131

BLACK, J., dissenting.

disturbed by the demonstration. Perhaps the time and method were carefully chosen with this in mind." If this was the reason Saturday morning was selected, the only representative of CORE who testified was not aware of it. No one of the petitioners has suggested such a thing. The lawyers for the petitioners have not. In fact at the trial responses of the sheriff to questions asked him by petitioners' lawyer indicate that there was another patron in the library at the time the petitioners "sat in" or "stood up" there. But even if there were no other patrons there in this instance, with this new constitutional doctrine rather shakily established, it is pretty clear that organized protesters will not overlook the chance to go into the libraries, and disturb those in there to learn, at a time when their "demonstration" activities will obtain the most publicity.

The prevailing opinion laments the fact that the place where these events took place was "a public library-a place dedicated to quiet, to knowledge, and to beauty." I too lament this fact, and for this reason I am deeply troubled with the fear that powerful private groups throughout the Nation will read the Court's action, as I do that is, as granting them a license to invade the tranquillity and beauty of our libraries whenever they have quarrel with some state policy which may or may not exist. It is an unhappy circumstance in my judgment that the group, which more than any other has needed a government of equal laws and equal justice, is now encouraged to believe that the best way for it to

Miss Feingold, task force worker for CORE and the State's first witness, testified on direct examination as follows:

"Q. Was there any particular reason for these defendants going to the Library on a Saturday morning?

"A. You mean on a Saturday as opposed to any other day? "Q. Yes?

"A. No, I don't."

advance its cause, which is a worthy one, is by taking the law into its own hands from place to place and from time to time. Governments like ours were formed to substitute the rule of law for the rule of force. Illustrations may be given where crowds have gathered together peaceably by reason of extraordinarily good discipline reinforced by vigilant officers. "Demonstrations" have taken place without any manifestations of force at the time. But I say once more that the crowd moved by noble ideals today can become the mob ruled by hate and passion and greed and violence tomorrow. If we ever doubted that, we know it now. The peaceful songs of love can become as stirring and provocative as the Marseillaise did in the days when a noble revolution gave way to rule by successive mobs until chaos set in. The holding in this case today makes it more necessary than ever that we stop and look more closely at where we are going.

I would affirm.

Syllabus.

UNITED STATES v. JOHNSON.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT.

No. 25. Argued November 10 and 15, 1965.—
Decided February 24, 1966.

Respondent, a former Congressman, was convicted on several counts of violating the conflict of interest statute (18 U. S. C. § 281) and on one count of conspiring to defraud the United States (18 U. S. C. § 371). The conspiracy charge involved an alleged agreement whereby respondent and another Congressman would attempt to influence the Justice Department to dismiss pending savings and loan company mail fraud indictments. As part of the conspiracy respondent allegedly delivered for pay a speech in Congress favorable to loan companies. The Government contended and adduced proof to show that the speech was delivered to serve private interests; that respondent was not acting in good faith; and that he did not prepare or deliver the speech as a Congressman would ordinarily do. The Court of Appeals set aside the conviction on the conspiracy count as being barred by Art. I, § 6, of the Constitution, providing that "for any Speech or Debate in either House" Senators and Representatives "shall not be questioned in any other Place," and ordered retrial on the substantive counts. Held:

1. The Speech or Debate Clause precludes judicial inquiry into the motivation for a Congressman's speech and prevents such a speech from being made the basis of a criminal charge against a Congressman for conspiracy to defraud the Government by impeding the due discharge of its functions. Pp. 173-185.

(a) The Speech or Debate Clause, which emerged from the long struggle for parliamentary supremacy, embodies a privilege designed to protect members of the legislature against prosecution by a possibly unfriendly executive and conviction by a possibly hostile judiciary. Pp. 177-180.

(b) The privilege, which will be broadly construed to effectuate its purposes, Kilbourn v. Thompson, 103 U. S. 168; Tenney v. Brandhove, 341 U. S. 367, was created not primarily to avoid private suits as in those cases, but to prevent legislative intimidation by and accountability to the other branches of government. Pp. 180-182.

(c) The Speech or Debate Clause forecloses inquiry not only into the "content" of a congressional speech but into circumstances involving the motives for making it. Pp. 182-183.

(d) Prosecution under a general criminal statute involving inquiry into the motives for and circumstances surrounding a congressional speech is barred even though the gravamen of the offense is the alleged conspiracy rather than the speech itself. Pp. 184-185.

2. The Government is not precluded from retrying the conspiracy count as purged of all the elements offensive to the Speech or Debate Clause. P. 185.

3. This Court does not review the Court of Appeals' determination that the substantive counts be retried because of the prejudicial effect thereon resulting from the unconstitutional aspects of the conspiracy count since the Government does not dispute that determination in this proceeding. Pp. 185-186.

337 F. 2d 180, affirmed and remanded.

Beatrice Rosenberg argued the cause for the United States. With her on the briefs were Solicitor General Marshall, Assistant Attorney General Vinson, Ralph S. Spritzer and Jerome M. Feit.

George Cochran Doub and David W. Louisell argued the cause and filed a brief for respondent.

Eugene Gressman and Edward L. Genn filed a brief for J. Kenneth Edlin, as amicus curiae, urging affirmance.

MR. JUSTICE HARLAN delivered the opinion of the Court.

Respondent Johnson, a former United States Congressman, was indicted and convicted on seven counts of violating the federal conflict of interest statute, 18 U. S. C. § 281 (1964 ed.),' and on one count of conspiring to

1 "Whoever, being a Member of or Delegate to Congress, . . . directly or indirectly receives or agrees to receive, any compensation for any services rendered or to be rendered, either by himself or another, in relation to any proceeding, contract, claim, contro

defraud the United States, 18 U. S. C. § 371 (1964 ed.).2 The Court of Appeals for the Fourth Circuit set aside the conviction on the conspiracy count, 337 F. 2d 180, holding that the Government's allegation that Johnson had conspired to make a speech for compensation on the floor of the House of Representatives was barred by Art. I, § 6, of the Federal Cor.stitution which provides that "for any Speech or Debate in either House, they [Senators and Representatives] shall not be questioned in any other Place." The Court of Appeals ordered a new trial on the other counts, having found that the evidence adduced under the unconstitutional aspects of the conspiracy count had infected the entire prosecution.

The conspiracy of which Johnson and his three codefendants were found guilty consisted, in broad outline, of an agreement among Johnson, Congressman Frank Boykin of Alabama, and J. Kenneth Edlin and William L. Robinson who were connected with a Maryland savings and loan institution, whereby the two Congressmen would exert influence on the Department of Justice to obtain the dismissal of pending indictments of the loan company and its officers on mail fraud charges. It was further claimed that as a part of this general scheme Johnson read a speech favorable to independent savings

versy, charge, accusation, arrest, or other matter in which the United States is a party or directly or indirectly interested, before any department, agency, court martial, officer, or any civil, military, or naval commission, shall be fined not more than $10,000 or imprisoned not more than two years, or both; and shall be incapable of holding any office of honor, trust, or profit under the United States."

2 "If two or more persons conspire either to commit any offense against the United States, or to defraud the United States, or any agency thereof in any manner or for any purpose, and one or more of such persons do any act to effect the object of the conspiracy, each shall be fined not more than $10,000 or imprisoned not more than five years, or both."