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Well I should certainly say that the case holds that the state has no right to punish any employee of the state for exercising his federal constitutional right and I thank God that is the determination and the law of this land. That was the voice of Mr. Ed from London. The attorney for the petitioner in the recent our Fifth Amendment case decided by the United States Supreme Court you will hear both Mr. London and doctors like our now along with Mr. S. Dickerman Williams and the pro and con analysis of the Fifth Amendment and national security. Appropriately enough this is the fifth program in this series. Security and Civil Rights produced by the University of Minnesota radio station am under a grant from the Educational Television and Radio Center in cooperation with the National Association of educational broadcasters. And now to introduce the guests and topic for today's program. Here is the consultant commentator for security and civil rights a member of the faculty of the law school of
Columbia University. Professor man mad Paulson. The new laws dealing with the problem of national security are somewhat different than a good many of the rules and regulations which our society has in that. These laws attempt to prevent subversive activities before the activity has taken place. Therefore. We try to find out whether there are some acts which while not in themselves particularly vicious are pointing toward the possibility that there might be disloyalty in the future. One of the most debated and frequently used index of a person's loyalty is whether when he is asked concerning his political past he invokes the protection of the Fifth Amendment. He refused to answer on the grounds that what he may say will tend to incriminate or degrade him. To discuss this question today we have
three people representing two sharply different points of view. First Mr. C. Dickerman Williams authority on constitutional law and former counsel for the Department of Commerce. Mr. Williams presents the notion that. The invocation of the Fifth Amendment is indeed a danger sign. First however we were curious to learn why Mr C Dickerman Williams was particularly interested in topics like the Fifth Amendment national security civil rights and the Constitution as recorded in New York City. Mr. Williams When I first graduated from law school I became a law clerk to Chief Justice tactic serving with him. I got a number of questions of constitutional law and became interested in the subject years many years later when the agitation arose over the amendment. My interest in it was so great that I formulated my ideas into an
article which was published by the Fordham Law Review about a year ago and it was entitled problems of the death and then Erwin and Griswold dean of the Harvard Law School is the author of The Fifth Amendment today a small scholarly book that might be called a large definitive text of the liberal point of view on the 5th Amendment. Does Mr. Williams agree with Dean Griswold. Yes negress well and I agree I would say on most things about the Fifth Amendment we certainly agree on the history of the death Amendment. In fact so much research has been done on the subject that I think any two honest scholars are bound to agree on many perhaps most aspects of the Fifth Amendment although they may disagree on its application to certain controversial situations in the present day. The
Fifth Amendment developed in Great Britain in the latter part of the 17th century in rebellion against the torture used by the Court of the Star Chamber against religious heretics and in order that suspects and accused people could cut off the questioning and thereby prevent the police from. Gradually reaching such techniques is the third degree and brow beating and bullying and actual physical torture as was used had apparatuses in those days so that the suspect could cut that off and so the torture would not be used. They said that the suspect or anybody any witness could refuse to answer when and when he sent a question to which the answer would incriminate him that is would tend to show him guilty of a crime. I believe in the privilege against self-incrimination because I think that quite
apart from matters of communism and so on. I think that the police and I don't mean to run down the police because I when I was an assistant district attorney I knew a great many of them and I like them very much. But I think the police are about to get out of hand perhaps out of. Out of a sense of virtue and righteous indignation if they think a man whom they believe to be guilty is wrongly denying his guilt there's a great temptation to use force and coercion to make him admit it and get rid of the case. And so that I think that we should I think that the suspects should have protection against that temptation of a policeman that is weapon and then men are the privilege against self incrimination amounts to. So far we have heard a brief history and interpretation of the Fifth Amendment in which Harvard's Dean Griswold and attorney C. Dickerman Williams might be in agreement. Where is their area of disagreement.
