Mr. HORTON. Subsequent to that time then, you got a call and then subsequent to that time you had been advising you as a lawyer, and they you have also been acting as chairman of this committee. Mr. FREEDMAN. Yes; but I take a certain amount of pride in my professional advice, and I would distinguish a formal legal opinion from a curbstone or offhand telephone suggestion or piece of advice, and for that reason I would prefer to qualify it. Again I have now been here 20 minutes or so, and I haven't yet had a chance to talk about the bill. Mr. DOWDY. If you would answer the questions that were asked, instead of evading them, we would have been through with this a long time. Mr. FREEDMAN. Perhaps if the committee heard what I have to say, you would find that I was not biased. Mr. Downy. In addition to the advice you have given to this society before, you have acted at least in some capacity to advise the president of this society while he was on the stand? Mr. FREEDMAN. Yes, sir. Mr. DOWDY. Today. Mr. FREEDMAN. Yes, sir; I did. I passed him a piece of paper that stated in the District of Columbia it is not a violation of the law to use a pseudonym, and that no formal legal act is necessary in order to do that. I felt at the time that the witness was being badgered, and that it was only fair to him that he know this piece of law. Mr. DowDY. Are you familiar with the case in which I asked Kameny, which was in the Federal report? Are you familiar with that case in which he was suing the Civil Service Mr. FREEDMAN. No, sir. The first I heard about it was when you referred to it today. Mr. DOWDY. You don't know what the charges were against him? Mr. FREEDMAN. I don't know the first thing about that case, except what I could infer from your statement of it today. Mr. DOWDY. I want it understood you indicated that we were asking you about your private life. We haven't touched on your private life as with these other people. We were asking you only about your employment as a lawyer. Mr. FREEDMAN. Yes, sir. I consider any question about any association that I have apart from membership in the National Capital Area Civil Liberties Union as a part of my private life, and not relevant to these proceedings. Mr. DowDY. Your employment as an attorney. Mr. FREEDMAN. I beg your pardon? Mr. DoWDY. Your employment as an attorney you consider Mr. FREEDMAN. That is relevant to my professional capacity to testify on the constitutionality of this proposal. Mr. DOWDY. Go ahead. Mr. FREEDMAN. Thank you, sir. The first objection that we would make to this bill is that it imposes an unconstitutionally vague qualification on freedom of speech. The bill comes at a particularly unfortunate time Mr. Dowdy. What kind of expression are you talking about? Mr. Dowdy. This bill doesn't say anything about communication. Mr. FREEDMAN. This bill would interfere with the financing of an organization, which financing would be designed to aid in the communication of ideas. For example, if there were a society that were formed to get stricter enforcement of laws against homosexuality, or to broaden the laws against homosexuality, presumably that group, if a nonprofit organization, could qualify, collect money, and communicate to the public, and well it should be permitted to do so. On the other hand, Mr. Kameny's group, which wants to take the other point of view, would be precluded from having this advantage. This is an interference with their freedom of speech, freedom of association. The vagueness in the bill comes at a particularly unfortunate time. There has just been an article in the journal of the Bar Association of the District of Columbia. This is the August 1963 issue. There was a paper presented as part of a program of the administrative law section of the Bar Association of the District of Columbia, and one of the observations that was made, and this is with regard to licenses for vendors, it is at page 399 of that article, is that one of the standards for which a vendor can be denied a license is that he lacks good moral character. And the author of this article refers to this as "a singularly amorphous concept." This bill is all the more offensive because it imposes a similar qualification not on the privilege of vending or selling, but on the right of speech. To point up the vagueness of this bill, what, for example, if a nonprofit organization wanted to qualify to collect money in order to dispense information regarding birth control? Now, as everyone knows, in the State of Connecticut, at least, birth control is a violation of God's law as well as man's. Would that organization be able to qualify under H.R. 5990? How would an administrator make that decision? And once he had made it, on what standard could a court review that decision? Mr. Dowdy. Do you mean to say in the State of Connecticut where