STEPHENS, Chief Judge (concurring in part and dissenting in part).

For the reasons stated in the opinion of the court I conclude that Counts III and IV of the indictment are valid and that the decision of the District Court dismissing those counts should therefore be reversed. I agree that Count VII is invalid and that the decision of the District Court dismissing that count should therefore be affirmed, but I reach this conclusion for reasons other than those expressed in the opinion of the court. Contrary to the decision of the court, I think that Count I is valid and that the decision of the District Court dismissing that count should therefore be reversed.

COUNT I

The validity of Count I is attacked by the appellee Lattimore on two chief grounds: That the count fails to satisfy the requirements of the Sixth Amendment and Rule 7(c) of the Federal Rules of Criminal Procedure, 18 U.S.C.A.; and that the count infringes rights protected by the First Amendment.

A. As to the attack under the Sixth Amendment: That Amendment, so far as here pertinent, requires that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation . . .". Rule 7(c) of the Federal Rules of Criminal Procedure requires that "[t]he indictment . . . shall be a plain, concise and definite written statement of the essential facts constituting the offense charged." The gist of these requirements is that the indictment must set forth the offense not merely in generic terms but with such particularity as will apprise the accused of the elements of the crime with which he is charged so that he will be able to make his defense and avail himself of his conviction or acquittal for protection against being again put in jeopardy for the same offense; and that the charge must be sufficient to inform the court of the facts alleged so that it may decide whether they are sufficient in law. United States v. Cruikshank, et al., 92 U.S. 542, 23 L. Ed. 588 (1875).

The District of Columbia Perjury Statute, D.C. Code 1951, § 22-2501, under which the indictment was returned, provides:

Every person who, having taken an oath or affirmation before a competent tribunal, officer, or person, in any case in which the law authorized such oath or affirmation to be administered, that he will testify, declare, depose, or certify truly, or that any written testimony, declaration, deposition, or certificate by him subscribed is true, wilfully and contrary to such oath or affirmation states or subscribes any material matter which he does not believe to be true, shall be guilty of perjury. . . .

I set forth in the margin the full text of Count I.

The attack of the appellee upon the count, so far as the Sixth Amendment, and Rule 7(c), are concerned, divides itself into two parts:

First: The count charges that "said defendant testified that he had never been a sympathizer or any other kind of promoter of Communism or Communist interests . . . [and that] the aforesaid testimony of that defendant, as he then and there well knew and believed, was untrue. . . ." The appellee asserts that this language vitiates the count because the words "sympathizer or any other kind of promoter of Communism or Communist interests" are vague; that both the word "sympathizer," and the phrase "Communist interests," "defy analysis." It is said by the court that the word "sympathizer" lacks definition or any concrete specification of its content, that without this it has no certain meaning, and therefore the appellee is not definitely advised what he is charged with.

In my view these attacks upon the sufficiency of the count are not supportable for the reason that they mistakenly postulate an objective test of the meaning of the questioned words, when, plainly, under the statutory definition of perjury, and under the terms of the count — which exactly reflect the statutory definition — the test of the meaning of the words charged as perjuriously uttered is subjective. The statute makes a person guilty of perjury who, having first "taken an oath . . . before a competent tribunal . . . that he will testify . . . truly, . . . wilfully and contrary to such oath . . . states . . . any material matter which he does not believe to be true. . . ." (Emphasis supplied.) The general portion of the charge in paragraph 1 of the count asserts that the defendant stated "a material matter which he did not believe to be true. . . ." (Emphasis supplied.) The particularization of the charge, in paragraphs 4 and 5 of the count, repeats the emphasized requirement of the statute. Clearly, in my view, what the defendant is charged with is falsely testifying "that he had never been a sympathizer or any other kind of promoter of Communism or Communist interests" in the sense in which he was using those words. Since, as I think, the words of the statute and of the count set up a subjective rather than an objective test of the meaning of the assertedly perjurious words, they are not indefinite, because assuming, as must be assumed in the present posture of the case, that the defendant did utter the assertedly perjurious words, he must have known what he meant by them and must therefore now know, in reading the charge of the indictment, what he is charged with. Under this charge, thus regarded, the Government would be obliged at the trial to sustain the burden of proving to the satisfaction of the jury beyond a reasonable doubt that the charged words were uttered by the appellee and that he did not believe them to be true in the sense in which he was using them. Whether that burden could be sustained is a question not now before the court. The court ought not speculatively to forecast that that burden is unsustainable. Evidence is imaginable which would support such a charge.

