[1] 268 U.S. 652 (1925).
[2] Ibid. 666.
[3] Fiske v. Kansas, 274 U.S. 380 (1927).
[4] Cantwell v. Connecticut, 310 U.S. 296 (1940).
[5] Near v. Minnesota, 283 U.S. 697 (1931).
[6] De Jonge v. Oregon, 299 U.S. 353 (1937).
[7] Annals of Congress, 434 (1789-1791).
[8] Records of the United States Senate, Sept. 9, 1789, United States Archives, cited in Appellees Brief in McCollum v. Board of Education, 333 U.S. 203 (1948).
[9] Ibid.
[10] Ibid.
[11] Joseph Story, Commentaries on the Constitution, § 1879 (1833).
[12] Ibid. § 1874.
[13] Principles of Constitutional Law, 224-225, 3d ed. (1898).
[14] Saul K. Padover, The Complete Jefferson, 518-519 (1943).
[15] 98 U.S. 145 (1879).
[16] Ibid. 164. In his 2d Inaugural Address Jefferson expressed a very different, and presumably more carefully considered, opinion upon the purpose of Amendment I: "In matters of religion, I have considered that its free exercise is placed by the Constitution independent of the powers of of the general government." This was said three years after the Danbury letter. 1 Messages and Papers of the Presidents, 379 (Richardson ed. 1896).
[17] Everson v. Board of Education, 330 U.S. 1 (1947).
[18] Ibid. 15, 16.
[19] McCollum v. Board of Education, 333 U.S. 203 (1948).
[20] Ibid. 212.
[21] 333 U.S. 203, 213 (1948).
[22] Ibid. 216-218. Justice Frankfurter's principal figure in the fight against sectarianism is Horace Mann, who was secretary of the Massachusetts Board of Education, 1837-1848. Mann, however, strongly resented the charge that he was opposed to religious instruction in the public schools. "It is true that Mr. Mann stood strongly for a 'type of school with instruction adapted to democratic and national ends.' But it is not quite just to him to contrast this type of school with the school adapted to religious ends, without defining terms. Horace Mann was opposed to sectarian doctrinal instruction in the schools, but he repeatedly urged the teaching of the elements of religion common to all of the Christian sects. He took a firm stand against the idea of a purely secular education, and on one occasion said he was in favor of religious instruction 'to the extremest verge to which it can be carried without invading those rights of conscience which are established by the laws of God, and guaranteed to us by the Constitution of the State.' At another time he said that he regarded hostility to religion in the schools as the greatest crime he could commit. Lest his name should go down in history as that of one who had attempted to drive religious instruction from the schools, he devoted several pages in his final Report—the twelfth—to a statement in which he denied the charges of his enemies." Raymond B. Culver, Horace Mann on Religion in the Massachusetts Public Schools, 235 (1929).
[23] 333 U.S. 203, 222 ff. (1948).
[24] Ibid. 213.
[25] Ibid. 225-226.
[26] Ibid. 231.
[27] Ibid. 232, 234.
[28] 333 U.S. 244.
[29] Ibid., 253, 254.
[30] Zorach v. Clauson, 303 N.Y. 161, 168-169; 100 N.E. 2d 403 (1951).
[31] Zorach v. Clauson, 343 U.S. 306 (1952).
[32] Ibid., pp. 313-314. Justices Black, Frankfurter, and Jackson dissented.
[33] Doremus v. Board of Education, 342 U.S. 429 (1952).
[34] Three dissenters, speaking through Justice Douglas, argued that, since the New Jersey Supreme Court had taken the case and decided it on its merits, the United States Supreme Court was bound to do the same. Ibid. 435-436.
[35] Bradfield v. Roberts, 175 U.S. 291 (1899).
[36] Quick Bear v. Leupp, 210 U.S. 50 (1908).
[37] Cochran v. Louisiana State Board of Education, 281 U.S. 370 (1930).
[38] Everson v. Board of Education, 330 U.S. 1 (1947).
[39] 42 U.S.C.A. §§ 1751-1760; 60 Stat. 230 (1940).
[40] Davis v. Benson, 133 U.S. 333, 342 (1890).
[41] Cantwell v. Connecticut, 310 U.S. 296, 303, 304 (1940).
[42] Pierce v. Society of Sisters of Holy Names, 268 U.S. 510 (1925).
[43] Reynolds v. United States, 98 U.S. 145, 166 (1879).
[44] Ibid. 167.
[45] Davis v. Beason, 133 U.S. 333, 345 (1890).
[46] Reynolds v. United States 98 U.S. 145 (1879); Davis v. Beason, 133 U.S. 333 (1890).
[47] 322 U.S. 78 (1944).
[48] Ibid. 89.
[49] 310 U.S. 296 (1940).
[50] Minersville School Dist. v. Gobitis, 310 U.S. 586 (1940).
[51] Jones v. Opelika, 316 U.S. 584 (1942).
[52] Jones v. Opelika, 319 U.S. 103 (1943); Murdock v. Pennsylvania, 319 U.S. 105 (1943).
[53] Board of Education v. Barnette, 319 U.S. 624 (1943). On the same day the Court held that a State may not forbid the distribution of literature urging and advising, on religious grounds, that citizens refrain from saluting the flag. Taylor v. Mississippi, 319 U.S. 583 (1943).
[54] Martin v. Struthers, 319 U.S. 141 (1943).
[55] Prince v. Massachusetts, 321 U.S. 158 (1944).
[56] 334 U.S. 558 (1948).
[57] Kovacs v. Cooper, 336 U.S. 77 (1949).
[58] Kunz v. New York, 340 U.S. 290 (1951).
[59] Ibid. 314.
[60] Niemotko v. Maryland, 340 U.S. 268 (1951).
[61] Feiner v. New York, 340 U.S. 315 (1951).
[62] See p. 1285. [Transcriber's Note: There is no mention of the Feiner case on p. 1285.]
[63] Arver v. United States, 245 U.S. 366 (1918).
[64] 293 U.S. 245 (1934).
[65] 325 U.S. 561 (1945). cf. Girouard v. United States, 328 U.S. 61 (1946) holding "an alien who is willing to take the oath of allegiance and to serve in the army as a non-combatant but who, because of religious scruples, is unwilling to bear arms in defense of this country may be admitted to citizenship * * *", overruling United States v. Schwimmer, 279 U.S. 644 (1929) and United States v. Macintosh, 283 U.S. 605 (1931).
[66] 325 U.S. 561, 578 (1945).
[67] Commentaries, Vol. IV, 151-152.
[68] Justice Frankfurter in Dennis v. United States, 341 U.S. 494, 521-522 (1951).
[69] Ibid. 524; citing Robertson v. Baldwin, 165 U.S. 275, 281 (1897).
[70] Ibid. 524; citing Gompers v. United States, 233 U.S. 604, 610 (1914).
