PRESIDENT NIXON'S EXECUTIVE ORDER 11605 RELATING ΤΟ THE SUBVERSIVE ACTIVITIES CONTROL BOARD AND S. 2466 AND S. RES. 163

TUESDAY, OCTOBER 5, 1971

U.S. SENATE,

SUBCOMMITTEE ON SEPARATION OF POWERS

OF THE COMMITTEE ON THE JUDICIARY,

Washington, D.C. The subcommittee met, pursuant to notice, at 10:25 a.m., in room 2228, New Senate Office Building, Senator Sam J. Ervin, Jr. (chairman of the subcommittee) presiding.

Present: Senators Ervin (presiding) and Gurney.

Also present: Rufus L. Edmisten, chief counsel and staff director; Joel Abramson, minority counsel; Prof. Philip B. Kurland, University of Chicago Law School, chief consultant; Prof. Ralph K. Winter, Jr., Yale Law School, consultant, and Prof. Arthur S. Miller, The George Washington University National Law Center, consultant. Senator ERVIN. The committee will come to order.

Today, the Subcommittee on Separation of Powers begins hearings on Executive Order 11605, issued on July 2, 1971, which undertakes to grant to the Subversive Activities Control Board new, sweeping powers to investigate various organizations and groups in America to determine if they are intelligently or politically dangerous to the security of the Nation.

There are many of us who feel that the promulgation of this Executive order was beyond the constitutional power of the President. To my mind, it flies directly in the face of article I, sections 1 and 8, of the Constitution, which quite plainly places "all legislative powers" in the Congress.

To remedy the damage done to the doctrine of separation of powers by Executive Order 11605, I have introduced two pieces of legislation, both of which are subject to our consideration at these hearings.

The first is S. 2466, which provides that it "shall be unlawful for any employee of the Department of Justice or any employee of the Subversive Activities Control Board to carry out or attempt to carry out any of the additional functions, duties, or powers which Executive Order 11605 * * * purports or undertakes to confer on the Board." The bill also provides that no appropriated moneys "shall be made available to the Department of Justice or the Board to execute or implement any of the additional functions, duties, or powers" under Executive Order 11605.

The second is Senate Resolution 163, a sense of the Senate resolution which would disapprove of Executive Order 11605 as "an attempt

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to usurp the legislative powers conferred on Congress by the Constitution" and "as an infringement of the first amendment rights of all Americans." The resolution calls on the President to revoke the order or "to amend or revise it to bring it into conformity with article I, Section 1 and the first amendment to the Constitution."

THE FIRST AMENDMENT

To discuss Executive Order 11605 and its ramifications, it is necessary first to examine the first amendment. This is so because the order obviously is inspired by a lack of faith in the first amendment freedoms and a fear of their exercise by persons whose thoughts and words are understandably offensive to the established order.

The first amendment outlaws governmental action which abridges freedom of thought, or freedom of speech, or freedom of the press, or freedom of association, or freedom of assembly, or freedom of petition, or freedom of religion. These freedoms embrace and nourish a kindred freedom, the freedom of dissent.

These freedoms, which may be called first amendment freedoms, were created to make Americans politically, intellectually, and spiritually free.

The novelist Thomas Wolfe, sensed this when he said:

So, then, to every man his chance to every man, regardless of his birth, his shining, golden opportunity-to every man the right to live, to work, to be himself, and to become whatever thing his manhood and his vision can combine to make this, seeker, is the promise of America. I do not believe *** that the ideas represented by "freedom of thought," "freedom of speech," "freedom of press," and "free assembly" are just rhetorical myths. I believe rather that they are among the most valuable realities that men have gained, and that if they are destroyed men will again fight to have them.

The first amendment grants its freedoms to all persons within the boundaries of our country without regard to whether they are wise or foolish, learned or ignorant, profound or shallow, brave or timid, or devout or ungodly, and without regard to whether they love or hate our country and its institutions. Consequently, the amendment protects the expression of all kinds of ideas, no matter how antiquated, novel, or queer they may be.

In the final analysis, the first amendment is based upon an abiding faith that our country has nothing to fear from the exercise of its freedom as long as it leaves truth free to combat error. I share this faith.

To be sure, the exercise of first amendment rights by others may annoy us and subject us at times to tirades of intellectual or political rubbish. This is a small price to pay, however, for the benefits which the exercise of these rights bestows on our country.

THE NATURE OF FIRST AMENDMENT FREEDOMS

The first amendment protects the expression of ideas, not the commission of acts, and for this reason cannot be invoked to justify criminal or violent deeds.

It is explicit in the first amendment that the freedom of the people to assemble to petition for the redress of grievances must be exercised peaceably; and it is implicit in it that the other freedoms it secures must be exercised in like manner.

