
    In the Matter of Robert Boikess et al., Appellants, v. George Aspland, as District Attorney of Suffolk County, Respondent.
    Argued. November 26, 1968;
    decided February 27, 1969.
    
      
      Jeremiah S. Gutman and Nancy Stearns for appellants. I. This order is appealable.
    
      (Matter of Inter-City Assoc., 308 N. Y. 1044; Matter of Ryan [Hogan], 306 N. Y. 11; People v. Doe, 247 App. Div. 324, 272 N. Y. 473; Matter of Di Brizzi [Proskauer], 303 N. Y. 206.) II. Prospective defendants or targets of a Grand Jury investigation may not be compelled to attend the Grand Jury hearing. (People v. Ferola 215 N. Y. 285; People v. De Feo, 308 N. Y. 595; People v. Laino, 10 N Y 2d 161; People v. Bermel, 71 Misc. 356 ; Dombrowski v. Pfister, 380 U. S. 479; Keyishian v. Board of Regents, 385 U. S. 589; People v. Steuding, 6 N Y 2d 214.) III. Nothing in section 6 of article I of the New York Constitution can or does validate the subpeenaes. W. The subpeenaes should be quashed. (Garrity v. New Jersey, 385 U. S. 493; Gardner v. Broderick, 392 U. S. 273; Watkins v. United States, 354 U. 6. 178.) V. A classification excluding public officers from the protection of the privilege against self incrimination is a denial of the equal protection and due process of law. (Skinner v. Oklahoma, 316 U. S. 535.) VI. The proposed questions destroy .the efficacy of the subpeenaes. (Keyishian v. Board of Regents, 385 U. S. 589; Sweezy v. New Hampshire, 354 U. S. 234; Wieman v. Updegraff, 344 U. S. 183.) VII. The Grand Jury concerned has, during pendency of this appeal, been further limited to do nothing but indict appellants.
    
      
      George J. Aspland, District Attorney (John Copertino of counsel), for respondent pro se.
    
    I. As instructors at the .State University at Stony Brook and in the employ of the State, petitioners-appellants are subject to subpoena commanding them to appear before a Grand Jury investigating drug abuse at the place of their employment. (State of New York v. Perla, 21 N Y 2d 608; Sanitation Men v. Sanitation Comr., 392 U. S. 280; Matter of Moore v. Delaney, 180 Misc. 844; