The Wilkinson Decision

Still retreating from its 1957 Watkins decision, the Supreme Court has upheld the House Un-American Activities Committee's citation of Frank Wilkinson for contempt. Like its immediate precedent, the Barenblatt case, this one involves a witness who refused to answer questions put to him by the House committee. The Wilkinson ruling, however, has prompted anguished and angry dissents from Justices Black and Douglas and anyone who reads what they have to say about the implications of this decision ought to share their dismay.

The issue is whether the committee uses its powers as an investigating body to silence critics--as Wilkinson's defense claims. Apologists for the majority's decision insist that it does not give the committee authority to subpoena and humiliate anyone who publicly attacks its actions; the argument runs that the Court has merely found in this instance that the questions asked Wilkinson were legitimate and pertinent to its Atlanta investigations, bearing no relations to the man's hostility towards the committee. Reasonable as the apologists sound, they are blind to what Douglas and Black see: that a majority of the Supreme Court has now decided that the only real limitation on the House committee's power to persecute its critics is the committee's own questionable sense of fair play and restraint.

For Justice Potter Stewart's ruling waives the Supreme Court's power to determine whether the committee asked Wilkinson to testify because he possessed facts about communism in Atlanta, or simply because he has made known his bitter opposition to its existence. Wikinson was, after all, a stranger in the city who had come there to stir up opposition to the committee. On the face of it, it does not seem probable that he would know much about communists in Atlanta. Yet when Stewart says it is not the business of the Court to "speculate" about the motives of the committee, he ignores the very real possibility that the committee was harassing Wilkinson.

This abdication of judicial responsibility means the committee now has the power to blacken the eye of any critic. It will be restrained only by the flimsy "protections" for witnesses the Court suggested in the earlier Barenblatt decision. For example, under a "balancing test" the Court had ruled that Congressional committees could curtail or abridge First Amendment rights only when the Court itself decides that a committee's needs (national defense, internal security) outweigh considerations of rights. But, as Black says, the Wilkinson decision throws away the Court's power to determine whether a committee's needs are pressing or spurious. Taking what the House Un-American Activities Committee says at face value makes a mockery of any "balancing test."

Certainly if--as Stewart says--there is reasonable belief that someone can give information to a committee, then the fact that he is also an opponent of the committee should not excuse him from being questioned. But surely the burden of showing reasonable grounds for a subpoena rests on the committee's shoulders. In this case, it has only the word of a paid informant that Wilkinson is a communist and might know something about Reds in the South. Black points out that the House committee has never had much trouble finding paid informants willing to call anybody a communist. There is no guarantee that it has not dealt under-handedly with Wilkinson, and if the mere fact of being called a communist is sufficient grounds for the committee to subpoena a man, then its powers have been expanded fearfully. For it has now become a sad commonplace that an investigating committee wields enough power to damage permanently the reputation of anyone so unfortunate as to appear before it.

One of the lessons of Monday's decision is that the Supreme Court cannot be relied on to preserve civil rights. Since Justice Stewart's decision is so clearly in the realm of legal abstraction, where logic reigns pure and words do not necessarily bear much relation to the doings of men, it serves as a sharp warning to liberal legalists. In the near past it has been easy for committees to ride waves of panic, ruin men without any sort of trial, and silence opposition with fear. In the near future such things may recur. The Supreme Court has given the clearest indication that legal bulwarks against Congressional committees are not enough. Men interested in preventing what Black calls government by intimidation had best look to Congress, and--slight as the chances now seem--goad it into leashing its own committees.