"While the courts have from an early date taken a hand in crystallizing American conceptions of freedom of speech and press into law, it is scarcely in the manner or to the extent which they are frequently assumed to have done. The great initial problem in this realm of constitutional liberty was to get rid of the common law of 'seditious libel' which operated to put persons in authority beyond the reach of public criticism. The first step in this direction was taken in the famous, or infamous, Sedition Act of 1798, which admitted the defense of truth in prosecution brought under it, and submitted the general issue of defendant's guilt to the jury. But the substantive doctrine of 'seditious libel' the Act of 1798 still retained, a circumstance which put several critics of President Adams in jail, and thereby considerably aided Jefferson's election as President in 1800. Once in office, nevertheless, Jefferson himself appealed to the discredited principle against partisan critics. Writing his friend Governor McKean of Pennsylvania in 1803 anent such critics, Jefferson said: 'The federalists having failed in destroying freedom of the press by their gag-law, seem to have attacked in an opposite direction; that is by pushing its licentiousness and its lying to such a degree of prostitution as to deprive it of all credit. * * * This is a dangerous state of things, and the press ought to be restored to its credibility if possible. The restraints provided by the laws of the States are sufficient for this, if applied. And I have, therefore, long thought that a few prosecutions of the most prominent offenders would have a wholesome effect in restoring the integrity of the presses. Not a general prosecution, for that would look like persecution; but a selected one.' Works (Ford ed., 1905), IX 451-52.
"In the Memorial Edition of Jefferson's works this letter is not included; nor apparently was it known to the Honorable Josephus Daniels, whose enthusiastic introduction to one of these volumes makes Jefferson out to have been the father of freedom of speech and press in this country, if not throughout the world. The sober truth is that it was that archenemy of Jefferson and of democracy, Alexander Hamilton, who made the greatest single contribution toward rescuing this particular freedom as a political weapon from the coils and toils of the common law, and that in connection with one of Jefferson's 'selected prosecutions.' I refer to Hamilton's many-times quoted formula in the Croswell case in 1804: 'The liberty of the press is the right to publish with impunity, truth, with good motives, for justifiable ends though reflecting on government, magistracy, or individuals.' People v. Croswell, 3 Johns (NY) 337. Equipped with this brocard our State courts working in co-operation with juries, whose attitude usually reflected the robustiousness of American political discussion before the Civil War, gradually wrote into the common law of the States the principle of 'qualified privilege,' which is a notification to plaintiffs in libel suits that if they are unlucky enough to be officeholders or office seekers, they must be prepared to shoulder the almost impossible burden of showing defendant's 'special malice.' Cooley, Constitutional Limitations, Chap. XII: Samuel A. Dawson, Freedom of the Press, A Study of the Doctrine of 'Qualified Privilege' (Columbia Univ. Press, 1924)." Edward S. Corwin, Liberty Against Government. 157-159 fn. (L.S.U. Press, 1948).
[71] Patterson v. Colorado, 205 U.S. 454, 462 (1907).
[72] Ibid. 461
[73] Prudential Ins. Co. v. Cheek, 259 U.S. 530, 543 (1922).
[75] See Justice Brandeis concurring opinion in Whitney v. California, 274 U.S. 357 (1927); and cases reviewed below.
[76] Fiske v. Kansas, 274 U.S. 380 (1927).
[77] 133 U.S. 333 (1890).
[78] Ibid. 341-342.
[79] 236 U.S. 273 (1915).
[80] Fiske v. Kansas, 274 U.S. 380 (1927).
[81] Stromberg v. California, 283 U.S. 359 (1931).
[82] De Jonge v. Oregon, 299 U.S. 353 (1937).
[83] 249 U.S. 47 (1919).
[84] 40 Stat. 217, 219.
[85] 205 U.S. 454, 462 (1907).
[86] 249 U.S. 47, 51-52 (1919).
[87] 249 U.S. 204 (1919).
[88] Ibid. 206.
[89] 249 U.S. 211 (1919).
[90] Ibid. 215-216.
[91] 250 U.S. 616 (1919).
[92] Ibid. 627. It should be noted that Justice Holmes couples with his invocation of the clear and present danger test in his dissent in this case the contention that rightly construed the act of Congress involved (The Espionage Act of May 16, 1918; 40 Stat. 553) required that defendant's intent be specifically proved. He wrote: "I am aware of course that the word intent as vaguely used in ordinary legal discussion means no more than knowledge at the time of the act that the consequences said to be intended will ensue. Even less than that will satisfy the general principle of civil and criminal liability. A man may have to pay damages, may be sent to prison, at common law might be hanged, if at the time of his act he knew facts from which common experience showed that the consequences would follow, whether he individually could foresee them or not. But, when words are used exactly, a deed is not done with intent to produce a consequence unless that consequence is the aim of the deed. It may be obvious, and obvious to the actor, that the consequence will follow, and he may be liable for it even if he regrets it, but he does not do the act with intent to produce it unless to aim to produce it is the proximate motive of the specific act, although there may be some deeper motive behind. It seems to me that this statute must be taken to use its words in a strict and accurate sense." 250 U.S. at 626-627. In the Holmes-Pollock Letters this is the main point discussed by the two correspondents regarding the Abrams Case; the clear and present danger doctrine is not mentioned. 2 Holmes-Pollock Letters, 29, 31, 32, 42, 44-45, 48, 65.
[93] 251 U.S. 466 (1920).
[94] Ibid. 479. See also to the same effect: Pierce v. United States, 252 U.S. 239 (1920).
[95] 268 U.S. 652 (1925).
[96] Ibid. 668, 669.
[97] Ibid. 670.
[98] Ibid. 671. Justice Holmes presented a dissenting opinion for himself and Justice Brandeis which contains a curious note of fatalism. He said: "If what I think the correct test is applied, it is manifest that there was no present danger of an attempt to overthrow the government by force on the part of the admittedly small minority who shared the defendant's views. It is said that this Manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief, and, if believed, it is acted on unless some other belief outweighs it, or some failure of energy stifles the movement at its birth. The only difference between the expression of an opinion and an incitement in the narrower sense is the speaker's enthusiasm for the result. Eloquence may set fire to reason. But whatever may be thought of the redundant discourse before us, it had no chance of starting a present conflagration. If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way." Ibid. 673.
[99] 274 U.S. 357 (1927).
[100] Ibid. 373, 377. Apparently this means that the ultimate test of the constitutionality of legislation restricting freedom of utterance is whether there is still sufficient time to educate the utterers out of their mistaken frame of mind, and the final say on this necessarily recondite matter rests with the Supreme Court! Justice Brandeis also asserts (274 U.S. at 376) that there is a distinction between "advocacy" and "incitement," but fails to adduce any supporting authority.
[101] 301 U.S. 242 (1937).
[102] Ibid. 261-263.
[103] 310 U.S. 88 (1940).
[104] Ibid. 105.
[105] Cantwell v. Connecticut, 310 U.S. 296, 308 (1940).
[106] Stromberg v. California, 283 U.S. 359, 369 (1931).
[107] Fox v. Washington, 236 U.S. 273, 277 (1915).
[108] Gitlow v. New York, 268 U.S. 652 (1925).
[109] Terminiello v. Chicago, 337 U.S. 1 (1949).
[110] Ibid. 4.
[111] Ibid. 33. Dissenting opinions were written by Chief Justice Vinson, Justice Frankfurter (with whom Justices Jackson and Burton concurred) and Justice Jackson, (with whom Justice Burton agreed).
[112] 340 U.S. 315 (1951).