it is against the law to disseminate such information as that, it is possible to collect charitable funds for a society to violate their law? Mr. FREEDMAN. It would be unconstitutional if a law were passed interfering with a society that wanted to communicate with the public and encourage the public by lawful means to change the law. Now I think it is important to distinguish the merits of what the Mattachine Society stands for from its right to speak, and this is the difficulty that it seems to me the committee has been laboring under throughout these hearings. The issue is not whether we agree or disagree with Mr. Kameny or the Mattachine Society, but whether we are going to interfere with their expressions to the public. To give you an idea of the kind of thing that even someone with as strong feelings as you apparently have against homosexuality might well be sympathetic with, if two people commit fornication, this is only a misdemeanor in the District of Columbia. It is punished by 6 months as the maximum. If two people commit adultery in the District of Columbia, which has the added moral onus of interfering— Mr. DowDY. Kameny says we shouldn't consider morals. Mr. FREEMAN. I would rather state my position than Kameny's. Mr. DOWDY. OK. Mr. FREEMAN (continuing). Which has the additional moral onus of interfering with healthy family life, that is the commission of adultery, the maximum penalty in the District of Columbia is 1 year. However, if two people commit sodomy, the maximum penalty is 10 years. It is our opinion that for the Mattachine Society or anyone else to try to convince the public that this is unfair is perfectly within their rights under the first amendment. Take a society that might want to qualify to raise money for the mothers of illegitimate children. this a moral thing to do? Mr. DOWDY. That is a charitable purpose. Is Mr. FREEDMAN. I see. But is it moral? It is a vague standard. Mr. DowDY. The production of illegitimate children is immoral. Mr. FREEDMAN. The position has been taken by Members of Congress that it is immoral to help the mothers after the children get here, because it encourages them to have more. The question again is not the merits of that position but the right of the person to express it. On the other hand, it might be argued that this bill is not at all vague. It is quite clear what it is designed to do. It is designed to stop the Mattachine Society from propagating its unpopular ideas, and in this regard the bill is particularly offensive. Mr. Justice Jackson, writing for the Supreme Court of the United States and he was one of our greatest and most conservative Justices, he had been as you probably know Solicitor General and Attorney General of the United States before he was on the bench-he says: Freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion, or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us. The National Capital Area Civil Liberties Union is not concerned with the success or failure of the Mattachine Society in its propagation of ideas. We are not concerned Mr. DOWDY. I cannot follow your reasoning that this bill has anything to do with keeping these people from expressing their ideas to anybody who wants to listen to them. What this bill directs itself to is the fact that they are out soliciting contributions under the farce that it is a charitable contribution. Mr. FREEDMAN. Mr. Chairman, if I understand it correctly, it is a matter of statute that it is a charitable contribution if the organization is nonprofit, and as long as they honestly represent to members of the public that no one is taking profits out of the contributions and that the contributions will be used for the dissemination of certain ideas, I do not see that this committee should have any concern with that practice. Mr. DownY. What has that got to do with freedom of speech? That is what I want to know. Yes, go ahead. Mr. HORTON. With reference to that last statement, you are in here as chairman of this freedom of communications committee, and you made a statement with regard to this type of organization. Have you investigated this organization to find out whether or not this money is being used for charitable purposes? Mr. FREEDMAN. No, sir. Mr. HORTON. Do you mean to say you are in here testifying on this at the instigation of this society without finding out whether or not it is using this money for charitable purposes? Mr. FREEDMAN. At the risk of being reprimanded for repeating myself again, I am not testifying at the instigation of the society. I am here because Mr. David Carliner asked me to in my capacity as chairman of the Freedom of Communications Committee of the National Capital Area Civil Liberties Union. Mr. HORTON. The second section of this bill: Notwithstanding the District of Columbia Charitable Solicitation Act or any