradually, however, precedent grew for granting the immunity on the same basis as in other official settings: the public interest in knowing what public officials do.50 There seems no reason to avoid drawing parallels between situations arising in the executive-admin36

THE PUBLIC FILES istrative setting and those in the legislative. (Hereafter, they will be called "executive" records for simplicity's sake.) Executive records that parallel to some extent the committee's public files include municipal police records. A few states have special statutes granting privilege in press reports of information appearing in police records,51 but the more general rule appears to be that privilege does not attach to such press reports.52 An early case held: There would have been no privilege . . . even if the defendant had confined itself to the publication of the reports as ... entered upon the books kept by the superintendent of police or the chief of detectives for that purpose, since neither common convenience nor the interests of society require that the opinions, suspicions, and deductions of police . . . whether reported to their superior officers, or through the telephone to the newspapers, should be published to the world.53 A more recent case was concerned with the jail register of a deputy sheriff, and a report based on it was held not entitled to the rule of privilege.5* In New York, where the police "blotter," or record of arrests made, is not a public record, the newspaper apparently is not protected by qualified privilege in reports based on it.55 Frequently, it is difficult to know whether the basis for a plea of qualified privilege is a record, such as a jail register or file of arrests or investigations made; or a report, oral or written, by an administrative or executive officer or agency. Thus where it has been held that "mere investigation of a detective character conducted by ... members of a municipal police force" does not furnish the basis for a plea of qualified privilege,56 it is not certain whether "investigation" means "record" or "report" or both. Very few other executive records that resemble the kind kept by police — such as files on arrests or investigations — have come before the courts as the basis of pleas for qualified privilege. Furthermore, as one examines the decisions, confusion arises as to how courts make distinctions between the protection offered by police and nonpolice records. Texas, for example, has a statute extending privilege to fair and true stories of "official proceedings authorized by law in the administration of the law." This has been held to protect stories based on investigations by police,57 yet not to protect stories based on written confessions taken by and in the custody of the district attorney in the course of an investigation.58 It is hard to see why the district attorney's record of investigation gives less protection than does the policeman's, and the situation points 37

COMMITTEE PROCEEDINGS up the uncertainty of the law with respect to privilege in reports of executive proceedings. The federal courts have indicated in part where they stand on the matter, saying in a decision of 1952 that "few if any courts would extend the privilege so far as to cover reports of charges made, without results, to a policeman or a prosecutor."59 Furthermore, they have left open the whole question as to whether records of any executive department furnish the basis for a claim to qualified privilege, saying in 1936: Defendant cites no authority, and we know of none, extending this privilege to proceedings before an executive department or officer. Assuming, without deciding, that it can be so extended . . . such a privilege is not available to the defendant [in the instant case]. . . .60 The court's use of the word "proceedings" opens to doubt a much broader range of executive activity than mere "records": the efficacy of almost any executive activity as a basis for a claim to qualified privilege becomes questionable with this statement. The question still has not been squarely before the federal courts;61 in the 1952 case cited above, the Pittsburgh Courier used privilege in the judicial setting as the basis for its claim to qualified privilege. Altogether, the committee's public files find uncertain support at best in analogy with records of executive agencies. In many jurisdictions, police records do not provide the basis for a claim to qualified privilege in press reports. Neither do certain records in the hands of other public officers. It is possible that the committee's public files would provide no better basis for the claim.

News Reports Based on the Public Files It is useless to ask how widespread is the use by newsmen of material in the Un-American Activities Committee's files, or, indeed, of the files of other federal and state legislative committees. The newsman who has established "pipelines" through clerks or committee members is no more likely to divulge his connections than is the clerk or member likely to tell the number of reporters that has access. Probably the number is small, and restricted largely to especially trusted reporters from news media sympathetic to the committee's purposes. Recorded instances in which reporters have had access to the files are few and by no means infallible as evidence. There is, for example, the charge by the radio commentator Walter

38

THE PUBLIC FILES Winchell that pamphleteer Joseph Kamp "had free access to the files of the Dies Committee. . . ."62 There is the statement of Washington newsman Nat Finney, quoted earlier, that "no one knows with any clear certainty what part of its [the committee'sl record is official and therefore privileged, and what part is simply undigested files." In connection with a recent episode in another committee, Bernard Schwartz, former counsel for the House Subcommittee on Legislative Oversight, has said that "the chances are 100 to 1" that newsmen obtained and published various materials from the subcommittee's files before they had been officially released.63 Indeed, the practice of "leaking" supposedly secret material to the press by officials is a common one, and it would be surprising if files material were not involved at times.64 It takes no exhaustive examination of the columns of Fulton Lewis, Jr., to discover examples of his use of material that he attributes to the files of the House Committee on Un-American Activities.65 Two cases follow: On the board of editors with [name deleted by author] were the following whose citations for membership in Communist fronts, from the files of the House Committee on Un-American Activities, follow: [Here are deleted the names of six persons, each followed by a figure indicating the number of "citations."] A detailed analysis of her activities and an examination of the files of government agencies, including the House Committee on Un-American Activities, reveal her connection with ten organizations listed as Communist fronts; two listed as subversive organizations.66 Files of the House Committee on Un-American Activities . . . reveal that [Substitute name "Dr. Blank."] has been active in numerous Red fronts. In one listing it is revealed that . . . [Blank] is in the bracket of individuals affiliated with from eleven to twenty Communist front organizations. . . . [Blank] has enough [citations] . . . to indicate the trend of his thinking.67 A more recent episode involved Lewis, Chairman Francis E. Walter of the Un-American Activities Committee, and Mrs. Eleanor B. Stevenson, a director of the Fund for the Republic and chairman of the Fund's committee that recommended an award to the Plymouth Monthly Meeting. The inpident occurred in 1956 when the Fund was under investigation by the committee, and is reported thus by the Bulletin of the Fund: Another chapter was added on August 6. On that evening Fulton Lewis, Jr., read his radio audience a handwritten letter from Mrs. Stevenson to an officer of the Fund. The letter was dated March 14, 1956, and con39

COMMITTEE PROCEEDINGS cerned the award to Plymouth Meeting. The Fund's files about this subject had been subpoenaed by Mr. Walter and were in his possession.68 The next day the Fund protested in a telegram to Walter that it was "inexcusable" that he had "made available to a radio commentator documents obtained under subpoena from the Fund for the Republic that were never made a part of the record."69 It should be made clear that where stories apparently are based on the public files of the committee, there may at times be in existence more "official" sources than the files which might in some ways corroborate the files information and thus give the press collateral claim to qualified privilege. Thus if a newspaper columnist reports that the files of the committee show that an individual has belonged to half a dozen Communist-front groups, the published record of a properly conducted ("official") hearing of the committee might in part or in whole duplicate the list and protect it. But the newsman who knows that a published hearing report of a committee contains the information he wants for a story has no need to go to files of the kind labeled "public files" by the Committee on Un-American Activities. It is not hard to find court decisions that deny immunity to press reports of executive-administrative or judicial materials that appear somewhat analogous to the "public files" of the Un-American Activities Committee. Such materials have failed repeatedly to be accepted as "official" or "public" proceedings.

40

IV Committee Proceedings: FILES REPORTS

IF ONLY an occasional newsman has direct access to the files of the UnAmerican Activities Committee — if actual perusal of file folders by reporters is scarcely commonplace — it may be that material from the public files is somewhat more likely to reach nonofficial hands in another way. For hundreds upon hundreds of reports prepared from files material annually issue from the committee environs on committee letterhead. Furthermore, oral reports on the material in the files have at times been made by the committee's clerical personnel. The question arises whether these reports are official proceedings that furnish a basis for a plea of qualified privilege to the newspaper that might come across a report and use it. The Files Report At the outset, the committee's own evaluation of the files report should be repeated — an evaluation that is carried on each files report as a disclaimer. It reads: This report should not be construed as representing the results of an investigation by, or findings of, this committee. It should be noted that the individuals and/or organization referred to above are not necessarily Communist, Communist sympathizers, or fellow travelers, unless otherwise indicated.1 On the face of things, then, the committee denies that the files report represents investigation by the committee. Nevertheless, large numbers of reports on individuals and organizations whose names appear in the public files are made each year, and the committee, in most of its annual reports to Congress, reckons certain totals 41

COMMITTEE PROCEEDINGS to indicate in part what it has been doing for the past year. Thus from June 20, 1946, to December 22, 1948, reports on 25,591 individuals and 1786 organizations were compiled by committee staff members at the request of members of Congress; in 1955, more than 1300 requests were made by congressmen and were worked on by the committee staff; and in 1957, there were 1105 requests from members of Congress, on 3562 individuals and on 721 organizations, periodicals, and general subjects.2 Furthermore, executive department personnel, as authorized by the committee, visit the public files of the committee and extract material for their own reports. During 1947 and 1948, various government agents made 5995 visits to the files room for information; and during 1956, there were 3200 visits by these persons.3 Oral reports, apparently prepared by committee clerks, are among those made to congressmen who have requested information. In response to requests, answers "may be given in either verbal or written form, verbal answers being employed only when so requested and the material may be summarized briefly and easily."4 It is not entirely clear to what extent the committee has furnished reports based on the files to private groups and individuals, but it appears that since the late 1940's information from the files has been available to some private individuals and groups directly or indirectly. In 1952 the committee's annual report said that information from the files had been given to "private individuals who showed a sincere and genuine need for information of the type which is available here."5 Carr points out that the publishers of Counterattack and Red Channels — American Business Consultants, Inc., a group of former FBI agents — got some of their data from committee files.6 Oxnam said at a committee hearing that the American Council of Christian Churches and the American Council of Christian Laymen had obtained files information from the committee, and that he believed he could list twenty groups receiving such material.7 In 1954 the committee reported that files information service "is available at present" only to congressmen, executive branch personnel, and committee staff.8 In 1954 as in earlier years, however, private individuals had access to committee files information through requests to their congressmen to obtain it for them.9 Ordinarily, information is sent to congressmen who request it, in the form of a written report compiled by the committee staff. Files reports to private individuals or groups, in Oxnam's case, went out on committee 42

FILES REPORTS letterhead over the name of a committee clerk. Sometimes, a committee member signs the files report.11 There is no evidence that the committee itself passes on such reports before they are distributed, although approval may have been given in particular cases. There is no reason to believe that the committee passed, for example, on the 3800 answers to requests for information made during 1953, which reported on 7687 individuals and 882 organizations.12 The extent to which the public files report as compiled by clerks represents a complete inventory of the file on the particular group or individual is not entirely clear. The committee says it is required that a "complete check of pertinent indexes and source material" be made before a report is given.13 In Oxnam's case, one files report to which he obtained access listed twenty-odd items and was termed by the newspaper publishing it "the committee file in full."14 At his hearing before the committee, fifteen weeks later, considerable material that had not been in the reports he had seen was introduced into the record, some of it apparently newly acquired by the committee.15 Clerks may well not have discretionary powers to withhold from the files reports certain items that appear in an individual's file. That discretionary activity is involved in the preparation of a file on a group or individual, however, seems likely. As was shown in Chapter III, in the account of the files report item involving Oxnam's membership in the American Civil Liberties Union, the report contained only references unfavorable to the ACLU, omitting the permanent committee's own "clearances" of the organization.16 Procedurally, then, the files reports have a clerical character both as to compilation and promulgation. The reports are no more the official findings of, or the outcome of investigation by, the committee itself than are the files from which they are prepared. Might they be considered "legislative proceedings" under the law providing qualified privilege in libel actions? 10

Files Reports in Relation to Court Decisions When the committee's public files have been excerpted by a committee clerk and put into a report which the chief clerk signs and promulgates, has "officiality" been added to the material so reported? Are there decisions which say that a newspaper report of a judicial clerk's act is protected by qualified privilege, and by the weight of analogy support the 43

COMMITTEE PROCEEDINGS position that a newspaper report of a legislative clerk's act is protected similarly? Two Massachusetts decisions and one in Texas are in point. In Massachusetts, state statute gave the clerk of district court power to issue warrants for arrest. A newspaper was sued for libel for publishing stories based on a warrant issued by the clerk and bearing the teste of the judge. The court held in both cases that while in issuing the warrant, the clerk did not necessarily become a judicial officer, "he does exercise judicial powers; and hence . . . the proceeding is one essentially judicial."17 The clerk was exercising a power given him by statute, and the newspaper was protected by privilege in reporting the clerk's act. The Texas case arose in the court setting, after a newspaper published verbatim an incorrect entry made by a clerk of court on the court's file docket.18 State statute required the clerk to enter cases on the docket. The libel law protected news reports of judicial and legislative proceedings and of "official proceedings authorized by law." The court held that the clerk's act was an official proceeding required by law, and the newspaper could not be held liable. Thus the crucial point in both the Massachusetts and Texas decisions was that statute authorized or directed that a clerk perform an act. In Massachusetts, the act was "judicial"; in Texas, it was "official." It is doubtful that the clerk's act in either state would have been held sufficient basis for a claim to qualified privilege in absence of the statute. No law, of course, authorizes or requires the committee clerk to make reports based on the public files; the only reporting mentioned in the resolution creating and empowering the committee is that which the committee must perform for and to the House of Representatives.19 That the legislative clerk's act in issuing public files reports draws substantial support from the Massachusetts and Texas decisions is questionable. Performance of the act which the law requires or authorizes may be a far different matter than performing an act about which the law is silent. In fact, even the act "authorized" by law may not be basis for a claim to qualified privilege in Texas despite the fact that the libel statute seems to say that it is. The Texas court has held in effect that "authorized" in the libel statute means "required."20 Thus in the Belo case above, the clerk's act was "required" by law, and was a sufficient basis; but in a later case it was distinguished clearly from a district attorney's act in taking a criminal's confession that was only "authorized" by law and not a sufficient basis.21 44

FILES REPORTS Beyond the committee clerk is the committee member who sometimes signs the files report. Does his signature give the report the official character necessary to support a claim of qualified privilege in a news story based on the report? The barest judicial action with respect to pleadings gives them the character of "judicial proceedings" and provides the protection of qualified privilege for the newspaper story.22 An example is in Metcalf v. The Times Publishing Company** where a newspaper was sued for printing a story based on a bill filed in equity, charging Metcalf with conspiring to defraud. The newspaper showed that there had been action by a judge, who had heard in chambers an application upon a motion for an injunction in the case, and the story was held to be protected by qualified privilege. The court said that the judicial act was "of the most insignificant kind and very near to the borderline," but "If this was not judicial action it would be difficult to say what would be. . . ."2* It may be argued that the signing of a public files report by a committee member is the equivalent in the legislative setting of the "barest judicial action" by the judge in the judicial setting. But the converse may be argued with as much force. Starting with the fact that files reports may be signed by the chief clerk of the committee as well as by a committee member, the question may be asked: Can the act which may be performed as properly by a clerk as by a committee member be called a "legislative proceeding"? Analogy with cases stemming from the judicial setting leaves the answer uncertain. On the one hand, it has been held that the issuing of a warrant for arrest by a court clerk — as authorized by statute — was a judicial proceeding.25 It was an act ordinarily, perhaps, performed by a judge; and, indeed, the warrant involved bore the teste of a judge, which may have added to the warrant's "judicial" character. On the other hand, it has been held that "no judicial action" was involved in the taking of a deposition by a judge in his courtroom, because the act could be performed under the law as well by a notary public or any officer authorized to administer an oath, as by a judge.26 The act was merely "ministerial," and a newspaper story based on the deposition was refused the protection of qualified privilege. Is the signing by a committee member of a report compiled by a clerk and within the powers of the clerk to promulgate, a "ministerial act" or a legislative proceeding? Resort to statutes in the above two cases does not 45

COMMITTEE PROCEEDINGS help resolve the question since in one case (Thompson) the statute broadened the scope of the judicial act, while in the other (Mannix), the statute narrowed the scope of the judicial act. Again, the rule in the judicial setting is often phrased in the words that a case must be submitted "to the judicial mind with a view to judicial action"27 before privilege attaches to newspaper stories. Does the fact that a committee member has viewed and signed a report compiled from the files by a clerk mean that the report has been submitted to the "legislative mind" and that there is a "view to legislative action"? The answer is uncertain. The disclaimer attached to each public files report apparently denies that the "legislative mind" has been at work, saying the report "should not be construed as representing the results of an investigation by, or findings of, this committee."28 So far as a "view to legislative action" is concerned, there seems to be none in a report compiled for the purpose of fulfilling the request of a noncommittee member congressman or a private organization or individual. Whether one committee member or all members sign the report it has not been the subject of committee consideration. Neither the individual nor the group has weighed or deliberated on this information or subjected it to the investigating process. The foregoing leads to this question: Is the committee member, then, simply outside the proceeding in signing the report, much as judges and attorneys have been held to be outside the judicial proceeding in certain of their actions? A judge convenes a trial or hearing, holds court, and adjourns court. If, seconds or minutes before convening or after adjourning, the judge speaks defamation, his words are outside the protection of absolute privilege because they were not spoken during the proceeding.29 The newspaper has no protection in reporting such defamation, as it has no protection in reporting an attorney's statements under the same circumstances.30 The committee member who signs a false and defamatory report without the convening of the committee or subcommittee and engaging in the investigatory process (which, where material similar to that in the public files is to be considered, invariably includes the committee counsel's submitting the material in evidence and the committee chairman's receiving it in evidence), may well be "publishing" outside of any legislative proceeding. There are rather plain indications that the committee does not convene for the signing and sending out of a public files report. The report is at times signed by the committee clerk, and why should the com46

FILES REPORTS mittee convene to perform the act which a clerk may perform? Furthermore, oral reports apparently may be given by telephone. And, of course, the note attached to the report says the report is not the result of investigation. Considering next the oral report, as indicated above, such reports based on the public files are made regularly to congressmen and may at times be made to others including members of the press. A news story based on an oral statement of a United States commissioner as to information that had emerged during an arraignment held by the commissioner has been held not to be a report of a judicial proceeding, and not privileged.31 The court held that while the statement . . . was made by the commissioner, who was a judicial officer and who had committed Wood and the woman [the accused at the arraignment] to jail, it was made by him outside of the discharge of any official duty. It was made only as a statement by one man to another as to what had transpired in a court proceeding. . . ,32 In this court case, the newspaper story had the substantial fact of a court proceeding in the background; a newspaper item based on an orally delivered public files report of a committee clerk or member would not be supported even by a proceeding in the background. The situation involving the orally delivered public files report approaches more closely another court case, older than the Wood case but for no apparent reason weakened by passage of time. The case was McDermott v. The Evening Journal Association.™ A newspaper printed an article saying that McDermott had falsely impersonated a constable. The court, in denying qualified privilege to the article, said: The article was written up from loose statements made by the justice to the reporter of what had previously been said by certain persons in his office, not under oath, and no more a part of any judicial proceeding than is the talk of a crowd around the door of a court-house discussing the merits of a case on trial within.34 Might it not be held that a public files report — written or oral — is nothing more than "what had previously been said by certain newspapers and magazines, not under oath, and no part of any legislative proceeding"? Finally, if the closest possible analogy is drawn by use of a hypothetical case in the judicial setting, the dubious character of a claim to "official proceeding" for a public files report signed by a committee member emerges, to wit: 47

COMMITTEE PROCEEDINGS REPORT FROM THE JUDICIAL SETTING

COMMITTEE'S PUBLIC FILES REPORT

1. Pleadings, charging J. Doe with "dishonesty," filed with clerk of court. 2. Private individual asks the court for information on J. Doe.

1. "Communist" charge against J. Doe goes into public files,

3. Clerk excerpts Doe information from pleadings and submits report to judge for signing. 4. Judge signs and report is sent out.

2. Private individual, directly or through his congressman, asks committee for information on J. Doe. 3. Clerk compiles Doe report from public files and submits to committee member for signing. 4. Committee member signs and report is sent out.

It is unlikely, of course, that a judge possessed of his faculties would permit the making of such a report, or sign it. If, on the other hand, it is argued that the analogy is unfair (which it probably is) because of the differences in structure and function between judicial proceedings and legislative proceedings, it may be answered that the regularizing and formalizing of charges in pleadings give them a character that seems to be much more "official" than the character given to the public files through clipping and collecting miscellany. Analogies between the committee's files reports and reports from executive-administrative officers and agencies may also be drawn. "Reports" in the executive-administrative setting here include oral and written statements by individuals and agencies, and statements made in the course of hearings or meetings. Such reports have been the basis for the plea of qualified privilege in many executive-administrative situations besides the police setting, and at times have issued from important officials. Starting with police reports, news stories based on them frequently are not protected by qualified privilege. Decisions, dating from 1857,35 come from several jurisdictions. One of the most recent is a Vermont decision of 1941, in which the court held that privilege did not attach to stories emerging from "a preliminary police investigation."36 The police had given to the press the confession of a criminal implicating an alleged accomplice, and it was held insufficient as the basis of a claim to qualified privilege. After examining decisions in other states the court said: No doubt it is desirable that the public may know that the police and other officials charged with the duty of detection and arrest for crime are 48

FILES REPORTS acting upon reasonable grounds in the discharge of their function. But, weighing the social values involved, it seems better to confide in the diligence and discretion of such officials, rather than that any person should be subjected to unmerited obloquy through the publication of false accusations made to them in the course of their investigations. . . ,37 In four states where the above is not the rule, reference to statute has provided the protection of privilege.38 In two others, court decisions have provided it.39 In one state, "official statements issued by police department heads" protect news stories,40 and in two other states, court decisions indicate that news stories based on such statements might be protected.41 Where decisions state a rationale for granting the privilege, they usually refer to public policy: the public needs to know whether police "are acting upon reasonable grounds in the discharge of their function."42 Beyond the police department reports, certain other "official proceedings" have been held insufficient basis for a claim to qualified privilege. The earliest American case denied privilege because a convict's last, defamatory words — reported by a newspaper — were not a necessary part of his execution, which was the official proceeding.43 Confessions taken by a district attorney and made available to the press, during his investigation of a plot to rob a bank, were held insufficient executive proceedings to provide protection for a newspaper, in a long opinion that reviewed previous conflicting decisions in Texas.44 In another case, statements by an assistant county prosecutor were not executive proceedings that provided qualified privilege for press reports.45 Here a state statute extended qualified privilege to news stories of "official statements by ... county prosecutors" and other department heads, but, the court held, not to subordinate officers, as the evident intent of the statute was "to centralize responsibility with respect to such important matters." Nevertheless, in the broad area of executive-administrative activity beyond the police department, courts that have dealt with the question have generally recognized such activity as a proper basis for a claim to qualified privilege. No group of decisions appears, as it does with respect to police reports, denying privilege in general to news stories of other executiveadministrative proceedings.46 A generalization can be made, however, as to all individual officers' reports that have been held by the courts to furnish a basis for a newspaper's claim to qualified privilege: In every case the officer had conducted an investigation and reported on the basis of that investigation. 49

COMMITTEE PROCEEDINGS Thus a state fire marshal's report that in his opinion a man was an incendiary resulted from the marshal's investigation.47 A state attorney general's statement to the press that race-track owners were engaged in commission of a felony was, by the attorney general's testimony in court, meant to be an official statement, and was based on his extensive investigation initiated by governor's order.48 A state adjutant general's report to the governor was the outcome of a court of inquiry the adjutant general had held.49 A state tax commissioner's report of irregularities in a city council's handling of funds was a public record that was the outcome of the commissioner's audit of the city's books.50 A postmaster general's order that "Fraudulent" be stamped on letters addressed to a bank gave effect to a statute authorizing him to do so, "on evidence satisfactory to the Postmaster General" that the firm was engaged in any scheme for obtaining money or property through the mails by means of false representations.51 A statement that an employee of the federal Civil Works Administration had been discharged for padding payrolls was the outcome of the CWA administrator's own investigation.52 As pointed out above, the issue has not been squarely before the federal courts and they have left the question open. The existence of several state decisions granting qualified privilege where stories of executive activity have been the basis for the claim seemingly has not influenced statements of federal courts touching on the issue. As recently as 1952, a federal appeals court said: "We need not decide now whether the privilege might extend to a [press] report of such an 'announcement' as appellee now attributes to the Secretary of the Treasury." 53 In several cases, qualified privilege has been granted in news stories of formalized proceedings conducted by an executive or administrative board. Thus an attorney's charge that another was guilty of perjury came during a governor's extradition hearing, a quasi-judicial proceeding.54 A charge that a firm had engaged in false branding and labeling came from the Federal Trade Commission after it had investigated.55 Words reflecting on an engineer were contained in the minutes of a meeting and the audits of a city water commission.56 Statements as to a hotel's delinquency in paying its water bill were made at the instruction of the village water board, the administrative agency which had acted on the matter.57 What emerges from the foregoing discussion that, by analogy, may support the committee's public files reports as the basis for a newspaper's claim to qualified privilege? Support for the files reports as such a basis

50

FILES REPORTS seems to appear in those states that grant privilege to news stories taken from reports by police. If a policeman's beliefs, guesses, and theories as to criminals are enough to warrant qualified privilege, it may be said that a congressman's guesses and theories as to Communists are enough to warrant qualified privilege. Perhaps there is support also in the court's grant of privilege to stories based on the reports of individual officers of greater status than police. If the state attorney general's report of his investigation is sufficient as a basis for qualified privilege, is not the committee member's report? The trouble with both supporting analogies is plain: The policeman's "guesses and theories" and the attorney general's report are the outcome of the officer's investigation, while the files report signed by the committee member is not the outcome of his investigation. It is the outcome of the clippings and gatherings of a research clerk, not validated or confirmed by the application of the "legislative mind" and disowned by the committee as being the result of investigation. There is reason to consider the committee member's signature on the public files report nothing more than a "ministerial act." Qualified privilege has been denied to a news story based on the statement made at a social gathering by a county health officer who said he had heard that a woman had leprosy.58 Perhaps in the hearsay spoken by the health officer there is an element parallel to a committee files report. Newspaper clippings, pamphlets, dodgers, and old dinner programs may not be within the legal definition of "hearsay," but whether, in the eyes of the courts, such sources have materially more claim to "official proceeding" than the conversation piece of the health officer, may be doubted. In short, a search for support for the committee's public files and files reports in executive-administrative proceedings is by no means entirely successful. Weaknesses appear in the files and files reports, analogous to weaknesses that have sometimes been fatal to executive-administrative activity relied upon as "official proceedings" in libel suits. Further, one weakness in the files and files reports — lack of investigation by officials — appears in no executive or administrative proceeding that has furnished the protection of qualified privilege to the press. Public Files Reports as Legislative Proceedings The parallels and analogies examined above are not the only tests to which committee files reports may be put. There are also the more obvious

51

COMMITTEE PROCEEDINGS tests of whether files reports are regular under House rules and the statute and resolutions creating and authorizing the committee; the constitutional test of whether files reports can be considered to have any legislative purpose; and court decisions respecting qualified privilege for press reports of legislative proceedings. The statute creating the committee authorizes it "to make . . . investigations of ... un-American propaganda activities" and "all other questions in relation thereto that would aid Congress in any necessary remedial legislation."59 Under this statute and subsequent resolutions worded in the same way the committee has put staff investigators to work, held hearings, and taken testimony. It has also set research and files clerks to collecting and collating the raw data that goes into the public files — files that it refuses to give the name "investigative" but which are a preliminary and perhaps useful step in the authorized process of "making investigations."60 The statute further directs the committee to "report to the House . . . the results of any . . . investigation, together with such recommendations as it deems advisable."61 Under this authorization the committee publishes annual and certain special reports which are the outcome of its investigation. A House rule provides that "Each committee is authorized to have printed and bound testimony and other data presented at hearings by the committee,"62 and under this rule transcripts of the committee hearings are published. Such transcripts are the outcome of investigation. Nowhere, however, is there authorization for the committee to publish material that is not the outcome of investigation. The gathering of material for public files is a preliminary step in the authorized process of "making investigations," but as repeatedly pointed out herein, the committee takes care to assert that reports based on the files are not its findings or the result of investigation. Also a consideration under statute and House rule is the effect of lack of quorum on the public files reports. If, indeed, only one committee member signs the public files report, has "legislative proceeding" failed for lack of quorum?6S Lacking clear statutory or House rule basis and carrying on its face a denial that it is the outcome of investigation — the function for which the committee was created — the report on the public files of the committee seems to be in a particularly weak position as "legislative proceeding." It seems possible that a plea of qualified privilege in a libel suit brought for 52