[113] Ibid. 319-320. Anent this finding, Justice Douglas, in his dissent, declared that: "Public assemblies and public speech occupy an important role in American life. One high function of the police is to protect these lawful gatherings so that the speakers may exercise their constitutional rights. When unpopular causes are sponsored from the public platform, there will commonly be mutterings and unrest and heckling from the crowd. * * * But those extravagances * * *, do not justify penalizing the speaker by depriving him of the platform or by punishing him for his conduct. * * * If * * * the police throw their weight on the side of those who would break up the meetings, the police become the new censors of speech. Police censorship has all the vices of the censorship from city halls which we have repeatedy [sic] struck down."—Ibid. 330-331.
[114] 333 U.S. 507 (1948).
[115] Ibid. 514-515.
[116] Musser v. Utah, 333 U.S. 95 (1948).
[117] Ibid. 101. This dissent probably marks the climax of the clear and present danger doctrine.
"On March 20, 1949, members of the Vice Squad of the Philadelphia Police Department, at the direction of Inspector Craig Ellis, head of the Vice Squad, commenced a series of mass raids upon book stores and booksellers in Philadelphia. Inspector Ellis gave his men a list of books that in his opinion were obscene, and directed them to seize the books wherever found. Fifty-four booksellers were raided, and nearly twelve hundred copies of the books were confiscated.
"These raids were remarkable not only because of the scale on which they were conducted, but in several other respects. First, they were directed in major part against books written by authors in the forefront of American literature and published by some of the leading publishers in America. Second, the raids were conducted and the books were confiscated without warrants of search or seizure or court order of any kind. Third, the list of books to be seized was compiled by Inspector Ellis and a patrolman in his office, without consultation with the District Attorney's office or the obtaining of any legal opinion as to whether the books were obscene under the Pennsylvania statute.
"For once the publishers took the offensive. Houghton Mifflin Company, publisher of Raintree County, Alfred A. Knopf, Inc., publisher of Never Love a Stranger, and The Vanguard Press, Inc., publisher of books by James T. Farrell and Calder Willingham among those seized, commenced actions in the Federal District Court in Philadelphia to restrain further police seizures of these books and to recover damages from the police officers for their unlawful acts. In these two actions the authors Harold Robbins and James T. Farrell, as well as Charles Praissman, a courageous bookseller whose stores had been raided, joined the publishers as parties plaintiff. The District Attorney of Philadelphia countered by commencing criminal proceedings against five of the booksellers whose stores had been raided, and on June 30, 1948 the grand jury, upon presentation of the District Attorney, indicted the booksellers on a charge of having violated the Pennsylvania statute prohibiting the sale of obscene books.
"In the meantime the Federal court cases brought by the publishers has come to trial before Judge Guy K. Bard, and at the conclusion of the trials Judge Bard had enjoined further seizures of the plaintiff's books, as well as police invasion of Praissman's stores or seizure of his books without a warrant. At the time of this writing, the Federal court cases have not been finally decided.
"On January 3, 1949 the criminal cases came on for trial before Judge Curtis Bok of the Pennsylvania Court of Quarter Sessions. The defendants pleaded not guilty and waived trial by jury. They stipulated that at the times and places mentioned in the indictments they had had possession of the books for the purpose of offering them for sale to the public. The books were then placed in evidence, and the prosecution rested its case. The defendants 'demurred to the evidence,' the effect of which was to raise the issue of whether the court, in the light of the constitutional guaranty of freedom of the press, could hold, beyond a reasonable doubt, that the books before it were obscene within the meaning of the Pennsylvania obscenity statute." Introductory note to a republication by Alfred Knopf Inc. of Judge Bok's opinion in Commonwealth v. Gordon et al., 66 D & C (Pa.) 101 (1949).
On March 18, 1949 Judge Bok sustained the demurrers and entered judgment in favor of the defendants. The opinion which accompanies his judgment pivots in part on the clear and present danger rule. It reads: "The only clear and present danger to be prevented by section 524 that will satisfy both the Constitution and the current customs of our era is the imminence of the commission of criminal behavior resulting from the reading of a book. Publication alone can have no such automatic effect."
This obviously overlooks the primary purpose of governmental interference with the distribution of "obscene literature," namely to protect immature minds from contamination. Dealing with this point Judge Bok protests against putting "the entire reading public at the mercy of the adolescent mind." Should, on the other hand, the adolescent mind be put at the mercy of the uninhibited reading tastes of an elderly federal judge?
[118] 310 U.S. 88 (1940).
[119] 310 U.S. 106 (1940).
[120] Thornhill v. Alabama, 310 U.S. 88, 102, 105 (1940).
[121] Drivers Union v. Meadowmoor Co., 312 U.S. 287 (1941); See also Hotel and Restaurant Employees' Alliance v. Board, 315 U.S. 437 (1942).
[122] Drivers Union v. Meadowmoor Co., 312 U.S. 287, 293 (1941).
[123] American Federation of Labor v. Swing, 312 U.S. 321 (1941); Bakery and Pastry Drivers v. Wohl, 315 U.S. 769 (1942); Cafeteria Employees Union v. Gus Angelos, 320 U.S. 293 (1943).
[124] Teamsters Union v. Hanke, 339 U.S. 470, 474 (1950).
[125] Giboney v. Empire Storage Co., 336 U.S. 490 (1949).
[126] Building Service Union v. Gazzam, 339 U.S. 532 (1950).
[127] Hughes v. Superior Court, 339 U.S. 460 (1950).
[128] Carpenters Union v. Ritter's Cafe, 315 U.S. 722, 728 (1942).
[129] Giboney v. Empire Storage Co., 336 U.S. 490 (1949).
[130] Ibid. 501, 502, citing Fox v. Washington, 236 U.S. 273, 277, which predates any suggestion of the clear and present danger formula. See above.
[131] Lincoln Union v. Northwestern Co., 335 U.S. 525 (1949); A.F. of L. v. American Sash Co., ibid., 538.
[132] Auto Workers v. Wis. Board, 336 U.S. 245 (1949). In Teamsters Union v. Hanke, 339 U.S. 470 (1950), injunctions by State courts against picketing of a self-employer's place of business to compel him to adopt a union shop were sustained.
[133] Thomas v. Collins, 323 U.S. 516 (1945).
[134] Ibid. 566.
[135] Patterson v. Colorado, 205 U.S. 454 (1907). Cf. Toledo Newspaper Co. v. United States, 247 U.S. 402 (1918) in which the Court affirmed a judgment imposing a fine for contempt of court on an editor who had criticized the action of a federal judge in a pending case. The majority held that such conviction did not violate the First Amendment. Justices Holmes and Brandeis dissented on the ground that the proceedings did not come within the applicable federal statute, but did not discuss the constitutional issue. This decision was overruled in Nye v. United States, 313 U.S. 33 (1941).
[136] 314 U.S. 252 (1941).
[137] Ibid. 271.
[138] Ibid. 283, 284.
[139] 328 U.S. 331 (1946).
[140] Ibid. 350.
[141] Ibid. 349.
[142] 331 U.S. 367 (1947).
[143] Ibid. 376.
[144] Davis v. Massachusetts, 107 U.S. 43 (1897).
[145] Ibid. 47.
[146] 307 U.S. 496, 515, 516 (1939).
[147] 334 U.S. 558 (1948).
[148] Kovacs v. Cooper, 336 U.S. 77 (1949).