First amendment freedoms are simply designed to secure to the people a constitutionally protected right to use the means which nature and man's ingenuity afford them to express to others their thoughts, ideas, and desires concerning government, society, religion, and all other things under the sun. Inasmuch as expression has persuasive power, this right must be recognized and exercised if government is to be responsive to the will of the people, and if society is to be free.

Since one of its principal purposes is to make American a politically free society, the first amendment assures to every person or group of persons the right to express publicly ideas concerning any problems of government or society without prior restraint or fear of subsequent punishment, even though the ideas are displeasing to government or are believed by a majority of our citizens to be false and fraught with evil consequences.

Why did the Founding Fathers secure this right to every individual and association and assembly within our borders?

There are two answers to this question, one philosophical and the other pragmatic.

As philosophers, the Founding Fathers believed that free and full debate teaches men the truth and frees them from the worst sort of tyranny, that is, tyranny over the mind; and as pragmatists, the Founding Fathers believed that free and full debate is vital to the civil and political institutions they established.

The Founding Fathers were right on both counts.

Freedom of thought and speech are the things which distinguish our country most sharply from totalitarian regimes. They enable our country to enjoy a diversity of ideas and programs, and to escape the standardization of ideas and programs totalitarian tyranny requires.

Besides, a free and full interchange of ideas concerning the problems of government and society makes us aware of conditions and policies which need correction, and induces us to make, in apt time and in a peaceful way, the reforms that changing times demand. As a consequence, violent revolution has no rational or rightful place in our system.

POWER OF GOVERNMENT TO PROHIBIT OR PUNISH SPEECH

Like all freedoms, first amendment freedoms may be abused. Society is often disturbed by those who abuse these freedoms to protest, either rightly or wrongly, conditions or policies they deplore. Society must ordinarily tolerate these abuses by protestors, however much it may hate their thoughts and words.

This is true because the power of government to deal with them is limited by the first amendment.

It is well that this is so. If it is justified, protest may lead to reform; and if it is unjustified, protest may relieve at least temporarily the tensions of the protestors. In either event, protest has therapeutic value for both protestors and society.

Freedom of thought is absolute, and cannot be limited or punished by government in any way. Other first amendment freedoms are qualified in the sense that their exercise may be circumscribed by government within narrow limits to protect other overriding social interests.

The general rule, however, is that people may express their ideas freely, and associate or assemble freely to make their ideas effective.

But this general rule does not prevail in respect to the exercise of speech, association, or assembly which defames others, invades the privacy of others, constitutes obscenity, incites to crime or violence, obstructs the courts in the administration of justice, amounts to sedition, or imperils the national security.

Government may punish by law past speech, association, or assembly falling within these narrow limits, and under extraordinary circumstances subject it to prior restraint by obtaining injunctions from courts of equity.

Except when it acts within these narrow limits, Government violates the first amendment if it attempts to limit its fredom by legislation. Moreover, Government violates the first amendment if it engages in conduct which is calculated and intended to stifle the willingness of people to exercise their freedom of speech, association, or assembly. It is to be noted in this connection that the first amendment was written for the timid as well as the brave.

POWER OF GOVERNMENT TO PROHIBIT OR PUNISH SPEECH ADVOCATING CRIME OR SEDITION

In describing first amendment limitations on the power of Government, the Supreme Court declared in Terminiello v. Chicago, 337 U.S. 1, 4, that:

Freedom of speech, though not absolute, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest.

Strange as it may seem at first blush, the amendment protects advocacy of conduct prohibited by law unless it incites action to bring such conduct about and creates a clear and present danger that it will provoke action to that end. This is so because the amendment protects the expression of ideas, no matter how reprehensible they may be.

Since the doctrine of civil disobedience is invoked with such frequency nowadays, it seems not amiss to emphasize that the Constitution does not countenance civil disobedience which contemplates and produces unlawful acts.

Government has an inherent right to self-protection, and may under some conditions prohibit or punish the advocacy or teaching of the desirability of overthrowing it by violent action.

Judges have used multitudes of words in many cases to define the conditions under which Government may exercise its right to selfprotection by limiting speech, association, and assembly.

While the words of some of the judges are sometimes somewhat elusive in meaning and for that reason difficult to comprehend, I interpret these cases to lay down these principles:

First. The first amendment protects all utterances, individual or concerted advocating constitutional or political changes, however, revolutionary they may be, if the utterances contemplate that the changes are to be achieved by lawful means. Hence, freedom of speech permits an individual or a group to advocate the adoption of communism, fascism, or any other system of government by means of the

ballot box.