FILES REPORTS the publication of material based on a committee files report could be attacked successfully. Aside from statute and House rule, there may also be a constitutional ground on which to attack the public files reports, although of course the courts would not go to a constitutional issue if they could settle the question on the narrower statutory grounds, as suggested above. The question may be seen in the context of exposure of individuals as members of unpopular groups or as persons holding unpopular beliefs — a process referred to at times as "punishment by publicity."6* Members of the committee frequently have said that exposure of Communists is the committee's principal purpose.65 Until recently, the courts refused to say whether exposure was a proper purpose in connection with investigating.66 They held that Congress had declared in the statute creating the House Committee on Un-American Activities that investigation is for the purpose of aiding in lawmaking, and that that declaration was conclusive on the courts no matter what individual members of the committee say as to the purpose.67 They refused to consider other purposes where the committee's investigations have been at issue.68 In 1957, however, the United States Supreme Court said that "We have no doubt that there is no congressional power to expose for the sake of exposure." Nevertheless, the court said, a committee's motives cannot be tested by the court; and its motives alone "would not vitiate an investigation which had been instituted by a House of Congress if that Assembly's legislative purpose is being served."69 In light of that decision, what of the situation where exposure takes place without the committee's investigating — as when the committee disseminates public files reports? This situation would seem on its face to preclude any lawmaking purpose, and public files reports might well not be acceptable to the courts as "legislative proceedings." Statutes, rules, and the constitutional question aside, then, are there court decisions that deal with qualified privilege in press reports of legislative activity that are similar to the public files reports? The answer is no. For while there are cases involving qualified privilege in news stories based on reports of legislative bodies, in each instance the legislative report at issue has been the outcome of investigation. These cases will be treated in the next chapter, which deals with committee reports that have grown out of investigations or hearings. 53

COMMITTEE PROCEEDINGS One way in which the committee member himself might seek the protection of privilege if he were sued for defamation in a public files report that he signed, is through the reasoning in the early American case of Coffin v. Coffin.70 Chief Justice Parsons said he interpreted the constitutional immunity in Massachusetts to secure to every legislator . . . exemption from prosecution, for every thing said or done by him, as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular according to the rules of the house, or irregular and against their rules.71 In the Coffin case, the court held that the legislator sued was liable because he was not exercising the functions of his office — not acting as a representative — when he spoke defamation. There has been no case in which the courts have had to decide whether defamation spoken was "irregular and against [the] rules" of the legislative body, and it is unprofitable to speculate as to how far Parsons' dictum would protect a legislator today. It may be pointed out, however, that as shown above, attacks on the public files report may be launched from bases other than House rules, which is the ground of Parsons' dictum. The newspaper cannot count entirely, of course, on being protected by qualified privilege merely because the person making the statement in the first instance was protected by privilege.72 The attorney and his client are protected by absolute privilege in the pleadings filed with the clerk of court;73 but in most jurisdictions the newspaper is not protected by qualified privilege in printing stories based on the pleadings until the judge enters the case. Privilege attaches to statements made to the police, but frequently not to the newspaper printing such statements.74 It is likely that matter stricken from a court record would fail as the basis of a libel suit against the person speaking defamation contained in the matter; but the newspaper is unprotected in publishing stricken material.75 Considered on their own merits as "legislative proceedings" within the requirements of qualified privilege, the public files reports are no stronger than, if as strong as, they are when compared with analogous materials in the judicial and executive-administrative settings. Their status is uncertain. Communications Media and the Public Files Report As in the case of the public files themselves, it is not at all clear how much the press has used public files reports on which to base news stories. Probably it has used them rather little. It is sometimes unclear whether 54

FILES REPORTS a reporter has had direct access to the files themselves or has had access to files reports. The columns of Fulton Lewis, Jr., cited above, may be based on either, and the fears that newsman Nat Finney expressed may arise from public files or files reports. Aside from the general newspaper, certain periodicals of limited circulation appear to have based stories on the public files reports. Bishop Oxnam said that a public files report of the committee, covering twenty-one pages "relative to some of the most distinguished religious leaders of the United States," had been sent out by the committee, and that much of this information was used in a periodical by a private agency.76 He has also testified that the committee's public files report on him has been sent to various groups, one of which "has used this material seriously to harm one's reputation." He said he thought he could list twenty private agencies that had used this information.77 Among the thousands of "special interest" publications in the nation are some that devote their space to exposing and publicizing "subversives," or those that appear to disagree with the publications' standards of what is "Americanism," or have not dissociated themselves from persons who have been associated with communism.78 Among these is The Firing Line, Facts for Fighting Communism, published biweekly by the National Americanism Commission of the American Legion. This publication, about letter-size and consisting of four or more pages, has at times been devoted chiefly to listing persons who have been associated with Communists, "Communist-front" groups, and other organizations of which it does not approve. A common typographical arrangement has been to devote a paragraph to each of several or many individuals, listing with each name "Communist front" or "subversive" organizations with which the individual supposedly has been associated. Moreover, The Firing Line carefully states sources for its information, a favorite source being hearings, reports, or the committee print known as "Appendix Nine" of the House Committee on Un-American Activities.79 On rare occasion, however, it fails to cite a source, and internal evidence then sometimes indicates that its information may have come from the committee's public files or files reports. This is the case with respect to its listings of some persons belonging to the National Religion and Labor Foundation. Of two persons The Firing Line says: "Its current Honorary President John Haynes Holmes has a record of 28 affiliations with left-wing organizations. Of this group more than a 55

COMMITTEE PROCEEDINGS dozen are affiliations with organizations which have been cited as subversive. Dr. Jerome Davis, whose more than 15 left-wing affiliations extending as far back as 1936 includes such organizations as the American Committee For the Protection of Foreign Born. This has been cited as one of the oldest auxiliaries of the Communist Party in the United States. A letterhead of January 1940 lists him as a member of the Advisory Board. 80

It is not certain that such information is based on public files reports of the committee. Evidence indicating that it may be is in such phrases as "A letterhead of January 1940," and "a record of 28 affiliations" of which "more than a dozen . . . have been cited as subversive." The public files ordinarily lend themselves more readily to such summarizing81 than do transcripts of hearings or formalized reports of the committee; and this, coupled with the publication's most unusual failure to cite a formal hearing record, evidences the possibility that the material came from the public files.82 The above examples could be expanded into a longer list. It can scarcely be doubted that various segments of the American press have had access to and have used the committee public files reports. The question arises, however, as to the press' legal liability in using such information even though it has not been the object of committee investigation. The committee after all, says that the only information it sends out is that which has been published before, and which could be found by research on the part of any private individual. Oxnam's attack on the public files report on him demonstrates well the answer to the question.83 First, the public files report listed him as belonging to groups from which he resigned before the attorney general listed them as "subversive," but the report did not mention his resignation. Second, the public files report listed and associated him with groups to which he never belonged or with which he never was associated, sometimes in flatly factual terms and sometimes by innuendo and implication. Third, the report, by interspersing Oxnam's severe criticism of the House Committee on Un-American Activities, and his statement that we "must not flirt with Franco to stop Stalin," with other items clearly associating him with communism and subversion, probably reinforced, in some persons' minds, the total impression of Oxnam as no less than a fellow traveler. Finally, and importantly, there is the bringing-together in the files report of many items, any one of which printed alone in a newspaper or on 56

FILES REPORTS a letterhead might not be considered defamatory, but all of which, collected and concentrated, might to many readers be expression "which tends to diminish the esteem, respect, goodwill or confidence in which the plaintiff is held, or to excite adverse or derogatory feelings or opinions against him."84 Where qualified privilege does not apply, the allegedly libelous publication "must be construed as a whole" by the jury.83 Furthermore, showing defamatory innuendo86 or outright untruth 8r is enough to win a libel suit. On any of these three scores, the public files report on Oxnam might well be considered vulnerable. In sum, the public files reports of the committee may well be defamatory on occasion; they have uncertain status as "legislative proceeding"; and at times they are used as the basis for articles in communications media. Their efficacy as the basis for a plea of qualified privilege in a libel suit is most unsure.

57

V Committee Proceedings: INVESTIGATIVE

REPORTS

FILES and files reports of the Un-American Activities Committee — and undoubtedly of other committees — appear to be something less than the outcome of investigation, and thus questionable as official proceedings. But various reports of many committees undoubtedly are the outcome of investigation and yet bear scrutiny for the same reason. To illustrate that problems of irregular procedure for the newsman arise in many committees besides the Un-American Activities Committee, the work of seven committees and subcommittees is dealt with in this chapter. Wherever committees engage in spectacular and noisy charges, and wherever committees exhibit signs of internecine warfare, the newsman may well be on the alert for the sudden emergence of libel from a source that bears something less than the stamp of regularity.

Subcommittee "Reports to the Public" When the late Senator Joseph McCarthy offered on a television program to make public the names of state department persons whose loyalty he said had been questioned, provided that newspapermen present would agree to carry the names, the newsmen refused. "There would be no immunity from libel suits if newspapers published material obtained in this way nor would Senator McCarthy have been immune," said one newspaper.1 This was a case in which the press sensed that the official might speak ("report") defamation without color of official proceeding, and that the statement was unsafe from the standpoint of libel. But the 58

INVESTIGATIVE REPORTS newsmen's fears may have been exaggerated; or at any rate, the decision of the New Jersey Supreme Court in Coleman v. Newark Morning Ledger Co., a case decided in 1959, seems to indicate such. The case arose in connection with the investigation of the Army Signal Corps laboratory at Fort Monmouth, N.J., by Senator McCarthy, then chairman of the Senate Committee on Government Operations and of its Permanent Subcommittee on Investigations. At this investigation and others during the eighty-third Congress, McCarthy frequently sat as a oneman subcommittee, concerning himself with "subversive activity." He commonly emerged from executive-session investigations to hold press conferences with waiting newsmen.2 The three-week period in late 1953 during which he centered his attention on Fort Monmouth saw several such reports. Ordinarily he named no names, but "the sketchy picture he drew was sensational."3 It portrayed a major "spy ring" connected with Julius Rosenberg, executed for espionage, at Fort Monmouth. McCarthy indicated that the "spy ring" might still be operating. On October 23, 1953, the Newark (N.J.) Star-Ledger printed a story based on an oral report by McCarthy to the press on the previous day. McCarthy, the story said, reported that his executive-session investigation had discovered that an ex-marine officer, suspended from his job at Fort Monmouth in 1949 after military intelligence found forty-three classified documents in his apartment, had been a roommate of Rosenberg's. Further, McCarthy said, known Communists had had keys and free access to the apartment. On December 9, 1953, another Star-Ledger story identified the man as Aaron H. Coleman, in reporting a public hearing held by McCarthy.4 Coleman sued the paper for libel, charging that the facts of the earlier story were false and not privileged because they were spoken outside the legislative proceeding. The court held for the defendant newspaper. It said that McCarthy himself was protected by qualified privilege in making the report, and indicated that the newspaper's privilege followed from McCarthy's. It accepted McCarthy's testimony, given at trial, that the newspaper story was an accurate report of his report of the secret proceeding. It also accepted his word that he had been authorized by the subcommittee, in executive session, to make reports to the press as to what transpired during executive sessions.5 The court did not call the press conference a legislative proceeding or a public legislative proceeding. But it denied that the secret nature of the 59

COMMITTEE PROCEEDINGS subcommittee's executive session negated qualified privilege for McCarthy. It said: It cannot be that evidence adduced and information acquired in the course of an executive session of a congressional investigating committee are sealed against public disclosure for all time save as unprivileged communications . . . even though the publications are made in what the committee conceived to be the interest of internal security . . . or matter of legitimate common concern.6 The court added that secret sessions often are indispensable, and "this does not preclude the publication of such information as the committee may in its discretion deem fit and proper for the general good."7 The court employed largely the precedent of cases involving executive officials in holding that McCarthy was protected by qualified privilege. It would have been difficult for the court to rule as it did had it relied on precedent in the judicial and legislative settings. For the latter had furnished qualified privilege traditionally on the ground that publicity gives security for the proper administration of public affairs; and that could hardly apply in the Coleman case because the "public affair" in question had been a secret hearing at which McCarthy himself was the principal figure. Publicity given by the administrator who is seeking the protection of privilege scarcely can be construed as security for his own proper administration. Instead of that rule, the court relied on the theory of "the interest of the public in the fullest freedom of officials to make disclosures on matters within the scope of their public duties" — a doctrine enunciated in cases involving absolute privilege of executive officials.8 If the press grasped the implications of the Coleman decision, it decently restrained itself from loud cries of delight. Certainly the decision broadened "reportable" materials; the fears of newsmen about printing names which McCarthy offered to reveal during a television program may have been of no substance in light of the Coleman decision. It is in the public interest that officials — including legislators as well as executive officers — have the fullest freedom of expression on matters they deal with. In this view, the legislator has a vital "publicizing" function as well as a "legislation-making" function; and the press, if willing, is his agent, protected largely to the extent that he is protected. The decision raises questions, however, as Chief Justice Weintraub said in his lone dissent. Qualified privilege, granted to McCarthy, depends everywhere on a "fair and accurate report" of the proceedings, but who 60

INVESTIGATIVE REPORTS could say whether McCarthy gave the fair and accurate report required? In Weintraub's words, "There is no way to measure a report against this standard when the proceedings are secret."9 The majority's statement that "It cannot be" that information and evidence from a secret session "are sealed against public disclosure for all time save as unprivileged communications," is puzzling. Much executivesession testimony of congressional committees is released weeks or months later in official hearing reports, after committee vote to release it. Here, indeed, is a standard by which to judge the "fairness and accuracy" of reports, that seems more satisfactory than does a press conference held by a senator. It may well have been some of the Monmouth hearings that led Senator Flanders of Vermont to file this charge for the consideration of the Select Committee to Study Censure Charges against Senator McCarthy: He has held executive sessions in an apparent attempt to prevent the press from getting an accurate account of the testimony of witnesses, and then released his own versions of that testimony, often at variance with the subsequently revealed transcripts, and under circumstances in which the witness had little opportunity to correct or object to his version.10 Further, although the majority mentioned a broadened version of the traditional rationale underlying privilege — the press giving the public information from the proceedings — it did not resolve the contradiction thereby presented: that the press was excluded from the secret proceedings. "The secret nature of the hearing negates the reason for the privilege," said Justice Weintraub.11 If qualified privilege for the press followed from qualified privilege for McCarthy in the Coleman case, in another episode of the Monmouth drama the press took it upon itself to publish material not furnished by McCarthy. The question arises as to whether it could successfully claim privilege under these changed circumstances. They are vague in some of their details and are taken from newspaper accounts. On October 16, the fifth day of the hearings, a Monmouth employee under questioning in an executive session burst into tears and was taken from the hearing chambers to a nearby room where medical aid was obtained for him. Press reporters saw his removal and his condition, and while he was being treated they apparently filed into the hearing room, where McCarthy gave them an oral report.12 He said that the witness had testified a day or two earlier that he did not know Julius Rosenberg or

61

COMMITTEE PROCEEDINGS anything of a Monmouth espionage ring. But at the witness' reappearance on October 16, "Under some rather vigorous cross-examination by Roy Cohn," he had broken down and begun to cry.13 He asked for medical help and was taken to the nearby room. McCarthy's description to the press of the witness' appearance was interrupted by the delivery of a note to him from the room where the witness had been taken. He asked the press to leave the hearing room, saying, "I have just received word that the witness admits that he was lying the first time and now wants to tell the truth."14 He also asked the reporters not to reveal the witness' name, in case they learned it. Newsmen left and the witness returned to the hearing room, where he was questioned for another hour and a half. After that session was finished, McCarthy again spoke to newsmen, saying that the witness now admitted having been a close friend of Rosenberg's. Asked "if the witness was a member of the Rosenberg spy ring," McCarthy reportedly answered: "'I don't want to say how much he participated in it.'"15 In spite of McCarthy's request that the witness' name not be published, a New York newspaper16 discovered the name and printed it, whereupon, in keeping with the folkways of the press, certain other newspapers considered release of the name to be proper and published it, along with the account of the hearing. One month later, the witness, explaining that his family had been persecuted as a result of his identification, made a statement to the press. He denied that he had lied or said he had lied at any time; rather, that after medical treatment, "I sent word that I wanted to go back and tell my story from the beginning."17 He broke down at the hearing, he said, because he was under the stress of his mother's death two days before the hearing, and was "unprepared for the rapid barrage of questions" by investigators. He said he had had a "nodding acquaintance" with Rosenberg in college.18 The tenor of certain of the news reports clearly casts suspicion on the witness, at least as a person who had been aware of espionage at Monmouth and who had lied in saying he knew nothing about such espionage. This is one account: An army signal corps employe suddenly burst into tears, hysterically confessed perjury and began "telling the truth" Friday at a closed session of a senate inquiry into alleged espionage at Fort Monmouth, N.J. The witness was . . . [substitute name "John Blank"] technician employed at Fort Monmouth for a number of years. McCarthy had pleaded 62

INVESTIGATIVE REPORTS with reporters not to name the man, if they learned his identity, but a New York afternoon newspaper made the name public. McCarthy said . . . [Blank] needed protection as a result of his revelations. He was guarded by three military policemen during the day and turned over last night to the custody of a subcommittee investigator. The witness broke down under cross-examination by chief counsel Roy Cohn. . . . He had denied knowledge of espionage at Fort Monmouth in a session several days ago. The witness became visibly more agitated as Cohn . . . involved him in contradictions. He became pale, started to weep, and asked for medical attention. Ushered to an anteroom, he was treated by a nurse. After sitting quietly for a few minutes, staring at the floor, he said: "Tell the senator I've been lying and I want to tell all I know." . . . He told McCarthy he had been afraid to tell the truth on his first appearance because he feared for his personal safety. "He gave testimony," said McCarthy, "concerning members of a suspected spy ring. I am not going to evaluate his testimony at this time because it will continue for days. The federal bureau of investigation has been notified." McCarthy said the witness testified that he was intimately acquainted with Julius Rosenberg, atom spy who died in the electric chair last June. The investigation thus far points to Rosenberg as the man who organized a Communist cell in the signal corps in 1942. "He identified individuals who he thought were part of the Rosenberg clique and have been working at Fort Monmouth and in other government agencies," McCarthy said. "He formerly lived in the same rooming house with Rosenberg. We are not going to divulge other details of his testimony at this time. There is a lot of work to be done before we are through checking his evidence."19 No evidence has been made public that the witness knew anything of espionage. Along with all others discharged from Fort Monmouth in connection with the McCarthy hearings, he has since been ordered reinstated, and the adverse security findings have been ordered removed from army records.20 In case he had sued for libel, could a newspaper have pleaded successfully that a legislative proceeding furnished the protection of qualified privilege? The man's name emerged in no part of the proceeding open to the press (if, indeed, any part of the proceeding was open to the press). The newspapers that used the witness' name obtained it without recourse to any part of a proceeding, and without McCarthy's having announced it in a press conference. Would they have been protected by qualified privilege? 63

COMMITTEE PROCEEDINGS A third case involving McCarthy's press conferences occurred during the month before the Monmouth hearings, when McCarthy had sat as a one-man subcommittee investigating Corliss Lament. After a closed hearing at which Lamont refused to answer questions, McCarthy held a press conference and told reporters of Lament's refusal. The senator said he would recommend that the Senate cite Lamont for contempt, and according to one newspaper account, "He [McCarthy] charged contempt on 'at least two dozen counts.'"21 Lament's own version of the press conference states even more flatly that McCarthy told reporters "I was guilty of contempt." 22 Lamont was cited by the Senate and indicted by a grand jury, but was not found guilty of contempt. Rather, the court found that McCarthy's subcommittee had had no authority to inquire into the affairs of a private citizen who was not associated with government activity, and discharged the indictment against Lament.23 Is it libel to say falsely of a man that he has been in contempt of the Senate, which of course is a crime? If so, both McCarthy and the above-quoted newspaper might be liable. The claim to privilege based on the highly informal "press conference" setting such as that of the Coleman case seemingly would be weaker than a claim based on written reports to the public. But the possibilities for procedural variations in committees are almost endless as the locale shifts from one committee to another, or as situations within a committee change. In a report of 1952 from the Subcommittee on Privileges and Elections of the Senate Committee on Rules and Administration, there are interesting new possibilities. The subcommittee was delegated in August 1951 to investigate charges and countercharges of irregular election campaign activities in 1950, made against each other by Senators William Benton and Joseph McCarthy. It was quickly involved in a swirling controversy with McCarthy, who charged that it was dishonest and motivated by the desire to "smear" him for his work in unearthing "communists in government." Six efforts by the subcommittee to get McCarthy to appear at hearings were fruitless. In early September 1952, one of the three subcommittee members and an investigator resigned after issuing statements to the press. The membership changed further later in the month, and Senator Thomas Hennings of Missouri became chairman.24 During the latter half of December 1952, the subcommittee prepared a report on its findings, filing the report with its committee early in 1953 64

INVESTIGATIVE REPORTS and giving the report to the press. The committee never officially considered or acted on the report, neither accepting nor rejecting it, probably because its political balance shifted from Democratic to Republican almost at the same time that the subcommittee report was submitted. When the press received the subcommittee report, the first reaction of some reporters was that it was "too hot to handle." In the words of one reporter, the report was "not an official report at all" because it never had been before the full committee, and newsmen were leery of possible libel in it. They resolved the question and published, however, because as the same reporter put it, they ". . . spotted the fact that the Hennings group, instead of making outright charges, had only 'raised questions.' This was 'safe' . . . We were just lucky in presenting the so-called report as a series of questions raised — not accusations."25 Their estimate probably was right. Indeed, when a book publishing firm later brought the report out in its full form, it seemed little concerned when McCarthy threatened to sue for libel, and the suit did not materialize.26 But the issuing of the report indicates one more way in which materials of questionable "officiality" emerge from committees and stand as possible traps for the press. Had there been libel here, one variation from McCarthy's press conferences at Fort Monmouth might have been important in a libel trial: the Hennings subcommittee may well not have been authorized by its parent committee to "report" to the press, as McCarthy said he was by his agency in connection with the Monmouth investigations. If one shifts the locale once more and returns to the House Committee on Un-American Activities, he finds new variations in certain written "reports to the public" that have emerged from its environs. A famous episode that raises questions began in early 1948 when a subcommittee of the committee released to the press a statement charging that Dr. Edward U. Condon, Director of the National Bureau of Standards, was "one of the weakest links in our atomic security." The report had not been submitted to the full committee;27 instead, committee chairman J. Parnell Thomas, under medical care, had called committee members Vail and Wood to the hospital where he was being treated, and the three voted as a subcommittee to release the report on Condon. Newspapers at once published the charges. It has been said of the Condon report that, "As a subcommittee report to the full committee it was theoretically not necessary to secure the ap65

COMMITTEE PROCEEDINGS proval of members of the full committee before releasing it."28 But it may be asked: Why not? From what rule does a subcommittee derive authority to publish any report to any agency or person other than its parent agency, particularly where specific authorization has not been given? At the time of the Condon report, no such rule existed; and more recently, the UnAmerican Activities Committee has specifically forbidden release of committee or subcommittee reports to the public.29 In 1939, before the making of such reports had become commonplace, one member of the committee said he had "never heard of a Congressional subcommittee of one or any other number making public reports without the approval of the full committee."30 Precedents of the House of Representatives have established that the report or recommendation to the House, issuing from committee environs, is not acceptable to the House if not acted on by a quorum of the committee.31 A subcommittee of less than a quorum will not do. Is that which is procedurally defective as a reporting agency for the House, procedurally sufficient for the general public? One court case that arose in a petty legislative committee is pertinent here, although there was no action against a newspaper. It involved the "common interest" principle in qualified privilege — a principle seldom involved where privilege for the press is concerned. Where the communicator and the recipient have a "common interest" or duty, false defamation in the communication may be qualifiedly privileged — as where officials of a religious or professional society warn the members of the society against a person whose character is in doubt.32 In the case at hand, almost eight hundred citizens had petitioned a Michigan county board for an investigation of a public officer, and the board ordered a committee to investigate. The committee did so, but refused to report the findings of its investigator, as ordered by the board. Under the circumstances, the public would not have learned the outcome of the investigation for six months; and Currie, the committee chairman, took matters into his own hands and reported to the public on his own authority by publishing in a newspaper the investigator's findings.33 Currie was sued for libel alleged to be in the report and was held to be protected by the rule of qualified privilege under the principle that he and the public had a common interest and duty.34 If chairman J. Parnell Thomas of the subcommittee that released the report on Condon had been sued for libel, would the courts have held 66

INVESTIGATIVE REPORTS that a "common interest" with the public protected Thomas? Or would they have held that there was no reason for the subcommittee to bypass the full committee, that the subcommittee had reported secret executive session action without approval of the committee, that the subcommittee was without power to report to any agency except the parent committee? And if any of the latter findings had been made, what would have been the position of the newspaper that reported the words of the subcommittee? Would it have received the protection of qualified privilege or not? The answer is uncertain, although clearly a similar case today would find support for a plea of privilege from the Coleman case. Taken as a whole, "reports to the public" that are based on investigation seem to constitute a somewhat more secure basis for a plea of qualified privilege than do the public files and files reports examined in previous chapters. The Coleman case of 1959 and the Madill case of 1912 give support to privilege whether based on oral statements or formalized reports. Questions remain, however. Despite the 5 to 1 decision of the New Jersey Supreme Court in the Coleman case, there are difficult problems that the majority opinion does not deal with. It is a question whether all courts would consider it appropriate to extend a legislator's privilege beyond the confines of the proceeding itself. It is not certain that another court would ignore the problem of whether the "fairness and accuracy" of a report should be determined by the legislator whose privilege is at stake. It may be asked whether another court would protect the legislator with a rationale that says he has a "publicizing" function so vital that he should be under an umbrella of immunity in exercising it. The House Committee on Un-American Activities since 1953 has had a rule that forbids "reports to the public" by the committee or subcommittee. Its rule may have been occasioned by objections that arose at the time of the Condon subcommittee report. While it is not safe to assume that the rule will persist indefinitely, or that it will always be followed, there surely is reduced likelihood that reports will be made by subcommittees of this committee. The same cannot be said of other committees that do not have similar rules. Appendix Nine During 1944, the last year of the Dies Committee's life, Representative Dies and certain other members of the special committee carried on re67

COMMITTEE PROCEEDINGS curring investigations of and a sustained assault on the CIO Political Action Committee.35 Bitter speeches by Dies on the House floor and two reports couched in extreme terms by committee or subcommittee characterized the attack and investigation.36 The tenor of the committee's concern may be seen in its first report, of March 29, 1944, which developed the committee's belief that "the C.I.O. Political Action Committee represents in its main outline a subversive Communist campaign to subvert the Congress of the United States to its totalitarian program."37 In May 1944, Dies announced that he would not run again for Congress because of illness. Two other committee members very close to him were defeated for renomination. There was widespread belief that the committee would die at the end of the year as a result. Opposition to it had increased and it was thought that the new Congress would not authorize it.38 Some committee members believed that the files of the committee might be destroyed at the committee's death, and in late 1944, apparently in fear of this possibility, a step was taken to forestall the complete loss of the files.39 A generous sampling of the files was put into a document for printing, under the guidance of the three-man Costello subcommittee.40 It was apparently submitted to and adopted by the full committee, and was promulgated as a special appendix to Volume XVII of the special committee's hearings.41 Seven thousand sets of the seven volumes of Appendix Nine were printed at a cost of $20,000 and were delivered to the committee.42 The title of Appendix Nine was "Communist Front Organizations with Special Reference to The National Citizens Political Action Committee." The introduction stated that "overwhelming evidence" had "clearly established" that the PAC "is the major Communist front organization of the moment."43 The body of the report dealt separately with private organizations (some sixty were indexed), each of which was associated in detail with members of the PAC and with communism. Thousands of names besides those of PAC were included and were indexed in the final volume of the Appendix. Nowhere was there a note to the effect that the appearance of a name in the index or the body did not necessarily mean that the person was a Communist or a fellow traveler.44 Distribution of Appendix Nine had hardly begun when the new Permanent House Committee on Un-American Activities was authorized in January 1945 and the new committee members became aware of the re68

INVESTIGATIVE REPORTS port's existence. At once, Appendix Nine was "ordered restricted and the existing copies destroyed."45 How many sets of Appendix Nine had been distributed is perhaps known only to those who have access to the committee's records or possibly to certain records of the Government Printing Office. Some sets had been sold and some made available to government agencies. One private agency that has had access to it is the National Americanism Commission of the American Legion. Its biweekly publication, The Firing Line, has relied heavily on Appendix Nine as a source for the association of individuals with communism, Communist fronts, "left-wingism" and similar unpopular activity and ideology.48 The permanent committee's act in restricting and destroying Appendix Nine speaks rather plainly for the publication's character. This study has already gone into the weakness in accuracy and balance of the committee files which constituted the universe from which the Appendix Nine sample was drawn.47 There are some indications that Appendix Nine might fail of definition as "official proceeding" in a libel suit. In the first place, it is labeled "Committee Print," which indicates that it was prepared for intra-committee use.48 Furthermore, it was apparently prepared by a three-man subcommittee, as indicated above. These evidences lead to the question whether the full committee ever passed on the publication and promulgation of Appendix Nine. A chief clerk of the committee has said that the full Dies Committee "approved and adopted" Appendix Nine,49 but it is possible that a court might insist on seeing committee minutes to this effect before "official proceeding" could be established. As will be shown below, want of evidence in the form of committee minutes once placed in jeopardy the committee's status as "competent tribunal" as required under the federal perjury statute.50 More important, there is some uncertainty over precisely what action was taken by the permanent committee in January 1945 when it discovered Appendix Nine. Carr's highly trustworthy study of the committee says that Appendix Nine was "ordered restricted and the existing copies destroyed."51 He adds that, in his interviews with chairman Wood and Representative Nixon of the permanent committee, "each man professed complete ignorance about the publication and its contents."52 Until the full act of the permanent committee is known by reference to its minutes — which Carr does not cite and which it may be presumed he did not see — it 69