other provision of law, the certificate of registration heretofore issued to the Mattachine Society of Washington under such act is revoked. What position do you take on that? Mr. FREEDMAN. That, sir, is as clear a case of a bill of attainder and denial of equal protection of the laws and denial of due process of law as one could conceive of. Mr. HORTON. Did you in connection with that study to arrive at that opinion, did you determine whether or not this organization does solicit charitable contributions, and then did you ascertain whether or not it uses these funds for charitable purposes? Mr. FREEDMAN. No, sir. That is irrelevant to that decision. If Congress should choose to pass a law that says that any organization that purports to be a charitable organization and is not, in fact, and takes anything of value from the public by that misrepresentation shall be punished by fine or imprisonment, that would be perfectly proper. What makes this bill of attainder is that this is a legislative determination, in effect, that a crime or wrong has been committed, and a punishment imposed therefor. Mr. HORTON. Would you recommend that this committee adopt legislation which would require charitable organizations to account? Mr. FREEDMAN. The NCACLU has taken no position on that. I feel very strongly on it, and I would appreciate the chance to express myself. Mr. HORTON. You have it. Mr. FREEDMAN. Thank you. I get regular solicitations from a group that is called Save the Children Federation, and I understand from their literature that my contributions go to help needy children in various parts of the United States. Until I got involved in these proceedings and found out that apparently it does not mean that, I had assumed that the stamp of their literature that they were certified by the District of Columbia as a charitable organization, I had assumed that that meant that virtually all of the money that I contributed would go to children. I now find that, for all I can tell from the fact of certification, 90 percent of what I contribute to that group might go to overhead and to salaries of officers, and that the District of Columbia makes no effort to find 32-775-64-8 out whether that is the case or if they do, to prosecute it if that is the case. Mr. HORTON. Do you think that it is a charitable purpose to solicit funds for the purpose of altering the criminal law in regard to private, consenting homosexual acts by adults? Mr. FREEDMAN. Within the definition of the ordinance, that is a charitable or an educational purpose. Mr. HORTON. Do you think the ordinance ought to be changed? Mr. FREEDMAN. I would very much like to see an ordinance enacted that would call for accounting of charitable organizations. Mr. HORTON. Now you are talking about accounting of money? Mr. FREEDMAN. Yes, yes. Mr. HORTON. I am talking a little bit more about the purposes of the organization. Mr. FREEDMAN. Well, so far as the purpose of the organization is the use of funds for the dissemination of ideas, this is an educational, if you will, a charitable purpose, regardless of whether you or I might agree or disagree with the idea. Mr. HORTON. Do you feel there should be some limitation on these purposes of charitable organizations? Do you have a recommendation in that respect? Mr. FREEDMAN. No, sir; I do not. Mr. HORTON. As chairman of this freedom of communications committee, have you studied that problem? Mr. FREEDMAN. I have not considered that, sir; no. Mr. HORTON. In other words, you have no recommendation in this respect? Mr. FREEDMAN. No, sir; I do not. Mr. HORTON. Does any recommendation occur to you in this respect? Mr. FREEDMAN. Yes; I would think that the only important thing with regard to charitable solicitation is full disclosure. Mr. HORTON. Of what, funds? Mr. FREEDMAN. Of funds and how they are going to be spent. Now, for example, with the Save the Children Federation Mr. HORTON. Excuse me. Shouldn't there be some definition of "charitable"? Mr. FREEDMAN. I would prefer "charitable" simply to mean nonprofit in the sense that the organization is acting as a conduit for funds to go to the purpose that the organization and those who might contribute to it deem to be worthy. Mr. HORTON. Now, prior to your attendance here and in preparation of your material, did you do any investigation at all of the organization in question? Mr. FREEDMAN. No, sir. Mr. HORTON. Have you ascertained anything at all about its purposes? Mr. FREEDMAN. I am sorry, I read the excerpts from the constitution and/or the bylaws which appeared in the Congressional Record, and I received some literature, some of which I read and some of which I did not read, from Mr. Kameny. Mr. HORTON. As a lawyer, excuse me, first I will preface it by thisyou were here this morning and heard the president of the organization testify? |