[149] Public Utilities Commission v. Pollak, 343 U.S. 451 (1952). The decision overruled the United States Court of Appeals for the District of Columbia. Here Judge Edgerton, speaking for himself and two associates, said: "Exploitation of this audience through assault on the unavertible sense of hearing is a new phenomenon. It raises 'issues that were not implied in the means of communication known or contemplated by Franklin and Jefferson and Madison.' But the Bill of Rights, as appellants say in their brief, can keep up with anything an advertising man or an electronics engineer can think of. * * *
"If Transit obliged its passengers to read what it liked or get off the car, invasion of their freedom would be obvious. Transit obliges them to hear what it likes or get off the car. Freedom of attention, which forced listening destroys, is a part of liberty essential to individuals and to society. The Supreme Court has said that the constitutional guarantee of liberty 'embraces not only the right of a person to be free from physical restraint, but the right to be free in the enjoyment of all his faculties * * *.' One who is subjected to forced listening is not free in the enjoyment of all his faculties." He quoted with approval Justice Reed's statement in Kovacs v. Cooper, "The right of free speech is guaranteed every citizen that he may reach the minds of willing listeners."—191 F. 2d 450, 456 (1951).
[150] Lovell v. Griffin, 303 U.S. 444 (1938); Schneider v. State, 308 U.S. 147 (1939); Largent v. Texas, 318 U.S. 418 (1943).
[151] Schneider v. State, 308 U.S. 147 (1930); Jamison v. Texas, 318 U.S. 413 (1943).
[152] Marsh v. Alabama, 326 U.S. 501 (1946).
[153] Tucker v. Texas, 326 U.S. 517 (1946).
[154] Valentine v. Chrestensen, 316 U.S. 52 (1942).
[155] Martin v. Struthers, 319 U.S. 141 (1943).
[156] Breard v. Alexandria, 341 U.S. 622 (1951).
[158] Near v. Minnesota, 283 U.S. 697 (1931).
[159] Drivers Union v. Meadowmoor Co., 312 U.S. 287 (1941); Carpenters Union v. Ritter's Cafe, 315 U.S. 722 (1942).
[160] 315 U.S. 568 (1942).
[161] 319 U.S. 624 (1943).
[162] 315 U.S. 568, 571, 572 (1942).
[163] 319 U.S. 624, 633 (1943).
[164] Lovell v. Griffin, 303 U.S. 444, 451 (1938).
[165] Chaplinsky v. New Hampshire, 315 U.S. 568 (1942); Cox v. New Hampshire, 312 U.S. 569 (1941).
[166] Lovell v. Griffin, 303 U.S. 444 (1938); Hague v. C.I.O., 307 U.S. 496, 516 (1939); Schneider v. State, 308 U.S. 147 (1939); Cantwell v. Connecticut, 310 U.S. 296 (1940); Largent v. Texas, 318 U.S. 418 (1943); Thomas v. Collins, 323 U.S. 516, 538 (1945); Saia v. New York, 334 U.S. 558 (1948).
[167] Radio Comm'n v. Nelson Bros. Co., 289 U.S. 266 (1933); Communications Comm'n. v. N.B.C., 319 U.S. 239 (1943).
[168] Mutual Film Corp. v. Ohio Indus'l Comm., 236 U.S. 230, 244 (1915).
[169] 334 U.S. 131 (1948).
[170] Ibid. 166.
[171] Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495 (1952).
[172] Ibid. 502. Justice Frankfurter, concurring for himself and Justices Jackson and Burton, elaborates upon the vagueness of connotation of the New York Court's use of the word "sacrilegious." See Appendix to his opinion, Ibid. 533-40. Justice Reed, in his concurring opinion, suggests that the Court will now have the duty of examining "the facts of the refusal of a license in each case to determine whether the principles of the First Amendment have been honored." Ibid. 506-507.
[173] 314 U.S. 252 (1941).
[174] Ibid. 263.
[175] 323 U.S. 516 (1945).
[176] Ibid. 529-530.
[177] Palko v. Connecticut, 302 U.S. 319, 327 (1937).
[178] United States v. Carolene Products Co., 304 U.S. 144, 152, fn. 4 (1938).
[179] 328 U.S. 331 (1946).
[180] Ibid. 353.
[181] Kovacs v. Cooper, 336 U.S. 77, 88 (1949).
[182] Ibid. 90.
[183] Brinegar v. United States, 338 U.S. 160, 180 (1949).
[184] Terminiello v. Chicago, 337 U.S. 1, 4 (1949).
[185] Kunz v. New York, 340 U.S. 290, 302.
[186] Ibid. 309. In a footnote Justice Jackson points to the peculiarly protected position of the Court today, thanks to ch. 479, Public Law 250, 81st Congress, approved August 18, 1949. This makes it unlawful to "make any harangue or oration, or utter loud, threatening, or abusive language in the Supreme Court Building or grounds." § 5. It also forbids display of any "flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement." § 6. Moreover, it authorizes the marshal to "prescribe such regulations approved by the Chief Justice of the United States, as may be deemed necessary for the adequate protection of the Supreme Court Building and grounds and of persons and property therein, and for the maintenance of suitable grounds." § 7. Violation of these provisions or regulations is an offense punishable by fine and imprisonment.
[187] Grosjean v. American Press Co., 297 U.S. 233, 246 (1936).
[188] Ibid. 250.
[189] Ibid.
[190] Murdock v. Pennsylvania, 319 U.S. 105 (1943); Jones v. Opelika, 319 U.S. 103 (1943); Follett v. McCormick, 321 U.S. 573 (1944).
[191] Associated Press v. United States, 326 U.S. 1 (1945). A newspaper publisher who enjoyed a substantial monopoly of mass distribution of news was enjoined from refusing advertising from persons advertising over a competing radio station. The Court sustained the injunction against the objection that it violated freedom of the press, holding that appellant was guilty of attempting to monopolize interstate commerce. Lorain Journal v. United States, 342 U.S. 143 (1951).
[192] Associated Press v. Labor Board, 301 U.S. 103, 133 (1937).
[193] Okla. Press Pub. Co. v. Walling, 327 U.S. 186 (1946).
[194] 221 U.S. 418 (1911).
[195] Ibid. 430.
[196] 314 U.S. 469 (1941).
[197] Ibid: 477.
[198] Ibid. 478.
[199] United States v. C.I.O., 335 U.S. 106 (1948).
[200] 106 U.S. 371 (1882).
[201] 19 Stat. 143 § 6 (1876).
[202] 53 Stat. 1147 (1939).
[203] United Public Workers v. Mitchell, 330 U.S. 75 (1947).
[204] Oklahoma v. United States Civil Serv. Comm., 330 U.S. 127 (1947).
[205] Schenck v. United States, 249 U.S. 47 (1919); Frohwerk v. United States, 249 U.S. 204 (1919); Debs v. United States, 249 U.S. 211 (1919); Abrams v. United States, 250 U.S. 616 (1919); Schaefer v. United States, 251 U.S. 466 (1919); Pierce v. United States, 252 U.S. 239 (1920); cf. Gilbert v. Minnesota 254 U.S. 325 (1920); Hartzel v.. United States, 322 U.S. 680 (1944).
[206] 341 U.S. 494 (1951).
[207] 61 Stat. 136, 146 (1947); "Taft-Hartley Act."
[208] 339 U.S. 382 (1950).