In Seymour v. United States, 77 F.2d 577, 99 A.L.R. 880 (8th Cir. 1935), Seymour had been convicted under a count charging perjury in a statement, before a Special Committee of the United States Senate, that he had "had no part in encouraging the candidacy of one George W. Norris of Broken Bow, Nebraska, for the Republican nomination for United States Senator from Nebraska, at the Primary election held the twelfth day of August, in the year nineteen hundred thirty." The prosecution was under a statute which, like the statute involved in the instant case, made it perjury to utter matter under oath which the utterer did not believe to be true. The proof at the trial of the perjury charge consisted of a question put to, and an answer by, Seymour before the Special Committee as follows: "Q. 13. You had no part then, in view of what you have said, in encouraging the candidacy of George W. Norris, of Broken Bow? * * * A. Not a bit." After the evidence had been presented the court charged the jury as follows:

* * * "Then there may be instances where the questions are very plain, easily understood, simple in language, definite in meaning, and the answers may be very simple, the meaning of which is unmistakable. Then there may be instances where the questions are involved, or are long, or where unusual words are used, where the relationship of phrase to phrase and clause to clause may be such that there may be difficulty in gathering the exact scope and meaning of the question, and in all cases the answer has to be considered under the circumstances in which it is given. So also, an answer itself, may be involved and difficult to put in words or hard to understand. And we are not all alike; some have the gift of expression and clarity and others have difficulty in expressing themselves on any occasion and might have more difficulty when under oath and trying to be exact. I am stating this in calling your attention to the statute which says that you are to consider, in effect, whether the testimony as given was believed to be true, because the belief must be considered in view of the circumstances under which the person made the statement. Of course it is proper to consider the intelligence, the experience, the education, the understanding of the person who given [gives] the testimony and his comprehension of the questions asked him and his knowledge of the meaning of the words which he uses in giving his answers. But after considering all the circumstances, the final and legal test is not what the words might ordinarily mean, not what some one else claims they mean, not what the jury thinks the words mean, and not even the meaning which the words have as definited [defined] in the dictionary, although the ordinary meaning of such words is proper for you to consider in ascertaining the meaning which was used by the one giving the testimony. But the test that you must consider and use, is whether or not the defendant believed the testimony as given was true at the time and in the sense that he understood the questions and in the sense he gave the answers constituting his testimony." [Emphasis supplied.] [77 F.2d 582]

Later in the charge the court told the jury:

. . . "In considering the meaning of the words as used you have a right to consider the common usage and meaning, or the various common meanings or usages of such words, and the more exact meaning as defined by the dictionary, but even after considering that, still the test for you is, as I have said, to find out the meaning in which the defendant who gave the testimony intended in his answers and understood in the questions where such words were used." [Emphasis supplied.] [77 F.2d 582]

Again, the court instructed the jury:

. . . "I am not undertaking to bring to your attention the meaning of all the words in all of these questions and answers or all the meanings of those which might be considered ambiguous or indefinite, but I am trying to call to your attention the fact that it is for you to determine the meaning of the language and that if there is an ambiguity or indefiniteness in the meaning of the words used, that it is for you to say the sense or meaning in which Mr. Seymour gave his testimony and the belief that he had as to the meaning of the words which were used in the questions and answers." [Emphasis supplied.] [77 F.2d 583]

On appeal after his conviction Seymour contended that the word "encouraging" in the question above quoted was so uncertain that it called for "his opinion or construction as to its meaning" and that he had construed it as meaning "whether he had come into personal contact with Norris [of Broken Bow] or brought his personal influence to bear to persuade him to become a candidate" which he had not done and so answered. The court, affirming the judgment below, ruled as follows on that contention:

. . . It was certainly an open question for the jury to decide whether, after having just denied knowing or hearing Norris, appellant (who had actively co-operated to get Norris into the primary) did or could have thought that the question of whether he "had no part * * * in encouraging the candidacy" of said Norris meant what he said he understood it to mean. [ 77 F.2d 584]

This decision by the Court of Appeals for the Eighth Circuit recognizes — by its affirmance of the conviction under the instructions given the jury — that where, under a perjury statute similar to D.C. Code § 22-2501, words used by a witness under oath are charged in an indictment to have been falsely uttered, the charge is in essence a charge that the words were false in the sense in which the witness used them. Thus the decision recognizes that the statutory test as to the meaning of the words is subjective, not objective.

