Emspak v. United States
Decided on May 23, 1955; 349 US 190


A. Issues Discussed: Self-incrimination

B. Legal Question Presented:

Is the statement "primarily the first amendment, supplemented by the fifth" sufficient to invoke the constitutional privilege against self-incrimination?


A. Background:

"Pursuant to subpoena, petitioner appeared on December 5, 1949, before a subcommittee of the Committee on Un-American Activities. The subcommittee consisted of a single member, Rep. Morgan M. Moulder. Petitioner was then the General Secretary-Treasurer of the United Electrical, Radio & Machine Workers of America as well as Editor of the UE News, the union's official publication. The subcommittee's hearings had previously been announced as concerning 'the question of Communist affiliation or association of certain members' of the union and 'the advisability of tightening present security requirements in industrial plants working on certain Government contracts.'

Petitioner was asked a total of 239 questions. Most dealt with the structure of the union, the duties of its officers, the scope of its membership and bargaining commitments, the alleged similarity in policies of the UE News and the Communist Party, the non-Communist affidavit that petitioner had filed with the National Labor Relations Board, and related matters. Petitioner answered all of these questions. He declined, however, to answer 68 of the 239 questions. These 68 questions dealt exclusively with petitioner's associations and affiliations. He based his refusal on 'primarily the first amendment, supplemented by the fifth.' Of the 68 questions, 58 asked in substance that he state whether or not he was acquainted with certain named individuals and whether or not those individuals had ever held official positions in the union. Two of the questions concerned petitioner's alleged membership in the National Federation for Constitutional Liberties and the Civil Rights Congress. Eight questions concerned petitioner's alleged membership and activity in the Communist Party.

On November 20, 1950, petitioner was indicted under 192 for his refusal to answer the 68 questions. Sitting without a jury, the District Court held that petitioner's references to 'primarily the first amendment, supplemented by the fifth' were insufficient to invoke the Fifth Amendment's privilege against self-incrimination. The District Court accordingly found petitioner guilty on all 68 counts and sentenced him to a term of six months and a fine of $500. The Court of Appeals for the District of Columbia Circuit, three judges dissenting, affirmed en banc..."

On certiorari the US Supreme Court reversed the judgment of the Court of Appeals for the District of Columbia Circuit.

B. Counsel of Record:
Opposing Side
Unavailable Unavailable
C. The Arguments:
Opposing Side
Unavailable Unavailable
Opposing Side
Briefs of amici curiae urging reversal were filed for the American Civil Liberties Union by Ernest Angell, Osmond K. Fraenkel, Arthur Garfield Hays and Herbert Monte Levy.

David Scribner argued the cause for petitioner on the original argument. With him on the reargument was Frank J. Donner. With them on the brief were Arthur Kinoy and Allan R. Rosenberg.

Robert L. Stern, then Acting Solicitor General, argued the cause for the United States on the original argument. With him on the brief were Assistant Attorney General Olney and John R. Wilkins. Robert W. Ginnane argued the cause for the United States on the reargument.

"As pointed out in Quinn v. United States, supra, no ritualistic formula or talismanic phrase is essential in order to invoke the privilege against self-incrimination. All that is necessary is an objection stated in language that a committee may reasonably be expected to understand as an attempt to invoke the privilege. In the Quinn case we hold that Quinn's references to 'the First and Fifth Amendments' and 'the First Amendment to the Constitution, supplemented by the Fifth Amendment' were sufficient to meet this standard. It would be unwarranted, we think, to reach a different conclusion here as to petitioner's plea based on 'primarily the first amendment, supplemented by the fifth.'

The Government does not even attempt to distinguish between the two cases in this respect. Apparently conceding that petitioner as well as Quinn intended to invoke the privilege, the Government points out 'the probability' that his references to the Fifth Amendment were likewise deliberately phrased in muffled terms 'to obtain the benefit of the privilege without incurring the popular opprobrium which often attaches to its exercise.' On this basis the Government contends that petitioner's plea was not adequate. The answer to this contention is threefold. First, an objection that is sufficiently clear to reveal a probable intention to invoke the privilege cannot be ignored merely because it is not phrased in an orthodox manner. Second, if it is true that in these times a stigma may somehow result from a witness' reliance on the Self-Incrimination Clause, a committee should be all the more ready to recognize a veiled claim of the privilege. Otherwise, the great right which the Clause was intended to secure might be effectively frustrated by private pressures. Third, it should be noted that a committee is not obliged to either accept or reject an ambiguous constitutional claim the very moment it is first presented. The way is always open for the committee to inquire into the nature of the claim before making a ruling. If the witness intelligently and unequivocally waives any objection based on the Self-Incrimination Clause, or if the witness refuses a committee request to state whether he relies on the Self-Incrimination Clause, he cannot later invoke its protection in a prosecution for contempt for refusing to answer that question....

There is here, as in the Quinn case, a second ground for our decision. At no time did the committee specifically overrule petitioner's objection based on the Fifth Amendment, nor did the committee indicate its overruling of the objection by specifically directing petitioner to answer. In the absence of such committee action, petitioner was never confronted with a clear-cut choice between compliance and noncompliance, between answering the question and risking prosecution for contempt. For the reasons set out in the Quinn opinion, we believe the committee - by failing to meet these minimal procedural standards, originally recognized by the committee and recently re-adopted - did not adequately apprise petitioner that an answer was required notwithstanding his objections. And without such apprisal, there is lacking the element of deliberateness necessary for a conviction under 192 for a refusal to answer."

The US Supreme Court reversed the judgment of the Court of Appeals for the District of Columbia Circuit.

Justice Vote: 6 Pro vs. 3 Con

  • Warren, E. Pro (Wrote majority opinion)
  • Douglas, W. Pro (Joined majority opinion)
  • Black, H. Pro (Joined majority opinion)
  • Clark, T. Pro (Joined majority opinion)
  • Frankfurter, F. Pro (Joined majority opinion)
  • Burton, H. Pro (Joined majority opinion)
  • Harlan, J. Con (Wrote dissenting opinion)
  • Reed, D. Con (Wrote dissenting opinion)
  • Minton, S. Con (Joined dissenting opinion)

The ACLU, as amicus, urged reversal of the Court of Appeals for the District of Columbia Circuit's judgment; the Supreme Court reversed in a 6-3 vote, giving the ACLU an apparent win.