On the constitutional issues I will submit my brief with only one further remark. I agree with Mr. Harris that there is no showing of clear and present danger which would constitutionally justify this bill. I want to point out further that even if it were to be assumed that there were a clear and present danger, such a finding would not justify all the limitations upon political expression which the legislature may see fit to impose. On the contrary, the Supreme Court has consistently held that the prohibitions must be narrowly drawn to meet the specific danger and may not include in sweeping language prohibitions only remotely related to the danger.

It seems to me clear that the Nixon bill violates this principle. It imposes a complete prohibition upon conduct directed at certain political objectives, regardless of the fact that the conduct is entirely peaceful, and regardless of its relation to the military or the active conduct of war. In doing so the bill undertakes to forbid conduct squarely within the area which the Court has held immune from control. Thus in the DeJonge case the Court declared invalid a State law which penalized the holding of a peaceful meeting even though the meeting was sponsored by the Communist Party, which the Court, for the purposes of that case, assumed to be an illegal operation. In that case the Court did not even consider the applicability of the clear and present danger test.

Therefore I say on this ground, in addition to those already stated to you, the bill would be unconstitutional.

In conclusion let me try to reframe the problem before the committee, attempting to place it in broader context. Why do you feel it necessary to forbid by legislative fiat certain kinds of nonviolent political action? Why is it that the idea of loyalty looms so large in our minds these days, and that we appear to be uncertain of the loyalty of so many of our citizens, including those in high places?

The answer is, of course, that we are living in a period of far-reaching change. As a result of scientific and industrial developments over the past decades we are faced with new kinds of problems-problems we have not been called upon to solve before. This is particularly true in many foreign countries, but it is also true of the United States. Thus the crucial question, like it or not, is whether we can adapt our institutions, our ideas, and our way of life to the demands of the modern world.

The issue is made more difficult for us, and an answer is being forced from us at a quicker pace, by the fact that the Communist countries of the world have reached what they consider the proper solution. The Communist answer is not one that we in the United States will accept. But the very existence of the Communist idea, and the fact that powerful nations proclaim it so passionately, obviously affects us profoundly.

Our first reaction under these circumstances is likely to be defensive. And since it is more often than not tinged with fear, it is likely to be irrational. We refuse to recognize the need for progressive modification of some of our economic and social practices. We attempt to stamp out by sheer force not only those who propose the Communist answer, but those who propose any answer. With all due respect, I suggest that this is the approach taken by this committee in the Nixon bill.

The approach is irrational because it does not meet the real issue, and because it cannot succeed. In the first place, it overestimates the danger, both from within and from without. The Communist solution has gained no serious foothold among the people of the United States. And I refuse to believe that communism would ever come to this country as a result of foreign persuasion alone. Much more important, the defensive response is a purely negative holding operation, whereas the real problem can only be met by an affirmative program of positive action.

Hence the Nixon bill cannot ultimately succeed in giving us an answer to the troubles and difficulties that prompted the legislation. On the other hand, it does infinite damage, for it actually blocks the path to a solution through the time-honored processes of democracy. Many years ago John Stuart Mill remarked:

A State which dwarfs its men, in order that they be more docile instruments in its hands, even for beneficial purposes, will find that with small men no great thing can really be accomplished.

This is a lesson that in these times, and particularly in this city of Washington, we might well take to heart.

Mr. HARRISON. That completes your statement?

Mr. HARRISON. The committee will stand adjourned, subject to the call of the Chair.

(Thereupon, the hearing was adjourned.)

HEARINGS ON LEGISLATION TO OUTLAW CERTAIN UN-AMERICAN AND SUBVERSIVE ACTIVITIES

TUESDAY, MAY 2, 1950

UNITED STATES HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE OF THE

COMMITTEE ON UN-AMERICAN ACTIVITIES,

Washington, D. C.

PUBLIC SESSION

The subcommittee met, pursuant to call, at 10:45 a. m. in room 226, Old House Office Building, Washington, D. C., Hon. Burr P. Harrison presiding until arrival of Hon. John S. Wood (chairman).

Committee members present: Representatives John S. Wood (chairman, arriving as indicated), Burr P. Harrison, and Bernard W. Kearney.