COMMITTEE PROCEEDINGS may be considered that the status of Appendix Nine is questionable. The question is this: Might the permanent committee's action have been tantamount to striking Appendix Nine from its record? That which has been stricken from the record in the judicial setting is very doubtful as the basis for a plea of qualified privilege.53 If suit for defamation based on material in Appendix Nine were brought, it might allege in part that Appendix Nine was stricken from the committee's record. And stricken material, of course, opens the whole question of what is a public proceeding. There is considerable doubt that Appendix Nine is a public proceeding. Carr's account tells of the destruction of nearly all its 7000 volumes, and of its being "ordered restricted" by the committee. Further, Appendix Nine is not listed in the committee's various indexes to its publications.54 It apparently never was promulgated to government depository libraries, although some libraries may have obtained it through channels other than government channels. Carr reports that even Representative Wood, who had been chairman of the committee for four and one-half years at the time of Carr's interview with him, "professed complete ignorance about the publication and its contents."55 The publication and subsequent withdrawal of Appendix Nine by the committee finds a parallel in a Wisconsin case. On May 7, 1929, a grand jury filed a report with the court, and on May 8, 1929, the Milwaukee Journal printed a story based in part on the grand jury report. Subsequently, the state supreme court found the report unauthorized and illegal, and ordered it stricken from the record. Williams said he was libeled in the news story and sued the Journal, which pleaded privilege under the statute providing immunity where a "public" and official proceeding was reported. The court upheld the Journal's plea, saying: "Until it [the grand jury's report] was subsequently stricken from the files, it was like any other irrelevant or incompetent matter that has become part of the record by reason of an erroneous judicial ruling."56 At least nine other states have statutes similar to that of Wisconsin, providing privilege for reports of "public" and official proceedings.57 In North Dakota, for example, it was held that the immunity did not apply where a news story reported false defamation from a complaint against an attorney, made before a state bar board meeting in a secret proceeding.58 It is important, however, to remember that New York, which in 1854 provided the landmark statute that was used as a model by other states, aban70

INVESTIGATIVE REPORTS doned the "public" requirement in 1956 shortly after two successful libel suits had shown that libelous news stories were based on secret proceedings.59 Among the common law states, the clearest ruling appears in an Alabama decision, where it was held that qualified privilege in press accounts of grand jury proceedings "does not attach at all until the report has been duly published by the grand jury itself in open court."60 In another state employing the common law in privilege cases, a story based on a complaint to a deputy district attorney was held not to merit the immunity. The court said that "The publication of a legal proceeding is qualifiedly privileged, but not until it has gone into court and thereby become public."61 Analogy with the above cases, almost all of them originating in the judicial setting, seems to be the only guide to the efficacy of Appendix Nine of the Dies Committee as a public proceeding that provides the basis for a plea of qualified privilege in a libel suit involving the press account. The analogy indicates that Appendix Nine would be at best a shaky basis. The Appendix Nine story makes interesting reading, and perhaps there is no other case in which a congressional committee report threw such consternation and alarm into the report writers' colleagues. But there have been rousing fights over other committee reports, and reports have been questioned on grounds other than those that led to the destruction of Appendix Nine. Much more recently, there was cause to doubt the "officiality" of a report of the Special (House) Committee to Investigate TaxExempt Foundations (Reece Committee). After hearings marked by recriminations between the three Republican and two Democratic members, and indignant statements from foundations under investigation, a report was sent to the House in December 1954, signed by the three Republicans and repudiated throughout by the two Democrats. The report charged that some foundations "directly supported subversion."62 When one of the three Republicans, Representative Angier L. Goodwin of Massachusetts, learned that the printed document did not include his statement of "strong reservations and dissent from many of its findings and conclusion," he declared that his signature should be regarded as unauthorized. He raised the question of whether the report was in fact a majority report, and "House parliamentarians expressed the view that its authority was in doubt."63 The doubts were, indeed, false alarms, and the House accepted the report. But where the House might draw the line in another similar situation is uncertain. 71

COMMITTEE PROCEEDINGS Employees' Reports Investigators with various titles have been hired by the Un-American Activities Committee since its start. Their functions have been many, ranging from gathering information to interrogating witnesses and writing reports about their findings.64 Investigators' reports have not played a consistently prominent role in the publicized affairs of the committee. They were more apparent during the early years of the committee than more recently. It would not do to stress them as a particularly important proceeding of doubtful officiality, merely because their place is not a large one. Nevertheless, their existence in the occasional absence of committee sanction makes them potentially dangerous to the newspaper that reports them. Perhaps the earliest example of publicizing a committee investigator's report without prior formal committee approval was that of August 14, 1938. Investigator Edward Sullivan had been at work on the west coast, and filed a report with the committee charging the labor leader Harry Bridges with "communistic activities."65 Sullivan included charges relating to other matters in his report but named no other names. It is not entirely clear whether Sullivan or Dies released the report, but it plainly had no acceptance or action by the committee before its release. Dies, attacked later for having permitted the report to be released, admitted that he could not vouch for its accuracy, but said he felt the public should have the report anyway.66 The question that arises, of course, is whether the report was an official proceeding. Since Sullivan filed the report with the committee, it might be considered in a position similar to that of pleadings or of criminal charges in the judicial setting. As has been pointed out above, such documents furnish the basis for a plea of qualified privilege in press accounts in only a few jurisdictions. The more general rule is that they do not. On the other hand, of course, it is possible that there was no libel in the Sullivan report. It is also possible that no libel was contained in the report of committee investigator Robert Stripling in June 1944, and probable that there was none in the report of committee counsel Ernie Adamson in December 1946. Stripling, investigating the activities of the CIO Political Action Committee, found through subpoenaed records of telephone and telegraph companies that PAC officials had had communications with the White House and other executive agencies.67 His account says that Dies "re72

INVESTIGATIVE REPORTS quested" him to make his findings available to any syndicated newspaper columnist, and that he gave them to Westbrook Pegler who published parts of them.68 Adamson's report was issued without apparent prior clearance with any member of the committee. On December 26, 1946, he reported that a conspiracy was afoot to promote a Communist revolution in the United States, that seventeen CIO unions were dominated by Russian agents, and that the Library of Congress was "a haven for aliens and foreign-minded Americans."69 The committee's reaction to his report was violent, since it had had no knowledge that the report had been written or was to be publicized. Representative J. Parnell Thomas, heir apparent to the committee chair, said his first official act in the new Congress would be to fire Adamson, and committee member J. W. Robinson called the issuance of the report "entirely wrong."70 If there is libel in the above reports, the time set by statutes of limitation has long since run out during which anyone could bring suit on the basis of the reports' doubtful "officiality." Furthermore, the committee's rules today provide that no committee reports or publications shall be made or released to the public without the approval of the majority of the committee, and it may be presumed that this rule would include committee investigators' reports. However, practices and rules of committees change from Congress to Congress; and it is scarcely certain that at some future date an investigator, a counsel, or a research director of the Un-American Activities Committee will not issue a report so thoroughly unofficial as that of Ernie Adamson in 1946, or so tenuously "officialized" as that of Edward Sullivan in 1938. More recently, the chief counsel of a Senate subcommittee has drawn the criticism of subcommittee members for his handling of reports. In 1955 and 1956, the Senate Internal Security Subcommittee investigating communism chose radio and newspaper men as a focus. Directing the gathering of data, planning the strategy, and doing most of the interrogation during hearings was Chief Counsel Mien G. Sourwine, whose role in the investigation was said to be "greater than that of anyone else," including subcommittee members.71 Senator Thomas C. Hennings, Jr., a subcommittee member, objected particularly to Sourwine's procedures, and "repeatedly complained that hearings were called and reports issued by Mr. Sourwine without his knowledge."72 One Washington reporter said that Sourwine issued a handbook on communism under the imprint 73

COMMITTEE PROCEEDINGS of the committee, "despite the fact that most members of the committee knew nothing about the handbook and had not read it."73 Finally, there is the "memorandum" of Bernard Schwartz, chief counsel of the House Subcommittee on Legislative Oversight, written and published in January 1958. The memorandum was submitted to the subcommittee as a proposal for hearings on the Federal Communications Commission, one of the administrative agencies whose work the subcommittee was examining. The memorandum dealt in part with misconduct among commissioners, although no names were given. Submitted at an executive session of the subcommittee, it was rejected by a majority of the group, ostensibly because the members wished to "avoid political implications in the Subcommittee's work." 74 The group favored an investigation that would deal with "broad legal areas" of the agencies' work, and that would avoid specifics. As predicted by congressman Moss of the subcommittee, the memorandum was "leaked" to the press. Within two weeks after its rejection by the subcommittee, "key extracts from the text of the memorandum appeared in Drew Pearson's column."75 After that, Schwartz himself gave the text to the New York Times, which printed most of it.76 Leaks to the press from executive sessions of legislative committees are commonplace, of course.77 Newsmen who are their beneficiaries undoubtedly guard against possible libel in reporting executive session material passed on to them orally by congressmen whose names remain undisclosed. But the fact that an investigative report of a committee counsel has been received and acted upon by the committee in executive session makes the report only "official"; it does not make it "public." Schwartz' "memorandum" identified no individual, and libel was not a strong possibility; but similar secret documents, if libelous, might fail as the basis for privilege because of their secrecy. In these circumstances, it is not likely that a congressman would testify — as Senator McCarthy did in the Coleman case connected with the Fort Monmouth investigations — that release of executive session material had been authorized by the committee. In addition to the instances treated above, the legislator's report to interested citizens about individuals whose names appear in the various files of committees may at times be reports based on investigation — public or secret. Undoubtedly, the public files reports (Chap. IV above) of the House Un-American Activities Committee include material obtained at hearings. This was in all likelihood the case with the files of the Fact74

INVESTIGATIVE REPORTS Finding Committee on Un-American Activities in California (Tenney Committee), which was active during the 1940's. The files of this committee contained many thousand names, to which were attached references to organizations joined, speeches given, petitions signed, meetings attended, and similar material. Files also were kept for organizations. On occasion, Senator Tenney "would . . . provide information on individuals and organizations in response to specific requests from interested citizens."78 Where investigation stands behind secret and libelous material that reaches the press, there may be more basis for privilege than where it does not. But secret reports by committee counsel or investigators, and material such as the Un-American Activities Committee's Appendix Nine, leave large questions about the appropriateness of qualified privilege. And while Senator McCarthy's press conferences — authorized, he testified, by his subcommittee — have been ruled a proper basis for privilege, there are questions that remain unanswered in connection with them also.

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VI Committee Proceedings: CREATION OF SUBCOMMITTEES

NEWSPAPER reporters may have relatively little difficulty in recognizing that some committee activities described thus far are questionable as "public and official proceedings." The so-called public files are on their face rather secret; and Appendix Nine, after all, has been unfamiliar to or scarcely acknowledged by certain leading members of the House Committee on Un-American Activities. The "public files report" carries on its face a statement that it is "not the outcome of investigation"; the committee investigator's report may be a document that has not even been presented to the committee. It seems reasonable to think that reporters might be expected to be wary of such activity and such records, and realize that they are somewhat doubtful as the basis for the privilege of press report. But there are other committee activities whose official character is eroded in less apparent ways, whose possible irregularity of procedure is less plain, whose possible incapacity to support a plea of qualified privilege is more obscure. Defects in official proceeding may conceivably occur when congressional rules and precedents are violated in committees and subcommittees. What activities of this kind would the law say the newsman must recognize and report at his peril? Would his news story lose privilege if it reported libel from a subcommittee that was created irregularly? Would it lose privilege in reporting libel from a committee or subcommittee that lacked a quorum? Or would the courts say that that which appears to the 76

CREATION OF SUBCOMMITTEES newsman to be an official proceeding, is such for the purposes of privilege in the newsman's reports? There have been cases in which qualified privilege has failed because the reporter did not recognize technical procedural niceties, and conversely, cases in which courts have ruled that reporters could not be required to know fine procedural points that distinguish an "official proceeding" from something else. To take the latter first, two decisions have removed from the reporter the burden of determining whether minor courts had jurisdiction in cases on which news stories were based. In Lee v. Brooklyn Union Pub. Co., a newspaper printed an article based on a proceeding in magistrate's court, quoting an attorney as saying that Lee had stolen money from a church. Lee sued the newspaper for libel, contending that qualified privilege did not attach because the magistrate's jurisdiction over him was questionable. The court held for the newspaper, saying it was unimportant whether in fact the magistrate had jurisdiction. It added: The reporter could not be expected to know whether all of the requirements of law had been complied with, or whether everything said in the course of the proceeding was strictly relevant to the subject of the inquiry. . . . he was not bound . . . to determine doubtful questions of law.1 A similar decision was reached a few years later in Wisconsin. Hahn had been found guilty of theft before a justice of the peace, and on appeal it was ruled that the justice had not had jurisdiction in the case because no complaint had been filed. Meanwhile, Holum had printed a story of the guilty finding. Hahn sued him for libel, contending that qualified privilege did not hold because of the justice's lack of jurisdiction. The Wisconsin Supreme Court upheld the newspaper's defense, saying: It cannot be that the Legislature intended to exempt such reports only when the judicial officer proceeds regularly in the manner prescribed by law, thereby placing upon the reporter the burden of determining at his peril whether or not a particular proceeding is regular and that the judicial officer pronouncing the judgment has jurisdiction to do so.2 A recent case involving a grand jury reached a similar conclusion. A grand jury returned a "report," highly defamatory of Greenfield, that was neither an indictment nor a presentment. It was not a document on which Greenfield could be brought to trial, and it amounted to an unauthorized statement or finding by the grand jury. A newspaper published the report, and Greenfield sued for libel, arguing that the report was not an official 77

COMMITTEE PROCEEDINGS proceeding. But the court sustained the plea of privilege by the newspaper, saying: It would impose an unreasonable burden on newspapers . . . who wish to report on public proceedings to require them to determine at their own risk whether or not a court or grand jury was acting within or without its powers in a proceeding over which it clearly had apparent jurisdiction.3 If the above cases seem to indicate plainly that the reporter is "safe" so long as he is reporting that which purports or appears to be an official proceeding, there are cases that indicate the contrary and that seem to say the reporter should be conversant with certain procedural niceties. Some of them have been treated in previous chapters: It will be recalled that in most states, the reporter needs to realize that pleadings on file with a clerk of court, but not seen by a judge, are not "safe"; that oral reports from police and the written record called the "police blotter" are often not safe; that secret materials and that which has been stricken from a court record are not safe; that statements made about a case by a judge after he has adjourned court or before he convenes court are not safe. These situations, however, are relatively easy for the reporter to identify as something less than the official proceeding that protects him and his newspaper. Less readily identified as "dangerous" for reporting was the deposition in question in Mannix v. Portland Telegram, an Oregon case decided in 1933.4 The newspaper printed a story defamatory of Mannix, basing it on a deposition taken by a judge in his courtroom. Sued for libel, the Telegram pleaded qualified privilege, but the court held that under the Oregon statute, a notary public or any officer authorized to administer an oath could take a deposition, and no judicial action was involved. The judge was acting in a "ministerial capacity" only and not as a circuit judge in taking the deposition, and privilege did not attach. In this case, then, the reporter and newspaper were in trouble as a result of their failure to know the precise terms of a statute. In Texas, statute provides that privilege shall attach to news stories of "official proceedings authorized by law in the administration of law."5 A newspaper printed a story saying that Chandler had been implicated, by two men who were giving a confession to a district attorney, in a plot to rob a bank. Chandler sued the newspaper for libel, and its plea of privilege was not allowed by the court. The decision said that merely because it was within the district attorney's discretion to take confessions, there was 78

CREATION OF SUBCOMMITTEES no legislative mandate requiring him to do so. It did not feel that the privilege extended by the statute included all proceedings of an official which he might perform at his discretion.6 Here, then, the reporter and newspaper lost the immunity for lack of knowledge of that which the district attorney might do at his discretion and that which he was required to do. One case involving an unauthorized "report" of a grand jury reached a conclusion opposite to the Greenfield decision in similar circumstances, and was, in fact, specifically repudiated by the court in the Greenfield case.7 The "report" which was returned to the judge heavily castigated Poston for his lodging of a complaint against a railroad. The report was published in a newspaper. Poston sued the railroad for libel, charging that the railroad caused the publication of the report in the newspaper, and saying that the news story was not qualifiedly privileged. The court agreed, saying that Poston was attacked by an unauthorized document to which he could not reply, as he could have replied to an indictment or presentment; the report of the grand jury was beyond its special powers and jurisdiction, and "its publication is not a matter of privilege."8 Thus, although the position seems stronger which says that the reporter should not be under the burden of knowing detailed legal requirements of official proceedings, it is at the same time clear that not all courts offer the protection of qualified privilege merely because the official activity has a surface appearance of official proceeding. The fact is that newspapers and newsmen at times have lost the protection of privilege because that which they thought was a proceeding, that which on its surface appeared to be a proceeding, that which purported to be a proceeding, was not a proceeding that satisfied qualified privilege provisions. The reporter at times has needed to be an expert in technical requirements of proceedings. Moreover, in the above cases in which the reporter has been relieved of the burden of determining fine points of proceeding, the agencies conducting the proceedings were properly authorized agencies — courts in two cases, and a grand jury in another. It is not certain that a legislative investigating subcommittee which has been created irregularly may be called a properly authorized agency. Whether a court would hold that a subcommittee of a congressional investigating committee was less than an official proceeding for qualified privilege because it was created irregularly is questionable. Perhaps the rule in Lee v. Brooklyn Union Publishing Co. would hold, and reporters would not be required to "determine doubtful questions of law." Or pos79

COMMITTEE PROCEEDINGS sibly the Mannix doctrine would hold, and the reporter's lack of knowledge of legal requirements would be fatal to the protection of privilege. There seems to be enough uncertainty to warrant an examination of the matter of creation of subcommittees. Committee Practice in Creating Subcommittees The wide variations in congressional committee procedures discussed in Chapter II above are rather well demonstrated in the creation of subcommittees. Two committees which during the Eighty-third Congress had their own written rules were the Senate Committee on Labor and Public Welfare, and the House Committee on the District of Columbia. The Senate committee's rule as to creation was that "An investigating committee (subcommittee) may be authorized only by the action of a majority of the committee." The House committee's rule as to creation was that "The chairman shall have authority to establish subcommittees and to assign to them such functions as he may deem advisable."9 Thus, under written rules adopted by committee majorities, creation on the one hand was by committee action, and on the other hand by action of the chairman empowered by his committee. Many committees, however, have not adopted written procedural rules beyond the very general rules set out in Section 133 (a) of the Legislative Reorganization Act of 1946.10 That section has no reference to creation of subcommittees. In the absence of written rules applying specifically to subcommittee creation, practice ranges between the extremes indicated above in the rules of the Senate Labor and Welfare Committee and House District of Columbia Committee. There is little written record to resort to in learning how most committees create their subcommittees, since the function seems ordinarily to be performed in executive sessions, the minutes of which are largely secret. Nor are studies of the process available. The oral statements of a few congressmen and chief clerks of committees must suffice here to describe the creation process. During the Eighty-third Congress, the House Post Office Committee operated entirely with special subcommittees.11 Yet no subcommittees were formed without at least implicit approval from the whole committee, which might be merely silence at the chairman's statement, "Without objection, a subcommittee to consider the problem is hereby created."12 A similar situation obtained in the Eighty-third Congress in the House Public Works Committee.13 These creations approach or possibly equate with 80

CREATION OF SUBCOMMITTEES the creation under the rule of the Senate Labor and Welfare Committee. The House Committee on Agriculture of the Eighty-third Congress illustrated another procedure. It had three standing subcommittees, in addition to several special subcommittees which it called "subject subcommittees." 14 When the committee was in need of information on the problem of falling beef prices, the chairman, Representative Clifford R. Hope of Kansas, "talked to several committee members, and as a result of those discussions, decided to create a subcommittee to study the problem."15 He created the Special Livestock Subcommittee, and appointed the members. This procedure represents a modification of that which requires formal committee approval, yet perhaps retains the spirit of group approval. A third practice among committees that have no written rules is that in which the chairman takes the whole responsibility for the creation of subcommittees, as he could under the above-cited rule of the House Committee on the District of Columbia. Before the Eighty-third Congress, Representative John Rankin, Mississippi, had used only special subcommittees in the House Committee on Veterans' Affairs, of which he was chairman. With the Eighty-third Congress, however, Mrs. Edith Nourse Rogers, Massachusetts, became chairman. Dividing the whole area of work into smaller areas, she created standing subcommittees and appointed their members without formal committee consideration or action.16 It is clear that the House Committee on Un-American Activities at times has authorized its chairman to create subcommittees. But for what Congresses this authorization has been granted is not clear. During its second year, the Dies Committee adopted the resolution that ". . . the chairman be authorized to appoint subcommittees for the purpose of holding hearings and receiving testimony or evidence whenever he deems it advisable or necessary."17 But whether this resolution was adopted again by the Dies Committee hi later Congresses is not apparent from the record. The permanent committee in 1953 published for the first time a set of committee rules — a formal code, which it said had largely been in practice, if not formalized, for some time.18 It contained no mention of creation of subcommittees. However, the committee's annual report for the year 1956 disclosed that in January 1953 it had adopted a resolution during an executive session saying " . . . That the chairman shall have authority from time to time to appoint subcommittees composed of one or 81

COMMITTEE PROCEEDINGS more members of the Committee on Un-American Activities, for the purpose of performing any and all acts which the committee as a whole is authorized to do."19 Why this was not included among the codified rules published later the same year is not clear. The resolution may have been passed to lend authority and weight to the "one-man subcommittee," then under attack from many quarters; possibly the committee did not want to advertise, by publication in a code certain to be widely read, that it had given specific sanction to a heavily criticized agency. It seems to have been regular practice since that time for the committee to empower the chairman to create subcommittees. A general tightening of procedural forms in the committee has been apparent since the publication of the rules in 1953, and particularly since 1955 when Representative Francis Walter of Pennsylvania became chairman. It is the years 1938, and 1941 through 1952, that give us no record of committee authorization to the chairman to create subcommittees. It is those years that are most important to the discussion that follows, for they illustrate a practice that has long obtained in many congressional committees: the creation by chairman of subcommittees without grant of authority from the committees themselves. The process of creation by chairman is shown in the hearings record of the House Committee on Un-American Activities. Partly, this results from the chairman's "regularizing" procedure where he senses the possibility of contempt or perjury from recalcitrant witnesses: legal requirements for prosecution of these offenses are rather strict in the matter of procedure. Particularly since 1949, when a perjury case failed for want of procedural regularity in a committee, presiding officers of the Un-American Activities Committee have stated whether committee or subcommittee was sitting. The highly informal nature of subcommittee structure in this committee— at least until 1955 — also led to publicizing in the hearing records the creative procedure. The committee, under the Legislative Reorganization Act of 1946 and under resolution of the House at each new Congress, was (and is) authorized to investigate "as a whole or by subcommittee."20 In practice, this meant that the committee generally sat as a committee if a quorum — five of its nine members — appeared for a hearing, or as a subcommittee if fewer appeared.21 Thus the chairman himself often did not know from day to day whether committee or subcommittee would sit. Public hearings are conducted far more often by subcommittees than by committees. These subcommittees are nearly always special, rather 82

CREATION OF SUBCOMMITTEES than standing, subcommittees, and for years their membership ordinarily was whoever appeared or could stay for the hearing.23 Under this procedure, the personnel of the subcommittee might change from day to day, from morning to afternoon, or from hour to hour. Because of the committee's concern as to certain phases of procedure, such shifts often have been recorded in the hearing records, and the creative process has been illuminated in the records as changes in members present required new statements from the chairman as to the status of the agency. Representative Dies was chairman of the Special House Committee on Un-American Activities throughout its life, from 1938 to 1944. Published hearings and reports show little of formal procedure that may have been followed by the chairman. Through 1938 and part of 1939, the records show that Dies merely commenced the hearings with "The committee will come to order," or, at times, without this much formality.24 There was no indication as to how subcommittees (which often consisted of Dies or another member alone) were created. However, at the start of the hearing of August 16,1939, Dies announced that the committee, in executive session, had adopted the resolution noted above that empowered him to create subcommittees.25 Whether this resolution was adopted again by the special committee in later Congresses is not apparent from the record. If it may be assumed that it was adopted during subsequent Congresses — and the assumption does not seem a safe one — the special committee functioned for five years with a group grant of authority to its chairman to create subcommittees. After 1945, when the special committee died and the permanent committee was born, the first record of similar resolutions by the group appears in executive session minutes of 1953, published first in 1957. Yet committee chairmen have not relied on this authorization at public hearings in their statements of power to create. The first chairman of the standing committee was Representative Edward Hart, N.J., who served through the first half of 1945.26 The only public hearings conducted under his chairmanship concerned the Office of Price Administration. The published hearings of the committee show very little of procedure, and one cannot be sure whether the committee sat as a committee or as a subcommittee during the three days of public hearings conducted while Hart was chairman.27 Hart gave no indication as to his conception of his power to create and appoint subcommittees, although on one occasion when Representative John Rankin, Mississippi, 22

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COMMITTEE PROCEEDINGS presided, Rankin said at the outset that the chairman "had to go away on some other matter this morning and asked me to preside."28 Hart was succeeded by Representative John Wood, Georgia, who served during the rest of the Seventy-ninth Congress in 1945 and 1946, and during the Eighty-first and Eighty-second Congresses — from 1949 through 1952. Wood was much concerned with procedural regularity insofar as constitution of the group as committee or subcommittee was concerned. On many occasions, his statements at the outset of hearings were similar to this: Mr. Reporter, let the record show that, acting under the authority of the resolution establishing the House Committee on Un-American Activities, I have set up a subcommittee composed of Representatives Francis E. Walter, Clyde Doyle, Harold H. Velde, and myself, John S. Wood, as chairman, all of whom are present, and for the purpose of conducting hearings, beginning today. . . .29 However, on some occasions he cited no authority for creation or appointment of subcommittees, saying only, ". . . this hearing is being conducted by a subcommittee, designated by the chairman. . . ."30 Wood's interpretation of his creative powers under the authority of the resolution establishing the committee is extremely broad. No words in the resolution authorize the chairman to create subcommittees; the reference to subcommittees in the resolution is "For the purpose of any such investigation, the Committee on Un-American Activities, or any subcommittee thereof, is authorized to sit and act ... as it deems necessary."31 The chairman's powers are defined only as to issuance and serving of subpoenas.32 Representative J. Parnell Thomas, N.J., served as chairman during the Eightieth Congress, in 1947 and part of 1948. Thomas took no note of any authority for creation of subcommittees, merely naming members present and saying "A subcommittee is sitting."33 On one occasion, his lack of concern for procedural niceties appeared in a blanket authorization-in-advance of some kind of hearing agency. He announced at the outset of a hearing: . . . the committee will sit either as a subcommittee or a full committee throughout this week. We have a heavy schedule, and due to the fact that Congress is in session and it will be necessary for various members of this committee to be on the floor of the House, we have made arrangements within the committee so that there will always be one member of the committee here to act as chairman.34 84

CREATION OF SUBCOMMITTEES Whether Thomas ordained this fluctuating agency or the committee authorized it is not clear. The words "we have arranged" may have indicated a formal committee vote on the matter, or an edict by Thomas to his members or some other informal provision. The membership of the agency — neither committee nor subcommittee and yet both — shifted radically throughout the day,35 and also changed at other sessions during the week. Representative Harold Velde, Illinois, followed Wood, and served as chairman during the Eighty-third Congress in 1953 and 1954. Velde on one occasion used the "authority of the House of Representatives" as the basis for designating a subcommittee.36 More often, however, he merely said "I have appointed a subcommittee consisting of . . ." or "it becomes necessary for me at this time to appoint a subcommittee."37 Why he did not use the resolution of 1953 authorizing the chairman to create subcommittees is obscure. In 1955, Representative Francis Walter, Pennsylvania, became chairman. His statements as to his creative power have been of this nature: "Let the record show that pursuant to law, I, Francis E. Walter, chairman of the Committee on Un-American Activities, have appointed a subcommittee composed of Representatives Edwin E. Willis . . . Gordon H. Scherer . . . and myself, as chairman, to conduct these hearings."38 He seems not to have elaborated on the phrase "pursuant to law," and why he too ignored the committee's empowering resolution for creation is not clear. The above examples indicate that the chairmen of the House Committee on Un-American Activities feel it is their clear prerogative to create subcommittees. In 1954, Representative Walter, then senior minority member of the committee, said that the committee does not have to constitute or create a subcommittee, and that "The chairman does it at any time."39 Walter, a Democrat, took no exception to the use of the practice by committee chairman Velde, a Republican, although in certain other procedural matters he was in severe disagreement with Velde. Nor did it occur to Representative Clyde Doyle, an attorney, to object to the practice in his lengthy consideration of possible rules for the committee.40 Under this conception of the chairman's prerogatives, the agency has had flexibility that permitted adjustment to any situation. At the chairman's will the committee has become a subcommittee in an instant or over the lunch hour;41 that which was a subcommittee of seven members under the committee chairman has become a subcommittee of two members 85