There are two principal areas of disagreement between reading Griswold and me I would say as a result of having appeared with him twice once at Cambridge before the Harvard Law School and once at Milwaukee before the Marquette Law School. Those disagreements are indeed the matter of the inference to be grown when a witness invokes the privilege. In my opinion a man who is brought before a court or appears before a court or a congressional committee or other tribunal committee of an educational institution and is silent thereby implies that spoke up decide between Question. He would confess I tend to show that he was guilty of a crime because I think we all know that if we are in a suspicious or ambiguous situation and we have a good explanation for it we give
it I can't imagine why a person wouldn't give it. And hence when a man is silent on a subject on which he's bound to have knowledge I can only think that whatever he would have to say would discredit him. Authorities see Dickerman Williams seemed to be defending the common public attitude that when an individual invokes the Fifth Amendment in some kind of security hearing this individual either is a communist or he is covering up for someone. Mr Williams was asked if he went along with this concept. Yes I think the public is right in drawing that conclusion. I think if a man hasn't been a communist I know of no reason why I shouldn't say so. So I mean no disgrace in asserting that you're not a communist and if a man isn't a Communist but there it has been suggested that he has been or there is some doubt about it or somebody asked him about it I can't imagine why he wouldn't say that he hasn't been a communist. Now that gets us into the second area of disagreement or something of a disagreement between Dean and Me. And that is whether or not
a man. It is proper for a man to invoke the Fifth Amendment when it would involve friends if he had said it when it would be lead to distress. Difficulty for a friend. Now the oath of a witness is I swear to tell the truth the whole crew for nothing but the truth it isn't. I swear to tell the truth the whole truth and nothing but the truth except in so far as in my opinion the truth would be inconvenient for my friends. Do we have the right of subpoena means that the public can compel anybody to tell whatever they know is. And for a man to refuse to say something which is I will assume not incriminating in so far as he is concerned. But would it distress a friend seems to me to be assuming a personal right above the law. I don't mean to imply that people
who protect their friends are not worthy of respect. I simply say that people who falsely say that they are incriminating themselves under the guise of protecting their friends. In my opinion. You confuse the issue very badly because I think the public authorities are entitled to know the situation how can they know whether or not their friends were truly innocent. And if we think the Communist conspiracy conspiracy is a dangerous one I think the public authorities are entitled to all the information that we have. So I can't go along with the with with those who admire and defend an invocation of the Fifth Amendment by someone who is not guilty of any crime merely because he wants to help out its Prince if he wants to help out his friends and preserve his self-respect let him refuse to answer the questions altogether. What about priest's attorneys and others who may obtain information in the strictest
confidence. Must they divulge such information for national security. No we give priests the way we give lawyers the right to keep quiet about what they're told by penitents we lawyers don't have to tell what our clients tell us and priests have the same privilege. I think there have been countries in which priest did not have that privilege and I think as a general rule they. The priests have refused to reveal what their parents tell them and have gone to jail rather than do so and I admire them for it is the fifth amendment being abused today. If so does Mr Williams believe that a constitutional change may be necessary. Do we need a privilege against self-incrimination at all. I think that the Fifth Amendment as it had been construed by the year say 1940 before we began to get into the communist question
was all right. I think that a number of professors and lawyers and oddly out of very good intentions however attempted to give a very false and artificial meaning to the Fifth Amendment. We all know that the courts have many times sad that silence gives rise to an adverse inference against the witness. Now if you tack on to silence the statement I am silent because if I say anything I will tend to show myself guilty of a crime. Should that inference be any the less adverse against the witness. It doesn't seem to me to be reasonable to draw any such conclusion and I consequently don't think that anybody is disloyal to the founding fathers or to the Constitution if he concludes when a man is silent under the circumstances and invokes the Fifth Amendment that he has
something to conceal which would discredit him if it were revealed. I think the band was picked up by the police in title to say a certain In fact if he were my client I'd say don't say anything until until you've had a chance to talk it over with your lawyer at least. If it were under circumstances which indicated that he was suspected of. Something of course ordinarily I think the ordinary good citizen will cooperate fully with the police but if he thinks the police are getting high handed and browbeating him why that he should stop and wait for his lawyer to arrive. And I'm somewhat afraid that their political overtones are tending to discredit the Fifth Amendment because a lot of people seem to get the year I've gotten the impression of the crime of the Fifth Amendment or something which has just been thought up to protect communists. Of course that isn't true. A privilege against self-incrimination it came into being many years before anybody had ever heard of communists and served a very useful role in society. Before we had communist and I think it can continue to do so and
I think there's some danger that if it's given such extraordinary and artificial interpretations as some people seek to give it the whole thing will be so discredited that a public moment of indignation may may repeat it. Which might my way of thinking would be unfortunate. That was Mr. C Dickerman Williams. Authority on constitutional law and former counsel for the Department of Commerce. Next we will hear from a person and his lawyer the person Dr. Harry Sakari has every reason to know about the consequences of invoking the Fifth Amendment. He was for so invoking the Fifth Amendment suspended from his job in Brooklyn College. His lawyer is Mr. F. from London. We will now hear Dr. Harry SLOC oller and his lawyer Mr. Ed from London. Interviewed by Philip Gallo in Mr London's law office a few days after the Supreme Court of the United States handed down