[209] 339 U.S. 846 (1950). Answering in 1882 the objection of a pensioner to the terms of an act under which he received his pension from the Government, the Court answered: "Pensions are the bounties of the government, which Congress has the right to give, withhold, distribute or recall, at its discretion." United States v. Teller, 107 U.S. 64, 68. Can it be doubted that Congress has power to repeal at any time the protection which present legislation affords organized labor?
[210] 339 U.S. 382, 394, 397 (1950).
[211] Dennis v. United States, 341 U.S. 494 (1951).
[212] 54 Stat. 670 (1940).
[213] 341 U.S. 494, 509.
[214] Ibid. 509.
[215] Ibid. 510; citing 183 F. (2d) at 212.
[216] 341 U.S. 494, 510-511.
[217] Ibid. 513.
[218] 341 U.S. 494, 519-520.
[219] Ibid. 525.
[220] Ibid. 527-528.
[221] 341 U.S. 494, 539.
[222] 268 U.S. 652 (1925).
[223] 341 U.S. 494, 541.
[224] Ibid. 542.
[225] Ibid. 551-552.
[226] 341 U.S. 494, 567-569.
[227] Ibid. 572.
[228] 341 U.S. 494, 586; citing 274 U.S. 357, 376-377.
[229] Anti-Fascist Committee v. McGrath, 341 U.S. 123 (1951) heads the list.
[230] 341 U.S. 494 (1951).
[231] 339 U.S. 382; ibid. 846 (1950).
[232] 341 U.S. 716 (1951).
[233] 342 U.S. 485 (1952).
[234] New York Laws, 1949, c. 360.
[235] 342 U.S. 485, 493. Justice Frankfurter dissented on jurisdictional grounds. Justices Black and Douglas attacked the merits of the decision. Said the latter: "What happens under this law is typical of what happens in a police state. Teachers are under constant surveillance; their pasts are combed for signs of disloyalty; their utterances are watched for clues to dangerous thoughts. A pall is cast over the classrooms. There can be no real academic freedom in that environment. Where suspicion fills the air and holds scholars in line for fear of their jobs, there can be no exercise of the free intellect. Supineness and dogmatism take the place of inquiry. A 'party line'—as dangerous as the 'party line' of the Communists—lays hold. It is the 'party line' of the orthodox view, of the conventional thought, of the accepted approach. A problem can no longer be pursued with impunity to its edges. Fear stalks the classroom. The teacher is no longer a stimulant to adventurous thinking; she becomes instead a pipe line for safe and sound information. A deadening dogma takes the place of free inquiry. Instruction tends to become sterile; pursuit of knowledge is discouraged; discussion often leaves off where it should begin." Ibid. 510.
[236] 343 U.S. 250 (1952).
[237] Ibid. 258.
[238] Ibid, 259-263 passim. Justice Douglas, dissenting, urged the "absolute" character of freedom of speech and deplored recent cases in which, he asserted, the Court "has engrafted the right of regulation onto the First Amendment by placing in the hands of the legislative branch the right to regulate 'within reasonable length' the right of free speech. This to me is an ominous and alarming trend." Ibid. 285. Justices Black, Reed and Jackson also dissented. Justice Jackson's dissenting opinion is characteristically paradoxical: "An Illinois Act, construed by its Supreme Court to be a 'group libel' statute, has been used to punish criminally the author and distributor of an obnoxious leaflet attacking the Negro race. He answers that, as applied, the Act denies a liberty secured to him by the Due Process Clause of the Fourteenth Amendment. What is the liberty which that clause underwrites? The spectrum of views expressed by my seniors shows that disagreement as to the scope and effect of this Amendment underlies this, as it has many another, division of the Court. All agree that the Fourteenth amendment does confine the power of the State to make printed words criminal. Whence we are to derive metes and bounds of the state power is a subject to the confusion of which, I regret to say, I have contributed—comforted in the acknowledgment, however, by recalling that this Amendment is so enigmatic and abstruse that judges more experienced than I have had to reverse themselves as to its effect on state power. The thesis now tendered in dissent is that the 'liberty' which the Due Process Clause of the Fourteenth Amendment protects against denial by the States is the literal and identical 'freedom of speech or of the press' which the First Amendment forbids only Congress to abridge. The history of criminal libel in America convinces me that the Fourteenth Amendment did not 'incorporate' the First, that the powers of Congress and of the States over this subject are not of the same dimensions, and that because Congress probably could not enact this law it does not follow that the States may not." Ibid. 287-288. Proceeding from this position, Justice Jackson is able, none the less, to dissent from the Court's judgment. Cf. Chief Justice Stone's position in United States v. Carolene Products Co., 304 U.S. 144, at 152-53, note 4 (1938).
[239] 20 Stat. 355, 358 (1879); 48 Stat. 928 (1934).
[240] 327 U.S. 146 (1946).
[241] Ibid. 158. Justice Frankfurter, while concurring, apparently thought that the question of Congress's power in the premises was not involved. Ibid. 159-160. On this broader question, see p. 269. (The Postal Clause).
[242] 333 U.S. 178 (1948); Public Clearing House v. Coyne, 194 U.S. 497 (1904).
[243] Here it is recited in part: "That if we, our justiciary, our bailiffs, or any of our officers, shall in any circumstances have failed in the performance of them toward any person, or shall have broken through any of these articles of peace and security, and the offence be notified to four barons chosen out of the five-and-twenty before mentioned, the said four barons shall repair to us, or our justiciary, if we are out of the realm, and laying open the grievance, shall petition to have it redressed without delay."
[244] 12 Encyclopedia of the Social Sciences, 98 ff, "Petition, Right of" (New York, 1934).
[245] United States v. Cruikshank, 92 U.S. 542, 552 (1876) reflects this older view.
[246] De Jonge v. Oregon, 299 U.S. 353, 364, 365 (1937). See also Herndon v. Lowry, 301 U.S. 242 (1937).
[247] For the details of Adams' famous fight on "The Gag Rule," see Andrew C. McLaughlin, A Constitutional History of the United States, pp. 478-481, Appleton-Century-Crofts, Inc., New York (1935).
[248] Rules and Manual United States House of Representatives (1949), Eighty-first Congress, by Lewis Deschler, Parliamentarian, United States Government Printing Office, Washington (1949), pp. 430-433.
[249] United States v. Baltzer, Report of the Attorney General, 1918, p. 48.
[250] 92 U.S. 542 (1876).
[251] 16 Stat. 141 (1870).
[252] 92 U.S. 542, 552-553 (1876). At a later point in its opinion the Court used the following language: "Every republican government is in duty bound to protect all its citizens in the enjoyment of an equality of right. That duty was originally assumed by the States; and it still remains there. The only obligation resting upon the United States is to see that the States do not deny the right. This the Amendment guarantees, but no more. The power of the national government is limited to the enforcement of this guaranty." Ibid. 555. These words have reference, quite clearly, to counts of the indictment alleging acts of the conspirators denying "equal protection of the laws" "to persons of color," Congress's power to protect which is derived from Amendment XIV and is confined as the Court says, to protection against State acts. The above quoted words have, however, caused confusion. See pp. 1176-1177.
[253] Hague v. C.I.O., 307 U.S. 496 (1939).
[254] 49 Stat. 449 (1935).
[255] 307 U.S. 496, 515-516 (1939).
[256] Ibid. 525.