COMMITTEE PROCEEDINGS under a different presiding member;42 that which was a subcommittee under McSweeney on Monday has become a subcommittee under Walter on Tuesday (despite Walter's absence Monday and McSweeney's presence Tuesday) and a subcommittee under Moulder on Wednesday.43 To summarize, practice in creating subcommittees differs widely among committees of Congress. It varies from that in which the group retains all control over the creative act to that in which the chairman exercises creative power without doubt that it is his to employ. While resolutions of the House Committee on Un-American Activities have sometimes authorized creation by chairmen, for most of the committee's life the record is unclear. Dies, Thomas, Velde and Walter have indicated their attachment to creation as a prerogative of the chairman. It is necessary next to examine the relationship of creation as practiced by the committee to congressional rules that have a bearing on the creative power of chairmen. Rules Applying to Creation of Subcommittees The Constitution provides that "Each House [of Congress] may determine the Rules of its Proceedings."44 The House of Representatives forms its procedural rules in three ways: by custom and tradition; by rulings of speakers of the House and chairmen of the Committee of the Whole; and by express rules, established in statute or in resolution. A discussion follows of each method as it relates to the creation of subcommittees. CUSTOM AND TRADITION

The legislative student W. F. Willoughby shows that much House activity is carried on by unwritten rules, or conventions. For example, so far as formally adopted rules of the House are concerned, there is nothing to prevent the party in power from taking to itself the entire membership of all committees. "That they have not done so is entirely due to the development of a mere convention or unwritten rule in accordance with which representation upon all committees is given to the minority political party." 45 Furthermore, only convention provides that representation of the minority on the committees is measured, by and large, by the relative strength of the minority party in the House. Convention provides also that the majority party limits its control over committee composition to fixing the numerical representation of the minority party on each committee, permitting the minority to name what members it wishes to serve.46 Such conventions are custom and tradition, established over the years

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CREATION OF SUBCOMMITTEES as the House or Senate has found them convenient, efficient, or workable. Many others could be noted here, such as the speaker's custom of alternating between members opposing and favoring a matter, in recognizing members during debate on the floor; and the reference of bills to committees by the speaker, "which in practice ordinarily means a parliamentary clerk."47 Among the much-criticized and much-defended customs and traditions of both Houses is seniority rule. Under it congressmen of long standing get preferred committee assignments, preferred rooms in the congressional office buildings, and even preferred seats at official dinners.48 Length of service, of course, also determines rank on committees, and a member, once appointed to a committee, ordinarily may remain on it as long as he wishes.49 Committee chairmen are very likely to be the older members of Congress— both in years and in service — under the seniority system. These "elders of the assembly"50 gather to themselves prestige, power, and wisdom in matters of procedure, through years of experience and acquaintance with important government officials and agencies. Such attributes make them so important that the American system of legislation is sometimes described, in Wilson's terms, as "a government by the chairmen of the standing committees of congress."51 Much of the chairmen's power accrues to them by custom. Galloway, who has described their powers, is speaking mostly of customary powers when he says, in part, that chairmen . . . arrange the agenda of the committees, appoint the subcommittees, and refer bills to them. They decide what pending measures shall be considered and when, call committee meetings, and decide whether or not to hold hearings and when. They approve lists of scheduled witnesses, select their staffs and authorize staff studies. . . . They are in a position to expedite measures they favor and to retard or pigeon-hole those they dislike.52 One of the most apparent ways in which the chairman's customary power is illustrated is in his control over the bills that issue from his committee to the floor of the House. This power was described years ago by Representative Sydney Anderson of Minnesota, who said it was employed under an "unwritten, and I believe . . . unbroken, rule."53 He said that no committee majority had ever reported a bill without the consent of the chairman; and that the chairman's obstructive power can be exerted at 87

COMMITTEE PROCEEDINGS any of the various stages of the bill's progress toward passage. "It is obvious that the power to say that legislation shall not be considered is the power to legislate," according to Anderson.54 Another power held by the chairman without benefit of formal rule is that of control over the staff of his committee. The Legislative Reorganization Act of 1946 requires that the committee itself, by majority vote, appoint staff members. But recruiting and selection of professional and clerical staff continue to be regarded as prerogatives of the chairman, "with majority approval too often a pro forma affair." 55 As to discharging staff members, the House committee chairman's power is also great despite a House rule that provides that a committee may by majority vote discharge any staff member.56 Representative Harold Velde, as chairman of the Committee on Un-American Activities, took it upon himself to discharge the chief investigator of the committee in 1954 without approval of the committee. While the committee Democrats were incensed at Velde's action, saying it violated an agreement made in the committee as to the matter, they did not dispute Velde's power to discharge the staff member.57 The extreme to which a chairman can go in dominating the function of a committee perhaps is illustrated in the activities of Representative Martin Dies as head of the Special House Committee on Un-American Activities, in 1941. In August of that year, the record of the committee as a committee ceased. "Its place had been taken by a one-man agency [Dies] which could not properly be called administrative and yet could not be called legislative."58 Dies, to all intents and purposes, had become the committee, and abandoning public hearings, he alone utilized the information gathered by the committee investigators. The committee became, more than anything else, "a denunciatory agency," composed of Dies alone.59 The power of the committee chairman, then, is great, is of long standing, and depends in considerable measure on custom and tradition. Under these circumstances, it seems natural that some chairmen assume, without apparent qualms, that they have the power to create subcommittees without benefit of their committees' grant of authority. RULINGS OF THE SPEAKER OF THE HOUSE

The House speaker's procedural authority is expressed hi the statement, "The rulings of the Speakers of the House and of the Chairmen of the Committee of the Whole are to the rules of the House what the decisions of the courts are to the statutes."60 More than 11,000 of these procedural 88

CREATION OF SUBCOMMITTEES rulings are gathered in eight volumes of the Precedents of the House of Representatives.61 In addition to the rulings, accounts of the manner in which the House has acted under circumstances in which rulings of speaker or chairman of the Committee of the Whole were not involved, are carried in the Precedents. Rulings that apply to committees are scattered through several volumes of the Precedents. Subcommittee procedure, however, has been of small moment in the problems treated over the years. The rulings and procedural descriptions do support the committee's creation of subcommittees or delegation of discretionary powers to subordinate agencies. There are no rulings that define at all clearly the committee chairman's creative powers. In proceedings to impeach judges or other government officials, the House has delegated to its Judiciary Committee the task of investigating charges against the officials. In so doing, it has at times referred the investigation to the committee by resolution.62 In 1916, such a resolution was requested by the committee for its investigation of the conduct of H. Snowden Marshall, U.S. District Attorney for the southern district of New York.63 The resolution was adopted as requested, and read: The said committee is ... authorized to appoint a subcommittee to act for and on behalf of the whole committee wherever it may be deemed advisable to take testimony for said committee. In case such subcommittee is appointed it shall have the same powers in respect to obtaining testimony as are . . . given to the Committee on the Judiciary. . . ,64 Under this authorization by the parent body, the committee established a three-man subcommittee which took testimony in the case and reported to the committee, which in turn reported to the House. Substantially the same procedure has been followed in other impeachment proceedings.65 The process demonstrates the flow of power from the highest group level to the lowest group level, with group action taking place at proper points along the way. In 1921, the House Ways and Means Committee passed a resolution authorizing its chairman and members he selected to report to the House, amendments (found by the committee to be advisable or necessary to perfect a bill) to a bill.66 The committee's task apparently included perfecting the wording of the agreed-upon amendments and submitting the new wording to the House. The reporting of the amendments to the House was challenged on the ground that the whole committee, or a majority of it, had never met to approve the perfected wording. 89

COMMITTEE PROCEEDINGS The speaker ruled that the committee sitting formally "had full authority to adopt the resolution . . . authorizing the designation of several members of the committee to submit the motions. . . ."6r It was not necessary that a committee majority pass on the new wording under these circumstances, he said. The committee as a group saw that a specific piece of work needed to be done, designated it, and provided for its execution. It was as though the committee were authorizing a special subcommittee on perfecting and reporting, of which one member was to be the chairman and the other members were to be appointed at his discretion. This procedure paralleled closely that prescribed in House rule for creation by the House itself of a special committee — a rule that had been in existence sincelSSO.68 The above cases support the principle of orderly downward transfer of power and authority, within the framework of the group. As such, they strengthen the concept of committee action as appropriate to the creation of subcommittees. They neither contribute to nor specifically detract from the concept of chairman's action as appropriate to the creation of subcommittees. Precedent that strengthens the one does not necessarily weaken the other. RULES ESTABLISHED BY RESOLUTION OR STATUTE A third body of rules for the guidance and regulation of committees is found in statutes and resolutions of the Houses of Congress and in written codes of the committees themselves. Congress' first establishment of procedural rules by statute occurred in the Legislative Reorganization Act of 1946; before this, rules were adopted by resolution or motion.69 In addition, the House of Representatives, because it is not considered a continuing body, adopts rules for each new Congress by resolution, and this resolution, among other things, puts forth the powers and duties of committees.70 The broadest of the House rules in regard to committees provides that "The rules of the House are the rules of its committees so far as possible. . . ."71 Read literally, this rule would indicate that committee creation of subordinate bodies (subcommittees) should parallel House creation of subordinate bodies (committees).72 House creation of subordinate bodies is handled as follows: Standing committees: created by act of the House; members elected by the House.73 90

CREATION OF SUBCOMMITTEES Select (special) committees: created and appointed under the rule, "The Speaker shall appoint all select . . . committees which shall be ordered by the House from time to time."74 In the light of these rules, a reasonable analogy seems to be that the standing subcommittee should be created and elected by the committee itself; and the special subcommittee should be created by the committee and its members appointed by the committee chairman. It appears that committees seldom if ever elect the membership of standing subcommittees, as the analogy seems to call for. Lewis Deschler, parliamentarian of the House of Representatives, has said that he recalls no case where House subcommittee members were elected by the committee membership.75 Rather, the membership of subcommittees is designated by chairmen, often after consultation with members to learn their preferences for specific subcommittees. As to creation of subcommittees, however, some committees have followed the letter or the spirit of the system prescribed for the House itself. This was the case with the House Committee on Government Operations during the Eighty-third Congress, when it adopted a written rule providing for creation of subcommittees only by action of the full committee.76 And, as indicated above, approval by the full committee of each creative act by the chairman has been employed by committees that have no written rules, such as the House Post Office Committee and the House Public Works Committee.77 There is little indication that committees follow this procedure because they feel bound by the broad rule that rules of the House are the rules of the standing committees. In the case of the House Government Operations Committee, the rule was adopted following severe controversy between chairman and committee, and was clearly an attempt to curb the chairman's creative powers.78 Where the practice is followed without written rule calling for it, it seems to be done out of a feeling for procedural regularity, rather than out of recognition that the broad House rule governs. Many committees, of course, do not follow the House practice in creating subordinate bodies. It is important to examine here reasons that might be used to justify ignoring an analogy between House and committee creation of subordinate bodies. In the first place, the broad House rule reads, "The rules of the House are the rules of its committees so far as possible. . . ." (emphasis supplied). It might be argued that the House rules for committee creation are 91

COMMITTEE PROCEEDINGS not applicable to subcommittee creation because subcommittees are different from committees in function and structure.79 No doubt examples of such differences could be found, but the parallel between the committee as a subordinate agency of the House and the subcommittee as a subordinate agency of the committee needs no broad interpretation to establish it. The standing committee is established to handle a single, broad category of work; the standing subcommittee is established to handle a single, narrower area of work within the broad category. The standing committees are perpetuated from Congress to Congress; the standing subcommittees continue from session to session, and often from Congress to Congress.80 The similar function of the two has been described thus: "When a committee assigns a bill or bills to its subcommittee, that group functions for all practical purposes, just as a full standing committee. . . ."81 The parallel is as close for the special committee and special subcommittee. The special committee is a temporary, ad hoc agency set up by the House to investigate a particular problem. It is characterized in part by the fact that it expires with the Congress which created it, and by its lack of authority to report bills.82 The special subcommittee is an ad hoc agency set up by the committee to handle a particular bill or problem (or, as in the case of the House Un-American Activities Committee, to handle a particular hearing or part of a hearing). It expires automatically when its particular job is done, and it reports its recommendations only to its committee.83 In sum, denying that an analogy should be drawn between House and committee creation of subordinate bodies, on grounds that structures and functions of committees and subcommittees are different, seems of small validity. The analogy between committee and subcommittee creation can also be attacked on grounds of custom and tradition. It might be said that a committee's practice — custom and tradition — could have the effect of rule, and that merely the matter of what is convenient has led committees to accept the chairman's creation of subcommittees. However, as will be pointed out below, the Supreme Court in 1949 applied a written congressional rule governing committee procedure, in preference to congressional custom and tradition.84 The strongest basis for attacking the analogy between House and committee creation of subordinate bodies seems to lie in a third approach. 92

CREATION OF SUBCOMMITTEES This is that committees have considerable power to regulate their own procedures under precedents and rulings of House speakers which provide that "A committee may adopt rules under which it will exercise its functions."85 Committees have formulated procedural rules since at least 1838.86 Rulings by speakers of the House permit committees considerable latitude in shaping their own procedural regulations. Detailed codes have been established by committees increasingly since 1952 under this power.87 Furthermore, specific deviations from the broad rule calling for a parallel between House and committee procedure do stand approved by the House in some instances, as indicated 'above.88 At least two committees of the House have at times established as written rule the provision that the chairman may create subcommittees as he sees fit.89 Such a deliberate, recorded act of a committee functioning as a group to provide a departure from the rules that indicate parallel House and committee procedure in establishing subordinate bodies, might be acceptable to the House and to the courts. The chairman's assumption of the creative power without the committee's granting it seems less likely to be acceptable, if put to a test. A committee's rule-making power, then, seems to be a stronger basis for attacking the analogy between House and committee creative procedure than either of the other bases — differentiating function and structure, and relying on custom and tradition. If it were accepted by a House speaker or by the courts, it would mean accepting the orderly, recorded transfer of a considerable power from the committee acting as a group to the chairman. Whether it would constitute too great a yielding of group power to an individual to receive the sanction of the speaker or the courts is a question that cannot be answered here. To summarize the application of the three bodies of rules to the creation of subcommittees: The creation of subcommittees by chairmen without grant of authority from their committees is supported by custom and tradition. Among the many conventions by which Congress operates are those that give chairmen large powers. Some chairmen have assumed that these powers include that of creating subcommittees without grant of authority from their committees and have acted accordingly. Rulings of the speaker of the House support a committee's power to 93

COMMITTEE PROCEEDINGS delegate to individuals discretionary authority that it defines. They say nothing, however, about a chairman's power to do the same. Rules that the House has adopted by resolution and statute are in some conflict with the custom of subcommittee creation by chairmen. Nowhere do they give clear support to the custom. This study cannot say that one or the other — custom or written rule — governs. There may be some clues to an answer in the court rulings.

The Courts and Committee Procedure The purpose here is to examine court decisions in respect to written rules and rules of custom and tradition in Congress. Are there indications as to how the courts might rule if a subcommittee were challenged as being procedurally defective because it was created by a chairman? Would the courts give more weight to written rules than to the rule of custom? The courts' attitude in choosing between custom and tradition on the one hand, and House rule on the other, is indicated in one case of the past decade. A few other cases touch on the matter of creation of subcommittees. Neither problem seems to have led to much litigation. In Christoffel v. United States, Christoffel was accused of perjuring himself while giving testimony before the House Committee on Education and Labor.90 The District of Columbia perjury statute permitted conviction only if the perjury was committed before a "competent tribunal."91 The Supreme Court held that the prosecution had failed to establish affirmatively that a committee quorum was present at the time of the alleged perjury, and a committee lacking a quorum was not a competent tribunal under House rule. The rule, part of the Legislative Reorganization Act of 1946, was that no measure or recommendation could be reported from a standing committee to the House unless a majority of the committee had been present and voted for reporting it.92 The rule had been in effect as a ruling of the speaker as early as 1918, the court said. By analogy, it applied the quorum requirement to the taking of testimony by the committee: the House says that to be competent, a committee must have a quorum, the court held.93 The application of this written rule was agreed to by a bare majority of the court. Four dissenting judges preferred a rule of custom and tradition. They relied on the fact that a quorum had been established at the outset of the hearing, two or three hours before Christoffel testified, and said that by the custom of all parliamentary bodies a quorum was presumed to 94

CREATION OF SUBCOMMITTEES 94

continue until challenged. The committee record that showed a quorum present before the questioned testimony occurred was entitled to full credit, the minority held. It argued against the court's even accepting a challenge to legislative procedure: where impeachment of legislative bills for procedural irregularity has been sought, the minority pointed out, the court has refused to review the cases, holding it must accept the record of passage on the face of the bills. Such is the respect due to coequal and independent departments of government.95 Four years later, in United States v. Weinberg, perjury was charged against a witness who had testified at an executive session of the House Committee on Un-American Activities.96 At the trial, the defense counsel requested that the minutes of the executive session be produced, to determine whether a quorum was present. The court suggested that the House present the minutes, saying that "unless a quorum of the committee was present the prosecution fails."9T The court relied on the Christoffel decision. The prosecution here made no attempt to employ any rule of custom and tradition. A third case was Emspak v. United States.98 Here the charge was contempt for refusal to answer certain questions at a hearing before a oneman subcommittee of the House Committee on Un-American Activities. The appellant argued that the prosecution had failed to establish that the subcommittee was a valid one. The court ruled that it was clear from the hearing record that the subcommittee was valid. The record showed that the acting chairman had "identified the subcommittee and recited the authority under which it was constituted."99 This identification and recital of authority was made by Representative Morgan M. Moulder, the committee member present. It read: Let the record show that on November 8, 1949, the Honorable John S. Wood, chairman of the Committee on Un-American Activities, ordered, authorized, and directed Morgan M. Moulder, a member of this committee, as a subcommittee thereof, to hold, conduct, and preside over hearings scheduled for this day.100 The court was accepting on its face value the record of creation of subcommittee by the chairman. The appellant did not challenge the chairman's power to create this subcommittee.101 It seems quite possible that the court would have entertained such a challenge, if it had been made on the basis of congressional rules as to creation of subordinate bodies. How 95

COMMITTEE PROCEEDINGS the court would have decided as to the chairman's powers is of course another question; the uncertainty of the answer is the central subject of this chapter. In a fourth case, charging contempt of a subcommittee, the trial court dismissed the indictment on grounds that it could find no grant of authority to the subcommittee. And while the point was neither upheld nor overruled on appeal (the appeals court holding for the defendant on other grounds), the reasoning involved in it is important here. In this case, considerable uncertainty is indicated as to a committee chairman's power to authorize a subcommittee. The case was United States v. Lamont. Corliss Lament was indicted by a grand jury for contempt in refusing to answer questions put to him by Senator Joseph McCarthy, sitting alone as the Permanent Subcommittee on Investigations of the Senate Committee on Government Operations. Four Senate statutes and resolutions were cited in the indictment, but the federal district judge could find in them no grant of authority to the permanent subcommittee, and dismissed the indictment.102 Assuming that the Senate Committee on Government Operations had the power to conduct the inquiry, the court said the basic issue was "whether that power was ever delegated to the Permanent Subcommittee on Investigations. . . ."103 Assuredly, Public Law 601 authorized "Each standing committee of the Senate, including any subcommittee of any such committee," to sit and act (as the same law did for subcommittees of the Un-American Activities Committee).104 But that was no delegation of power to the Permanent Subcommittee on Investigations, and The cornerstone of the Government's case . . . must be a lawfully constituted committee. . . . This is the hard core of its case against the defendant and he is entitled to have it pleaded in the indictment. The obsecurity of the [sub] committee's origin points up the need for such an allegation. . . . And if no authority was ever delegated to the Permanent Subcommittee by the parent committee or the Senate, there is no basis for prosecution. 105

Some resolution or authorization empowering the permanent subcommittee to act, the court said, might well exist somewhere, but it was not revealed in the indictment.106 The very statutes and resolutions referred to in the indictment failed to disclose that any power to conduct the particular inquiry was ever delegated to it. 96

CREATION OF SUBCOMMITTEES The only manifest difference between the authorization for the Moulder subcommittee in the Emspak case and that for the McCarthy subcommittee in the Lament case was contained in Moulder's recital of authority. Moulder said that chairman Wood "ordered, authorized, and directed" Moulder to hold the Emspak hearing.107 McCarthy made no such statement authorizing and directing himself to hold the Lament hearing. Wood, as chairman, was accepted by the court as having sufficient power to authorize a subordinate member to hold a hearing; yet chairman McCarthy's own presence was not sufficient indication of power to be accepted by the court in the later case. And, indeed, the court said in the Lament case that "No committee of either the House or Senate, and no Senator and no Representative, is free on its or his own to conduct investigations unless authorized."108 The Lamont case did not state flatly that a committee chairman is without power to authorize and create a subcommittee. It refused, however, to recognize a chairman's presence as indication that a subcommittee had been authorized, and required instead some specific delegation of authority from committee or Congress. The House Committee on Un-American Activities at times has authorized its chairmen to create subcommittees, but for most of its life there is no public record indicating that it has done so. In summary, the above cases show the courts' preferring the written procedural rule of Congress to the rule of custom and tradition (Christoffel, Weinberg), and both denying (Emspak) and agreeing with (Lamont) the claim that the prosecution had failed to prove the subcommittee valid. What do these decisions portend for a case in which a subcommittee created by a chairman might be challenged as less than a legislative proceeding? The only reasonable answer is that they indicate uncertainty. In the first place, would the courts hold that "legislative proceeding" is to be put to as strict a test as "competent tribunal" was in the Christoffel case? Might not "legislative proceeding" be subject to a broader, looser interpretation than "competent tribunal"? Or, on the other hand, might the courts say, as in the Christoffel case, that "The question is ... what rules the House has established and whether they have been followed"?109 Where the Un-American Activities Committee is concerned, does the resolution creating the committee have so broad an effect that it overrides specific rules of Congress as to creation of subordinate bodies, and, though lacking specific provision, permits creation of subcommittee by chairman 97

COMMITTEE PROCEEDINGS through some "invisible radiation"? Or would a challenge that struck directly at this point resolve the uncertainty in favor of the specific congressional rules as to creation? Would the ChristofM decision in future cases give greater weight to written congressional rules than to rules of custom and tradition? Or would the courts see any validity in a distinction between written and customary rules where the facts and the issues were different from those in the Christoffel case? If the reasoning in the Christoffel decision were applicable to a case where a subcommittee created by chairman was challenged, would the present Supreme Court accept this reasoning? The Christoffel decision was a highly unpopular one in many quarters, where the dissent was seen as the proper reasoning.110 Further, it has been said that the Christoffel reasoning was abandoned by the Supreme Court in the subsequent contempt case, United States v. Bryan.111 On the other hand, the Bryan decision in part said that Christoffel was inapposite,112 and nowhere made any express denial of the Christoffel decision. Also, some legal commentators find that the Bryan decision did not overrule Christoffel;113 and the Christoffel rule as to quorum has been applied in at least one subsequent case in federal trial court. These questions and more could be raised, and none answered with confidence. The issue, of course, has not been adjudicated, and its resolution remains uncertain.

The Press and the Subcommittee Created by Chairman For the newspaper that publishes defamation issuing from a legislative agency created by a committee chairman, implications emerge thus: First, congressional committee chairmen — including some chairmen of the House Committee on Un-American Activities — frequently create subcommittees without apparent authorization by their committees. Second, House rules exist that seem to contradict this practice. Third, the Supreme Court has held that procedural regularity according to House rule is necessary if a House committee is to be a "competent tribunal" under the District of Columbia perjury statute. Fourth, it seems possible that the courts might hold that procedural regularity according to House rules is also necessary if a legislative subcommittee is to be a "legislative proceeding" under state statutory and common law provisions that define qualified privilege for the press. The 98

CREATION OF SUBCOMMITTEES question is whether the subcommittee created by a chairman without grant of authority from his committee would be a legislative proceeding in the eyes of the courts. If not, the newspaper that printed a false charge of "Communist" made before such a subcommittee could not, if sued for libel for the printing, receive the protection of qualified privilege. Newspapers regularly print charges against individuals of "Communist" or "Communist sympathizer" that issue from agencies created by committee chairmen. Selected instances between the years 1938 and 1954 are described below. Before the Dies Committee authorized the chairman to create subcommittees, members of the committee held hearings in Washington, D.C., on communism in California.114 The dates were October 24 to October 27, 1938, two years before Dies began recording members present at hearings. It appears that only Dies and Representative Joe Starnes were present for the hearing on the first day, Starnes alone for the second day, and Dies alone for the third day.115 The witnesses, Harper L. Knowles and Ray E. Nimmo, named hundreds of persons as Communists or subversives; the charges were so numerous that "a hundred thousand dollars would not have been sufficient to investigate even a fraction of them."116 Press associations carried many of the names, and they were published in hundreds of newspapers.117 With Representative Thomas as committee chairman, a fluctuating agency that he announced would sit during the week of July 21, 1947, heard the testimony of Walter S. Steele.118 The witness identified himself as chairman of the National Security Committee of the American Coalition of Patriotic, Civic, and Fraternal Societies. Steele named literally thousands of persons whom he associated with subversive activity, during a day's testimony that has been called possibly "the most irresponsible ever presented to the Un-American Activities Committee."119 At various times, the committee hearing agency consisted of Representatives Nixon, Vail, and Thomas; Thomas alone; Bonner alone; McDowell and Bonner; and Thomas, Vail, and Bonner.120 An account of all the names and organizations listed by Steele would have occupied many columns of newsprint. Newspapers did not carry inclusive lists, but many names given by Steele were printed, including those of several prominent radio commentators.121 Again, wire services issued the names to hundreds of newspapers.122 During the hearings of February and March 1950, members of the committee heard testimony of one Matthew Cvetic, who had joined the Com99

COMMITTEE PROCEEDINGS munist party as an agent for the FBI. Cvetic named hundreds of persons from western Pennsylvania as being Communists. The hearing agency began sessions on February 21 with McSweeney, Moulder, and Kearney present; on the 22nd continued with Walter and McSweeney; and on the 23rd with Moulder, Kearney, and Case. On March 13, a quorum of the full committee of nine began the hearing in the morning, but Walter and Wood were alone in the afternoon. On March 14, Walter and Kearney began the hearing in the morning, and Harrison conducted it alone in the afternoon.123 On February 23 only, authority for creation of the subcommittee was printed in the record: Representative Moulder, acting as chairman, said the subcommittee was "authorized and directed by the chairman, Hon. John S. Wood."124 Once again, wire services carried and newspapers printed names issuing from the hearings without apparent concern for the possibility that the legislative agency might be defective as legislative proceeding.125 In July 1954, Dr. Wilbur Mahaney, who had been cited for contempt of Congress for an earlier refusal to give the committee names, appeared before the committee and said he had had a change of heart. Testifying before a three-man subcommittee on communism in Philadelphia, he named 16 persons whom he had known as Communists.126 The Associated Press carried all the names, and they were printed in newspapers.127 The concern of newspaper people about the creation of subcommittees is expressed in various ways. Elisha Hanson, for years counsel for the American Newspaper Publishers Association, has said that reporters cannot be expected to be lawyers and parliamentary experts who know nice differences and definitions as to proceedings. If the activity appears on the surface to be an official proceeding, that is enough to protect the newsman's report, he feels.128 Jerry O'Leary, a veteran Washington Star reporter, has said that some newsmen follow this rule of thumb: where witnesses are sworn, the reporter considers the committee hearing "safe" for reporting.129 Another long-experienced Washington reporter, C. P. Trussell of the New York Times, has said that every case requires a new decision by the reporter, and that "It is merely a practice of playing privileged and unprivileged matter by ear. Chances are taken at times." 13° While a strong case exists for Hanson's position, the uncertainty expressed by Trussell is scarcely to be ignored. He and reporter Nat Finney of the Buffalo Evening News, who was quoted earlier herein, have been 100

CREATION OF SUBCOMMITTEES disturbed precisely because they knew something of the technicalities of procedure, and were unsure as to how much more knowledge the courts might require of them as reporters. For some five years, committee chairman Wood said he acted "under the authority of the resolution establishing" the committee, hi creating subcommittees. No express authority to create subcommittees existed in that resolution. Might the courts think it reasonable that the newspaper reporter who reported the hearings of the committee week after week and month after month should know the content of the resolution and realize that it said nothing about a chairman's powers? When the question of congressional committee procedure itself is a national issue causing intense, sustained controversy, as in the period 1950-1955, might the press be expected to understand that which it reports daily? Or would the courts relieve the newspaper reporter of the responsibility of knowing whether a subcommittee is a subcommittee or merely one or more congressmen sitting in a hearing room?

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VII Committee Proceedings: QUORUM

THE courts, then, have not yet ruled clearly about the sufficiency of a subcommittee created irregularly. For some purposes, however, they have ruled as to the sufficiency of a committee that lacks a quorum: it is not a "competent tribunal" where perjury before a committee is the issue. Lack of quorum in a committee when alleged perjury is committed prevents a conviction for that. That is not to say that an "incompetent tribunal" for perjury is the same thing as "unofficial proceeding" for qualified privilege in libel. It is rather to say that a rough analogy is available in speculating about whether a news report of defamation from a committee lacking quorum would be protected by qualified privilege. Does lack of quorum render a committee something less than an official proceeding for purposes of libel, as it renders a committee less than a competent tribunal in perjury? In considering this question, uncertainties arise in the same manner as in the previous chapter. The first is whether a newsman would be held responsible for knowing whether a quorum of a committee were present. Here, of course, the Lee doctrine which says that the reporter is "not bound . . . to determine doubtful questions of law" is posed against the Mannix doctrine which did not excuse the reporter from special knowledge of what constituted a judicial proceeding. What the federal courts might hold, or what the courts might hold in certain states whose legislatures employ investigating committees, is uncertain.