Second: The appellee contends that the charge in Count I that he testified falsely that "he had never been a sympathizer or any other kind of promoter of Communism or Communist interests" (emphasis supplied) insufficiently advises him as to what, in his voluminous writings and lifetime contacts, is referred to as evidencing that he had been a sympathizer and promoter of Communism and Communist interests, and that he will by this "vagueness" be handicapped in preparing his defense in the trial. In my view, this so-called vagueness in the count is not a lack of the particularity required by the Sixth Amendment and Rule 7(c) in apprising an accused of the elements of the crime with which he is charged. Comparison of the count with the perjury statute demonstrates that the count fully and definitely states each and all of the essential elements of the crime as defined by the statute. Paragraph 1 of the count describes the time and place of the alleged perjury, and the taking of an oath before a competent tribunal and the unlawful, wilful, and knowing violation of that oath by the statement of a material matter which the accused did not believe to be true. In the succeeding paragraphs this general charge is particularized by a description of the study and investigation being conducted by the Senate Subcommittee, by a statement of what was material to that study and investigation, and by a description of the testimony charged to be false.

The further information assertedly needed by the appellee for the preparation of his defense could be secured by a motion, under Rule 7(f) of the Federal Rules of Criminal Procedure, for a bill of particulars. A bill of particulars can not be used to cure the omission from an indictment of material averments; it can not, as it is sometimes said, "give life to what was dead when it left the grand jury." Foster v. United States, 253 F. 481, 484 (9th Cir. 1918). Jarl v. United States, 19 F.2d 891 (8th Cir. 1927). But, as said in Rinker v. United States, 151 F. 755, 759 (8th Cir. 1907), in an opinion by Circuit Judge Van Devanter:

When an indictment sets forth the facts constituting the essential elements of the offense with such certainty that it cannot be pronounced ill upon motion to quash or demurrer, and yet is couched in such language that the accused is liable to be surprised by the production of evidence for which he is unprepared, he should, in advance of the trial, apply for a bill of the particulars; otherwise it may properly be assumed as against him that he is fully informed of the precise case which he must meet upon the trial. 1 Bishop's New Cr.Proc. § 643 et seq.; Wharton, Cr.Pl. Pr. (9th Ed.) § 702 et seq.; Dunbar v. United States, 156 U.S. 185, 192, 15 S.Ct. 325, 39 L.Ed. 390; Rosen v. United States, 161 U.S. 29, 40, 16 S.Ct. 434, 480, 40 L.Ed. 606; Durland v. United States, 161 U.S. 306, 315, 16 S.Ct. 508, 40 L.Ed. 709; Dunlop v. United States, 165 U.S. 486, 491, 17 S.Ct. 375, 41 L. Ed. 799; United States v. Bennett, 24 Fed. Cas. 1,093, No. 14,571; Tubbs v. United States, 44 C.C.A. 357, 105 Fed. 59. . . .

See also Billingsley v. United States, 16 F.2d 754 (8th Cir. 1926).

B. As to the attack under the First Amendment: That Amendment, so far as here pertinent, provides that "Congress shall make no law . . . abridging the freedom of speech, or of the press. . . ." The appellee asserts that Count I charges him with matters relating to his attitudes, convictions, opinions, sympathies, and beliefs, and relating to his activities as an editor. This, the appellee urges, is improper in view of the quoted provision. Such a contention was rejected by this court in Barsky v. United States, 83 U.S.App.D.C. 127, 167 F.2d 241 (D.C. Cir.), certiorari denied, 334 U.S. 843, 68 S.Ct. 1511, 92 L.Ed. 1767 (1948), and in Lawson v. United States, 85 U.S.App.D.C. 167, 176 F.2d 49 (D.C. Cir. 1949), certiorari denied, 339 U.S. 934, 70 S.Ct. 663, 94 L.Ed. 1352 (1950), ruling that Congress has power, notwithstanding the First Amendment, to inquire, incident to an investigation into Communist activities, into private beliefs and associations.

