When we turn to the proffered extenuating circumstances, there seems to be little in they way of extenuation. If the professor has a substantial "fear" of prosecution, there must be a corresponding substantial possibility of danger to the students. A fear that is not substantial does not warrant claim of the privilege. Brown v. Walker, 161 U.S. 591, 600 (1896).
The Supreme Court's decision in Brown v. Walker also disposed (more than fifty years in advance) of the contention that a desire "in conscience" not to name ones friends might "explain" a claim of the privilege. It states (p. 600) that "Every good citizen is bound to aid in the enforcement of the law, and has no right to permit himself, under the pretext of sheltering his own good name to be the tool of others, who are desirous of seeking shelter behind his privilege."
These who seem to condone the claim of the privilege because the witness may have had "bad advice" are making a bad matter worse by furnishing excuses for continued action thereon. But the claim does not seem to apply here since all the witnesses concerned were represented by counsel of their choosing. In addition, a group of the Harvard Law School faculty formed a committee, under the chairmanship of Professor Arthur E. Sutherland, for the purpose of furnishing free advice and representation to any Harvard faculty members who might be called before an investigating committee. Actually, the most important bad advice given the Harvard faculty appears to be that given by Harvard Corporation. The Corporation could easily insure that the faculty would have good advice by the simple expedient of giving it to them, in its rulings.
Lifts Suspension
Subsequent events do not sustain the Corporation's decisions. One week after its announcement, Dr. Markham, whom, the Corporation found had never been a member of the Party, reappeared before the Senate Subcommittee and again invoked the privilege to withold statements regarding present and past membership. Harvard Corporation then suspended her, stating that developments raised a question whether her conduct merited dismissal "either because she had not old us the truth, or because of her attempts to ally us with her in her refusal to testify*** or because we can no longer reasonably believe that she is free of Communist domination." Nevertheless, the Corporation later lifted her suspension, stating that "as matters now stand" she will not be reappointed when her term expires on June 30, 1954. It is worthy of note that, according to the Corporation's statement of August 31, 1953, Dr. Markham's first excuse for claiming the privilege was fear of prosecution for perjury, the one "explanation" that is rejected by Dean Griswold. Since she unequivocally stated to the Corporation that she had never been a Communist, and minimized her front activities, even Dean Griswold's hypotheses would not appear to vindicate her claim of the privilege.
In June, 1953, Harvard Corporation refused to dismiss Dr. Daniel Fine (a Teaching Fellow at the Medical School) although, because of possible self-incrimination, he had refused to answer questions regarding present or past Communist Party membership. He, also, had indicated that he had no proper ground for doing so by stating, to the trustees of Peter Bent Brigham Hospital, that he had never been a Party member in his case also, the Corporation declined to order removal, but took the ambiguous action of permitting him not to be reappointed.
Dr. Furry and Mr. Kamin have subsequently admitted their past Communist Party membership to a Congressional Subcommittee. The good, however, in this commendable action, was nullified by their continued refusal to name their Communist associates. Whether or not they may be able to establish that such action is permissible under the First Amendment or otherwise, it is highly inconsistent with their duty, when called upon, "to aid in the enforcement of the law." Such action should not be allowed to stand of record as the action of faculty members in good standing and entrusted with the guidance and example of youths who will soon be called upon to make far greater sacrifices in the performance of their dusty to country.
Students Not Misled
Some appear to feel that enlightened college students, perhaps particularly men of Harvard, are not likely to be misled by such examples. The statment attributed to Dr. J. Robert Oppenheimer, who matriculated at Harvard, does not seem to substantiate this view. Dr. Oppenheimer is reported to have said that, in becoming a "real left winger" and acquiring "lots of Communist friends" he was doing "just what most people do in college or late high school." If this is the situation it would seem to be a most unfortunate one, and one which it is the duty of Harvard Corporation to correct.
The proper course seems to be clearly indicated by the statement of Justice Jackson in the majority opinion in Orloff v. Willoughby:
"No one, at least no one on this Court which has repeatedly sustained the assertion by Communists of the privilege against self-incrimination, questions or doubts Orloff's right to withold facts about himself on this ground. No one believes he can be punished for doing so. But the question is whether he can at the same time take the position that to tell the truth about himself would incriminate him and that even so the President must appoint him to a position of honor and trust. We have no hesitation in answering that question 'No.'