The Courts and Committee Quorum The leading case in which the issue of committee quorum has arisen in the courts is Christoffel v. United States, considered above with respect to 102

QUORUM the Supreme Court's application of the written House rule in preference to the rule of custom and tradition. Of the questions raised in that connection, some are important here; for example, would the courts consider quorum as essential to legislative proceeding as it was to competent tribunal, or would they permit a broader, looser test for legislative proceedings? Again, the question cannot be answered here. One question that did not arise in the foregoing but that calls for attention here is this: Will the courts permit the challenge of "no quorum" to be made for the first time at trial, long after adjournment of the hearing at which the questioned words were spoken? The Christoffel decision said "yes," but some have argued that this point was overruled by the subsequent decision in United States v. Bryan.1 It is suggested here that, as to this question, both the Christoffel and the Bryan cases may be irrelevant to a situation in which a person was libeled before a congressional committee. Christoffel spoke his alleged perjury in person before committee members, and Helen Bryan showed her contempt in person before committee members.2 Both were physically present and in a position to challenge quorum at the hearings. In a case in which a person was falsely defamed before a congressional hearing agency lacking quorum, he would in all likelihood not be present to challenge on the grounds of no quorum. He would not know until hours or days after adjournment of the hearing that he had been defamed, and his first opportunity to raise the issue of no quorum would of necessity be at a court trial. There is enough doubt as to whether the courts would find the Bryan and Christoffel decisions irrelevant to a libel case, however, to require a consideration of the relationship. First, which of the two cases holds today? And second, what are the implications of the answer to that question for a libel case in which legislative proceeding might be challenged because of lack of quorum? Christoffel v. United States was a perjury case, and Christoffel was accused of lying before a congressional committee. One element of the crime of perjury, under the statute, was that perjury be committed before a "competent tribunal." At trial, the burden was on the prosecution to prove every element of the crime. The defense argued that the prosecution had not proved a competent tribunal because there was evidence that a quorum of the committee was lacking at the time of the alleged perjury. The Supreme Court upheld this contention. Further, it said that witnesses before 103

COMMITTEE PROCEEDINGS committees cannot be expected to be acquainted with parliamentary procedure— such as quorum requirements — and that the occasion of trial is an appropriate one for raising the question of quorum. United States v. Bryan was a contempt case. Helen Bryan was accused of contempt of Congress for failing to produce records, as she was subpoenaed to do, at a committee hearing. She argued at trial that the prosecution had failed to prove that a committee quorum was present when she refused to produce the records, and she could not be guilty of contempt before "an agency organizationally defective." She relied on the Christoffel decision. The Supreme Court rejected the argument and said the Christoffel decision was inapposite: the contempt statute did not require competent tribunal as did the perjury statute. Contempt could be shown even by a telegram of refusal to the committee chairman, and was shown in this case by a refusal in person before members of the committee. Helen Bryan raised a second point: Even if the prosecution were not required to prove quorum, she felt she could enter lack of quorum as defense. The subpoena ordered her to produce the records before the committee, and she said that she was unable to do this at the time because there was no committee present — it lacked a quorum. The Supreme Court held that while she could have raised the point of no quorum at the time of the hearing (she had not), the defense of inability to comply with the subpoena was not open to her years later in court: she had shown not even "a modicum of good faith" in responding to the subpoena. A decent respect for the House of Representatives would have required that she give the committee her reasons for refusal to produce the records. She said nothing about lack of quorum at that time, and denying the committee the chance to correct this defect was "in itself a contempt." Further, the defect she relied on at the trial — lack of quorum—was immaterial in her own estimation, for she had relied on other grounds for her refusal — that the committee had no constitutional right to demand the records. The late Justice Robert Jackson, in a separate concurring opinion in the Bryan case, said he did not see how the Christoffel and Bryan decisions could coexist. The Christoffel decision had said that the issue of no quorum could be raised for the first time at trial long after the committee hearing; the Bryan decision had said it could not. He thought the Bryan decision should candidly overrule the Christoffel decision.3 It has been said in at least one legal commentary, on the other hand, that the two decisions are not inconsistent. The basis used is that "the 104

QUORUM criminal statute in the Christoffel case affirmatively required the presence of a'competent tribunal. . . .'"* The brevity of this particular comment leaves something to surmise. It seems, however, to point to this: The distinction lies in the difference between the perjury and the contempt statutes. Christoffel could raise the point of no quorum as an attack on the prosecution's case because it had failed to prove the statute's requirement of competent tribunal; Helen Bryan could not because the offense of contempt, under the statute, can be committed outside the confines of the committee. As to raising the point of no quorum as a defense, she could not because of her bad faith; Christoffel did not need to. There is better ground than surmise, however, for the position that the Christoffel decision was not overruled by the Bryan decision. In the first place at least one perjury case — tried three years following the Bryan decision— has required proof of quorum. This was United States v. Weinberg, in which the federal trial judge said, "unless a quorum of the committee was present the prosecution fails," and the information as to members present "is very vital" to the case.6 In other cases the Christoffel decision has been referred to without indication on the part of judges that it was weakened or overruled by the Bryan decision.6 In Bowers v. United States the Christoffel decision was quoted by the court in holding that the prosecution had failed to prove all elements of a crime — in this case, pertinency of questions put to the accused at a congressional hearing.7 The Bryan decision, on the other hand, has been relied on in some subsequent contempt cases. This was the situation in United States v. Emspak where Emspak's attempt to raise the quorum issue for the first time at trial failed.8 In the second place the House itself, in official statement and in expressions by its students of procedure, recognizes that the Christoffel decision has not been overruled. This is indicated in the official Rules of the House of Representatives. In elaborating on the House rule requiring a committee majority to be actually present for reporting a bill, the text reads: "Alleged perjurious testimony elicited from a witness during a period when less than a quorum of the committee was in attendance is not perjury, for under such circumstances the committee is not a 'competent tribunal' (Christoffel v. U.S. 338 U.S. 84)."9 Lengthy debate on the House floor more than a year after the Bryan 105

COMMITTEE PROCEEDINGS decision showed universal belief among participating congressmen that the Christoffel decision was still to be reckoned with. A quorum rule under which the Christoffel doctrine could not be applied was sought, and the idea of such a rule was generally approved.10 Proper form for the rule could not be agreed upon however, and the proposed resolution was sent back to committee for further consideration and amending. The resolution never reached the floor of the House again.11 Further, a subcommittee on legislative procedure of the House Rules Committee has considered the possibility of inconsistency in the two decisions. The subcommittee, made up of attorneys, studied the situation carefully and "concluded that the doctrine of the Christoffel case . . . would be inapplicable to rules of the type" that it recommended for the House.1One witness before this subcommittee was Representative George Meader of Michigan, once chief counsel for the Senate War Investigating Committee. On March 9, 1954, Meader told the subcommittee of his doubts that the Christoffel decision was fully in effect as a result of the Bryan decision, and that he wished to make a statement to the subcommittee after comparing the two cases closely. On March 13, 1954, he addressed a letter to the subcommittee denouncing the Christoffel decision as a "novel and dangerous doctrine," but pointing out that the Bryan case had not overruled it.13 The above consideration of the two cases leads to the conclusion that the point of no quorum may be raised for the first time at court trial where perjury is the issue, but may not be where contempt is the issue. The answer to the first question raised at the outset of the discussion—Which case holds today? — is "both." The second question — What are the implications of that answer for a libel case? — works out to an answer in this fashion: In perjury, all elements of the crime including competent tribunal must be proved by the prosecution. In libel, all elements of qualified privilege including legislative proceeding must be proved by the defense.14 In contempt, all elements of the crime must be proved by the prosecution, but these do not necessarily include the presence of "competent tribunal" when the crime is committed. The closest parallel that may be drawn among the three situations so far as proof of quorum is concerned is that between perjury requirements and libel law requirements. It would seem that the Christoffel rule has greater relevancy for the hypothetical libel case than does the Bryan rule. As indicated above, however, it may well be that neither case is appli106

QUORUM cable to libel where the point of raising no quorum at trial is involved. A person defamed at a hearing where quorum was lacking probably would have no chance to raise the quorum question at the hearing. The prohibitive features of the Bryan case seem clearly inapplicable; the permissive features of the Christoffel case seem unnecessary. It is possible that in a libel case, a challenge to legislative proceeding based on quorum failure might best be raised on its own merits.

Quorum in the House Committee on Un-American Activities Following the Christoffel Decision The Supreme Court's decision in the first trial and appeal of Christoffel had an immediate effect on the Senate. It adopted a new rule as to quorum on February 1,1950. Senator Hayden, who explained the rule on the floor of the Senate, said the proposal "merely has to do with the procedure before committees in order to cover the question of perjured testimony."15 The provision amended Rule XXV of the Senate's standing rules. It read, "Each standing committee, and each subcommittee of any such committee, is authorized to fix a lesser number than one-third of its entire membership who shall constitute a quorum thereof for the purpose of taking sworn testimony."16 Hayden felt that this would take care of the problems raised by the Christoffel decision, saying that under the rule "any committee can determine the size of the committee at a hearing, and, when it is so determined, may also determine the number required to be present."17 While the Christoffel decision undoubtedly caused the House Committee on Un-American Activities to attend more closely than before to the matter of quorum, not until 1955 did quorum failure disappear from its proceedings. That was the year in which Representative Francis Walter became chairman, and he appears to have brought ever closer attention to procedural matters. Also, it was the year in which the House passed a group of procedural rules for committees, including the rule that "Each committee may fix the number of its members to constitute a quorum for taking testimony and receiving evidence, which shall be not less than two."18 Although the committee authorized its chairman "to appoint subcommittees composed of one or more members"19 of the committee in 1953 (and conceivably earlier), quorum failures continued to appear at hearings until 1955. There was, indeed, always at least one member present at hearings; but this did not satisfy quorum under the requirement of the 107

COMMITTEE PROCEEDINGS "one-man subcommittee" resolution when the single member was only one of two or three appointed to the subcommittee. Sitting as committee and subcommittee, the agency failed at times to meet the requirement that " . . . a committee means a majority of the members of that committee present."20 Examples follow. SITTING AS A COMMITTEE

On March 24, 1950, the committee sat under Representative Walter, with Representatives Case and Velde also present. The three, two less than a quorum of the nine-member committee, heard testimony that covered three pages of the hearing record before Representatives Wood and Kearney arrived, making a quorum.21 On March 29, 1950, the committee sat under chairman Wood. He announced that "The Committee will be hi order. The record will disclose that Messrs. Walter, Velde, Kearney and Wood are present." This was one less than a quorum, and the situation was not remedied until later in the hearing when a fifth member arrived.22 On June 26,1951, the committee sat under chairman Wood. The record showed Representatives Wood, Walter, Kearney, and Potter present, and the deficiency of one member was not remedied during the day's hearing.23 On August 9, 1951, the committee sat with a quorum in the morning. For the afternoon session Representatives Walter and Doyle were present at the outset and Representative Potter arrived later. No record appears authorizing a shift from committee to subcommittee, and throughout the afternoon committee quorum apparently was lacking.24 On January 21, 1952, the committee sat under chairman Wood, who said, "The committee will come to order. Let the record show that a quorum is present." The record showed, however, that only four members were on hand when Wood spoke, while the fifth entered the hearing room a little later.25 On May 14, 1953, the committee sat under chairman Velde, who announced that the five (out of nine) members present constituted "a quorum of the full committee." After a short recess the five reassembled, but Representative Walter left shortly, and the four remaining were not reconstituted as a subcommittee.26 SITTING AS A SUBCOMMITTEE

On May 24, 1951, a two-man subcommittee of Representatives Walter 108

QUORUM and Velde sat. Velde stepped out of the hearing during testimony of a witness, leaving less than a quorum present for several minutes.27 On August 19, 1952, chairman Wood and Representative Velde sat as a two-man subcommittee. Again, Velde left the hearing room, and Wood sat as less than a quorum during testimony of a witness.28 On the morning of September 2, 1952, chairman Wood announced that a six-man subcommittee had been established for hearings then starting in Chicago. Five were present, he said, and the sixth — Representative Jackson — was expected by noon. At various times during the morning, exits and entries of members as logged in the record left two or three members of the six-man agency present during testimony.29 On September 4 and 5, 1952, loss of quorum again was demonstrated when the number of members present dropped to three.30 On July 14 and 15, 1953, a subcommittee of Representatives Kearney, Scherer, and Frazier was to sit, but Frazier never appeared. Kearney and Scherer took turns leaving the hearing room, and on each occasion when one was absent, less than a quorum was present.31 On September 15, 1954, a subcommittee of Representatives Scherer and Clardy sat at a Dayton, Ohio, public hearing. After noon recess Scherer only returned to the hearing, and alone was not a quorum.32 On March 17, 1955, Representative Moulder opened a subcommittee hearing at Seattle, Washington, with the statement that chairman Francis E. Walter had appointed Representatives Moulder, Doyle, and Velde as a subcommittee to conduct the Seattle hearings.33 At the outset of the next day's hearing, Moulder was the only member present, and made no statement as to reconstitution of the subcommittee.34 On the third day, the same happened with only Velde present at the outset.35 Other examples of simple failure of quorum in committee or subcommittee could be cited. Rather than extend this list to no particular point, however, uncertainty as to quorum arising from other circumstances should be illustrated. Uncertainty arises where the make-up of a subcommittee is not stated in the record of hearings. Reference to the committee's hearings on communism in western Pennsylvania in 1950 illustrates the problem. Of the first five days' hearings, three show the indeterminate nature of the subcommittees:36 February 21: No subcommittee named. 109

COMMITTEE PROCEEDINGS McSweeney, presiding, says Moulder, Kearney and McSweeney are present, and "the subcommittee is in session." Hearing record shows Nixon and Case arriving at later times. February 22: No subcommittee named. Hearing record shows Walter and McSweeney present at outset; Wood and Kearney arrive later. March 14: Morning session. No subcommittee named. Hearing record shows Walter and Kearney present. Afternoon session. No subcommittee named. Hearing record shows Harrison only present. In none of these cases is the subcommittee identified. On the first day is it a three-man, a four-man, or a five-man subcommittee, or is it something else? On the second day, is it a two-man or a four-man subcommittee, or is it something else? How can a quorum of an unstated number of persons be established? It seems impossible — without resort to metaphysics or to the solution of "How long is a piece of string?" — to state what constitutes a majority of an unstated number of persons. The above-listed agencies used during the 1950 Pennsylvania hearings illustrate one committee test of a subcommittee: whoever shows up for a hearing. Whether this is a safe legal test for a situation in which quorum might be at stake may be questioned. It is quite possible that the secret minutes of the committee's executive meetings at times contain a record of creation, constitution, and appointment of subcommittees that are to meet later.37 It is inconceivable that such minutes contain a complete record of such creation and appointment, however. The radical fluctuation in members' attendance at some hearings shows that chairmen cannot know in advance precisely who will be at all hearings,38 or create, constitute, and appoint with specificity at the preliminary executive session to permit entry in executive session minutes. In two court cases involving quorum and perjury, the House has informed the court that no minutes of pertinent executive sessions have been kept.39 Since the passage in 1955 of the two-member quorum rule, quorum requirements have been easier to meet in some respects. On the other hand, as one House member who has been a close student of procedure has pointed out: The provision . . . leaves in doubt what a quorum for the purpose of 110

QUORUM taking testimony might be in case the committee . . . happens to overlook the formality of prescribing one — and it requires, arbitrarily, at all times and in all cases, that testimony must be taken with at least two members present.40 Furthermore, it would be unrealistic to assume that congressional committee procedural rules — including the quorum rule — were stabilized by the code of March 1955. Two of the House members most interested in, and informed about, procedure have called the code only "a step in the right direction," and "a triumph of innocuous inconsequence."41 Finally, the Committee on Un-American Activities prior to the passage of the rule never established a procedure that assured it of maintaining a quorum of a two-member subcommittee; and whether it will do so in the future remains to be seen.42 During a period when rules are in flux, and considering past procedural performances of the committee, the problem of quorum remains real. Quorum in Executive Sessions The question of quorum arises also in respect to testimony during the secret executive sessions of the committee and is somewhat different from the immediately preceding question. Release of executive session testimony is a common practice of the committee. The problem is whether a quorum of the committee was present to vote on the release of such testimony. The committee's own rules provide "All testimony taken in Executive Sessions shall be kept secret and shall not be released or used in public sessions without the approval of a majority of the Committee." 43 There is nothing to indicate whether the courts would rule that executive session transcripts released without majority approval would be legislative proceedings. If, indeed, a quorum of a valid committee or subcommittee had been present when the testimony was taken, it might be expected that the courts would hold such transcripts to be legislative proceedings despite violation of the rule as to release.44 But what if transcripts of an executive session that lacked quorum were published in violation of the release rule? That is, what if quorum was present neither for the testimony nor for approval of the release? Would the courts approve as legislative proceeding a record of testimony made by a defective body and released by a defective body? Establishing the two defects on the rare occasions when both existed would not be easy but at times might be possible. Presence or absence of the first defect — quorum failure in taking testi111

COMMITTEE PROCEEDINGS mony — ordinarily could be determined with no particular difficulty. Transcripts of the released executive testimony usually carry the composition of the hearing agency. An example of failure of quorum as indicated by such transcripts occurred on July 7,1953. Representative Gordon Scherer opened an executive hearing with the announcement that chairman Velde had appointed Representatives Scherer, Walter, and Clardy a subcommittee "for the purpose of conducting today's hearings."45 He added that Clardy and Walter were handling other phases of the subcommittee's work, and "I am conducting this particular hearing." The majority of the subcommittee thus was elsewhere.46 A much more complex problem would be establishing presence or absence of the second defect — committee quorum failure in the approval of the release of executive session testimony. The record of the approval would be most likely to lie in the minutes of the secret executive session at which approval of the release was made. In a libel case where legislative proceeding was at stake, the issue would hinge in part on the court's attitude toward the necessity of examining the record of approval as shown by the minutes. One committee practice might lead the courts to say that examination of minutes was not essential. This is the practice, ordinarily followed by the committee, of footnoting the first page of the released transcript with the words "Released by the full committee."47 The footnote might be considered by the courts as sufficient evidence that majority approval had been given to the release. However, on some occasions the footnote has not been included in the released transcript.48 Furthermore, the footnote appears in at least one instance to be inaccurate.49 In the third place, it appears that in at least one case the executive session transcript was released by a subcommittee, although this was done before the rule as to majority approval by the committee had been adopted as a formal part of the committee code.50 The attitude of the courts is important whether the transcript footnote appears to be in order or not. There is some indication that the courts consider the executive session minutes themselves to be the best evidence of action by a committee. Two cases are in point. In the second trial and appeal of Harold Christoffel, the defense sought the minutes of an executive session of the congressional committee involved.51 The purpose was to learn how many members were present at the executive session held immediately after the public hearing at which 112

QUORUM Christoffel was accused of perjury. In response to a subpoena, the House of Representatives passed a resolution and sent it to the court; the resolution said that no minutes of the executive session had been kept. The appeals court ruled that it is essential that an accused have the right to obtain evidence material to his defense. The court could not require the House to produce the records, but it pointed out that "If such evidence is under the control of a department of government charged with the administration of those laws for whose violation the accused has been indicted, and its production is refused . . . the courts . . . have held a conviction will not be permitted without the evidence."52 It said that like principles should apply with regard to evidence in the custody of the House of Representatives, and that conviction of crime might have to be foregone in some cases because evidence is withheld. In this case, the court held, the House resolution was sufficient evidence to indicate that no minutes existed, and Christoffel thus was not being denied access to material evidence.53 The second case was United States v. Weinberg.5* Mrs. Asselia Poore, an employee of the Committee on Un-American Activities, testified that she recorded committee members present and absent at the executive session at which Weinberg was accused of perjury. Relying on her personal notes and her memory, she said that a quorum had been present. The defense attacked her testimony and requested that the minutes of the session be made available to "demonstrate affirmatively that a quorum of the committee . . . were not present. . . ,"55 While the court said it had no control over congressional records, it recommended strongly that the pertinent minutes be made available. The accused had a right to check the witness' testimony against the formal record. Information as to members present, it said, "is very vital, and the minutes are the best evidence."56 Without the minutes, the court foresaw possible acquittal "on the ground that evidence is not made available . . . which is in the control of the House of Representatives."5T Again in this case, the House reported to the court that no such minutes existed; and relying on the ruling in the Christoffel case, the court held that the House's report was sufficient to show that Weinberg was not being denied material evidence.58 These cases point up the courts' attitude that the minutes themselves are important to the defense of an accused in a perjury trial. If minutes exist and their keepers will not yield them, the accused who is denied them 113

COMMITTEE PROCEEDINGS may at times be acquitted for want of access to material evidence. In the Weinberg case the testimony of the note-taker was weak evidence compared to the minutes themselves which the court termed the "best" evidence. The courts have called for the minutes of committee executive sessions where quorum necessary for the taking of testimony was in doubt. Might they not do the same where quorum necessary for approving release of transcripts of testimony was in doubt? In a libel case where defamation from a released transcript of an executive session was printed in a newspaper, would the courts hold that the minutes themselves are vital to establishment of quorum and thus of legislative proceeding? Where the transcript footnote, "Released by the full committee," appeared, would the courts accept this as evidence that the release actually was proper; or would they hold, as in the Weinberg case, that the minutes themselves are the "best" evidence? The answers to these questions are, of course, uncertain. It may be asked why the courts' attitude toward the minutes is important since the House appears to have control over the issue by merely certifying that no minutes were kept. A partial answer lies in the Un-American Activities Committee rule that requires "approval of a majority of the Committee" for release of testimony taken in executive session.59 Such approval would seem to call for a minute; but it must be admitted that the committee's attitude toward procedural details is small evidence that the minute would be kept in every case. Of course, certification that no minutes existed might lead to a challenge of the transcript footnote, "Released by the full committee." The lengthy treatment here of the point of quorum and executive sessions is warranted only by the question's complexity. It would not do to stress it heavily. Given the lack of procedural precision during most of the life of the Un-American Activities Committee, a person defamed might suspect that a transcript was not released by majority approval, as required by rule. But that he would go to the expense and trouble of bringing a libel action on the basis of that suspicion is most unlikely. The Press and the Agency Lacking Quorum For the newspaper that might find it necessary to establish legislative proceeding to warrant the protection of qualified privilege in a libel case, the point of quorum could be of real importance. If the newspaper printed 114

QUORUM libel that issued from a hearing agency lacking a quorum, legislative proceeding might fail. Examination of committee hearings and press reports shows that of the names mentioned in connection with communism during hearings, only a fraction are ordinarily published by newspapers. Many of the names are not newsworthy, or they are spoken when newspaper reporters are not present, or space limitations in the newspaper do not permit printing them. Some newspapers, no doubt, have compunctions about printing the names without verification or substantiation of the charges.60 Nevertheless, it is not difficult to find cases in which newspapers have carried names that were mentioned in circumstances discussed above where quorum was in doubt. Furthermore, such examples can be found by reference to only two or three metropolitan newspapers, as is the case in this study. The possibilities for multiplication of examples appear to be large. Hundreds of newspapers and magazines from all over the nation are represented by reporters in Washington. When Washington hearings bring out names of persons from the home territory of a provincial newspaper, that newspaper is likely to have an interest in publishing the names. It may not rely on a wire service for coverage in such circumstances, but instead use its own reporter for a detailed story. The first circumstance in which quorum is in doubt is simple failure of quorum as shown by the public hearing transcripts. On July 14, 1949, Representative John McSweeney presided over a hearing of the House Committee on Un-American Activities. He announced that chairman Wood had asked him to "act as chairman of the subcommittee. . . . I am present and others will be present a little later."61 The record, however, showed no arrival of other members, and McSweeney alone was not a quorum of the subcommittee of which he spoke. Manning Johnson, the witness, testified as to more than a dozen "Communists," and the name of the most prominent was widely published in newspapers.62 On August 19, 1952, Bernard C. Schoenfeld, Hollywood screen writer, testified before the committee. Chairman Wood and Representative Velde, a two-man subcommittee, were present at the outset but Velde departed very soon, leaving less than a quorum present.63 During Velde's absence, Schoenfeld named persons whom he said he knew had attended Communist party meetings, and one newspaper printed fifteen of these names.6* On September 4, 1952, one Ray Thompson testified before a subcom115

COMMITTEE PROCEEDINGS mittee with respect to communism in the Chicago area. The subcommittee of six began the hearing, but after a time several left.65 While three members only — less than a quorum — were present, Thompson named several "Communists," and the name of one was carried by a wire service and was printed.66 On July 14, 1953, one Jack Davis testified before a two-man subcommittee of Representatives Kearney and Scherer at Albany, N.Y. Scherer stepped out of the hearing room and while Kearney was alone Davis named six persons who he said he knew had attended Communist party meetings.67 The names were printed by at least one New York newspaper.68 On July 15, 1953, Davis again testified at Albany. Representatives Kearney and Scherer were the subcommittee during the morning session, but Scherer alone appeared for the afternoon session. He made no statement as to reconstitution of the subcommittee, and since chairman Velde was not attending this set of hearings, it is highly unlikely that he was available to reconstitute it.69 Scherer alone, less than a quorum, heard Davis name some forty persons as Communists, five of whose names were printed in the press.70 The second circumstance in which quorum is in doubt occurs when the make-up of the hearing agency is not specified and the membership fluctuates during the day or from one day to the next. A case cited earlier is in point here. On several dates during February and March of 1950, Matthew Cvetic, an FBI agent, testified as to Communists in western Pennsylvania. On February 21 and 22 and on March 14, no hearing agency was designated; there were only statements as to members present.71 For the morning session of March 14, Walter and Kearney were present, and for the afternoon session, Harrison only was present.72 Were Walter and Kearney indeed designated as the members of a subcommittee for the morning session, or was only one of them, or were more than the two designated? For the afternoon session, was Harrison alone designated a subcommittee, or was the subcommittee actually larger? The previous day's hearing (March 13) gives no clue, for on that date a quorum of the full committee had been present. Whatever the case, names mentioned by Cvetic were carried by the press on March 15.73 The third circumstance is that in which executive session testimony is released without approval of committee quorum as required by committee rule. On April 8, 1954, Representative Scherer sat alone at an Albany, New York, public hearing.74 He announced that the other two members 116

QUORUM of the subcommittee, who had been present the preceding day, were unable to attend. He alone was not a quorum. During the hearing, testimony taken two days previously at a one-man subcommittee executive session in Kansas City, Missouri, was read into the record.75 It seems quite unlikely that this testimony would have been released by a committee majority. The dates were too close together, and committee activity in Kansas City, Washington, and Albany would have called for very close coordination of communications and voting, the latter complicated by the absence of three or four committee members from Washington. The executive testimony contained an accusation of "Communist" against a man who on April 9 appeared before the subcommittee and denied repeatedly that he had ever been a Communist.76 The accusation was printed in a newspaper.77 The above cases are evidence that the intricacies of quorum requirements for House committees are not attended to by the newspaper, or are not a matter of large concern to it. As in the case of subcommittee creation by chairmen, lack of quorum presents possible legal pitfalls for the newspaper that relies on qualified privilege. The privilege depends on legislative proceeding, and legislative proceeding may possibly depend on the presence of quorum.