[257] "As to the American Civil Liberties Union, which is a corporation, it cannot be said to be deprived of the civil rights of freedom of speech and of assembly, for the liberty guaranteed by the due process clause is the liberty of natural, not artificial, persons. Northwestern Nat. L. Ins. Co. v. Riggs, 203 U.S. 243, 255; Western Turf Asso. v. Greenberg, 204 U.S. 359, 363;" 307 U.S. 496, 527 (1939). See also ibid. 514.
[259] 314 U.S. 252 (1941).
[260] 323 U.S. 516 (1945).
[261] Auto Workers v. Wis. Board, 336 U.S. 245 (1949).
[262] Collins v. Hardyman, 341 U.S. 651 (1951); 17 Stat. 13, 8 U.S.C. § 47 (3).
[263] 341 U.S. 651, 663 (1951).
[264] 2 U.S.C. §§ 261-270. See also: General Interim Report of the House Select Committee on Lobbying Activities, Eighty-First Congress, Second Session, created pursuant to H. Res. 298, October 20, 1950, United States Government Printing Office, Washington (1950): see also 9 Encyclopedia of the Social Sciences 567, "Lobbying."
[265] National Association of Manufacturers v. McGrath, 103 F. Supp. 510 (1952). Upon review, the Supreme Court vacated this judgment as moot.—334 U.S. 804, 807.
[266] Rumely v. United States, 197 F. 2d 166, 174-175 (1952).
Amendment 2
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms shall not be infringed.
The protection afforded by this amendment prevents infringement by Congress of the right to bear arms for a lawful purpose, but does not apply to such infringement by private citizens. For this reason an indictment under the Enforcement Act of 1870,[1] charging a conspiracy to prevent Negroes from bearing arms for lawful purposes was held defective.[2] A State statute which forbids bodies of men to associate together as military organizations, or to drill or parade with arms in cities and towns unless authorized by law, does not abridge the right of the people to keep and bear arms.[3] In the absence of evidence tending to show that possession or use of a shotgun having a barrel of less than 18 inches in length has some reasonable relationship to the preservation or efficiency of a well regulated militia, the Court refused to hold invalid a provision in the National Firearms Act[4] against the transportation of unregistered shotguns in interstate commerce.[5]
Notes
[1] 16 Stat. 140 (1870).
[2] United States v. Cruikshank, 92 U.S. 542, 553 (1876).
[3] Presser v. Illinois, 116 U.S. 252, 265 (1886).
[4] 48 Stat. 1236 (1934).
[5] United States v. Miller, 307 U.S. 174 (1939).
Amendment 3
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.
"This amendment seems to have been thought necessary. It does not appear to have been the subject of judicial exposition; and it is so thoroughly in accord with all our ideas, that further comment is unnecessary."[1]
Notes
[1] Miller, Samuel F., The Constitution (1893), page 646.
Amendment 4
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Coverage of the Amendment
This amendment denounces only such searches and seizures as are "unreasonable," and is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted and in a manner to conserve public interests as well as the rights of individuals.[1] It applies only to governmental action, not to the unlawful acts of individuals in which the government has no part.[2] It has no reference to civil proceedings for the recovery of debts; consequently, a distress warrant issued by the Solicitor of the Treasury under an act of Congress is not forbidden, though issued without support of an oath or affirmation.[3] But the amendment is applicable to search warrants issued under any statute, including revenue and tariff laws.[4]
Security "in their persons, houses, papers and effects" is assured to the people by this article. Not only the search of a dwelling, but also of a place of business,[5] a garage,[6] or a vehicle,[7] is limited by its provisions. But open fields are not covered by the term "house"; they may be searched without a warrant.[8] A sealed letter deposited in the mails may not be opened by the postal authorities without the sanction of a magistrate.[9] The subpoena of private papers is subject to its test of reasonableness.[10] Retention for use as evidence of a letter voluntarily written by a prisoner, which, without threat or coercion, came into the possession of prison officials under the practice and discipline of the institution, is not prohibited.[11] Where officers demand admission to private premises in the name of the law, their subsequent explorations are searches within the meaning of the Constitution, even though the occupant opens the door to admit them.[12] A peremptory demand by federal officers that a person suspected of crime open a locked room and hand over ration coupons kept there was held not to amount to a seizure in view of the fact that the coupons were government property which the custodian was under a duty to surrender.[13] Neither wiretapping,[14] nor the use of a detectaphone to listen to a conversation in an adjoining room,[15] nor interrogation under oath by a government official of a person lawfully in confinement[16] is within the purview of this article. Nor does it apply to statements made by an accused on his own premises to an "undercover agent" whose identity was not suspected and who had on his person a radio transmitter which communicated the statements to another agent outside the building.[17] Said Justice Jackson for the Court: "Petitioner relies on cases relating to the more common and clearly distinguishable problems raised where tangible property is unlawfully seized. Such unlawful seizure may violate the Fourth Amendment, even though the entry itself was by subterfuge or fraud rather than force. But such decisions are inapposite in the field of mechanical or electronic devices designed to overhear or intercept conversation, at least where access to the listening post was not obtained by illegal methods."[18] But narcotics seized in a hotel room during absence of the owner, in the course of a search without warrant for either search or arrest, were not adducible as evidence against the owner, who, however, was not entitled to have them returned since they were legal contraband.[19]
Necessity, Sufficiency and Effect of Warrants
A warrant of commitment by a justice of the peace must state a good cause certain and be supported by oath.[20] A notary public is not authorized to administer oaths in federal criminal proceedings; hence a warrant based on affidavits verified before a notary is invalid.[21] A warrant of the Senate for attachment of a person who ignored a subpoena from a Senate committee is supported by oath within the requirement of this amendment when based upon the committee's report of the facts of the contumacy, made on the committee's own knowledge and having the sanction of the oath of office of its members.[22]
A belief, however well founded, that an article sought is concealed in a dwelling house furnishes no justification for a search without a warrant.[23] A warrant issued upon an information stating only that "affiant has good reason to believe and does believe" that defendant has contraband materials in his possession is clearly bad under the Fourth Amendment.[24] It is enough, however, if the apparent facts set out in the affidavit are such that a reasonably discreet and prudent man would be led to believe that the offense charged had been committed.[25]
The requirement of the Fourth Amendment that warrants shall particularly describe the things to be seized makes general searches under them impossible and prevents the seizure of one thing under a warrant describing another. As to what is to be taken nothing is left to the discretion of the officer executing the warrant.[26] Private papers of no pecuniary value, in which the sole interest of the Federal Government is their value as evidence against the owner in a contemplated criminal prosecution, may not be taken from the owner's house or office under a search warrant.[27]
Records, Reports and Subpoenas
Since the common law did not countenance compulsory self incrimination, many years passed before the Supreme Court was called upon to interpret the constitutional provisions bearing upon the privilege against such testimonial compulsion. Not until Boyd v. United States[28] did it have to meet the issue; there, pursuant to an act of Congress, a court had issued an order in a proceeding for the forfeiture of goods for fraudulent nonpayment of customs duties, requiring the claimant to produce in court his invoices covering the goods, on pain of having the allegation taken as confessed against him. The order and the statute which authorized it were held unconstitutional in a notable opinion by Justice Bradley, as follows: "Breaking into a house and opening boxes and drawers are circumstances of aggravation; but any forcible and compulsory extortion of a man's own testimony or of his private papers to be used as evidence to convict him of crime or to forfeit his goods, is [forbidden] * * * In this regard the Fourth and Fifth Amendments run almost into each other."[29] Thus the case established three propositions of far-reaching significance: (1) that a compulsory production of the private papers of the owner in such a suit was a search and seizure within the meaning of the Fourth Amendment;[30] (2) that in substance such seizure compelled him to be a witness against himself in violation of Amendment V,[31] and (3) that, because it was a violation of the Fifth Amendment, it was also an unreasonable search and seizure under the Fourth.[32]