It is to be noted further in this connection that even if the appellee could have refused, under the protection of the First Amendment, to answer the questions asked him by the Subcommittee, nevertheless, having answered them, he can not rely upon the Amendment to escape the impact of a statute making it a crime to falsify a material statement before a competent tribunal after an oath to tell the truth. Cf. American Communications Association v. Douds, 339 U.S. 382, 70 S.Ct. 674, 94 L.Ed. 925 (1950), ruling that a statutory requirement — for the purpose of regulating interstate commerce, i.e., protecting it against disruptive strikes by unions whose management has been infiltrated by Communists — of the filing of non-Communist affidavits by union officers is not forbidden by the First Amendment guaranty of freedom of speech. A contention similar to that of the appellee was made under the provision of the First Amendment that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . ." and the contention rejected by the Supreme Court. Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878). In that case the Court ruled that a party's religious belief can not, because of the First Amendment, be used as justification for the commission of an overt act, to wit, bigamy, made criminal by a federal statute. Likewise, as is recognized in the opinion of this court, the First Amendment guaranty of freedom of speech and of the press is not a warrant for the commission of perjury.

COUNT VII

As stated at the outset of this opinion, I conclude that Count VII is invalid, but for reasons other than those expressed in the opinion of the court.

The appellee asserts that this count lacks the definiteness required by the Sixth Amendment and Rule 7(c). The terms of the count, so far as here pertinent, are as follows:

* * * * *

2. . . . [A]nd it was further material to ascertain the circumstances of the defendant's trip to and reception at Chinese Communist Headquarters at Yenan, China.

3. At the time and place aforesaid, OWEN LATTIMORE, appearing as a witness under oath before said Senate Subcommittee, testified falsely with respect to the aforesaid material matter, as follows:

"Mr. Morris: And before you went beyond that line of demarcation, it would be necessary to have the Communist authorities' permission, isn't that right?

Mr. Lattimore: No.

* * * * *

Mr. Morris: Is it your testimony that you or anybody in your party did not make any prearrangement with the Communist Party in order to get in?

Mr. Lattimore: None whatever." . .

4. That the aforesaid testimony of said defendant, as he then and there well knew and believed, was untrue, in that before being received at Communist Headquarters in Yenan, said defendant and persons in his party had made prearrangements with the Communist authorities. . . .

My reasons for concluding that the count is invalid are as follows: (a) It can reasonably be thought that the first question and answer in paragraph 3 of the count are but preliminary to the second question and answer; that the gist of the charge is falsity in the answer to the second question. The Government so contends. (b) But it may, with equal reason, be thought that the gist of the charge includes falsity in answering both the first question and the second question because in paragraph 4 of the count it is said that "the aforesaid testimony of said defendant, as he then and there well knew and believed, was untrue. . . ." The phrase "the aforesaid testimony" is sufficiently broad to include the first question and answer as well as the second. (c) The count can also reasonably be thought to have the meaning attributed to it by Circuit Judge Danaher as that meaning is described in the opinion of the court, where it is said that in his view "taken in context the substance of the question [asked of the appellee] was, and was so understood to be, whether or not Communist leaders authorized or made prearrangements for the Lattimore trip into Communist China." Since the count is thus reasonably susceptible of any one of three different constructions, it does not satisfy the requirements of particularity and definiteness made by the Sixth Amendment and Rule 7(c).

A further ambiguity exists in the phrase "in order to get in" at the end of the second question. It is not clear from the face of the count whether this means to get beyond the line of demarcation referred to in the first question, or into the Chinese Communist Headquarters at Yenan referred to in the above quoted portion of paragraph 2 of the count.

I would therefore, as stated at the outset of this opinion, reverse the decision of the District Court as to Counts I, III, and IV but affirm it as to Count VII.

EDGERTON, Circuit Judge, with whom Circuit Judges CLARK and BAZELON concur.

We think all four counts were rightly dismissed. Accordingly we concur in this court's result as to Counts I and VII but dissent as to Counts III and IV.

Asiaticus was the pen name of a contributor to the magazine "Pacific Affairs" which Lattimore edited from 1934 to 1941. Count III says Lattimore testified falsely that he "didn't know", in the late 1930's, that Asiaticus was a "Communist". Count IV says Lattimore testified falsely that he never published, while he was editor, an article by a non-Russian whom he knew to be a "Communist". In our opinion these counts are void because they are vague and also because they concern immaterial matters.

Vagueness of Counts III and IV.

Due process of law requires that a charge be definite enough so that a jury can understand it and the accused can prepare his defense. The Sixth Amendment requires that the accused "be informed of the nature and cause of the accusation". Counts III and IV do not meet these requirements.

Count III calls for a jury's opinion as to whether Lattimore's opinion "in the late 1930's", as he remembered it, regarding the opinions of Asiaticus, was such that he "well knew" he testified falsely in saying he "didn't know" in the late 1930's that Asiaticus was a "Communist".