117

VIII UNCERTAINTY in THEORY

THERE is relatively little mention of press reports of congressional investigation in the present chapter. It happens that the theory underlying qualified privilege developed in the context of other official activities, and it is these which claim consideration here. Theory, of course, sweeps a range of behavior into its embrace, and is relevant to congressional investigation as it is to other official behavior. Uncertainty arises where deviations from the generally accepted rationale providing privilege occur. Deviations have appeared with varying statutes and with varying interpretations by judges of the statutes and of the common law. At times the theory has been ignored and at times subordinated to other considerations. It has also been attacked as unjust and unnecessarily harsh for persons accused in proceedings. The question is this: Does uncertainty arise for the press in the light of deviations from the theory? To restate the theory briefly, it was established in nineteenth-century England and America that proceedings of courts of justice should be universally known. The public's interest in such knowledge outweighed the occasional harm to an individual that might appear in a news story in the form of libel from the proceeding. This rationale was extended during the century to reports of legislative proceedings, and later to reports of executive-administrative proceedings. The nature of the public interest in official proceedings was specified by Judge Holmes in Cowley v. Pulsifer in 1884: it is "of the highest moment" that the people be able to satisfy themselves "as to the mode in which a public duty is performed."x The press, in helping to spread the necessary 118

UNCERTAINTY IN THEORY information, should not be in fear of libel suits arising from its reports. This reasoning was adopted subsequently by court after court, and the case was cited repeatedly. The Theory Ignored Where qualified privilege has been granted in press reports of pleadings filed but not seen or acted on by a judge, the courts seem almost always to have ignored the rationale underlying the grant of the protection — the public interest in knowledge of official conduct. The rationale has scarcely been considered in this group of decisions. The pertinent cases arise in the judicial setting. None has appeared in the legislative setting, although papers and documents exist in the legislative setting that are analogous to pleadings filed with a clerk of court. Such papers might be on file with the clerk of the House Committee on UnAmerican Activities, in the form of letters from complaining citizens, newspaper articles clipped by clerks, investigations by committee employees, or reports made by clerks but not seen by the committee. Thus, while the consideration that follows here is within the context of the judicial setting, it is related also to the legislative setting, or, indeed, the executive. In 1880, before Holmes spelled out a rationale for the grant of privilege for the press, one decision in Nevada had granted qualified privilege in a press report of pleadings filed but not brought before a judge.2 The court applied the reasoning that had developed in England — "the public have a right to know what takes place in a court of justice." It did not see the distinction that Holmes was to point out — that pleadings on file indicated nothing with respect to official conduct. In 1908 and 1913, a quarter of a century later, two Pennsylvania decisions ignored the rationale in granting privilege to reports of pleadings filed but not seen by a judge.3 In 1925, a federal court paid no attention to the rule, requiring only a fair and true report, and did not discuss the requirement of judicial proceeding.4 Meanwhile, Ohio had adopted a statute providing privilege in press reports of pleadings.5 If the earlier decisions influenced the later ones, it was not apparent. But in 1927, a decision written by Judge Cuthbert Pound of the New York Court of Appeals and concurred in by the full bench, including Chief Judge Benjamin Cardozo, ignored the theory with far-reaching results. It ruled that a set of pleadings which charged fraud, filed but not yet seen by the judge, was sufficient basis to support a plea of qualified privilege by 119

UNCERTAINTY IN THEORY the newspaper that reported the pleadings. No attention was given in the decision to the public interest in knowledge of official conduct. The case was Campbell v. New York Evening Post.6 New York's statute in 1854 had extended privilege to press reports of "judicial, legislative or other public and official proceedings."7 The legislature there was seeking to extend qualified privilege to press reports of ex parte proceedings, which up to that tune were not considered sufficient basis to provide the protection.8 Subsequently, the New York courts accepted the reasoning of Cowley v. Pulstfer and other similar decisions.9 But in the Campbell case, the court said the question was simply whether pleadings filed "may be brought under the head of judicial, public, or official proceedings," as the statute required. Thus from the outset its basic question differed from Holmes', which was whether the activity involved indicated the mode in which justice was being administered. The New York court recognized that the test of a "judicial proceeding" had commonly been whether the pleadings had come before a judge and had been made the subject of judicial action. But it said that in New York "a lawsuit from beginning to end is in the nature of a judicial proceeding," including such early activity as the service of a summons prior to action by a judge. Since "with us the act of one party institutes the action," that is the start of the judicial proceeding and it fulfills the technical requirements of the statute. On three grounds the court discarded the requirement that a judge enter the case before privilege could attach to a report. First, it is "incongruous" and a "frivolous legal fiction" to say that a newspaper may freely publish the contents of a complaint read and filed on an ex parte application for an injunction, but run the risk of repeating a libel if it publishes a complaint filed but not acted on by a judge. Such distinctions have "no basis in common sense." Second, in practice, newspapers seldom pass an opportunity to publish the news that an action has been brought "for fraud, seduction, assault, breach of promise, divorce, et cetera," and pay little heed to the requirement that the pleadings must have been before a judge. "So general has this practice become that the public has learned that accusation is not proof, and that such actions are at times brought in malice to result hi failure." Third, if a suit is filed merely to publicize scurrilous and false charges, it can as well be discontinued by the complainant after a judge has acted 120

UNCERTAINTY IN THEORY on it in some preliminary fashion as before a judge enters the case. Personal malice may thus be given an airing as easily one way as the other. The court ignored the reasoning that said the real basis for protecting the press report is that it is the action of the judge himself which needs publicizing in a democracy, not (as one court has put it) "that A has slandered or libelled B outside of court."10 For the needs of a self-governing society for information as to its public officials' conduct, it substituted press practice and a statute that could be read to embrace private litigants' charges. Within a decade, three other state courts had adopted the position of the Campbell decision. South Carolina11 and Kentucky12 relied frankly on Pound's statements in applying them to their own situations; California13 adopted Pound's phraseology without citing the case. Meanwhile, Massachusetts appeared to be moving in the direction of the Campbell position. In a case that hinged on the definition of a clerk of court as a judicial officer, the Supreme Court ruled that under the particular circumstances, a clerk was a judicial officer.14 Writers in legal publications thought they saw evidence of the influence of the New York decision in cases in Nebraska, Oregon, and Wisconsin.15 Following the mid-1930's, the Campbell position was rejected in two jurisdictions and adopted in one. A federal decision of 1925 that ignored the requirements of judicial proceeding was weakened in a decision eleven years later.16 By 1952 the federal courts' position seemed clearly in line with the traditional theory, as shown in this expression: "The privilege of fair report is no broader than the public interest which creates it. That interest is in public knowledge of official conduct."17 And by 1945, the Massachusetts Supreme Court had reopened the question and stated bluntly that its position was in line with theory as expressed by Holmes in Cowley v. Pulsijer.18 The single state that has adopted the Campbell doctrine since 1938 is Georgia, in Shiver v. Valdosta Press, 1950.19 The states in which it is clear that pleadings filed but not seen by the judge are privileged for newspaper reporting are California, Georgia, Kentucky, Nevada, New York, Ohio, Pennsylvania, and South Carolina.20 All but Nevada have ignored the theory. Is there uncertainty for the press in the adoption and possible extension of this position? If there is uncertainty, it would seem to be of the sort that the press might welcome rather than dread. Where the Campbell doctrine is recognized, publication of charges in litigation needs no careful consideration by reporters or editors for the possibility that official proceeding is lack121

UNCERTAINTY IN THEORY ing. Furthermore, for that section of the press that thrives on the substance of private controversies, the Campbell doctrine removes any doubt that sensational charges will be available for exploitation: if the complainant who files a malicious and false charge only to get it publicized plans to withdraw his suit before it reaches a judge, the press need not be concerned that the charge will never have the blessing of "judicial proceeding." Thus at first glance, uncertainty over whether the Campbell doctrine will be extended to more states becomes the possibility of a new shield for the press in general, and a new opportunity for a segment of the press. It is interesting, however, that where the press itself has developed a rationale for the unfettered reporting of public affairs, it has followed the traditional Holmes reasoning. In its aggressive, sustained drive for access to public proceedings (which rests on the same theoretical ground as qualified privilege), it has stood foursquare for the principle that publicity gives security for the proper administration of public affairs.21 A central slogan of its campaign is "the people's right to know" — to know, that is, how public officials are conducting public affairs. The theory that it espouses, focusing squarely on the need for knowledge of official conduct, is absent where pleadings filed but not seen by a judge are accepted as the basis for a plea of qualified privilege. The press has seen technical interpretations of statutes operate to its detriment as well as to its advantage. If the Campbell doctrine is now to the press' advantage, in the long view it may weaken the position of the press in undermining the justification for libel. There may be more certainty for the press in resting its case for qualified privilege on "the people's right to know" what their officials do, than in resting it on a broad interpretation of a statute, plus what is convenient for reporters as they cover the courthouse beat.

The "Public" Requirement When Minot Jelke's trial for compulsory prostitution was closed by the trial judge to the press and public on grounds of public decency, United Press Associations brought an action to have the judge's order voided.22 United Press based its case on the public interest in knowing what public judicial officers do. The New York Court of Appeals rejected its plea. Jelke might (and did) successfully claim the right to a public trial, but the appeals court held that the press and the public could not claim a right of access to the trial. 122

UNCERTAINTY IN THEORY The right of public trial is particularly a right of the individual accused, safeguarding him against unjust persecution and abuse of judicial authority, the court said. If the press and public were allowed to assert a right of access, they might at times do it "in hostility to" the rights of the accused. This might occur when the accused requested a private trial on reasonable grounds, as when the crime involved had aroused intense feeling in the community and a public trial would be to his disadvantage. As for the public interest in knowing what courts do, that exists, the court said, but it is adequately safeguarded so long as the accused may assert his right to a public trial. There is "neither need nor reason for outsiders to inject themselves into the conduct of the trial." The Jelke decision is only one of countless official rulings that subordinate the principle that "publicity gives security to the proper administration of justice"23 — a principle that of course applies equally to access and to qualified privilege. Whatever the extent to which the public's interest in knowledge of official proceedings has been asserted, no branch of government ever has conceded that all its activities must be conducted within the public gaze. Every branch has found that in certain circumstances the public interest lay in secrecy rather than publicity; and the courts, as in the Jelke case, have held that a private individual's interest in secrecy at times outweighs the public's interest in publicity. It is the conviction that these official attitudes are hiding an ever greater range of official activity that has led the press to its nationwide campaign against secrecy in government. Statutes, precedents, and the assertion of immemorial prerogatives have sanctioned secrecy. The executive branch has asserted successfully its power to withhold information from the legislative branch on grounds that the public interest sometimes demands secrecy; legislatures have made laws that say juvenile courts will be closed to the public to protect the future of immature delinquents; courts have closed trials to the public when sexual depravity has been aired. The list could go on and on. Since the early years when qualified privilege was granted by the British courts, judges and legislatures have not seen a public interest in defamation immunity for reports of secret proceedings. The first American qualified privilege statute—New York's law of 1854 — furnished the immunity only to public and official proceedings.24 Other states followed with similar statutes, and the common law rule to the same effect held in still others. In 1956, under pressure from newspaper interests, the New York 123

UNCERTAINTY IN THEORY legislature amended the qualified privilege statute by removing the word "public" from it. The statute now grants privilege to reports of "any judicial proceeding, legislative proceeding or official proceeding," where it previously granted it to reports of "judicial, legislative or other public and official proceedings"25 (emphasis supplied). Apparently, thus, immunity will hold for news reports of secret official proceedings in New York, although court tests of the revised statute are still to be made. The revision of the statute may be viewed as a victory in the press' drive for "the people's right to know." Now, if the press can lay hold of secret official documents and decides to publish them, it can "let the people know" about them without danger from libel that they may contain. The change in the law seems to elevate the "publicity principle" to a pinnacle above official determination that secrecy in some cases is more important than publicity. The revision of the statute may also be viewed as an invitation to irresponsible members of the press to a new exercise of ingenuity in obtaining and printing secret, defamatory copy that builds circulation. Governor Harriman of New York may have sensed this possibility when, in signing the revised statute, he said: . . . our statutes contain many provisions which preserve the secrecy of documents and testimony, such as in matrimonial actions . . . [and] the secrecy of testimony before a grand jury. . . . My approval of this bill cannot and should not be construed as a modification or weakening of the justifiable protections embodied in the laws mentioned. Secrecy and other safeguards where provided by our laws continue to be in effect and to be fully respected.26 Whatever the "full respect" of which the governor spoke entails, the fact remains that the revised statute contradicts the Jelke decision and similar rulings as to the propriety of official secrecy. The two rules, taken together, seem to say to the press: "You may not have access to certain official proceedings; but if you can circumvent this rule and obtain access by your own ingenuity, the law will protect your news reports of the proceedings from liability for libel." There might still be the risk, of course, of being cited for contempt for publishing that which laws or officials had said was supposed to be secret. Whether the New York Legislature was aware of it or not, revising the statute gave the press a new avenue to publicize legislative secrets, including those of investigating committees. Where the revised statute is placed 124

UNCERTAINTY IN THEORY alongside the Campbell decision (that privilege attaches to stories of pleadings filed but not seen by a judge), the implications are interesting indeed. They may be seen in the context of one of New York's legislative committee investigations of the past—that of the Rapp-Coudert committee in 1940-1941. The committee was directed by the legislature to examine the "extent to which, if any, subversive activities may have been permitted to be carried on in the schools and colleges."27 The staff employed by the committee set to work gathering a wide variety of data on Communist activity, and the public was invited to volunteer information which might be of help. The information was gathered partly in "the hope that from an intensive screening of this material clues to the identity of participating Communists [in the schools] would be discovered."28 Information was also obtained from witnesses in private, unrecorded interviews conducted by staff members. When the information gave promise of usefulness to the committee, the staff called in a committee member who administered an oath to the witness, and from this point on the testimony was recorded by a stenographer. Ordinarily a member of the committee was present for the private testimony, "although it was not uncommon practice for the committee member to withdraw after he had administered the oath to the testifying witness."29 In the latter case, a staff interrogator, a stenographer, and the witness were alone. What among the materials gathered by the research staff, volunteered by the public, or elicited and recorded without the attendance of a committee member, might be called "official proceedings" by analogy with the Campbell decision? That doctrine says that privilege attaches to news stories based on pleadings filed with a clerk of court. Would the same hold true for news stories based on reports, data, and testimony taken without the presence of a committee member, and filed with the Rapp-Coudert committee? The answer, of course, is not certain; but it is possible that legislative proceedings in New York would no more demand the presence and application of the "legislative mind" than judicial proceedings demand the presence and application of the judicial mind under the Campbell doctrine. New York City reporters presumably are as resourceful as Washington reporters. If they had set about obtaining secret and libelous materials collected by the Rapp-Coudert committee (as Washington reporters have 125

UNCERTAINTY IN THEORY occasionally obtained secret materials from the Committee on Un-American Activities), some might well have succeeded. But the secret nature of the proceedings still might have stood as a barrier to publishing, because secret proceedings did not provide qualified privilege for news stories. But since 1956, when the word "public" was removed from the New York qualified privilege statute, that barrier has apparently been leveled. Conceivably, thus, defamation filed with a committee such as the RappCoudert committee could be published with immunity: it might be official although no legislator had processed it, and it would seemingly not be weakened for qualified privilege by its secret nature. If the New York court weakened the principle that publicity gives security for the proper administration of public affairs by ignoring it in the Campbell decision, the New York legislature strengthened it singularly by deleting the word "public" from the privilege statute. Whether wittingly or not, the legislature in 1956 gave the "publicity principle" a kind of eminence that it has enjoyed nowhere else. The state of New York has led the way to new attitudes toward privilege before, and it is quite possible that other legislatures will eliminate the word "public" from their privilege statutes also. All states, however, sanction secrecy in various official proceedings, and it may be that the contradictory aspects of New York's situation will be apparent and unappealing to their legislatures. Identification In 1913, the Massachusetts Supreme Court drew attention to a point in qualified privilege in press reports that has had surprisingly little attention. It said, "In a sense it may make no difference to the public so far as the course of judicial proceedings is concerned, whether it is John Smith or John Jones who is arrested."30 The court's statement amounted to a questioning of the public's need for identification of persons involved in official proceedings. More recently, the point has been considered at some length in an article in which the writer, James D. Barnett, says: . . . the "public good" is not promoted one bit more by [press] disclosure of the identity of presumably innocent persons defamed in official proceedings than it would be by the disclosure of the identity of the unfortunate victims of loathsome diseases when these diseases are illustrated in medical journals.31 These statements refer primarily to the defendants in criminal proceed126

UNCERTAINTY IN THEORY ings. Barnett is at pains to point out that the accused is always presumed innocent by the law until he is proved guilty, and insists that justification cannot be found for identifying him in the press before the proof is in and the guilty finding returned. Nothing of public interest would be lost under such reasoning, he says, since "The substance of the report, as a means of letting the public know what its government does, would not be affected at all. . . ."32 Barnett is also concerned with legislative and executive proceedings, saying that no person "charged or otherwise defamed" in these, as well as judicial, proceedings should be identified in the press "unless and until the allegation or imputation has been established in court"33 The implications of this position for the school that supports "punishment by publicity" — including many members of the House Committee on Un-American Activities 3* — are vast. Thousands of persons accused in various committee hearings would necessarily go unidentified until their cases were adjudicated in court, and remain unidentified unless they were found guilty. And, with respect to those persons accused in the "loyalty committees" of being Communists or fellow travelers, many or most could be convicted of nothing, since being a Communist is not, at present, a crime. At first glance there is considerable force in the argument against identification. If, indeed, a report of the charges and issues is necessary to an intelligible newspaper account of the court's acts35 (that in which the public has an interest), there seems to be no reason why identification of those defamed during a proceeding is necessary to the intelligible account. Barnett, however, has taken no account of the rise of radio and (especially) television, as mass media of communication. There is vast controversy between the press and public officials over the propriety and usefulness of television as a broadcaster of proceedings;36 but in certain proceedings, including some committee investigations, it seems already to have established itself as a medium of informing (and entertaining) the public.37 Whether "live" television eventually is permitted in the courtroom or not, it apparently is destined to report some official proceedings. There is no apparent way to report proceedings by television without identifying persons accused, even if film is edited before broadcasting. If the unlikely is accepted, however, and it is assumed that at some future time the electronic media will be prohibited from reporting official proceedings, restricting the field to the printed media, Barnett's argument fares somewhat better. However, one practical argument still considerably 127

UNCERTAINTY IN THEORY meets objections to identification by the press. Where open proceedings are the scene of accusations, many citizens may be attending those proceedings and hear and see at first hand the identification of participants who are defamed. If identification is made before ten or two hundred citizens, why should the press not make that identification to other persons? The practical argument does not entirely meet Barnett's objection. Pleadings not seen by a judge may have been seen by newsmen and other citizens, yet that much exposure to the public is generally not enough to justify further exposure in newspaper stories. Material stricken from the record by a judge during a court trial may have been heard by a full courtroom of spectators, yet that much exposure to the public has not been considered enough to justify further exposure in newspaper stories: there is no privilege of press report in stricken material. In Wisconsin, statute prohibits press, radio, and television from publishing the name of a woman who has been raped, but the public may freely attend the trial where the victim is plainly identified. Exposure of the name to those attending court in this circumstance does not warrant exposure to audiences of mass media.38 The argument that identification to a few opens the door for identification to many is not, thus, entirely convincing. One court has put it this way: " . . . we are not prepared to concede that the general right of inspection of public records enables one in every instance to publish such records broadcast without regard to the truth of the defamatory matter contained in them."39 A similar problem has plagued the law of slander (generally, spoken defamation) for more than a score of years. To some the penalties for slander (traditionally lighter than those of libel because the spoken word is supposedly fleeting while the written word is permanent) have seemed inadequate considering the realities of defamation by radio and television.40 Besides the "practical" argument, there is on the side of identification, the position of the court in Campbell v. New York Evening Post: that identification is not important to the defamed; that, as Judge Pound put it, "the public has learned that accusation is not proof."41 But it was precisely this reasoning with which Barnett took issue, and which many people felt was of very little validity when the "loyalty committees" rode the crest of public excitement during the early 1950's. The loss of jobs by some people upon whom suspicion was cast in the committees' proceedings brought the frequent charge that "guilt by accusa128

UNCERTAINTY IN THEORY tion" was a reality; that identification was important to the defamed; that the public had not learned that "accusation is not proof." In spite of these arguments, the practical matter of attendance of open proceedings by citizens has great force against Barnett's position. It seems too strong a factor, even in the very long view and even in the improbable event of the exclusion of television from all proceedings, to permit Barnett's position to prevail under most circumstances.

The Inadequacy of the Theory This chapter has shown how the theory that publicity gives security for the proper administration of public affairs has been ignored, how it has been subordinated, and how it has been attacked as unnecessarily permitting libels to be spread. Focusing, as it does, on the official's mode of performing his public duty — on the way in which he administers public affairs — the theory may additionally be questioned as being too narrow in scope. There is unquestionably a proper and legitimate role for publicity beyond its acting as a "watchdog" over the official's conduct: the public interest also can be served by the substantive information that emerges during the proceeding and is published in the press. Thus a public proceeding of a court, of a regulatory agency in the administrative sphere, or of a congressional committee, may disclose for the public enlightenment the details of questionable practices in any sphere of fife — business, government, labor, or whatever — as well as indicate the fairness and efficiency of the officials who are conducting the hearing. Perhaps the great majority of official proceedings needs publicity for the one reason as well as the other. Parenthetically, it is worth stressing that the theory which emphasizes the official's conduct was stated by Justice Holmes hi connection with a civil case. Holmes was at pains to point out that his reasoning applied particularly where the controversy was between private citizens, and thus where the public interest was involved not so much in public knowledge of the substantive facts of the case, as in the conduct of the official. At any rate, the rationale behind the grant of qualified privilege in press reports has stressed the "watchdog" function of publicity more than the "public informing-enlightening" function. It seems most sensible to include both functions in stating the rationale. That, indeed, is what a recent expression hi the leading American text on torts has done, saying that qualified privilege "rests upon the idea that any member of the public, if he 129

UNCERTAINTY IN THEORY were present, might see for himself, and the reporter is merely a substitute for the public eye. . . ."42 What the public may "see for itself" includes both official conduct and substantive information. Now, where neither function can be performed by the press, it is difficult to justify its protection of immunity in libel cases. What public interest rationale is there to justify and excuse false defamation of an individual, besides the "watchdog" and the "informing" functions? There is, indeed, one circumstance in the judicial setting where the press cannot fully act either as watchdog or information-giver. This is where the press carries stories of grand jury reports, which are prepared in secret on the basis of secret hearings which the press has not attended, and released in open court in the presence of the judge. Here the press cannot say that it has witnessed the grand jury's conduct and has acted as watchdog; nor can it say that it knows fully the facts on which the grand jury reached its conclusion and reported, and thus entirely fulfilled its informing function. This is to say that the grand jury's report is only the "final outcome" of its deliberations, and the essentials of its process and its findings are in its own control and ordinarily unknown to outsiders. Of course, its report is prepared for the scrutiny of the judge, who has the power to throw its findings out or to censure it. The same situation obtains where the congressional committee sends a printed report, based on secret hearings, to its house. While no case of this kind has involved the press in a libel suit, it may be surmised that such a report would furnish a proper basis for qualified privilege. In fact, as I have shown above, a much less formalized report of a congressional committee than this has furnished a basis for a successful plea of privilege. This was the case of Coleman v. Newark Morning Ledger Co., where Senator McCarthy's oral press conferences at Fort Monmouth were found privileged, and the news stories based on his reports were also found privileged. Here the New Jersey Supreme Court could not rely on the watchdog function of the press as a rationale for privilege, because the press saw nothing of the proceeding on which McCarthy's statements were based. Instead, the court said McCarthy was entitled to privilege because of the "interest of the public in the fullest freedom of officials to make disclosures on matters within the scope of their public duties. . . ." and extended the privilege to the press on the ground of its similar "informing" function.43 It said that the substantive information of the hearing was available in McCarthy's oral report of what had transpired there, and that the news130

UNCERTAINTY IN THEORY paper story of his oral report was a fair and accurate account of that information because McCarthy testified that it was. But with McCarthy's own privilege conceivably at stake (as the dissenter in the Coleman case said), what kind of standard was his summary of the substantive information and his testimony? Who except McCarthy could know whether McCarthy's oral report to the press was a fair and accurate account of the hearing? No outsider had witnessed the proceeding and no written record of the proceeding was available. Neither the press nor the public could "see for itself." It is this kind of situation that seems to offer weak justification for the privilege of press report. For where the basic proceeding itself is secret, the press cannot offer "security for the proper administration of public affairs"; and it can offer only that "substantive information" which the official has chosen to reveal. Thus the theory behind qualified privilege weakens seriously; and it becomes apparent why statutes have specified that proceedings must be public if they are to serve as a basis for qualified privilege. It also becomes somewhat clearer why American courts have developed no satisfactory rationale for privilege in press reports of executive proceedings. For while secret proceedings do indeed occur in the judicial and legislative settings, they are characteristic of the executive setting. The executive officer does his work in offices and at desks and telephones, not in courtrooms or legislative halls. When the American courts began extending privilege to press reports of executive statements, they satisfied themselves with merely stating that the privilege available for reports of judicial and legislative proceedings "now has been extended to reports of executive proceedings."44 The official's statement that was the "final outcome," or the "end result," of whatever executive process had taken place was considerably less than the court trial or the legislative debate or committee hearing as a basis for qualified privilege. Where the executive official makes a public statement, we must often take considerably on faith his assertion that his methods were fair and the facts found in his secret proceedings supported the action disclosed in his public statement. It was these things that the public and the press would not accept on faith in the seventeenth and eighteenth centuries when their pressures forced the judicial and legislative branches to open their proceedings to public scrutiny. When it reports the "final outcome" of a secret proceeding, then, what 131

UNCERTAINTY IN THEORY public service does the press perform that warrants defaming with immunity? In the first place —and obviously —we must have knowledge of what our executive officials say they are doing, and without question we may expect the great bulk of these statements to be full, honest, and considered. But this is a rather weak substitute for knowledge of what our officials are doing. Or again, it may be argued that the press can assume the moral responsibility to investigate on its own where it feels that the "final result" of a secret proceeding has resulted in injustice to an individual. Such cases are on record, a recent and notable instance being the persistent, undeterred effort of newsman Clark Mollenhoff to have the discharge of Wolf Ladejinsky by Secretary of Agriculture Ezra T. Benson reviewed.45 Ladejinsky, a land reform expert who was suspended from his job as agriculture attache in Japan in late 1954, as a security risk, had served the United States for years with distinction. Ultimately, Secretary Benson said that the security risk designation was "gratuitous and unnecessary," and partly as a result of this case, the security procedures of his department were reformed.46 But the press cannot possibly assume such a responsibility in anything like full measure: the task is outside its competency as a rule (it cannot take on the function of the courts) and beyond its physical capabilities. The society may legitimately ask the press to act as Mollenhoff did when the press suspects injustice; and such performance by the press will undoubtedly continue to be a real public service. But the press undertook no effort similar to MollenhofFs when the secret proceedings of the executive branch (army) and legislative branch (McCarthy subcommittee) combined to discharge from Fort Monmouth thirty-three employees whom the courts later ordered reinstated.47 The fact is that the theory has in the past ordinarily required more than these arguments as justification for immunity in press reports of judicial and legislative activities. The watchdog and informing functions have been important enough to warrant libeling individuals with immunity, where those junctions could be brought to bear on the proceeding itself. There are at least two factors at work today that indicate that the press will be protected by immunity in more and more cases where it cannot fully perform the functions that justify the immunity — that is, where it can report only the "final outcome" of the secret proceeding. One of these factors is the increasing scope of the immunity offered to the executive 132

UNCERTAINTY IN THEORY officer himself by the courts. In 1959, absolute privilege was extended to executive officers of "lesser rank" in their press releases.48 While qualified privilege for the press does not follow absolute privilege for the official in every case, it ordinarily does; and as the immunity attaches to new ranks of executive officials, their statements increase the total amount of reportable or "safe" copy for the press. The second factor is the increasing range of activity and power of the executive branch, growing with the complex urban, industrial society. With this increase it is likely that the occasions on which defamation emerges in the statements of executive officials will increase in number. It is not necessary to suspect in this connection that a peculiar tendency toward arbitrary and high-handed action inheres in the executive branch (although the press often charges that executive officials accustomed to working in secrecy become scornful of the "public right to know"); it is only common sense to expect a greater volume of executive statements as executive work increases. Thus while we have expanded a government machinery, its power, and its protection from libel in dealing with citizens, we have provided a relatively weak corresponding machinery for keeping it under surveillance.49 If the Coleman decision (involving Senator McCarthy's press conferences at Fort Monmouth) is to serve as precedent for libel cases arising hi the legislative branch, it will represent a third factor extending the press' immunity where it can perform only partly the "watchdog" and "informing" functions. In this case, the New Jersey Supreme Court ignored the hedges that had previously limited the legislative official's immunity to the proceeding itself, and went for its precedent to executive officials' immunity in making statements to the press. It gave approval to the proposition that the publicizing function was a proper one for Senator McCarthy when he was outside of his proceeding. The facts of life are leaving theory behind them, and causing it to be used where it applies awkwardly and uncertainly. It is not always necessary for the press to perform a "watchdog" function to justify libeling, nor must it perform fully the "informing" function; it is enough if the press publicizes the official's version of what went on in his own proceeding. No new rationale has been suggested as a substitute except Barnett's, discussed in the previous section of this chapter: in our system, the accused is assumed innocent until he is found guilty in court, and there is no need to identify him in press reports unless and until that guilty finding is re133

UNCERTAINTY IN THEORY turned. The inadequacies of this approach have been treated above, and its application seems impossible. Nor does it seem feasible to try to compel the executive branch to get in line with the theory: that is, to require of the executive officer that he make public a full record of his secret proceedings which led to his final public statement. To require this record of the executive official — whose "proceedings" leading to discharge of an employee or censure of an individual (and thus to possible defamation) may have been telephone calls, interviews, and oral reports from subordinates — is a heavy demand. It probably would lead only to greater reluctance on the part of the executive branch to make public any statement of its activities, which already — as the press has learned so thoroughly — are the least publicized of any government branch. The United States attorney general has seen that new conditions are favorable for an increase in the incidence of libel from the executive branch. When the Supreme Court in 1959 extended immunity to executive officers of "lesser rank," the attorney general warned against abuse of the new privilege. In a memorandum to executive branch personnel, he said that even when the official's statement is clearly privileged, the official "should act with an awareness of the vital importance of avoiding unnecessary injury to any person," and should be keenly aware of the heavy responsibility which falls on him.50 The citizen is confronted with the prospect of ever-increasing contact with the growing activity of the executive branch and the congressional investigating committee. He will need to rely somewhat on the attorney general's statement as a warning to the former and on the example of the Fort Monmouth investigation as a warning to the latter. The press will be reporting that which appears to be privileged.