Only natural persons can resist the subpoena of private papers on the ground of self incrimination.[33] Even an individual cannot refuse to produce records which are in his custody on the plea that they might incriminate the owner or himself where the documents belong to a corporation,[34] or to a labor union.[35] A bankrupt can be compelled to turn over records which are part of his estate.[36] Papers already in the custody of a United States court in consequence of their having been used by the owner himself as evidence on another proceeding may be used before a grand jury as a basis for an indictment for perjury.[37] A corporation may challenge an order for the production of records if it is unreasonable on grounds other than self incrimination, i.e., if it is too sweeping,[38] if the information sought is not relevant to any lawful inquiry,[39] or if it represents "a fishing expedition" in quest of evidence of crime.[40] In Oklahoma Press Pub. Co. v. Walling,[41] the question of the protection afforded by the Constitution against the subpoena of corporate records was thoroughly reviewed. Justice Rutledge summarized the Court's views in the following words: "* * * the Fifth Amendment affords no protection by virtue of the self incrimination provision, whether for the corporation or for its officers; and the Fourth, if applicable, at the most guards against abuse only by way of too much indefiniteness or breadth in the things required to be 'particularly described,' if also the inquiry is one the demanding agency is authorized by law to make and the materials specified are relevant. The gist of the protection is in the requirement, expressed in terms, that the disclosure sought shall not be unreasonable. * * * It is not necessary, as in the case of a warrant, that a specific charge or complaint of violation of law be pending or that the order be made pursuant to one. It is enough that the investigation be for a lawfully authorized purpose, within the power of Congress to command. * * * The requirement of 'probable cause, supported by oath or affirmation,' literally applicable in the case of a warrant is satisfied, in that of an order for production, by the court's determination that the investigation is authorized by Congress, is for a purpose Congress can order, and the documents sought are relevant to the inquiry. Beyond this the requirement of reasonableness, including particularity in 'describing the place to be searched, and the persons or things to be seized,' also literally applicable to warrant, comes down to specification of the documents to be produced adequate, but not excessive, for the purposes of the relevant inquiry."[42]
As a means of enforcing a valid statute, the Government may require any person subject thereto "to keep a record showing whether he has in fact complied with it,"[43] and to submit that record to inspection by government officers.[44] It may also compel the filing of returns disclosing the amount of tax liability,[45] and of reports under oath showing instances where employees have worked in excess of hours of labor permitted by law.[46] Without violating either the Fourth or Fifth Amendments, a judicial decree enjoining illegal practices under the Antitrust Act may provide that the Department of Justice shall be given access to all records and documents of the corporation relating to the matter covered by the decree.[47] The Supreme Court has intimated, however, that record keeping requirements must be limited to data which are relevant to the effective administration of the law.[48]
Search and Seizure Incidental to Arrest
The right to search the person upon arrest has long been recognized[49] but authority to search the premises upon which the arrest is made has been approved only in recent years. In Agnello v. United States,[50] the Supreme Court asserted that: "The right without a search warrant contemporaneously to search persons lawfully arrested while committing crime and to search the place where the arrest is made in order to find and seize things connected with the crime as its fruits or as the means by which it was committed, as well as weapons and other things to effect an escape from custody, is not to be doubted."[51] Books and papers used to carry on a criminal enterprise, which are in the immediate possession and control of a person arrested for commission of an offense in the presence of the officers may be seized when discovered in plain view during a search of the premises following the arrest.[52] The lawful arrest of persons at their place of business does not justify a search of desks and files in the offices where the arrest is made and seizure of private papers found thereon.[53] A search which is unlawfully undertaken is not made valid by the evidence of crime which it brings to light.[54]
By a five to four decision in Harris v. United States[55] the Court sustained, as an incident to a lawful arrest, a five hour search by four federal officers of every nook and cranny of a four-room apartment. It also upheld the seizure of papers unrelated to the crime for which the arrest was made, namely, Selective Service Registration cards which were discovered in a sealed envelope in the bottom of a bureau drawer. In justification of this conclusion, Chief Justice Vinson wrote: "Here the agents entered the apartment under the authority of lawful warrants of arrest. Neither was the entry tortious nor was the arrest which followed in any sense illegal. * * * The search was not a general exploration but was specifically directed to the means and instrumentalities by which the crimes charged had been committed, particularly the two canceled checks of the Mudge Oil Company. * * * If entry upon the premises be authorized and the search which follows be valid, there is nothing in the Fourth Amendment which inhibits the seizure by law-enforcement agents of government property the possession of which is a crime, even though the officers are not aware that such property is on the premises when the search is initiated."[56] In a dissenting opinion in which Justices Murphy and Rutledge concurred, Justice Frankfurter challenged the major premises announced by the Court. "To derive from the common law right to search the person as an incident of his arrest the right of indiscriminate search of all his belongings, is to disregard the fact that the Constitution protects [against] both unauthorized arrest and unauthorized search. Authority to arrest does not dispense with the requirement of authority to search. * * * But even if the search was reasonable, it does not follow that the seizure was lawful. If the agents had obtained a warrant to look for the canceled checks, they would not be entitled to seize other items discovered in the process. * * * The Court's decision achieves the novel and startling result of making the scope of search without warrant broader than an authorized search."[57] A more limited search in connection with an arrest was held valid in United States v. Rabinowitz.[58] In that case, government officers, armed with a valid warrant for arrest, had arrested respondent in his one-room office which was open to the public. Thereupon, over his objection, they searched the desk, safe and file cabinets in the office for about an hour and a half and seized 573 forged and altered stamps. Justice Minton assigned five reasons for holding that the search and seizure was reasonable: "(1) the search and seizure were incident to a valid arrest; (2) the place of the search was a business room to which the public, including the officers, was invited; (3) the room was small and under the immediate and complete control of respondent; (4) the search did not extend beyond the room used for unlawful purposes; (5) the possession of the forged and altered stamps was a crime, just as it is a crime to possess burglars' tools, lottery tickets or counterfeit money."[59] This decision also overruled an intermediate case, Trupiano v. United States,[60] whereby the practical effect of the Harris decision had been circumscribed by a ruling that even where a valid arrest is made, a search without a warrant is not permissible if the circumstances make it feasible to procure a warrant in advance.