Whether it is vague or definite to say one "knows" something depends on what one is said to know. That a watch cost $50, or was stolen, is definite enough. But a valid charge of perjury could not be framed on the theory that when a witness swore he did not know a watch was worth having, he did know it was worth having; or when he swore he did not know it was a long way from Washington to Baltimore, he did know it was a long way. The terms "worth having" and "a long way" are too vague.

Few terms are vaguer than "Communist". It may mean a member of the Communist Party, or a sympathizer and promoter of Communism and Communist interests, or a believer in dialectical materialism, or a radical, or an opponent of inherited wealth, or many other things. The court says, and we agree, that the term "sympathizer and promoter of Communism and Communist interests" in Count I makes that count void for vagueness. Since the word "Communist" incorporates that vagueness, and adds more, Count III is void for vagueness.

Count IV is like Count III in this respect.

IMMATERIALITY OF COUNTS III AND IV.

Under the federal statute and also under the District of Columbia statute, perjury is "any material matter" falsely sworn before "a competent tribunal". 18 U.S.C. (1952 ed.) § 1621, 62 Stat. 773; D.C. Code (1951) § 22-2501, 31 Stat. 1329. "And the materiality of what is falsely sworn, when an element in the crime of perjury, is [a question] for the court." Sinclair v. United States, 279 U.S. 263, 298, 49 S.Ct. 268, 273, 73 L.Ed. 692 (1929). When materiality is uncertain on the face of an indictment, the government may be able to prove materiality at a trial. But when on the face of the indictment it is plain that the testimony charged as perjury cannot be material, a demurrer should be sustained or the indictment dismissed. We think this applies to Counts III and IV. Because of the period of time to which they relate, and also because of the subject to which they relate, we think they cannot be material to the investigation that the Committee was authorized to conduct.

I. Disparity in time. Counts III and IV relate to the period between 1934 and 1941. But the Committee was authorized, at the end of 1950, to investigate current matters.

The Internal Security Act of 1950 became law September 23, 1950. 64 Stat. 987, 1031. Three months later, December 21, 1950, Senate Resolution 366, 81st Cong., 2d Sess., was passed. The Resolution recites that "continuous surveillance" is "vital to the internal security of the United States". It directs the Committee to make a "continuing study and investigation" — not a historical study and investigation — of "the administration, operation, and enforcement" of the internal security laws and of "the extent, nature, and effects of subversive activities in the United States * * * including * * * espionage, sabotage, and infiltration by persons who are or may be" Communist-dominated. The Resolution expresses no interest in persons who were, or may have been, Communist-dominated years ago, when Hitler, not Russia, was threatening the world and many people were Communist sympathizers who are now anti-Communists. The Committee is to study what goes on in the 1950's, not what went on in the 1930's. It is to be a watchman, not a historian.

If the Resolution left this point in doubt, legislative history would remove the doubt.

Senator Eastland introduced the Resolution on behalf of Senators McCarran, O'Connor, Wiley, Ferguson, Jenner, and Langer. He said: "we feel that the Committee on the Judiciary * * * owes a duty to the Senate and to the people which cannot be fully discharged unless the committee conducts a continuous study and investigation of the operation of our laws relating to espionage, sabotage, and the protection of the internal security of the United States * * * I am convinced that we are confronted by a task which must be the subject of continuous effort. If, Mr. President, it is sound for the Congress to set up watch-dog committees to maintain a surveillance over the operation of our programs of expenditures at home and abroad, it is equally sound to equip the Committee on the Judiciary to maintain a watchful eye over our program to protect the internal security of this country." Senator Eastland read a statement by Senator McCarran which said: "Over the course of many years there have been accumulated by various committees of the Congress substantial quantities of information respecting the scope and nature of the Communist fifth column in the United States, and the Congress has, from time to time, enacted laws which were designed to meet this threat. The purpose of the Senate resolution is not to again marshal the factual material which has already been assembled and which demonstrates conclusively the deadly menace of the Communist fifth column * * * One of the elementary truths respecting communism in the United States is that it is a dynamic movement which, with devilish cunning, constantly seeks new avenues of expression and escape from detection. * * * We must be constantly alert to the new tactics which are being devised to evade our best legislative efforts. It is for this reason principally that the instant resolution has been presented to the Senate, so that the Congress and the people may constantly be informed of our progress in this fight." (Emphasis added.)