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NOTE to NEWSMEN

C. P. TRUSSELL, Washington reporter for the New York Times, has said that calculating where privilege applies in reporting the welter of Washington's official activities is largely "a matter of playing it by ear." The foregoing chapters in no way provide a score that can substitute for playing by ear in all circumstances. They raise many more questions than they answer. Scrutiny of all legislative committee proceedings no doubt would reveal many activities of questionable "officiality" besides those examined here. Further, the bureaus and offices of the executive-administrative arena probably could provide their own cases of similar uncertain procedure, and they are not treated in this study. But at the risk of being presumptuous, the writer offers some "best guesses" in the hope that they may be of help in the day-to-day decisions that must be made so hurriedly in reporting government. They are emphatically not rules that cover every situation, although they may be useful beyond the preserve of the Un-American Activities Committee. They are considerably in the realm of crystal ball gazing, for no one knows what the courts may decide if and when cases come to legal test. In a general way, the long view may promise the newspaper increasing protection under qualified privilege. It will not come evenly and uniformly (little in the law of libel proceeds in an orderly fashion), if it does come. But there are these straws in the wind: The state of New York, which often has led the way in libel law, has removed from its privilege statute the requirement that the proceeding be public if it is to furnish the basis of qualified privilege. The Supreme Court of New Jersey has granted qualified privilege to a story based on a senator's statement outside any proceeding. 135

NOTE TO NEWSMEN The view that the reporter should not be required to know and understand technical procedural points in deciding what is a proceeding has been strengthened by a recent Kentucky decision. The United States Supreme Court has granted privilege to executive officials of "lesser rank" in their press releases; and where the official's privilege leads, the press' privilege ordinarily (although not always) follows. Further, this study discovered no indications of new restrictions on privilege in the news. It did, however, find that one tendency to expand the privilege — apparent in the 1930's and 1940's — has received setbacks. This is the granting of qualified privilege to pleadings filed but not seen by a judge. Federal courts and the state of Massachusetts have recently considered and rejected such a grant. Privilege under these circumstances has been allowed in eight states: California, Georgia, Kentucky, Nevada, New York, Ohio, Pennsylvania, and South Carolina. As for the weakening of the justification for libeling — that is, granting privilege where the press cannot fully perform either the "watchdog" or the "informing" function—its long-range effect is far beyond this writer's predictive power. At first glance, it seems to promise less rigorous requirements for the press; but can the press count forever on immunity where its very opportunity to perform a public service is sharply circumscribed? Those are conclusions about qualified privilege in general. In the narrower sphere of qualified privilege in reporting congressional investigating committees, the following best guesses are offered: First, the proceedings that seem least trustworthy as a basis for the claim to privilege are such materials as the public files and file reports of the Un-American Activities Committee. They often are not the result of investigation by the committee, and their "officiality" seems tenuous. Certain other written documents, such as Appendix Nine of the committee, and hired investigators' reports that have not been released by committee action seem almost as weak. Also, the oral report to the press by a congressman who emerges from a closed hearing to "summarize" the hearing's content needs careful handling by the newsman. Perhaps less dangerous as a basis for the plea of privilege is the subcommittee created irregularly, or the committee/subcommittee that lacks a quorum. At least the courts are divided as to the need for the newsman to know technical procedural requirements in deciding what he may safely report; and creation and quorum seem to be technical points. A margin of 136

NOTE TO NEWSMEN safety in one of these situations, however, lies in the reporter's merely asking the subcommittee chairman to demonstrate the authority by which the subcommittee was created. And where either creation or quorum is in doubt, the reporter can suggest to the committee/subcommittee chairman his doubts about reporting. Where the "loyalty committees" have been concerned, publicity has generally been as important to the committee as to the newspaper, and the committee at times may be glad to correct practices that stand in the way of publicity. A second and much safer guess is that resolution of the uncertainties suggested in this study is not to be expected soon. Law cases are the best guide to what is safe to report, and they have been scarce in this area hi the past and may not increase in number soon. Fortunately, the reporter who is immersed in government is not likely to be a person who must have irrefragable certainties to live and work by. Third, there are these rules of thumb that may be applied to committee activities as a help in deciding what is safe for reporting: Has group authorization for the report, record, or hearing been given by a rule-making body — the parent house or the committee? Is the hearing, record, or report open or available to the public? Does the hearing or reporting agency — committee or subcommittee — have a quorum? If the answer in each case is "yes," the reporter may have fair confidence that a basis for qualified privilege exists. If the answer to any of the three questions is "no," the reporter would do well to consider the possibility of losing the protection of qualified privilege. But none of this is to say that the reporter or newspaper should stop taking chances where the possibility of libel is concerned. The public interest claims the legal protection of qualified privilege as a device for the security of the proper administration of public affairs; and it is a truism that the same interest claims the moral protection of courage in newspapers and newsmen as a similar device.

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Appendixes, Notes, Bibliography, and Indexes

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Appendix A

Public Law 601,79th Congress (1946) RULES OF THE HOUSE OF REPRESENTATIVES RULEX Sec. 121. Standing Committees 17. Committee on Un-American Activities, to consist of nine members. RULE XI

Powers and Duties of Committees (q) (1) Committee on Un-American Activities. (A) Un-American activities. (2) The Committee on Un-American Activities, as a whole or by subcommittee, is authorized to make from time to time investigations of (i) the extent, character, and objects of un-American propaganda activities in the United States, (ii) the diffusion within the United States of subversive and un-American propaganda that is instigated from foreign countries or of a domestic origin and attacks the principle of the form of government as guaranteed by our Constitution, and (iii) all other questions in relation thereto that would aid Congress in any necessary remedial legislation. The Committee on Un-American Activities shall report to the House (or to the Clerk of the House if the House is not in session) the results of any such investigation, together with such recommendations as it deems advisable. For the purpose of any such investigation, the Committee on Un-American Activities, or any subcommittee thereof, is authorized to sit and act at such times and places within the United States, whether or not the House is sitting, has recessed, or has adjourned, to hold such hearings, to require the attendance of such witnesses and the production of such books, papers, and documents, and to take such testimony, as it deems necessary. Subpoenas may be issued under the signature of the chairman of the committee or any subcommittee, or by any member designated by any such chairman, and may be served by any person designated by any such chairman or member.

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Appendix B House Committee on Un-American Activities

Rules of Procedure I. INITIATION OF INVESTIGATIONS

No major investigation shall be initiated without approval of a majority of the Committee. Preliminary inquiries, however, may be initiated by the Committee's staff with the approval of the Chairman of the Committee. II. SUBJECTS OF INVESTIGATION

The subject of any investigation in connection with which witnesses are summoned or shall otherwise appear shall be announced in an opening statement to the Committee before the commencement of any hearings; and the information sought to be elicited at the hearings shall be relevant and germane to the subject as so stated. III. SUBPOENAING OF WITNESSES

A. Subpoenas shall be signed and issued by the Chairman of the Committee, or any members of the Committee designated by said Chairman. B. Witnesses shall be subpoenaed at a reasonably sufficient time in advance of any hearing, said time to be determined by the Committee, in order to give the witness an opportunity to prepare for the hearing and to employ counsel, should he so desire. IV. EXECUTIVE AND PUBLIC HEARINGS

A. Executive: (1) If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an Executive Session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing. (2) Attendance at Executive Sessions shall be limited to Members of the Committee, its staff, and other persons whose presence is requested, or consented to by the Committee. (3) All testimony taken in Executive Sessions shall be kept secret and shall not

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APPENDIXES be released or used in public sessions without the approval of a majority of the Committee. B. Public Hearings: (1) All other hearings shall be public. V. TESTIMONY UNDER OATH

All witnesses at public or executive hearings who testify as to matters of fact shall give all testimony under oath or affirmation. Only the Chairman or a member of the Committee shall be empowered to administer said oath or affirmation. VI. TRANSCRIPT OF TESTIMONY

A complete and accurate record shall be kept of all testimony and proceedings at hearings, both in public and in Executive Session. Any witness or his counsel, at the expense of the witness, may obtain a transcript of any public testimony of the witness from the Clerk of the Committee. Any witness or his counsel may also obtain a transcript of any executive testimony of the witness: (1) When a special release of said testimony prior to public release is authorized by the Chairman of the Committee or the Chairman of any Subcommittee; or (2) After said testimony has been made public by the Committee. VII. ADVICE OF COUNSEL

A. At every hearing, public or executive, every witness shall be accorded the privilege of having counsel of his own choosing. B. The participation of counsel during the course of any hearing and while the witness is testifying shall be limited to advising said witness as to his legal rights. Counsel shall not be permitted to engage in oral argument with the Committee, but shall confine his activity to the area of legal advice to his client. VIII. CONDUCT OF COUNSEL

Counsel for a witness shall conduct himself in a professional, ethical, and proper manner. His failure to do so shall, upon a finding to that effect by a majority of the Committee or Subcommittee before which the witness is appearing, subject such counsel to disciplinary action which may include warning, censure, removing from the hearing room of counsel, or a recommendation of contempt proceedings.1 In case of such a removal of counsel, the witness shall have a reasonable time to obtain other counsel, said time to be determined by the Committee. Should the witness deliberately or capriciously fail or refuse to obtain the services of other counsel within such reasonable time, the hearings shall continue and the testimony of such witness shall be heard without benefit of counsel. IX. STATEMENT BY WITNESS

A. Any witness desiring to make a prepared or written statementa for the record of the proceedings in executive or public sessions shall file a copy of such statement lr The Committee seeks factual testimony within the personal knowledge of the witness and such testimony and answers must be given by the witness himself and not suggested to witness by counsel. 2 Statements which take the form of personal attacks by the witness upon the motives of the Committee, the personal characters of any Members of the Congress or of the Committee staff, and statements clearly in the nature of accusation are not deemed to be either relevant or germane.

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APPENDIXES with the counsel of the Committee within a reasonable period of time in advance of the hearing at which the statement is to be presented. B. All such statements so received which are relevant and germane to the subject of the investigation may, upon approval, at the conclusion of the testimony of the witness, by a majority vote of the Committee or Subcommittee members present, be inserted in the official transcript of the proceedings. X. RIGHTS OF PERSONS AFFECTED BY A HEARING

A. Where practicable, any person named in a public hearing before the Committee or any Subcommittee as subversive, Fascist, Communist, or affiliated with one or more subversive-front organizations, who has not been previously so named, shall, within a reasonable time thereafter, be notified by registered letter, to the address last known to the Committee, of such fact, including: (1) A statement that he has been so named, (2) The date and place of said hearing, (3) The name of the person who so testified, (4) The name of the subversive, Fascist, Communist, or front organization with which he has been identified, and (5) A copy of the printed Rules of Procedure of the Committee. B. Any person, so notified, who believes that his character or reputation has been adversely affected or to whom has been imputed subversive activity, may within 15 days after receipt of said notice: (1) Communicate with the counsel of the Committee,3 and/or (2) Request to appear at his own expense in person before the Committee or any Subcommittee thereof in public session and give testimony, in denial or affirmation, relevant and germane to the subject of the investigation. C. Any such person testifying under the provisions of B (2) above shall be accorded the same privileges as any other witness appearing before the Committee, and may be questioned concerning any matter relevant and germane to the subject of the investigation. XI. ADMISSIBILITY OF TESTIMONY

A witness shall be limited to giving information relevant and germane to the subject under investigation. The Committee shall rule upon the admissibility of all testimony or information presented by the witness.* XII. RELATIONSHIP OF HUSBAND AND WIFE

The confidential relationship between husband and wife shall be respected and, for reasons of public policy, one spouse shall not be questioned concerning the activities 8 All witnesses are invited at any time to confer with Committee counsel or investigators for the Committee prior to hearings. * The House Committee on Un-American Activities is a Congressional Committee, not a court. . . . Moreover, the Committee has neither the authority nor the vast powers of a court of law. A Congressional Committee conducts a search for information, not a trial. The requirements of time, the nature of the fact-finding hearing, the complications of travel, the realities of expense, and the voluminous duties of Members of Congress all add together to make it impractical for courtroom procedure to be followed. The Committee has given frequent and diligent consideration to this subject, and has determined that in order to carry out its responsibilities imposed by law, the rules of evidence, including cross-examination, are not applicable.

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APPENDIXES of the other, except when a majority of the Committee or Subcommittee shall determine otherwise. XIII. TELEVISED HEARINGS A. If a hearing be televised: (1) Television facilities in the hearing room shall be restricted to two cameras, the minimum lighting facilities practicable, and the television production shall be available on a pool basis to all established television companies desiring participation. (2) Telecasts of Committee hearings shall be on the basis of a public service only, and this fact shall be publicly announced on television in the beginning and at the close of each telecast. No commercial announcements shall be permitted from the hearing room or in connection therewith, and no actual or intimated sponsorship of the hearings shall be permitted in any instance. B. Upon the request of a witness that no telecast be made of him during the course of his testimony, the Chairman shall direct that television cameras refrain from photographing the witness during the taking of his testimony. XIV. COMMITTEE REPORTS A. No Committee reports or publications shall be made or released to the public without the approval of the majority of the Committee. B. No summary of any Committee report or publication and no statement of the contents of such report or publication shall be released by any Member of the Committee or its staff, prior to the official issuance of the report. XV. WITNESS FEES AND TRAVEL ALLOWANCE Each witness who has been subpoenaed, upon the completion of his testimony before the Committee, may report to the office of the Clerk of the Committee, room 227, Old House Office Building, Washington, B.C., and there sign appropriate vouchers for travel allowances and attendance fees upon the Committee. If hearings are held in cities other than Washington, B.C., the witness may contact the Clerk of the Committee, or his representative, prior to leaving the hearing room. XVI. CONTEMPT OF CONGRESS No recommendation that a witness be cited for contempt of Congress shall be forwarded to the House of Representatives unless and until the Committee has, upon notice to all its members, met and considered the alleged contempt, and by a majority of those present voted that such recommendation be made. XVII. DISTRIBUTION OF RULES All witnesses appearing before the House Committee on Un-American Activities shall be furnished a printed copy of the Rules of Procedure of the Committee.

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Notes

Chapter I. A Justification for Libel, pages 3-16 ^Benton's Abridgment of the Debates of Congress, Vol. 1 (1789-1796), pp. 448453; Henry Adams, The Life of Albert Gallatin (Philadelphia: J. B. Lippincott & Co., 1879), pp. 114-119. 2 Fredrick S. Siebert, Freedom of the Press in England, 1476-1776 (Urbana: Univ. of 111. Press, 1952), Chap. 17; Frank B. Thayer, Legal Control of the Press, 2d ed. (Brooklyn: The Foundation Press, Inc., 1950), p. 33. 3 Harold L. Cross, The People's Right to Know (Morningside Heights: Columbia Univ. Press, 1953), pp. 155-156. * Ibid., pp. 164-165; Hinds' Precedents of the House of Representatives, V, Sec. 7247. 6 "Report of the Sigma Delta Chi Advancement of the Freedom of Information Committee — Part II," Quill, Vol. 46 (Jan. 1958), p. 24. See also any issue of The Bulletin of the American Society of Newspaper Editors, for the years 1953-1959, for the ongoing concern of the ASNE over secrecy in government. a William L. Prosser, Handbook of the Law of Torts, 2d ed. (St. Paul: West Publishing Co., 1955), p. 625. 7 Curry v. Walter, 170 Eng. Rep. at 419; 126 Eng. Rep. 1046 (1796). 8 King v. Wright, 101 Eng. Rep. 1396, 1399 (1799). 9 Stockdale v. Hansard, 112 Eng. Rep. 1112 (1837). 10 George S. Bower, A Code of the Law of Actionable Defamation (London: Sweet and Maxwell, Ltd., 1908), pp. 406-407. 11 Cowley v. Pulsifer, 137 Mass, at 394 (1884). 12 Hughes v. Washington Daily News Co., 193 F. 2d 923 (1952). 13 Prosser, op. cit., pp. 625-626. "53CJ.S.201. 15 New York Laws, 1854, Chap. 130, "AN ACT in relation to libel." The statute went unchanged with respect to these points for 102 years, or until 1956, when it was modified. 16 A single exception appeared in a decision in New York: Farrell v. New York Evening Post, 3 N.Y.S.2d 1018, 1022 (1938), where the word was held to mean "of general interest or concern." This interpretation was not followed subsequently. See also Harold L. Cross, "Some Twilight Zones in Newspaper Libel," 1 Cornell Law Q. 238,256(1916). " McCabe v. Cauldwell, 18 Abb. Pr. 377, 378 (N.Y., 1865). "Danziger v. Hearst Corp., 304 N.Y. 244 (1952). See also Stevenson v. News

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NOTES Syndicate Co., 96 N.Y.S.2d 751 (1950); and contra, Stolow v. Hearst Corp., 105 N.Y.S.2d 284 (1951). 18 Williams v. Journal Co., 247 N.W. 435, 438 (Wis., 1933); In re Grand Jury Report, Petition of Williams, 235 N.W. 789 (Wis., 1931). 20 Parsons v. Age-Herald Pub. Co., 61 S. at 349 (Ala., 1913). 21 McCurdy v. Hughes, 63 N.D. 435 (1933). See also Flues v. New Nonpareil Co., 135 N.W. 1083, 1085 (la., 1912); Switzer v. Anthony, 206 P. 391 (Colo., 1922). 22 A recent and important exception, in the case of New York, will be treated below, p. 15. 23 Except possibly in California: Irwin v. Murphy, 19 P.2d 292, 293 (1933). 24 McDermott v. The Evening Journal Ass'n., 43 N.J. 488,490 (1881). 25 Wood v. Constitution Pub. Co., 194 S.E. 761 (Ga., 1937). 26 Mannix v. Portland Telegram, 23 P.2d 138 (Ore., 1933). 27 Anon, "Newspaper Articles Based on Defamatory Statements in Pleadings," 70 U.S. Law Rev. 419, 421-423 (1936). 28 Barber v. St. Louis Post Dispatch Co., 3 Mo. App. 377; 53 C.J.S. 205. 29 The earliest appears to have been Thomas v. Croswell, 7 Johns. Rep. 264 (N.Y.) in 1810, where the court found clear evidence of newspaper comment mixed with the report of a court trial, and ill will to boot. It used English precedent and denied the newspaper immunity. The only other American case before 1850 turned up in a long search was M'Laughlin v. M'Makin, Brightly N. P. 132 (Pa., 1848). The abbreviated opinion — "proceedings of the courts are matters fit for public information" — found in favor of the newspaper. 30 Rex v. Lee, 170 Eng. Rep. 759, 760 (1804). 31 Rex v. Fisher, 170 Eng. Rep. 1253,1255 (1811). 83 Frank Luther Mott, American Journalism (New York: The Macmillan Company, 1950),p. 223. 33 Ibid., p. 237. 31 Stanley v. Webb, 4 Sandford 21, 31 (N.Y., 1850). 35 Mathews v. Beach, 5 Sandford 256 (N.Y., 1851). 38 Supra, fn. 15; Stuart v. Press Pub. Co., 82 N.Y.S. 401, 409-410 (1903). 37 Stanley v. Webb, 4 Sandford at 30 (N.Y., 1850). 38 Ibid., at 31. 39 Wason v. Walter, L.R. 4 Q.B. 73, 93 (1868). 40 Usill v. Hales, 3 C.P.D. 319 (1878); Bower, op. cit., p. 405. 41 Supra, fn. 15. 42 Charles Angoff, Handbook of Libel (New York: Duell, Sloan and Pearce, 1946), see statutes for Arizona, California, Idaho, Louisiana, Minnesota, North Dakota, South Dakota, Oklahoma, Utah, Wisconsin. 43 Thayer, op. cit., p. 31. 44 L.R. 4 Q.B. 73 (1868). 45 /bid., at 81. 4a /fezW.,at87, 89, 92,93. 47 As early as 1861, Judge Hiram Denio of the New York bench essayed a rationale for privilege in press reports based on executive proceedings. In a lengthy opinion, he said the only such proceeding that would be sufficient basis for the privilege was that in which the subject at hand was "considered, deliberated upon, discussed and determined." Sanford v. Bennett, 24 N.Y. at 25-27. The executive act "performed by a single official person," and which had "neither forensic debate, nor legislative or administrative deliberation" thus was insufficient basis. But the "deliberative body" requirement did not appeal to courts in subsequent cases. Perhaps they did not wish to get involved so deeply as Denio in saying what was due process in executive matters. 48 Conner v. Standard Publishing Co., 67 N.E. 596 (Mass., 1903). 49 Brown v. Globe Printing Co., 112 S.W. 462, 468 (Mo., 1908).

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NOTES "157N.E. 153. 61 137 Mass, at 394 (1884). 58 Stuart v. Press Pub. Co., 82 N.Y.S. 401 (1903); Lee v. Brooklyn Union Pub. Co., 103 N.E. 155 (1913); Williams v. New York Herald Co., 150 N.Y.S. 838 (1914). The Campbell ruling has come under attack, e.g., Kurt H. Nadelmann, "The Newspaper Privilege and Extortion by Abuse of Legal Process," 54 Col. Law Rev. 359 (Feb. 1954). 63 Campbell v. New York Evening Post, 157 N.E. 153, 156 (1927). See below, Chap. VIII, for a fuller treatment of this case. 54 Respectively, Kurata v. Los Angeles News Pub. Co., 40 P.2d 520; Lybrand v. The State Co., 184 S.E. 580; Paducah Newspapers, Inc. v. Bratcher, 118 S.W.2d 178; Shiver v. Valdosta Press, 61 S.E.2d 221. 55 Washington Times Co. v. Bonner, 86 F.2d 923, and Pittsburgh Courier Pub. Co.89v. Lubore, 200 F.2d 355. Sanford v. Boston Herald-Traveler Corp., 61 N.E.2d 5. 57 Stevenson v. News Syndicate Co., 96 N.Y.S.2d 751 (1950); Danziger v. Hearst Corp., 304 N.Y. 244 (1952). "Ibid. 69 Editor & Publisher, May 5, 1956, p. 52. See New York State Legislative Annual, 1956, pp. 494-495, for the change and Governor Harriman's comment on signing the bill. 60 Idem.

Chapter II. Libel, Publicity, and Procedure, pages 17-27 ^erveny v. Chicago Daily News Co., 139 111. 345 (1891); Wilkes v. Shields, 62 Minn. 426 (1895); Lewis v. Daily News Co., 81 Md. 466, 473 (1895). 2 Wells v. Times Printing Co., 77 Wash. 171 (1913); Ogren v. Rockford Star Printing Co., 288 111. 405 (1919). See also Anon., "Imputation of Objectionable Political or Sociological Principles or Practices," 51 A.L.R. 1071 (1927), and "Supplement," 171 A.L.R. 709 (1947). 'Hartley v. Newark Morning Ledger Co., 46 A.2d 777 (N.J., 1946); Goodrich v. Reporter Pub. Co., 199 S.W.2d 228 (Texas, 1946); Hryhorijiv v. Winchell, 45 N.Y.S. 2d 31 (1943). * Wright v. Farm Journal, 158 F.2d 976 (1947); Grant v. Reader's Digest Assn., 151 F.2d 733 (1945); Spanel v. Pegler, 160 F.2d 619 (1947); Levy v. Gelber, 25 N.Y.S.2d 148 (1941). For news reports of recent cases, see San Francisco Chronicle, May 26, 1955, p. 6; Christian Science Monitor, Aug. 12, 1953, p. 1. 5 Anon., "Supplement," 171 A.L.R. 709, at 712 (1947). 8 Prosser, op. cit., pp. 631-632. 7 Utah State Farm Bureau Federation et al. v. National Farmers Union Service Corp. et al, 198 F.2d 20, 24-25 (1952). 8 Prosser, op. cit., pp. 621-622. 8 Senate Committee on Government Operations, "Congressional Investigations of Communism and Subversive Activities, Summary-Index 1918 to 1956," July 23, 1956, pp. 3-8, 143-161. See also August Raymond Ogden, The Dies Committee (Washington: The Catholic University of America Press, 1945), Chap. 2. 10 Ibid., pp. 53,59. The Ogden book is the best study of the Dies Committee. "Ibid., Chap. 16. u Anon., "The Three Investigating Committees," 33 Congressional Digest 134135, 160 (May 1954). 13 Walter Gellhorn (ed.), The States and Subversion (Ithaca: Cornell Univ. Press, 1952). "Robert K. Carr, The House Committee on Un-American Activities 1945-1950 (Ithaca: Cornell Univ. Press, 1952), p. 3. 148

NOTES 15

M. Nelson McGeary, "Congressional Investigations: Historical Development," 18 Univ. Chi. Law Rev. 425, 430 (1951). 18 Carr, op. cit., p. 7. "Barsky v. United States, 167 F.2d 241, 256 (1948), dissent of Justice Edgerton. 18 Watkins v. United States, 354 U.S. 178, 200 (1956). 19 Carr, op. cit., pp. 454,459, 462. 20 J. Parnell Thomas, 93 Congressional Record A 4277 (Nov. 20, 1947). 21 House Committee on Un-American Activities, "Testimony of Walter S. Steele," July 21, 1947. (Committee hereafter is designated CUAA in footnotes.) 22 CUAA, "Expose of the Communist Party of Western Pennsylvania," Part 1, Feb. 21,1950. 23 CUAA, "Investigation of Communist Activities in the Pacific Northwest," Parts 2, 3,24 June 14-19, 1954. Dorothy C. Tompkins, Investigating Procedures of Congressional Committees — A Bibliography (Berkeley: Bureau of Public Administration, Univ. of California, 1954). 25 George B. Galloway, "Congressional Investigations: Proposed Reforms," 18 Univ. Chi. Law Rev. 478, 492 (1951). 26 Carr, op. cit., pp. 131-153; Herman Finer, "The British System," 18 Univ. Chi. Law Rev. 521 (1951). 27 Galloway, op. cit., p. 490; American Jewish Congress, "Statement to the Rules Committee of the Senate Committee on Rules and Administration" (New York: Stephen Wise Congress House, July 6, 1954) (mimeographed), App. A, pp. 1-2. 28 Robert Kline, "Some Practices of Congressional Investigating Committees" (unpublished Ph.D. dissertation, Syracuse Univ., 1937), p. 799. 28 Galloway, op. cit., p. 480. 90 Ibid. 31 New York Times, Aug. 10, 1951, p. 7. Its fears may have been exaggerated. See Chap. V. 82 Nat S. Finney, "Reporters and Lawyers at Congressional Investigations," 9 Bench and Bar of Minnesota 33 (1952). Then with the Minneapolis Star and Tribune, Finney later became head of the Washington bureau of the Buffalo Evening News. 33 Van Vechten Veeder, "Absolute Immunity in Defamation: Legislative and Executive Proceedings," 10 Columbia Law Rev. 133-135 (1910). 34 Robert G. Simmons, "Freedom of Speech in Congress: The History of a Constitutional Clause," 38 Am. Bar Ass'n. Journal 649 (1952). 35 Prosser, op. cit., pp. 611, 623. 36 53 C.J.S. 173,207. 37 Cole v. Richards, 158 A. 466 (N.J., 1932); Kilbourn v. Thompson, 103 U.S. 168(D.C., 1881). 38 Cochran v. Couzens, 42 F.2d 783 (D.C., 1930). 89 Robert H. Williams v. Anti-Defamation League of B'nai B'rith and Adolph J. Sabath, District Court of U.S. for D.C., Civil Action File No. 3005-3048, condensed in George B. Galloway (comp.), "Recorded Examples of Alleged Abuse of the Congressional Immunity Privilege" (Washington: Library of Congress, April 12, 1950) (typed); Van Riper v. Tumulty, 56 A.2d 611 (N.J., 1948); Tuohy v. Halsell, 128 P. 126(0^,1912), 40 Coleman v. Newark Morning Ledger Co., 149 A.2d 193 (N.J., 1959). 41 Coffin v. Coffin, 4 Mass. 1,27 (1808). 4a L.R.4Q.B.at92-93 (1868). 43 Anon., "Defamation Immunity," 18 Univ. Chi. Law Rev. at 593 (1951). 44 Prosser, op. cit., p. 624. 45 Wason v. Walter L.R. 4 Q.B. 73 (1868); Garby v. Bennett, 59 N.E. 1117 (N.Y., 1901); Cresson v. Dispatch Printing Co., 291 F. 632 (1923), and other Cresson cases; Anon., "Defamation Immunity," 18 Univ. Chi. Law Rev. at 592 (1951). 149

NOTES "Terry v. Fellows, 21 La. Ann. 377 (1869); Coleman v. Newark Morning Ledger Co., 149 A.2d 193 (N.J., 1959). 47 Anon., "Defamation Immunity," 18 Univ. Chi. Law Rev. at 595 (1951). 48 Robert C. McClure, Book Review of Carr, The House Committee on UnAmerican Activities, 1945-1950, in 38 Minn. Law Rev. 187 (1954). w Christoffel v. United States, 338 U.S. 84 (1949).

