In DeGregory v. Attorney General of New Hampshire, 383 U.S. 825 (1966), the Supreme Court overturned a one-year prison term for contempt that New Hampshire had imposed on Hugo DeGregory, a witness who refused to testify to the state attorney general regarding his Communist Party activities prior to 1957.

Writing for the Court, Justice William O. Douglas observed that the witness had testified previously, and he had denied any association with, or knowledge of, the party since 1957.

Douglas observed that the decision in Uphaus v. Wyman (1959) gave DeGregory reason to believe that the state would publish details of his past associations, but however justified such revelations might have been in Uphaus, here they were stale, as they related to past events rather than to current threats.

First Amendment as a barrier against privacy intrusion

Although “investigation is a part of lawmaking,” Douglas observed that “the First Amendment, as well as the Fifth [containing the provision against self-incrimination, which DeGregory had not invoked in this case], stands as a barrier to state intrusion of privacy.”

In the Court’s view, the information that the attorney general was seeking “was historical, not current,” and the state had failed to establish the “nexus” between the information it was seeking here and that which it had sought in Uphaus.

In a dissenting opinion joined by Justices Potter Stewart and Byron White, Justice John Marshall Harlan II argued that New Hampshire “should be free to investigate the existence or nonexistence of Communist Party subversion, or any other legitimate subject of concern to the State, without first being asked to produce evidence of the very type to be sought in the course of the inquiry.”

He thought the majority opinion was an attempt to determine the wisdom rather than the constitutionality of the investigation.

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