(10) From a technical point of view, a witness who relies excessively upon the First Amendment may not avoid a committee citation for contempt. Hence, so many witnesses in recent years have relied upon the Fifth Amendment to the United States Constitution, which states that persons may not be required to act as witnesses against themselves. It is particularly appropriate to assert the privilege here since it had its origins in the protection of political and religious dissidence in the Puritan period in England. The First Amendment rights of freedom of speech, belief and religion were protected by the Puritans' refusal to bear witness against themselves in proceedings before the High Commission and the Star Chamber of England.

Defense In Fifth Amendment

(11) The only complete legal defense to these committee hearings rests, therefore, in the Fifth Amendment. This Amendment has historically been recognized as a method of protecting the innocent from false accusations and tyrannical prosecutions. The courts have repeatedly pointed out how even in cases of ordinary crime, innocent persons may be trapped into incriminating admissions. But in political cases the possibilities of entrapment are multiplied ad infinitum. The dangers are increased by (1) the grand juries an deposit juries; (2) the amorphous character of the crimes; vide the Lattimore indictment involving the alleged promotion of Communist interests; (3) the use of the conspiracy concept of which we were warned by Justice Jackson in the Krulewitch case; (4) the governmental use of informers paraded from case in case; (5) the disregard of basic principles of double jeopardy, as in the second Remington case; (6) by the extraordinary breadth of evidence permitted to go to a jury--as in the Bridges case where the charge of Communist membership was regarded as supported by his views on trade with China, and the recent Rosenberg case where the activity of the defendants in the Spanish refugee campaign was considered somehow relevant to the charges that these congressional committees, by the nature of their methods, objectives and subject matter, constitute breeding grounds for criminal prosecutions.

Contrary to Moral Values

(12) Failure to assert the constitutional privilege means that the witness must relate to Messrs. Velde and Jenner all he knows about his friends and family. Is this not contrary to basic moral values? I take my teaching here from Professor Chafee, who has told us of Francis Jenks, who had criticized the policies of Charles the Second at a public meeting. When the King demanded his advisors' names, he said: "To name any particular person (if there were such) would be a mean and unworthy thing, therefore I desire to be excused from all farther answer to such questions." (6 How. St. Tr. 1189, 1194 (1676).) Professor Chafee, attributing to this silence a part in the passage of the Habeas Corpus Act of 1679, adds: "It is this small 'mean and unworthy' thing which investigators are now trying to force citizens to do, in the name of Americanism. The only sure way to evade this dirty questions is to remain silent throughout the whole hearing, through claiming a privilege against self-incrimination regardless of the very damaging effect of such a claim upon a person's career" (Chafee, "Thirty-Five Years with Freedom of Speech," 1952).

Historic Defense

(13) Under these circumstances, must educators limit themselves to vigorous resolutions of opposition to the inquisitorial committees and then appear like sheep for the slaughter? Or may they invoke the historic means of protest against aggression wherever it is found? I see nothing dishonorable in the assertion of the constitutional privilege any more than in reliance on the Fourth Amendment right to suppress evidence unlawfully seized or the Sixth Amendment right to counsel and a jury trial. Were the Puritans dishonorable in refusing to testify against themselves? Could we have censured Professor Lattimores if gifted with foresight, he had assorted the privilege instead of volunteering an opinion for which he was indicted? We have no moral right to dictate the form of the resistance whether it be an appeal to public support, a suit to vacate a subpoena or a silence supported by the First or Fifth Amendments. But resistance, in one from or another, is recognition of a preceptors' duty to his students. The faculties must make it clear long before the arrival of the inquisitors that they will not cooperate with them, that they will assert their constitutional right to refuse to answer questions concerning political beliefs and associations, so dangerous in the present climate, and that they will oppose administrative punishment of their colleagues who have taken this forthright position. It this is not done, the cost is too ghastly to contemplate. Leonard B. Boudin