[Since the start of the congressional investigations of Communists in education, the Fifth Amendment has been one of the big debates in educational circles. In the past two years, the CRIMSON has printed two major opinions on the use of the Amendment. Only by Law School professors Zechariah Chafee and Arthur E. Sutherland deplored its use; the other, by Alexander Meikiejohn defended it. Today we print a third opinion by New York lawyer, John F. O'Conor L '42.]

A year age today, Harvard Corporation issued a statement explaining its decision to retain, in spite of their exercise of the privilege under the Fifth Amendment, Professor Wendell H. Furry, Associate Professor Helen Deane Markham, and Leon J. Kamin (a Teaching Fellow). In their first appearances before Congressional Committees investigating Communist activities these three teachers had refused, on the ground that their answers would tend to incriminate them, to reply to questions regarding membership in the Communist Party.

Dr. Furry, having first refused to state whether he was, or ever had been, a member, subsequently, on April 16, 1953, had amended his testimony to state that he had not been a member of the Communist Party during the preceding two years. Dr. Markham had remained constant in her refusal to testify as the past or present membership. Mr. Kamin had stated that he was not a member of the Communist Party but had refused to say whether he had been a member on the day preceding his testimony.

'Grave Misconduct'

Harvard Corporation stated it would regard present membership in the Communist Party as "grave misconduct, justifying removal" and that use of the Fifth Amendment is "entirely inconsistent with the candor to be expected of one devoted to the pursuit of truth." Nevertheless it ruled that these three teachers should be retained. It found that Dr. Furry was "not now under the domination of the Communist Party," that Dr. Markham "is not, and never has been, a member of the Communist Party," and as to Mr. Kamin, that "About July, 1950, he ceased writing for the Daily Worker and dropped out of the Party without formal resignation."

Since that ruling much has transpired, and been written and said. In particular, Dean Erwin N. Griswold of Harvard Law School, at a meeting of the Massachusetts Bar Association on February 5, 1954, made an impressive and searching analysis of the Fifth Amendment, defending the Corporation's action, at least in so far as it effected the retention of persons invoking the privilege with respect to questions regarding past Communist Party membership. The speech was printed in the Harvard Law School Record for February 11, 1954, and excerpts were printed in the Harvard Alumni Bulletin for March 6, 1954.

As a graduate of that same Law School, and a member of the New York Bar, I have grave doubts whether the course followed by Harvard Corporation was correct, and I believe that it is appropriate on this anniversary date to review its action in the light of subsequent events.

Harvard Corporation's position was that "each cash will be decided on its merits after full and deliberate consideration of the facts and issues involved." Dean Griswold attempted to back this up by holding that the claim by a witness of the privilege of the Fifth Amendment may be "explained" by several hypotheses, such as "bad advice," "fear and confusion," or "refusal to tell on his friends ****based on strong grounds of conscience." The result appears to be a certain confusion of the proper inference to be drawn from the use of the privilege, and of extenuating factors considered by some to mitigate, to a certain extent, the condemnation deserved by those who become Communists, or who perjure themselves by claiming the privilege under false pretenses.

It would seem appropriate to consider whether Harvard Corporation should not issue clear statement that refusal, because of possible self-incrimination, to answer questions regarding present Communist Party membership, will be considered unrebuttable evidence of such membership, resulting in removal; and that, in the ordinary case, the same penalty will follow upon refusal to answer questions regarding past membership since such action will be considered as failure to give sufficient evidence of severance of Communistic ties and sympathy.

It is true that the inference to be drawn from the claim of the privilege against self-incrimination varies in individual cases, but this is due to differences in the nature of the questions asked rather than to any difference in other surrounding circumstances. Thus, as Dean Griswold states, a man who refuses to state whether he has killed another is not necessarily guilty of crime, because he may have done so in self-defense or by accident. But if he bases his refusal upon a plea of possible self-incrimination, the inference is plain that he did kill the man. He would not be entitled to the privilege unless he had.

Many cases similar to those mentioned by Dean Griswold are described by Chief Judge Calvert Magruder in Maffie v. U. S., 209 Fed. 2d 225, 227-8 (1st Cir. 1954). But he also affirms that where a "Yes" answer would be the incriminating one, the fair inference to be drawn from the claim of the privilege is that the answer would be "Yes:"

Natural Inference

"Suppose the question is: 'Did you pick X's pocket and steal his wallet?' Only a 'Yes' answer could be incriminating, and if the witness claims his privilege, the fair inference is that he must be a pickpocket and a thief. That natural inference might be drawn to his detriment in the ordinary affairs of life--for instance, a bank might conclude that such a person could hardly be a good risk for employment as a teller, if he has got himself in such a fix that he cannot answer a question like that. The only place inference cannot be drawn is at a criminal trial***" (209 Fed. 2d 228).

However we may regard the refusal to answer a great many questions regarding associations with various individuals and organizations, we cannot escape the conclusion that must follow when a faculty member pleads possible self-incrimination when confronted with the simple question, "Are you now a member of the Communist Party?" or "Have you ever been a member of the Communist Party?" A "No" answer could not possibly incriminate him in either case, nor could it lead to additional questions or evidence which would incriminate him.

Professor Furry indicated that there where a multitude of questions are asked (as in the game of Twenty Questions) the privilege should apply to all, indiscriminately, because answers to the non-incriminating ones might help a prosecutor to pin-point areas in which incriminating evidence could be found. Dean Griswold make a similar assertion with respect to the questioning of a witness about Party membership in each of a series of consecutive years. This contention presumes that the individual has been "in such a fix" that he could not safely answer all the questions, and at a time sufficiently recent to justify a reasonable belief that his testimony might furnish a basis for prosecution. In any event the argument would seem to have no application to a refusal to answer the simple first and second questions, "Have you ever been a member of the Communist Party?" and "Are you now a member?" A negative answer to these could hardly be of much help to a prosecutor.

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.'