Bowers v. United States, 92 U.S.App. D.C. 79, 202 F.2d 447 (D.C. Cir. 1953), applies here. A Special Committee to Investigate Organized Crime in Interstate Commerce was authorized to make "a full and complete study and investigation of whether organized crime utilizes the facilities of interstate commerce or otherwise operates in interstate commerce * * * and, if so, the manner and extent to which, and the identity of the persons, firms, or corporations by which such utilization is being made, what facilities are being used," etc. S. Res. 202, 81st Cong., 2d Sess.; 92 U.S. App.D.C. at 80, 202 F.2d at 448. Bowers refused, in 1951, to tell the Committee what his business had been in Chicago in 1927. He was convicted of contempt of Congress. We reversed the conviction. We said: "on its face, the question was not pertinent to [the authorized] inquiry, for we are unable to see how an investigation into the activities of organized crime in interstate commerce which was being conducted in 1951 would be furthered in any way by the subcommittee's knowledge of what business Bowers engaged in in Chicago some twenty-four years before." 92 U.S. App.D.C. at 81, 202 F.2d at 449. Since the question was not "pertinent", obviously it did not relate to a "material matter".

II. Disparity in subject. The particular subject to which Counts III and IV relate — Lattimore's knowledge or ignorance of the views of other persons between 1934 and 1941 — is not within the Committee's competence. Paraphrasing what we said in Bowers, we are unable to see how a "continuing study and investigation", conducted in the 1950's, of subversive activities and the operation of the security laws, would be furthered in any way by the Committee's knowledge of what an editor did or did not know between 1934 and 1941 about the views of authors whose work he then published. It is impossible to find in the Senate Resolution any suggestion of an intention to authorize inquiry into that subject.

Even today it is not illegal to publish an article by a known Communist. It was not illegal between 1934 and 1941. Therefore the question whether Lattimore did so between 1934 and 1941 has no connection with the clauses of the Resolution that concern "administration, operation, and enforcement" of laws. For several reasons, the question has no connection with the clause of the Resolution that concerns "subversive activities".

(1) In June 1941 Germany attacked Russia. In December of that year Germany's ally attacked Pearl Harbor and the United States joined Russia in the war against Germany. In January, 1942, President Roosevelt wrote to Admiral Land, "I am still terribly disturbed about the fact that an adequate number of ships are not available for Russia. * * * This Government has made a firm pledge to Russia and we simply cannot go back on it. * * * You simply must find some ships that can be diverted at once for this Russian business." The President "assured Stalin that there would be no relaxation of efforts to keep the shipments going to the Soviet Union." In February, 1942, on the occasion of the 24th anniversary of the foundation of the Red Army, General MacArthur sent a message from his headquarters in the Philippines in which he said: "The world situation at the present time indicates that the hopes of civilization rest upon the worthy banners of the courageous Russian Army. * * *"

During our alliance with the Communist world power, and before that alliance, there could be nothing "subversive" in publishing even articles showing sympathy for that power — which the indictment does not allege that Lattimore did — to say nothing of colorless articles whose authors happened to be Communists. What might be "subversive" now has nothing to do with the case. The prosecution cannot project the 1950's into the 1930's.

(2) Even today, just as the fact that a picture was painted by a known Communist would not make it subversive to exhibit the picture, the fact that an article was written by a known Communist would not make it subversive to publish the article. If anything can make it "subversive" to publish an article it is the article's content, not who wrote it. It cannot be subversive to publish an innocuous article even if a known Communist wrote it. Counts III and IV do not allege either that Lattimore published, or that he denied publishing, subversive articles. If these counts go to trial, and if the government offers to prove that Lattimore did publish "subversive" articles and also that their authors were Communists, it will remain immaterial whether or not Lattimore knew they were Communists.

(3) Since Pacific Affairs was a scholarly journal, it was Lattimore's business as its editor to see that it presented a wide range of expert opinion. Unbiased scholarship probably required and certainly permitted the occasional inclusion of an article by a known Communist expert among the 250 articles published between 1934 and 1941.

(4) Lattimore made clear to the Committee that articles by Russian Communist experts were acceptable but hard to get. ( Hearings, 3248, 3321, 3438) So far as Count IV is concerned, therefore, his alleged false statement may be paraphrased; he did not know that some Communists whose articles he published were non-Russians. But whether Communists were Russians or not, and whether Lattimore knew it or not, could have nothing to do with the question whether the articles themselves, and Lattimore's activity in publishing them, were innocuous or subversive.