Chapter III. Committee Proceedings: The Public Files, pages 28-40 X

CUAA, "Report of the Committee on Un-American Activities to the United States House of Representatives," Dec. 31, 1948, pp. 21-22; Carr, op. cit., pp. 253260. 3 Ibid.; CUAA, "Annual Report for the Year 1953," Feb. 6, 1954, p. 132. See also Annual Reports for 1955-1957. 3 CUAA, "Report to the House," Dec. 31, 1948, pp. 21-24. * CUAA, "Annual Report for the Year 1953," Feb. 6,1954, p. 132. 5 CUAA, "Report to the House," Dec. 31,1948, pp. 21-24. 6 Carr, op. cit., pp. 253-254. 7 G. Bromley Oxnam, / Protest (New York: Harper & Brothers, 1954), p. 66. 8 CUAA, "Annual Report for the Year 1953," Feb. 6,1954, p. 132. 9 CUAA, "Report to the House," Dec. 31, 1948, p. 21. 10 CUAA, "Annual Report for the Year 1953," Feb. 6,1954, p. 132. 11 See "A Velde Committee 'File' Dissected," Washington Post, April 5, 1953. Oxnam testified for 10 hours in 1953 before the committee at his own request: CUAA, "Testimony of Bishop G. Bromley Oxnam," July 21, 1953. See also Carr, op. cit., pp. 253-255. 12 "A Velde Committee 'File' Dissected," Washington Post, April 5, 1953. 13 CUAA, "Report to the House," Dec. 31, 1948, pp. 21-24; CUAA, "Annual Report for the Year 1953," Feb. 6, 1954, pp. 132-133. M Oxnam, op. cit., pp. 37-38. 15 Ibid., p. 99. 18 Carr, op. cit., p. 255. 17 "A Velde Committee 'File' Dissected," Washington Post, April 5, 1953. 18 Ibid. 19 Ibid. 20 Carr, op. cit., p. 254. * Ibid., p. 253. 23 CUAA, "Report to the House," Dec. 31, 1948; Robert E. Stripling, The Red Plot Against America (Drexel Hill, Pa.: Bell Pub. Co., 1949), p. 23. 23 CUAA, "Testimony of Bishop G. Bromley Oxnam," July 21, 1953, p. 3718. 24 Ibid., p. 3716. Interview with writer on July 12,1954. 25 1bid. 28 CUAA, "Annual Report for the Year 1953," Feb. 6,1954, p. 132. 27 Another ground on which the public files are frequently questioned or attacked is that their existence and maintenance are evidences of the "police state" in action. The subject is outside the scope of this study. 28 See the statutes collected in Angoff, op. cit. Wording very close to this is used by Minnesota, Montana, North Dakota, South Dakota, and other states. ^Wason v. Walter, L.R. 4 Q.B. 73 (1868); Anon., "Defamation Immunity," 18 Univ. Chi. Law Rev. 593 (1951). 30 Fredrick S. Siebert, The Rights and Privileges of the Press (New York: Appleton-Century Co., 1934), pp. 214-216. 31 Ibid., p. 212; Prosser, op cit., pp. 845-846. 32 The phrase is taken from the decision in Barber v. St. Louis Post Dispatch Co.,

150

NOTES 3 Mo. App. 377 (1877). For some of the cases, see Prosser, op, cit., p. 624, and Chap. I supra. 33 Pittsburgh Courier Pub. Co. v. Lubore, 200 F.2d 355 (1952). 34 Siebert, The Rights and Privileges of the Press, p. 212, fn. 30. 36 5F.2d541. 38 The only prior cases supporting it seem to have been Good v. Grit Pub. Co., 36 Pa. Super. Ct. 238 (1908); Mengel v. Reading Eagle Co., 241 Pa. St. 367 (1913), which also ignored the issue; and Thompson v. Powning, 15 Nev. 195 (1880). 37 86 F.2d 836, 840 (1936). 38 Ibid. 39 Lubore v. Pittsburgh Courier Pub. Co., 101 F. Supp. 234. 40 Pittsburgh Courier Pub. Co. v. Lubore 200 F.2d 355 (1952). 41 Infra, pp. 119-121. 42 Campbell v. New York Evening Post, 157 N.E. 153 (N.Y., 1927). 43 Angoff, op. cit., shows that among these are Arizona, California, Idaho, Louisiana, Minnesota, North and South Dakota, and Utah. 14 Parsons v. Age-Herald Pub. Co., 61 S. at 349 (Ala., 1913); McCurdy v. Hughes, 63 N.D. 435 (1933); Flues v. New Nonpareil Co., 135 N.W. 1083, 1085 (la., 1912). 45 Stevenson v. News Syndicate Co., 96 N.Y.S.2d 751 (1950); Danziger v. Hearst Corp., 304 N.Y. 244 (1952). 48 New York State Legislative Annual 1956, pp. 494-495. 47 As in Wason v. Walter, L.R. 4 Q.B. 73 (1868). It is interesting that a few years after Judge Holmes of Massachusetts delivered the landmark decision in Cowley v. Pulsifer, 137 Mass. 392, he apparently had an opportunity to extend the immunity from reports of open court to reports of executive proceedings, but did not: Hurt v. Advertiser Newspaper Co., 28 N.E. 1 (Mass., 1891). 48 Conner v. Standard Pub. Co., 67 N.E. 596 (Mass., 1903). 49 Brown v. Globe Printing Co., 112 S.W. 462 (Mo., 1908). 50 People's U.S. Bank v. Goodwin, 128 S.W. 220 (Mo., 1910); Tilles v. Pulitzer Pub. Co., 145 S.W. 1143 (Mo., 1912). 61 Siebert, The Rights and Privileges of the Press, pp. 215-216, lists Alabama, California, Georgia, New Jersey, Ohio, Texas, and Michigan. 52 Ibid. And see especially Walter A. Steigleman, "The Legal Problem of the Police Blotter," Journalism Quarterly, Vol. 20 (March 1943), pp. 30, 38. 63 Billet v. Times-Democrat Pub. Co., 32 S. 17, 21 (La., 1902). 54 Sherwood v. Evening News Ass'n., 239 N.W. 305 (Mich., 1931). 55 Thayer, op. cit., pp. 149-150; Danziger v. Hearst Corp., 107 N.E.2d 62 (N.Y., 1952). 56 Nunnally v. Press Pub. Co., 110 N.Y. App. Div. 10 (1905). 57 Allen v. Houston Chronicle Pub. Co., 109 S.W.2d 1135 (1937). 58 Caller-Times Pub. Co. v. Chandler, 130 S.W.2d 853 (1939). 59 Pittsburgh Courier Pub. Co. v. Lubore, 200 F.2d 355. 80 Washington Times Co. v. Bonner, 86 F.2d 836. 61 Hughes v. Washington Daily News Co., 193 F.2d 922 (1952). ea Quoted in Ogden, op. cit., p. 290. 63 Statement of July 31, 1958, in interview with writer. 64 Leo C. Rosten, The Washington Correspondents (New York: Harcourt, Brace, 1937), p. 82; Douglass Cater, "Government by Leak," The Reporter, Vol. 20 (April 2,1959), p. 27. 65 See San Francisco Examiner, following citations. For 1951: Jan. 22, p. 25; Jan. 29, p. 23; May 16, p. 27. For 1952: May 29, p. 17; May 30, p. 11. For 1953: Jan. 30, p. 21; March 13, p. 27; March 18, p. 25. The word "files" is not used to describe the source in every one of the foregoing citations, but in each there is at least ground for supposing that the files are the source. 88 Ibid., May 30,1952, p. 11.

151

NOTES "Ibid., Jan. 30,1953, p. 21. 68 Fund for the Republic Bulletin, Sept. 1956. 89 Ibid.

Chapter IV. Committee Proceedings: Files Reports, pages 41-57 1

CUAA, "Annual Report for the Year 1953," Feb. 6, 1954, p. 132. 2 CUAA, "Report to the House," Dec. 31, 1948, p. 22; "Annual Report for the Year 1955," Jan. 11, 1956, p. 4; "Annual Report for the Year 1957," Feb. 3, 1958, p. 8. 8 CUAA, "Report to the House," Dec. 31, 1948, p. 22; "Annual Report for the Year 1956," Jan. 2, 1957, p. 55. 4 CUAA, "Annual Report for the Year 1953," Feb. 6,1954, p. 132. B Quoted in House Committee on Rules, "Legislative Procedure," 1954, pp. 154, 168. 6 Carr, op. cit., p. 257. 7 CUAA, "Testimony of Bishop G. Bromley Oxnam," July 21,1953, p. 3719. 8 CUAA, "Annual Report for the Year 1953," Feb. 6, 1954, p. 132. Annual Reports for 1955-1957 mention only these as recipients of files material. 9 Statement of committee member Francis E. Walter to writer in interview of July 12,1954. 10 Oxnam, op. cit., pp. 11,36. u Ibid., p. 63; "Legislative Procedure," p. 204. 12 CUAA, "Annual Report for the Year 1953," Feb. 6, 1954, p. 133. ™ Ibid., p. 132. 14 "A Velde Committee 'File' Dissected," Washington Post, April 5, 1953. 1B Oxnam, op. cit., pp. 30, 37. 16 "A Velde Committee 'File' Dissected," Washington Post, April 5,1953. "Thompson v. Boston Pub. Co., 285 Mass, at 346-347 (1934); Thompson v. Globe Newspaper Co., 279 Mass, at 186-187 (1932). 18 Belo v. Lacy, 111 S.W. 215 (1908). See Norris G. Davis, The Press and the Law in Texas (Austin: Univ. of Texas Press, 1956), p. 58. 19 See Appendix A. 20 Davis, op. cit., p. 56. 21 Caller-Times Pub. Co. v. Chandler, 130 S.W.2d at 856 (1939). 22 Anon., "Newspaper Articles Based on Defamatory Statements in Pleadings," 70 U.S. Law Rev. 419 (1936); ICimball v. Post Pub. Co., 199 Mass. 248 (1908); American Pub. Co. v. Gamble, 115 Tenn. 663 (1906). 23 20 R.I. 674(1898). 24 Ibid., at 679. See also Fitch v. Daily News Pub. Co., 116 Neb. 474 (1928). 25 Thompson v. Boston Pub. Co., 285 Mass. 346 (1934). 28 Mannix v. Portland Telegram, 23 P.2d 138 (Ore., 1933). 27 Used often since its expression in Barber v. St. Louis Post Dispatch Co., 3 Mo. App. 377(1877). 28 CUAA, "Annual Report for the Year 1953," p. 132. 29 Douglas v. Collins, 276 N.Y.S. 87 (1935). 30 Rogers v. Courier Post Co., 66 A.2d 869 (N.J., 1949); Viosca v. Landfried, 73 S. 698 (La., 1916). 31 Wood v. Constitution Pub. Co., 194 S.E. 761 (Ga., 1937). ** Ibid., at 7 66. 33 43 N.J. 488, 490 (1881). 34 Ibid. 35 Timberlake v. Cincinnati Gazette Co., 1 Distr. 320 (Ohio). This decision is apparently overruled by statute in Ohio today: Angoff, op. cit., p. 160. It is still cited

152

NOTES in some decisions, however. Another early case denying qualified privilege was McAllister v. Free Press Co., 43 N.W. 431 (Mich., 1889). See Steigleman, op. cit. 88 Lancour v. Herald & Globe Ass'n., 17 A.2d 253. See also Billet v. Times-Democrat Pub. Co., 32 S. 17 (La., 1902); Nunnally v. Press Pub. Co., 110 N.Y. App. Div. 10 (1905); Sherwood v. Evening News Ass'n., 239 N.W. 305 (Mich., 1931); Burrows v. Pulitzer Pub. Co., 255 S.W. 925 (Mo., 1923); Norfolk Post Corp. v. Wright, 122 S.E. 656 (Va., 1924). 37 Lancour v. Herald & Globe Ass'n., 17 A.2d 253,259. 38 Siebert, The Rights and Privileges of the Press, p. 215; Allen v. Houston Chronicle39Pub. Co., 109 S.W.2d 1135 (Texas, 1937). McClure v. Review Pub. Co., 80 P. 303 (Wash., 1905); Kilgore v. Koen, 288 P. 192 (Ore., 1930). 40 The state is New Jersey. See Angoff, op. cit., p. 134. It is clear that protection is available only where department heads have issued the statement: Rogers v. Courier Post, 66 A.2d 869 (N.J., 1949). "Morasca v. Item Co., 126 La. 426 (1910); Burrows v. Pulitzer Pub. Co., 255 S.W. 925 (Mo., 1923). 42 Lancour v. Herald & Globe Ass'n., 17 A.2d 253 (1941). "Sanford v. Bennett, 24 N.Y. 20 (1861). The case has been cited with approval at least twice recently by New York courts: May v. Syracuse Newspapers, 294 N.Y.S. 867 (1937); Jacobs v. Herlands, 17 N.Y.S. 2d 711 (1940). 44 Caller-Times Pub. Co. v. Chandler, 130 S.W.2d 853 (1939). ^Rogers v. Courier Post Co., 66 A.2d 869 (N.J., 1949). See also Pittsburgh Courier Co. v. Lubore, 200 F.2d 355 (1952). 48 A single exception is that of Schwarz Bros. Co. v. Evening News Pub. Co., 87 A. 148 (N.J. 1913). A news story saying that diseased horses were slaughtered for human food by the plaintiff was not privileged, though based on the acts and reports of federal and state officials concerned. The decision held that privilege in publication had not been extended "to reports of public officials" outside the judicial and legislative settings. But see a subsequent statute: Angoff, op. cit., p. 134. 47 Conner v. Standard Pub. Co., 67 N.E. 596 (Mass., 1903). 48 Tilles v. Pulitzer Pub. Co., 145 S.W. 1143 (Mo., 1912). 49 Begley v. Louisville Times Co., 115 S.W.2d 345 (Ky., 1938). 60 Swearingen v. Parkersburg Sentinel Co., 26 S.E.2d 209 (W. Va., 1943). 51 People's United States Bank v. Goodwin, 128 S.W. 220 (Mo., 1910). Qualified privilege was denied the newspaper publishing the account of this event, not because the postmaster general's act was insufficient official basis but because the newspaper added its own interpretation. B2 Farrell v. New York Evening Post, 3 N.Y.S.2d 1018 (1938). See also Baumann v. Newspaper Enterprises, 60 N.Y.S.2d 185 (1946). 83 Hughes v. Washington Daily News Co., 193 F.2d 923. But Barr v. Matteo, 360 U.S. 564 (1959), indicates that the privilege would attach. 54 Brown v. Globe Printing Co., 112 S.W. 462 (Mo., 1908). 58 Mack, Miller Candle Co. v. Macmillan Co., 269 N.Y.S. 33 (1934). 66 Holway v. World Pub. Co., 44 P.2d 881 (Okla., 1935). 87 Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 183 N.E. 193 (N.Y., 1932). 58 Lewis v. Hayes, 165 Cal. 527 (1913). 69 Public Law 601, U.S. Statutes, LX, pp. 828-829. See Appendix A herein. 60 Carr, op. cit., p. 261, doubts even the usefulness of the files. 81 Appendix A. 82 Rule XI, 25 (c), Lewis Deschler, Constitution Jefferson's Manual and Rules of the House of Representatives (Washington: Gov't. Printing Office, 1952), p. 365. 63 See Chap. VI below for detailed treatment of quorum. 64 One of the best treatments of the process is in the dissent of Judge Henry Edgerton in Barsky v. United States, 167 F.2d at 255 (1948). Many authors have 153

NOTES discussed the process: Carr, op. cit., Chap. XI; Telford Taylor, Grand Inquest (New York: Simon and Schuster, 1955), Foreword, Chaps. VI, IX. 85 Barsky v. United States, 167 F.2d at 256 lists many of these statements. 88 Carr, op. cit., pp. 424-426. 87 United States v. Josephson, 165 F.2d at 89-90 (1947); Morford v. United States, 176F.2d54(1949). 88 Although they have held that investigation by Congress is proper for the purposes of examining qualifications of its own members or their activities, Barry v. Cunningham, 279 U.S. 597 (1929); and of examining conduct of public officers where impeachment is possible, In re Chapman, 166 U.S. 661 (1897). 89 Watkins v. United States, 354 U.S. 178, 200 (1957). 70 4 Mass. 1 (1808). It was quoted with approval in part by the United States Supreme Court as recently as 1951: Tenney v. Brandhove, 341 U.S. 367. 71 Coffin v. Coffin, 4 Mass. 1 (1808). n Although an occasional ruling seems to indicate the contrary: Irwin v. Ashurst, 74 P.2d 1127 (1938). 7S Prosser, op. cit., p. 824. 74 Siebert, The Rights and Privileges of the Press, p. 214; Davis, op. cit., pp. 60-61. 75 Thayer, op. cit., p. 345; Williams v. Journal Co., 247 N.W. 435 (Wis., 1933). 78 Oxnam, op. cit., pp. 98-99. 77 CUAA, "Testimony of Bishop G. Bromley Oxnam," July 21, 1953, p. 3719. 78 For example, Counterattack, published weekly by the American Business Consultants, Inc., 55 W. 42nd St., New York City; Summary of Trends and Developments Exposing the Communist Conspiracy, published by the National Americanism Commission Subcommittee on Subversive Activities of the American Legion, Indianapolis, Ind.; Alert, 127 S. Broadway, Room 409, Los Angeles, Calif., copyright by Jacoby & Gibbons and Associates. 79 See almost any issue for the year 1954, e.g. April 1, Dec. 15. 80 Aug. 1, 1954, pp. 2-3. 81 E.g., "A Velde Committee 'File' Dissected," Washington Post, April 5, 1953. 82 The lack of citation of official source is in itself ordinarily fatal to a newspaper's claim of qualified privilege. See Wood v. Constitution Pub. Co., 194 S.E. 761 (Ga., 1937). The periodical Counterattack seldom cites sources, and occasionally publishes a statement of this nature: "List of American sponsors contains usual names of CP members and well-known backers of 'peace' fronts: Paul Robeson, Rockwell Kent, Howard Fast . . . Robert Morss Lovett . . . Joseph Fletcher." Issue of Jan. 25, 1952. Would failure to distinguish "CP members" from "backers of 'peace' fronts" give cause for a libel action? 88 The following discussion of Oxnam's case is based on Oxnam's article, "A Velde Committee 'File' Dissected," Washington Post, April 5, 1953. 84 Prosser, op. cit., p. 780. 85 Ibid., p. 790. "Ibid. 87 Ibid., p. 853.

Chapter V. Committee Proceedings: Investigative Reports, pages 58-75 1

New York Times, Aug. 10, 1951, p. 7. 'Ibid., Oct. 18,1953, IV, p. 2. 3 Ibid. * Coleman v. Newark Morning Ledger Co., 149 A.2d 193 (N.J., 1959). s lbid., at 200. 9 Ibid., nt 205. 7 Ibid., at 205-206. 8 Ibid., at 203. It cited Barr v. Matteo, 355 U.S. 171 (1957). It is not clear why the

154

NOTES court granted Senator McCarthy only the protection of qualified privilege, rather than the broader protection of absolute privilege. 9 Coleman v. Newark Morning Ledger Co., 149 A.2d 193, 209 (N.J., 1959). 10 U.S. Senate, Select Committee to Study Censure Charges, "Report," Nov. 8, 1954, p. 65. This was one of many charges against McCarthy that the committee rejected. 11 Coleman v. Newark Morning Ledger Co., 149 A.2d 193, 209 (N.J., 1959). 12 New York Times, Oct. 17, 1953, pp. 1, 7. ™lbid. u lbid. 16 Ibid. 16 Apparently the Daily News, Oct. 17, 1953, p. 2. 17 Douglass Cater, "The Great Attack on Fort Monmouth," The Reporter, Jan. 5, 1954, p. 21. 18 New York Times, Nov. 17,1953, p. 25. 19 Minneapolis Tribune, Oct. 17,1953, pp. 1,7. 20 New York Times, Oct. 18, 1958, pp. 1, 8. 21 New York Herald Tribune, Sept. 24, 1953, pp. 1, 33. 22 Corliss Lament, "Challenge to McCarthy," (Pamphlet, Copyright 1954 by Corliss Lament), p. 17. 23 United States v. Lament, 236 F.2d 312 (1956). 24 The Official U.S. Senate Report on Senators McCarthy and Benton (Boston: The Beacon Press, 1953). 25 Letter of May 27, 1955, from C. P. Trussell of the New York Times to this writer. 26 New York Times, July 16, 1953, p. 12. 27 New York Times, March 2, 1948, pp. 1, 3. 28 Carr, The House Committee on Un-American Activities, p. 132, fn. 112. 29 Appendix B, Rule 14. 80 Representative Dempsey, New York Times, Dec. 11, 1939, p. 14. 81 Cannon's Precedents, VIII, Sees. 2212, 2222, pp. 28-29, 37-38. 3a Prosser, op. cit., p. 618. 33 Madill v. Currie, 134 N.W. 1004 (Mich., 1912). 34 /foU,atl009. 35 Ogden, op. cit., pp. 289-295 chronicles the story. 36 Ibid. 37 Special CUAA, "Report on the CIO Political Action Committee," March 29, 1944, p. 7. 38 Carr, The House Committee on Un-American Activities, p. 338. 39 Ibid. The files, of course, never were destroyed. 40 Ibid. See also Special CUAA, "Appendix — Part IX, Communist Front Organizations with Special Reference to the National Citizens Political Action Commitee," Committee Print, 78 Cong., 2 Sess., 1944, p. ii. 41 Ibid. Letter of June 20, 1955, to this writer, from Thomas W. Beale, Sr., chief clerk of the House Committee on Un-American Activities. 42 Carr, The House Committee on Un-American Activities, p. 338. 43 CUAA, Appendix IX, p. 261. 44 Carr, The House Committee on Un-American Activities, p. 338. 45 1 bid. It has not been published since. A private organization — The Protect America League of Greater Cincinnati, Inc. — in 1955 made plans to publish Appendix Nine, but later informed correspondents who ordered copies that "due to circumstances beyond our control it has been decided not to reprint Appendix IX"; undated, dittoed form from the league to this writer, received Dec. 29, 1955. 46 For example see almost any issue for 1954: March 15, April 1, April 15, Dec. 15. 47 Chap. Ill above.

155

NOTES 48

Special CUAA, Appendix IX, title page. Letter, June 20, 1955, from Thomas W. Beale, Sr., chief clerk of the committee. 80 See Chap. VII below. 51 Can, The House Committee on Un-American Activities, p. 338. M /Z>/W.,p.339,fn.25. M Thayer, op. cit., p. 339; Williams v. Journal Co., 211 Wis. 362 (1933). 64 The committee has published several general indexes. See CUAA, "Cumulative Index . . . 1938-1954," Jan. 20, 1955. However, in 1956 Appendix IX was listed and its contents were described in an official publication of another committee: Senate Committee on Government Operations, "Congressional Investigations of Communism and Subversive Activities, Summary-Index 1918 to 1956," July 23, 1956, pp. 181,195-199. 65 The House Committee on Un-American Activities, p. 339, fn. 25. 58 Williams v. Journal Co., 247 N.W. 435, 438 (1933). There is very little case law on privilege in reports of stricken material. Textbook writers agree that such material is no basis for qualified privilege: Siebert, Rights and Privileges of the Press, p. 209; Thayer, op. cit., p. 339. 67 Angoff, op. cit., shows Arizona, California, Idaho, Louisiana, Minnesota, North Dakota, Oklahoma, South Dakota, Utah, and Wisconsin. 68 McCurdy v. Hughes, 63 N.D. 435 (1933). 69 See Chap. I above, p. 15. 80 Parsons v. Age-Herald Pub. Co., 61 S. at 349 (1913). See also Flues v. New Nonpareil Co., 135 N.W. 1083 (la., 1912). 81 Switzer v. Anthony, 206 P. 391 (Colo., 1922). 62 New York Times, Dec. 20,1954, p. 1. 63 Ibid. 84 Carr, The House Committee on Un-American Activities, pp. 261-270. Stripling, op. cit., is a book by one of the best-known of the committee investigators, who recounts his experiences and efforts as investigator. 85 New York Times, Aug. 15,1938, p. 1. 69 Ogden, op. cit., p. 58. 87 Stripling, op. cit., pp. 47-48. "Ibid.; Congressional Record, XC, June 22,1944, pp. 6506-6507. 89 New York Times, Dec. 27,1946, p. 1. 70 Ibid., Dec. 28,1946, p. 3. 71 James B. Reston in New York Times, Jan. 6,1956, p. 7. 72 Ibid. 73 Drew Pearson. See Madison (Wis.) Capital Times, Jan. 3,1956, pp. 1-2. 74 Bernard Schwartz, The Professor and the Commissions (New York: Alfred A. Knopf, 1959), pp. 79-85. n Ibid., p. 87. ™Ibid. Schwartz has said that he gave nothing in the way of executive session materials to the press until after the press had obtained it from other sources and printed it; interview with writer on July 31,1958. 77 Rosten, op. cit., p. 82. 78 Edward L. Barrett, Jr., The Tenney Committee (Ithaca: Cornell Univ. Press, 1951), pp. 19-20, 343 fn. 15. 48

Chapter VI. Committee Proceedings: Creation of Subcommittees, pages 76-101 ^ee v. Brooklyn Union Pub. Co., 103 N.E. 155, 156 (1913). This point was quoted at length with approval in George v. Time, Inc., 19 N.Y.S.2d 385, 388 (1940). 8 Hahn v. Holum, 162 N.W. 432,433 (Wis., 1917).

156

NOTES 8

Greenfield v. Courier-Journal & Louisville Times Co., 283 S.W.2d 839, 842 (Ky., 1955). *23P.2dl38. 6 Davis, op. cit., p. 45. 8 Caller-Times Pub. Co. v. Chandler, 130 S.W.2d 853, 856 (1939). See also Houston Chronicle Publishing Company v. Bowen, 182 S.W. 61 (Texas, 1915); Davis, op. cit., pp. 55-58. 7 Greenfield v. Courier-Journal & Louisville Times Co., 283 S.W.2d 839, 841 (Ky., 1955). 8 Poston v. Washington etc. Ry. Co., 32 L.R.A. (N.S.) 785, 791 (D. C. Appeals, 1911). 9 "A Summary of the Legislative and Executive Activities of the Senate Committee on Labor and Public Welfare during the Eighty-third Congress," p. 3; U.S. House of Representatives, Committee on the District of Columbia, "Legislative Calendar," May 25,1954, p. 6. 10 U.S. Statutes, LX, p. 831. In 1954, at least nine committees or subcommittees of Congress had adopted procedural rules; supra, p. 22. 11 The special subcommittee is an ad hoc body, assigned to handle problems as they arise. The standing subcommittee deals with a distinguishable area of work of the whole committee, and continues from session to session and sometimes from Congress to Congress. See W. F. Willoughby, Principles of Legislative Organization and Administration (Washington: The Brookings Institution, 1934), p. 341. 12 Statement of Representative (now Senator) Eugene McCarthy, in interview with writer on July 14, 1954. 13 Statement of Robert McConnell, chief clerk of the committee, in interview with writer on July 14, 1954. "House of Representatives Committee on Agriculture, "Legislative Calendar," June 10, 1954, p. 3. ^Statement of George L. Reid, Jr., clerk of the committee, in interview with writer on July 14,1954. 18 Statement of Karl Standish, chief clerk of the committee, in interview on July 14, 1954, with the writer. Standish said: "Creation of subcommittees is one of the prerogatives of the chairman." "Special CUAA, "Investigation of Un-American Propaganda Activities in the United States," VI, Aug. 16, 1939, p. 3705. (All public hearings of the special committee carried this title.) 18 "Legislative Procedure," hearings of July 15-16, 1953, pp. 18, 51. 19 CUAA, "Annual Report for the Year 1956," p. 72. 20 U.S. Statutes, LV, pp. 828-829. 21 The practice is apparent from a perusal of the hearing records. See also CUAA, "This Is Your House Committee on Un-American Activities," p. 16. 22 Carr, The House Committee on Un-American Activities, p. 288. ^Special subcommittees with definite memberships, formed to handle special problems that arise, often are employed by other committees (e.g., House Agriculture Committee, supra, p. 81). On rare occasion, the Un-American Activities Committee has established a subcommittee resembling these, as in the case of its subcommittee on legislation during the 80th Congress: CUAA, "Hearings on Proposed Legislation to Curb or Control the Communist Party of the United States," Feb. 5-20, 1948, pp. 147, 249. But "At no time in its entire history has the Committee ever listed or identified its subcommittees in a printed document": Robert K. Carr, "The UnAmerican Activities Committee," 18 Univ. Chi. Law Rev. 610 (1951). 24 Special CUAA Hearings, II, Hearings of Sept. 28, 29, 30; Oct. 24, 25, 26, 1938, as examples. 15 Supra, p. 81.

157

NOTES ^Carr, The House Committee on Vn-American Activities, pp. 213-220, discusses three chairmen of the permanent committee. 27 CUAA, "Hearings on Office of Price Administration," June 20, 21, 27, 1945, pp. 1, 2, 45, 67. At none of these sessions were the names of members present stated at the outset — a practice which Dies had instituted in 1940. 28 /&/