First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievance.

The First Amendment constrains government action, not just in the administration and enforcement of public laws, but also in conducting legislative investigations.1 A legislature’s power of inquiry is “broad,” encompassing “inquiries concerning the administration of existing laws as well as proposed or possibly needed statutes.” 2 Legislative investigations “may properly probe historic events for any light that may be thrown on present conditions and problems.” 3 The Court has warned, however, that even if “the general scope of the inquiry is authorized and permissible,” a legislature is not necessarily “free to inquire into or demand all forms of information.” 4 Because of First Amendment constraints, a legislature may not “probe” an individual’s associations “at will and without relation to existing need.” 5

The test to be applied in balancing legislative interests against individual rights of association is not entirely settled. In a case concerning a state legislature’s investigation of the National Association for the Advancement of Colored People, Inc. (NAACP), the Court stated that to “intrude[ ] into the area of constitutionally protected rights of speech, press, association and petition,” the state must show “a substantial relation between the information sought and a subject of overriding and compelling state interest.” 6 This test mirrors the exacting scrutiny standard the Court has applied in other contexts involving government-compelled disclosure of private associations.7

The Supreme Court appears to have applied a more relaxed standard of review in other cases involving legislative inquiries decided during the same time period,8 particularly those involving investigations into the associations and activities of members or suspected members of the Communist Party.9 For example, in Barenblatt v. United States, the Court held that a Subcommittee of the House Committee on Un-American Activities could question a witness about his membership in the Communist Party without violating the First Amendment.10 The Court reasoned that the hearing, which concerned “alleged Communist infiltration into the field of education,” involved a “valid legislative purpose,” because Congress had “wide power to legislate in the field of Communist activity in this Country” as a means of “self-preservation.” 11 If the Court applied a balancing test in this decision, it did not discuss the witness’s countervailing First Amendment interests.12

Although both state and federal legislatures may conduct investigations, congressional inquiries have the added protection of the Speech or Debate Clause, which generally protects the legislative actions of Members of Congress from judicial interference.13 In the 1975 Eastland decision, the Supreme Court cited the Speech or Debate Clause in declining to adjudicate a freedom-of-association-based challenge to a subpoena from a congressional subcommittee.14 Eastland involved a pre-enforcement challenge to a congressional subpoena, but the other cases discussed above suggest that a First Amendment defense may yet be available in a contempt proceeding for refusal to comply with a congressional subpoena.15

Footnotes

1

Watkins v. United States, 354 U.S. 178, 197 (1957).

2

Gibson v. Fla. Legis. Investigation Comm., 372 U.S. 539, 545 (1963). See ArtI.S8.C18.7.3 Congress’s Investigation and Oversight Powers (1787–1864) to ArtI.S8.C18.7.7 Constitutional Limits of Congress’s Investigation and Oversight Powers.

3

DeGregory v. Att’y Gen., 383 U.S. 825, 829 (1966).

4

Gibson, 372 U.S. at 545.

5

DeGregory, 383 U.S. at 829.

6

Gibson, 372 U.S. at 546.

7

See generally Amdt1.8.3.5 Donor Disclosure Requirements.

8

E.g., Uphaus v. Wyman, 360 U.S. 72, 78 (1959) (reasoning that the state legislature’s requests related “directly to the Legislature’s area of interest” and that the subpoena demand was not “burdensome” ).

9

See Gibson, 372 U.S. at 547 (distinguishing Barenblatt v. United States, Wilkinson v. United States, and Braden v. United States, reasoning that “the necessary preponderating governmental interest and, in fact, the very result in those cases were founded on the holding that the Communist Party is not an ordinary or legitimate political party . . . and that, because of its particular nature, membership therein is itself a permissible subject of regulation and legislative scrutiny” ). See Amdt1.7.5.3 Incitement Movement from Clear and Present Danger Test.

10

360 U.S. 109 (1959).

11

Id. at 113. The Court upheld the contempt-of-Congress convictions of two other witnesses on similar grounds in Wilkinson v. United States, 365 U.S. 399 (1961) and Braden v. United States, 365 U.S. 431 (1961). By contrast, the Court overturned the contempt conviction of a New Hampshire resident, with a plurality of the Court concluding that the state attorney general’s questioning of the witness about his and others’ involvement in the Progressive Party exceeded the legislature’s investigative mandate. Sweezy v. New Hampshire, 354 U.S. 234, 251–54 (1957) (plurality opinion).

12

Barenblatt, 360 U.S. at 134. In this case, the Court appeared to place the burden on the witness to show why his interests “were not subordinate to those of the state.” Id. According to the Court, there was “no indication” in the record that the subcommittee “was attempting to pillory witnesses” or employed “indiscriminate dragnet procedures, lacking in probable cause.” Id.

13

See ArtI.S6.C1.3.1 Overview of Speech or Debate Clause to ArtI.S6.C1.3.7 Persons Who Can Claim the Speech or Debate Privilege.

14

Eastland v. U.S. Servicemen’s Fund, 421 U.S. 491, 501 (1975).

15

See Id. at 515–16 (Marshall, J., concurring in the judgment) (positing that the defendant in a contempt trial “may defend on the basis of the constitutional right to withhold information from the legislature, and his right will be respected along with the legitimate needs of the legislature” ).