Secrecy of Testimony: Two statutes examined contained provisions requiring or approving the suppression of information at the request of persons who had provided it to emergency agencies. In Section 202 thereof the Emergency Price Control Act of 1942 authorized the Price Administrator to make investigations, subpoena witnesses, and compel testimony upon the grant of immunity from prosecution. The same Act also provided that the Administrator should not publish or disclose any information obtained under the Act that the Administrator deemed confidential or with reference to which a request for confidential treatment had been made by the person furnishing such information, unless he determined that the withholding thereof was contrary to the interest of the national defense and security.[477] This, of course, is the reverse of the usual requirement that information be made public unless contrary to the interest of the national defense and security. The Export Control Act of 1949 also contained a compulsory testimony provision, with the requirement that, except as necessary to the national interest, information given in such testimony be kept confidential upon request of the witness.[478]
Regulation of Propaganda Activities
The Foreign Agents Registration Act of 1938, provided for public disclosure by persons engaging in propaganda activities and other activities for or on behalf of foreign governments, foreign political parties, and other foreign principals so that the government and the public could be informed of the identity of such persons and could thereby appraise their statements and actions in the light of their associations and activities.[479] By virtue of a 1942 amendment the necessity for foreign agents to register with the Attorney General was waived for agents of allied and friendly nations and thus propaganda efforts encouraged.[480] These agents could escape the registration requirement provided they engaged only in activities which were in furtherance of the policies, public interest, and national defense, of their own government and the American government, and were not intended to conflict with any of the domestic or foreign policies of the United States. However, the agent had to be convinced of the truth and accuracy of each communication or expression which he made in this country.
Under the same Act persons required to register as foreign agents also had to furnish the Library of Congress with two copies of any political propaganda intended for dissemination to two or more persons. This material had to be transmitted within forty-eight hours after dissemination had begun and it had to be accompanied by a statement, duly signed by or on behalf of the agent, setting forth full information as to the places, times, and extent of actual transmittal.[481] In addition, the Act made it unlawful to disseminate the matter unless the political propaganda was conspicuously marked at its beginning with, or prefaced or accompanied by, a true and accurate statement, in the language or languages used in the political propaganda. The Act further required that the person transmitting political propaganda be registered under the Act with the Department of Justice “as an agent of a foreign principal, together with the name and address of the agent and of each of his foreign principals.”[482]
The Internal Security Act of 1950 applied a similar requirement to any organization registered as a Communist organization, or ordered to register by the Subversive Activities Control Board.[483] Such an organization is guilty of a crime if it transmits through the United States mails or by any means or instrumentality of interstate or foreign commerce, any publication which is intended to be, or which it is reasonably believed will be, circulated or disseminated among at least two or more persons, unless the container in which the publication is mailed contains this statement: “Disseminated by ——, a Communist organization.” Programs sponsored by Communist organizations on radio or television, in order to comply with the Internal Security Act, must be preceded by the statement, “the following program is sponsored by ——, a Communist organization.”
Censorship and Other Restrictions
Thus far we have surveyed the discretionary power granted government agencies, consistently with national defense to withhold information from the public, the courts or the legislature, and those powers accorded the executive branch to regulate or conditionally promote propaganda activities of foreign nations. The following section pertaining to censorship and other restrictions may be differentiated from the foregoing as follows. Whereas the first section dealt with government agencies as custodians of information, here we are concerned with limitations imposed upon the efforts of individuals and groups to secure information or to disseminate specified kinds of information which they may possess.
The relevant statutes are reviewed under three headings. Certain statutes prohibit the acquisition or attempted acquisition of specified types of defense data. Others prohibit the dissemination of specified kinds of information, or the communication of prescribed opinions. A third group of statutes reflect the disposition of Congress to empower the government to review and edit personal communications media.
Illegal Acquisition of Defense Information: In January 1938 the President was authorized to define certain vital military and naval installations or equipment requiring protection against the general dissemination of information about them. It became unlawful thereafter to make any photograph, sketch, picture, drawing, map, or graphical representation of these vital military and naval installations or equipment without first obtaining the permission of the commanding officer of the installation concerned. If permission were granted to anyone seeking information, it was necessary to submit to censorship whatever information had been obtained.[484]
Dissemination of Information and Proscribed Opinions: The same 1938 statute also made it illegal to reproduce, publish, sell, or give away data without first obtaining official permission.[485] The Alien Registration Act of 1940 proscribed the advocacy of certain opinions. It is unlawful for any person, with intent to interfere with, impair, or influence the loyalty, morale, or discipline of the military or naval forces of the United States by seeking to advise, counsel, urge, or in any manner cause insubordination, disloyalty, mutiny, or refusal of duty by any member of the military or naval forces of the United States. And it is unlawful for any person to distribute any written or printed matter which advises, counsels, or urges insubordination, disloyalty or mutiny.[486] This Act also makes it unlawful to knowingly or willfully seek the overthrow of any government in the United States by direct or indirect action. Equally proscribed is any effort which has as its goal the assassination of any governmental official.[487] Conspiracy to commit any of the acts enumerated in the statute is also unlawful.[488]