The Fourth Amendment has been construed "* * *, as recognizing a necessary difference between a search of a store, dwelling house, or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon, or automobile for contraband goods, where is it not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought. * * * The measure of legality of such a seizure is, therefore, that the seizing officer shall have reasonable or probable cause for believing that the automobile which he stops and seizes has contraband liquor therein which is being illegally transported."[61] Where officers have reasonable grounds for searching an automobile which they are following, a search of the vehicle immediately after it has been driven into an open garage is valid.[62] The existence of reasonable cause for searching an automobile does not, however, warrant the search of an occupant thereof, although the contraband sought is of a character which might be concealed on the person.[63]
Use of Evidence
To remove the temptation to ignore constitutional restraints on search and seizure, evidence obtained in violation thereof is made inadmissible against an accused in federal courts.[64] This is contrary to the practice prevailing in the majority of States and has been severely criticized as a matter of principle.[65] The Court has intimated recently that the federal exclusionary rule is not a command of the Fourth Amendment, but merely a judicially created rule of evidence which Congress could overrule. In Wolf v. Colorado,[66] it ruled that while that amendment is binding on the States, it does not prevent State courts from admitting evidence obtained by illegal search. With respect to the federal rule, Justice Frankfurter said: "* * * though we have interpreted the Fourth Amendment to forbid the admission of such evidence, a different question would be presented if Congress, under its legislative powers, were to pass a statute purporting to negate the Weeks doctrine. We would then be faced with the problem of the respect to be accorded the legislative judgment on an issue as to which, in default of that judgment, we have been forced to depend upon our own."[67] This rule does not prevent the use of evidence unlawfully obtained by individuals,[68] or by State officers,[69] unless federal agents had a part in the unlawful acquisition,[70] or unless the arrest and search were made for an offense punishable only by federal law.[71] A search is deemed to be "a search by a federal official if he had a hand in it; * * * [but not] if evidence secured by State authorities is turned over to the federal authorities on a silver platter. The decisive factor * * * is the actuality of a share by a federal official in the total enterprise of securing and selecting evidence by other than sanctioned means. It is immaterial whether a federal agent originated the idea or joined in it while the search was in progress. So long as he was in it before the object of the search was completely accomplished, he must be deemed to have participated in it."[72] Samples of illicit goods constituting part of a quantity seized by federal officials under a valid search warrant may be used as evidence, whether or not the officers become civilly liable as trespassers ab initio, by reason of the fact that they unlawfully destroyed the remainder of the goods at the time the seizure was made.[73]
In Silver Thorne Lumber Co. v.. United States,[74] the Court refused to permit the Government to subpoena corporate records of which it had obtained knowledge by an unlawful search. To permit "knowledge gained by the Government's own wrong" to be so used would do violence to the Bill of Rights.[75] But a defendant in a civil antitrust suit may be required to produce records which had been previously subpoenaed before a grand jury, despite the fact that the grand jury was illegally constituted because women were excluded from the panel.[76] Where government agents lawfully obtained knowledge of the contents of a cancelled check during examination of the records of a government contractor, the admission of such check in evidence was held not to be an abuse of discretion even if the seizure of the check itself was deemed illegal.[77] The seizure of papers under a writ of replevin issued in a civil suit between private persons does not violate the Fourth and Fifth Amendments.[78]
Notes
[1] Carroll v. United States, 267 U.S. 132, 147, 149 (1925).
[2] Burdeau v. McDowell, 256 U.S. 465, 475 (1921).
[3] Den ex dem. Murray v. Hoboken Land & Improv. Co., 18 How. 272, 285 (1856).
[4] Nathanson v. United States, 290 U.S. 41, 47 (1933)
[5] Gouled v. United States, 255 U.S. 298 (1921).
[6] Taylor v. United States, 286 U.S. 1 (1932).
[7] Carroll v. United States, 267 U.S. 132 (1925).
[8] Hester v. United States, 265 U.S. 57 (1924).
[9] Ex parte Jackson, 96 U.S. 727, 733 (1878).
[10] Boyd v. United States, 116 U.S. 616 (1886); Hale v. Henkel, 201 U.S. 43 (1906).
[11] Stroud v. United States, 251 U.S. 15, 21 (1919).
[12] Amos v. United States, 255 U.S. 313 (1921); Johnson v. United States, 333 U.S. 10 (1948).
[13] Davis v. United States, 328 U.S. 582 (1946).
[14] Olmstead v. United States, 277 U.S. 438 (1928). Cf. Nardone v. United States, 302 U.S. 379 (1937); 308 U.S. 338 (1939).
[15] Goldman v. United States, 316 U.S. 129 (1942).
[16] Bilokumsky v. Tod, 203 U.S. 149, 155 (1923).
[17] On Lee v. United States, 343 U.S. 747 (1952).
[18] Ibid. 753. Four Justices dissented, relying in the main on the dissent in the Olmstead case, which came later to be adopted by Congress. See note 10 above.
[19] United States v. Jeffers, 342 U.S. 48 (1951).
[20] Ex parte Burford, 3 Cr. 448 (1806).
[21] Albrecht v. United States, 273 U.S. 1 (1927).
[22] McGrain v. Daugherty, 273 U.S. 135, 156, 158 (1927).
[23] Agnello v. United States, 269 U.S. 20 (1925).
[24] Byars v. United States, 273 U.S. 28, 29 (1927).
[25] Steele v. United States, No. 1, 267 U.S. 498, 504, 505 (1925); Dumbra v. United States, 268 U.S. 435, 441 (1925).
[26] Marron v. United States, 275 U.S. 192, 196 (1927).
[27] Gouled v. United States, 255 U.S. 298 (1921).
[28] 116 U.S. 616 (1886).
[29] Ibid. 630.
[30] Ibid. 634, 635.
[31] Ibid. 633.
[32] Ibid. 635.
[33] Hale v. Henkel, 201 U.S. 43, 74 (1906); Essgee Co. v. United States, 262 U.S. 151 (1923). Cf. Interstate Commerce Commission v. Baird, 194 U.S. 25, 46 (1904).
[34] Wilson v. United States, 221 U.S. 361 (1911). See also Wheeler v. United States, 226 U.S. 478 (1913); Grant v. United States, 227 U.S. 74 (1913).
[35] United States v. White, 322 U.S. 694 (1944).
[36] Re Fuller, 262 U.S. 91 (1923). See also McCarthy v. Arndstein, 266 U.S. 34, 41 (1924).
[37] Perlman v. United States, 247 U.S. 7 (1918).
[38] Hale v. Henkel, 201 U.S. 43, 76 (1906).
[39] Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946).
[40] Federal Trade Commission v. American Tobacco Co. 264 U.S. 298, 305-306 (1924).
[41] 327 U.S. 186 (1946).
[42] Ibid. 208-209.
[43] United States v. Darby, 312 U.S. 100, 125 (1941).
[44] Shapiro v. United States, 335 U.S. 1, 32 (1918).
[45] Flint v. Stone Tracy Co., 220 U.S. 107, 175 (1911).
[46] Baltimore & O.R. Co. v. Interstate Commerce Comm'n., 21 U.S. 612 (1911).
[47] United States v. Bausch & L. Optical Co., 321 U.S. 707, 725 (1944). Cf. United States v. Morton Salt Co., 338 U.S. 632 (1950).
[48] Shapiro v. United States, 335 U.S. 1, 32 (1948); Oklahoma Press Pub. Co. v. Walling, 327 U.S. 186, 208 (1946).
[49] Weeks v. United States, 232 U.S. 383, 392 (1914).
[50] 269 U.S. 20 (1925).
[51] Ibid. 30.
[52] Marron v. United States, 275 U.S. 192 (1927).
[53] Go-Bart Importing Co. v. United States, 282 U.S. 344 (1931); United States v. Lefkowitz, 285 U.S. 452 (1932).
[54] Byars v. United States, 273 U.S. 28 (1927); Johnson v. United States, 333 U.S. 10, 16 (1948).
[55] 331 U.S. 145 (1947).