Staff members present: Frank S. Tavenner,, Jr., counsel; Louis J. Russell, senior investigator; Donald T. Appell, William A. Wheeler, and William Jackson Jones, investigators; and A. S. Poore, editor. Mr. HARRISON. The committee will come to order.

Mr. Tavenner, call your first witness.

Mr. TAVENNER. Mr. Gerson. You will be sworn, please.

Mr. HARRISON. You solemnly swear that the evidence you are about to give before this subcommittee will be the truth, the whole truth, and nothing but the truth, so help you God?

Mr. GERSON. I do.

TESTIMONY OF SIMON W. GERSON

Mr. TAVENNER. Will you state your full name and your address, please?

Mr. GERSON. Simon W. Gerson, 8860 Eighteenth Avenue, Brooklyn, N. Y.

Mr. TAVENNER. You appear here this morning as a representative of the Communist Party of the United States in connection with the legislative hearings?

Mr. GERSON. I do.

Mr. TAVENNER. Mr. Gerson, it has been the policy throughout this and other similar hearings to ask each witness who appears in a matter of this kind the question of whether or not he is a member of the Communist Party, so I would like to ask you the same question. Mr. GERSON. Apart from the patent absurdity of the question, the answer to which is self-evident at this point, sir, I wish to state for the record that I am a member of the Communist Party, that I have been for sometime, and that I intend to be one.

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Mr. KEARNEY. Let me say right there, Mr. Witness, that your answer is more honest and to the point than that of many witnesses who appear here.

Mr. GERSON. I do not want to reflect on any previous witness, Mr. Kearney, not having heard their testimony, but it is completely understandable, in a period when there is so much smearing and character assassination, that people don't care to discuss their political affiliations. It so happens that I care to discuss mine at this particular point.

Mr. TAVENNER. Do you have a prepared statement?

Mr. GERSON. I do, and I have afforded the committee members a copy of that statement.

Mr. TAVENNER. We would like you to file it for the record, and if you desire, you may read it.

Mr. GERSON. I do, and I should like to interpolate, but by and large I shall follow the text of the prepared statement.

My name is Simon W. Gerson. I represent the Communist Party in opposition to the Nixon bill, H. R. 7595, the companion measure to the Mundt-Ferguson-Johnston bill in the Senate, S. 2311.

The Communist Party wishes to associate itself in general with the Nation-wide opposition already registered against the bill-that of the whole labor movement, AFL, CIO, Railway Brotherhoods and independent unions; the National Association for the Advancement of Colored Peoples, the American Jewish Congress, the American Civil Liberties Union, Americans for Democratic Action, the American Veterans Committee, the National Farmers Union, the Women's International League for Peace and Freedom, the Association of the Bar of the City of New York, the National Lawyers Guild, Governor Bonner of Montana, Governor Johnson of Colorado, the noted constitutional authorities, Prof. Zecheriah Chafee of Harvard Law School, Prof. Fowler Harper of Yale Law School, and Prof. William Gorham Rice of Wisconsin; such distinguished citizens as President Robert Hutchins of the University of Chicago and Councilman Stanley M. Isaacs, Republican minority leader of the New York City Council; religious groups like the Episcopal League for Social Action and the Friends (Quakers) Committee on National Legislation; Bishop Francis Haas, of Grand Rapids, Mich.; the more than 20 major newspapers which have editorially opposed this bill; and the thousands of local groups which have condemned the measure.

Probably no single measure before the Eighty-first Congress has evoked such a flood of opposition, cutting across all partisan, regional, and denominational lines, as has the Mundt-Nixon bill. Parenthetically, we would like to observe that even on the basis of sheer figures, any representative body would do well to reject out of hand a measure so clearly opposed by the majority of the country.

This Nation-wide, nonpartisan opposition is not accidental. It is reflective of the fact that millions of Americans and labor in the first instance regard this bill correctly not as a threat to the Communists alone but to the ancient liberties of all Americans. It reflects the fact that despite the cold war hysteria and the McCarthyian miasma over Washington, the lessons of fascism in Italy and Germany are not lost upon millions of Americans.

In those nations the destruction of all democratic rights began with the attach "only" upon Communists. But with remorseless logic the