Since an editor of any political views, or none, might well have published articles by known Communists between 1934 and 1941, Lattimore's knowledge or ignorance of authors' views has nothing to do, directly or indirectly, with the subject of subversive activities, then or later. No testimony concerning his knowledge or ignorance could have any value, even as a lead to other testimony. Suppose he had answered that he did know that Pacific Affairs had non-Russian Communist contributors and that Asiaticus was one of them. This would not have increased the Committee's knowledge about the contributors. Neither would it have thrown light on the political connections or tendencies of Lattimore, the Institute, or the magazine.

III. Meaning of "material". The court says the question whether an editor knew, in the 1930's, that a contributor was a Communist "Perhaps * * * was not important, but it was within the realm of materiality in so far as appears upon the face of the indictment."

The court overlooks the fact that in statutes, as well as in ordinary use, "material" means not only pertinent but also important in some substantial degree. The perjury statute, which uses the word "material" while the contempt statute uses the word "pertinent", is no exception. It is one thing to say that if a committee were authorized to investigate pneumonia, the life-long clinical history of a man believed to have had pneumonia might be pertinent to the inquiry. It would be quite another thing to say that if he testified he had six colds in one winter ten years ago, whereas in fact he had only five, he could be indicted and punished for perjury.

In Pyle v. United States, 81 U.S.App. D.C. 209, 156 F.2d 852 (D.C. Cir. 1946), the false testimony charged as perjury was, as we recognized, plainly pertinent. But it was unimportant, and we held it was therefore not material and did not support a conviction of perjury. We said: "Laubaugh was being tried for unlawfully transporting Shirley Shelton on August 29, 1944. The material fact in issue was whether he had so transported the Shelton girl. Mary Pyle testified against him, saying that he had transported Shirley; in that respect her testimony did not vary from her written statement of September 18, 1944. She is charged with perjury for having falsely testified that the written statement was involuntarily given. This false statement was not perjury unless it was somehow material to the issue as to the guilt or innocence of Laubaugh. The writing of September 18 charged him with guilt; consequently, Mary Pyle's statement from the witness stand that the writing was not given voluntarily would have been material to the issue as to Laubaugh's guilt, except for the fact that from the witness chair Mary charged him with guilt exactly as she had done in the writing. If, as a witness, she had repudiated the accusation of transporting Shirley which appeared in her written statement, then her testimony that she signed the writing because of the threats of the agents would have tended to reduce or minimize the government's case against Laubaugh; and her testimony that the writing was involuntarily signed, if proved false, would have amounted to perjury. But, as she repeated under oath what she had said in the September statement as to Laubaugh's guilt of transporting Shirley Shelton, her false statement that the writing was not voluntary could have had no effect on the jury's decision * *. It is our view, therefore, that the false statement attributed to the appellant was in no way material in the case in which she made it and did not constitute perjury within the meaning of the statute." 81 U.S.App.D.C. at 213, 156 F.2d at 856.

The reason why the law restricts the crime of perjury to testimony of some importance before a "competent tribunal" is clear. Congress, the courts, and administrative bodies must not be misled, in their official action, by false testimony. But false testimony that is very unlikely to influence official action is little worse than ordinary lying.

IV. Congressional power. If there be doubt that Counts III and IV are void for the reasons we have discussed, the doubt should be resolved against the counts in order to avoid a grave constitutional question.

If we could not avoid the question, it might be hard to avoid the conclusion that a congressional inquiry into what an editor knew, between 1934 and 1941, about the views of the authors whose work he published, would abridge the freedom of the press guaranteed by the First Amendment. The Supreme Court's unanimous affirmance of our judgment in the Rumely case emphasizes the rule the Court established: that courts must not treat Congress as having meant to authorize a committee to ask questions that may invade First Amendment rights, unless Congress makes that meaning unmistakably clear. United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 97 L.Ed. 770 (1953). We have shown how far from clear it is that the Senate meant to authorize such an inquiry.