their final decision in Dr slot cars case that does not come out and what is your profession. I wasn't expected to be again named it perfessor of German and whether this should college and how long had Were you in this position rather than about 27 years. And Ron came along to interrupt us a subpoena which came out of the heavens of the backlog I was unexpectedly asked on the Friday morning asking me to appear Monday afternoon before some kind of a subcommittee and the weather was but I found out that was it. Some kind of committee we can take it from there. Briefly to bring us up to date as to what occurred when when when it gets dark at recess what happened in October 1952 just after the semester began and I got a subpoena Friday morning or Friday
afternoon and I was to be told AP Monday where I appeared and answered every question that was asked me. Matter of fact I supplied. I gave more information than was asked for. Felt very generous with the committee and said a person who was chairman of the committee took my testimony in that spirit. I answered all questions including the question as to whether I was a member of the Congress party. I backed that one question. Well two questions but really one question and I was with regard to the years 1940 41 and I explained that to us out of Ferguson that I had very good reasons for not answering the question as to whether as a member the Congress Party in those years and that I that my children answer could not imply guilt and that I wish I could tell him the reasons why I was not asking it but if I did give those reasons why
then I couldn't invoke the First Amendment was the whole point would be lost. And Senator Kerry isn't said he accepts my answer sincere and he danced me the right to use my constitutional privilege. I had no idea that because I stood by the Constitution that therefore I would lose my job. And when I got back to the college I was told this was the case and I was advised to go back and to give a different kind of testimony that I did not want to do. And shortly after that there was a meeting of the other higher education appear there and I begged them to give me a chance to answer all questions before their committee. I asked him to give me a trial of which I would answer any more questions but I just went through the motions of getting me saying that and that same evening just a few minutes into the session that my position was when a debate on whether I wasn't fired at my job my position was equated bacon I was separated from my job after I went past
my time was as well this was in October 1952 and about to get the whole thing there was by 10 days that showed up in college almost around an hour and you were a terrorist you're really really significant out of this particular case but I think the most important result of the cases the eradicating the idea that there may be something wrong in the exercise of a constitutional right that to me the great danger of the action taken by the Board of Higher Education in discharging doctors like our well is that if this same attitude might be taken in connection with any other. A civil right a first temple if one could be discharged for exercising his right to refuse to incriminate himself. Perhaps he might also be discharged or
punished for objecting to an unreasonable search and seizure of his home. He may be punished or discharged for invoking his right to a trial by jury because it might just as easily be said with respect to those rights that an innocent person would have nothing to fear from the search of his home or seizure of some of his property. Whether an innocent person would have nothing to fear from a trial without jury. I would say broadly that it was made quite clear that no state may punish any person for exercising any constitutional right. I think that would naturally flow from this decision. Mr. London if you'll excuse a naive question why would anyone invoke the Fifth Amendment I think. You must remember that the question was asked in 1952
and it was perfectly possible at that time in the eyes of many of the Senate investigating committees who wonder been a member of the Communist Party even though he actually never joined a painter was or attended meetings. I think that more than one of the investigating Senator stated that his definition of a communist included people who were sympathetic. Now one might have made contributions to organizations that were later declared to be subversive or one may have done a number of what he considered innocent things which would have created the impression that he had been sympathetic with communism even though he had not. I think it's important to note at this point. That was a question relating to incriminating matter is answered. One may not then refuse to answer any other questions relating to the same matter so that if a witness for
example were to say assuming now we have this situation that I just mentioned before assuming that the redness had not been a member of the Communist Party and answered No I am not and I was not a member of the Communist Party in 1941. He would then have been compelled to answer a subsequent questions about related matters as for example whether or not he was a member of the progressive citizens of America or whether he contributed to Russian Worley or whether he knew people who were members of the Communist Party and all of these other facts which might appear extraneous might have collectively given the impression that one. I've been a member of the Communist Party and also may have been used to convict one of some wrong which had never been committed. The attempt to punish one for an act occurred in 1940 woman because it became
wrong 945 in 1946 or was a violation of one's constitutional rights under the First and Fourteenth Amendments as a right not to be deprived of property here the right to work without due process. The committee which it was entirely gave me made it very clear that they were not inquiring into any of it any of which has to do with the city or the state but only with federal questions. There was never any question raised about my loyalty to the government of the United States. If it had been I could that could have been answered very easily and in my favor. And there was no question about my dog he's a teacher about my effectiveness as a teacher using propaganda and things of that sort all the evidences to the contrary. Either way the question asked has absolutely nothing to do with my personal conduct as a teacher at a college. And that's one of the reasons why I felt the question was improper irrelevant
and I would have to remember it was upheld by the by the chairman of the subcommittee. Very general question but the facts suggest that about 5 7 0 0 0 I think so very definitely and I think that very frequently in our history we've had men convicted of crimes and in an era when when there was general hostility towards a particular group that one may belong to when in a later era could never have been convicted. I think that we had in 1999 nine hundred twenty nine thousand twenty one a general revulsion against socialism and socialists were prosecuted and persecuted at that time 10 years later. No one would have conceived of prosecuting a press of killing a man because he was a socialist who believed in socialism. So the temper of the times is a great deal to do with the administration of justice.
