Tenney v. Brandhove/Concurrence Black

by Hugo Black

United States Supreme Court

341 U.S. 367

Tenney  v.  Brandhove

 Argued: March 1, 1951. --- Decided: May 21, 1951

Mr. Justice BLACK, concurring.

The Court holds that the Civil Rights statutes ^[1] were not intended to make legislators personally liable for damages to a witness injured by a committee exercising legislative power. This result is reached by reference to the long-standing and wise tradition that legislators are immune from legal responsibility for their intra-legislative statements and activities. The Court's opinion also points out that Kilbourn v. Thompson, 103 U.S. 168, 26 L.Ed. 377, held legislative immunity to have some limits. And today's decision indicates that there is a point at which a legislator's conduct so far exceeds the bounds of legislative power that he may be held personally liable in a suit brought under the Civil Rights Act. I substantially agree with the Court's reasoning and its conclusion. But since this is a difficult case for me, I think it important to emphasize what we do not decide here.

It is not held that the validity of legislative action is coextensive with the personal immunity of the legislators. That is to say, the holding that the chairman and the other members of his Committee cannot be sued in this case is not a holding that their alleged persecution of Brandhove is legal conduct. Indeed, as I understand the decision, there is still much room for challenge to the Committee action. Thus for example, in any proceeding instituted by the Tenney Committee to fine or imprison Brandhove on perjury, contempt or other charges, he would certainly be able to defend himself on the ground that the resolution creating the Committee or the Committee's actions under it were unconstitutional and void.

In this connection it is not out of place to observe that the resolution creating the Committee is so broadly drawn that grave doubts as raised as to whether the Committee could constitutionally exercise all the powers purportedly bestowed on it. ^[2] In part, the resolution directs the Committee 'to ascertain * * * all facts relating to the activities of persons and groups known or suspected to be dominated or controlled by a foreign power, and who owe allegiance thereto because of religious, racial, political, ideological, philosophical, or other ties, including but not limited to the influence upon all such persons and groups of education, economic circumstances, social positions, fraternal and casual associations, living standards, race, religion, politics, ancestry and the activities of paid provocation * * *.' Cal. Senate Resolution 75, June 20, 1947.

Of course the Court does not in any way sanction a legislative inquisition of the type apparently authorized by this resolution.

Unfortunately, it is true that legislative assemblies, born to defend the liberty of the people, have at times violated their sacred trusts and become the instruments of oppression. Many specific instances could be cited but perhaps the most recent spectacular illustration is the use of a committee of the Argentine Congress as the instrument to strangle the independent newspaper La Prensa because of the views it espoused. ^[3] In light of this Argentine experience, it does not seem inappropriate to point out that the right of every person in this country to have his say, however unorthodox or unpopular he or his opinions may be, is guaranteed by the same constitutional amendment that protects the free press. Those who cherish freedom of the press here would do well to remember that this freedom cannot long survive the legislative snuffing out of freedom to believe and freedom to speak.

Mr. Justice DOUGLAS, dissenting.

Notes

1. 8 U.S.C. §§ 43, 47(3), 8 U.S.C.A. §§ 43, 47(3).
2. See Judge Edgerton dissenting in Barsky v. United States, 83 U.S.App.D.C. 127, 138, 167 F.2d 241, 252; Judge Charles E. Clark dissenting in United States v. Josephson, 2 Cir., 165 F.2d 82, 93.
3. N.Y. Times, Mar. 16, 1951, p. 1, col. 2; N.Y.Times, Mar. 17, 1951, p. 1, col. 2. The situation was graphically described in an editorial appearing in La Nacion of Buenos Aires on March 18, 1951: 'But no one could have imagined until this moment that Congress, properly invested with implicit powers of investigation, could decree interventions of this nature intended to carry out acts which, under no circumstances, come within the province of the Legislature. In the present case this alteration of functions is of unusual importance because it affects an inviolable constitutional principle. If Congress cannot dictate 'laws restrictive of the freedom of the press' (Art. 23, Argentine Constitution) which would be the only possible step within its specific function, how could it take possession of newspapers, hinder their activity and decide their fate, all these being acts whereby the exercise of that same freedom is rendered impracticable? If such a state of things is permitted and becomes generalized, then it means that the repetition of these acts whenever it is deemed suitable in view of conflicting opinions, would cause the constitutional guarantee to be utterly disregarded. * * * Last year the activities of an investigating congressional commission (The Committee on Anti-Argentine Activities), appointed for another concrete purpose, served to bring about the closure of up to 49 newspapers in one day. * * *' See generally, Editor & Publisher, Mar. 24, 1951, p. 5.