The Supreme Court said: "there is wide concern, both in and out of Congress, over some aspects of the exercise of the congressional power of investigation. * * * Surely it cannot be denied that giving the scope to the resolution for which the Government contends * * * raises doubts of constitutionality in view of the prohibition of the First Amendment." United States v. Rumely, 345 U.S. 41, 44, 46, 73 S.Ct. 543, 545, 97 L.Ed. 770. Our court had held that Congress could not require Rumely, a publisher, to identify the purchasers of books: "To publicize or to report to the Congress the names and addresses of purchasers of books, pamphlets and periodicals is a realistic interference with the publication and sale of those writings." We pointed out that the "effect of public embarrassment is a powerful interference with the free expression of views." Rumely v. United States, 90 U.S.App.D.C. 382, 390, 197 F.2d 166, 174 (D.C. Cir. 1952). In the Supreme Court, likewise, Justice Douglas with whom Justice Black concurred held that Congress could not require a publisher to identify the purchasers of books. No member of the Supreme Court expressed a contrary view. But the majority of the Court affirmed our judgment on the ground that it was doubtful whether Congress could impose such a requirement and that the Court should therefore adopt a "strained" ( 345 U.S. at 47, 73 S.Ct. at 546) construction of congressional language rather than find that Congress undertook to impose it.

It is doubtful, to say the least, whether the Senate could require an editor to tell what he knew between 1934 and 1941 about the views of authors whose work he published. More directly than the embarrassment of purchasers involved in the Rumely case, embarrassment of editors interferes with freedom of the press. It restricts not only reading but printing. And unlike Rumely, no strained construction of congressional language is necessary to keep the constitutional issue out of this case. On the contrary, a strained construction of congressional language would be necessary to bring the constitutional issue into the case; for, as we have shown, the ordinary meaning of the Senate Resolution makes the matter in Counts III and IV immaterial and the counts therefore void.

In Rumely we distinguished the Barsky, Lawson, and other cases on the grounds that "Communism and the Communists are, in the current world situation, potential threats to the security of this country" and that Congress could, therefore, interfere with freedom of expression in order to inquire into the subject. 90 U.S.App.D.C. at 389, 197 F.2d at 173. For at least two reasons this distinction does not support Counts III and IV. First, the questions in Barsky, Lawson, etc., concerned objective facts and did not directly probe mental states. The Barsky defendants "were not asked to state their political opinions. They were asked to account for funds." The Lawson defendants were asked about membership in the Communist Party and in the Screen Writers Guild. Second, Counts III and IV relate exclusively to the time between 1934 and 1941, before the commencement of the "potential threats to the security of this country" with which Congress and the courts were concerned in Barsky and Lawson.

Nothing in the opinion of the Supreme Court, or in the concurring opinion, in Rumely suggests that the case turned or might have turned on evidence introduced at Rumely's trial. Neither opinion mentions his trial, except to say he was convicted under R.S. § 102 [ 2 U.S.C.A. § 192] for refusal to testify and was sentenced to a fine of $1,000 and imprisonment for six months. As far as appears, everything in both opinions would have been equally apposite if the indictment had been before the Court on a motion to dismiss. In the present case it has been suggested that the government should be given an opportunity to prove, at a trial, that the matter in Counts III and IV is material. But we do not know that anyone has suggested what sort of testimony might possibly have that effect.

The court says: "freedom of speech * * * does not include freedom to lie under oath. Even if Lattimore, as the editor of a publication, had a right not to speak, he did not have a right to speak falsely. When he chose to speak under oath he was obliged to speak truly and was subject to the penalties of perjury if he lied on a material matter." The court overlooks the fact that what is not pertinent cannot be material and the Rumely rule that pertinence cannot be decided without regard to constitutional limits on congressional power. The court overlooks, also, the fact that perjury is limited to material matter falsely sworn before a "competent tribunal". Lying under oath before a tribunal that is not competent is not perjury. Christoffel v. United States, 338 U.S. 84, 69 S.Ct. 1447, 93 L.Ed. 1826 (1949). Within the limits of the Constitution and the Senate Resolution, the Committee was competent. But outside either limit, the Committee was no more "a competent tribunal" than the Tax Court of the United States would be competent to investigate an election.

WILBUR K. MILLER, Circuit Judge.

Being of the opinion that all four counts involved here should have been, as they were, dismissed by the District Court, I concur with the majority in their affirmance of the dismissal of Counts I and VII and dissent from their reversal of the dismissal of Counts III and IV. The questions which those counts charge Lattimore with having answered falsely were not pertinent to the inquiry and, in my view, cannot be made pertinent by the introduction of evidence at a trial. Bowers v. United States, 92 U.S.App.D.C. 79, 202 F.2d 447 (1953). Consequently, while I substantially agree with what Judge Edgerton says in his dissenting opinion under the heading "Disparity in time," I do not reach a consideration of the other points he makes.