Sounds haystacks. Yes. Try to not bearing witness against yourself in a criminal case. How does this no one in any area sort of incrimination out in this particular case ducks like I had refused to incriminate himself when questioned by a congressional committee and the and the Fifth Amendment right against self incrimination has been held to apply to an inquiry by a special committee of the language of the amendment is that one shall not be compelled in any criminal case to be a witness against himself merely because if the right were not extended to all inquiries by government authorities the right would be meaningless. For example when questioned by a congressional committee did not have the right against self-incrimination. He could be compelled to testify before the congressional committee and then his testimony might be used against
him in a criminal case. So that so that logically the Fifth Amendment right must be held to apply in all such inquiries by government but it is really in this particular case that it was a major factor found with the keys and I has one possibly the strongest point in an hour. There was the argument raised by the city of New York or rather the corporation counsel who represented the Board of Higher Education. The argument that one who exercises his Fifth Amendment right against self-incrimination must be either a pager or oh must be guilty of some crime which he wishes to conceal I think that the court was understandably shocked by that argument and incensed over hearing John Kerry comment on Senator Eastland comment that somehow or other are slashing away states rights. Well I should certainly say that the case holds that the
state has no right to punish any employee of the state for exercising his federal constitutional right and I thank God that is a determination and the law of this land something he will sign an anti-climactic that it doesn't slash state rights and slice a stay too long. But I have answered this to some extent Dr Sarkar I'd like to ask Mr. Landon To whom does this decision apply and I know he does at home I don't write well certainly applies to all government employees and to an extent I think it may be applied to private employees and I'm thinking specifically now of the number of cases where union members were discharged from the employment of one kind or another for exercising the constitutional right against self incrimination and the question came up within the unions in respect to whether or not the unions were obliged to
protest against the discharge on those grounds. That's been an open question I think up to now I don't believe it's an open question and a lot of don't often mention the fact that. Many teachers are already getting their jobs back. And but I think more important is changing the atmosphere feeling of courage a lessening of intimidation. There are many more voices liberal voices which are now being raised and will continue to be raised that they're speaking in terms of a precious American heritage which the Supreme Court has upheld. That was Dr. Harry struck who along with attorneys from London and see Dickerman Williams presented a pro and con analysis of the Fifth Amendment in relation to national security. Next week at this time security and civil rights will
Series
Security and civil rights
Episode
C. Dickerman Williams, Dr. Harry Slochower and Ephraim London
Producing Organization
University of Minnesota
KUOM (Radio station : Minneapolis, Minn.)
Contributing Organization
University of Maryland (College Park, Maryland)
AAPB ID
cpb-aacip/500-jm23gp55
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Description
C. Dickerman Williams, Dr. Harry Slochower and Ephraim London debate the merits of the Fifth Amendment. Slochower and London were recorded a few days after a relevant U.S. Supreme Court ruling.
Interviews on balancing national security interests with personal liberty. The series is moderated by Monrad Paulsen of Columbia University.
Broadcast
1957-01-01
Topics
Social Issues
Politics and Government
Subjects
Legislation--United States.
Media type
Sound
Duration
00:28:59
Embed Code
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Credits
Guest: Williams, C. Dickerman
Guest: Slochower, Harry, 1900-
Guest: London, Ephraim
Moderator: Paulsen, Monrad G.
Producer: Gelb, Philip
Producing Organization: University of Minnesota
Producing Organization: KUOM (Radio station : Minneapolis, Minn.)
AAPB Contributor Holdings
University of Maryland
Identifier: 57-50-5 (National Association of Educational Broadcasters)
Format: 1/4 inch audio tape
Duration: 00:28:46
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Citations
Chicago: “Security and civil rights; C. Dickerman Williams, Dr. Harry Slochower and Ephraim London,” 1957-01-01, University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC, accessed August 4, 2021, http://americanarchive.org/catalog/cpb-aacip-500-jm23gp55.
MLA: “Security and civil rights; C. Dickerman Williams, Dr. Harry Slochower and Ephraim London.” 1957-01-01. University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Web. August 4, 2021. <http://americanarchive.org/catalog/cpb-aacip-500-jm23gp55>.
APA: Security and civil rights; C. Dickerman Williams, Dr. Harry Slochower and Ephraim London. Boston, MA: University of Maryland, American Archive of Public Broadcasting (GBH and the Library of Congress), Boston, MA and Washington, DC. Retrieved from http://americanarchive.org/catalog/cpb-aacip-500-jm23gp55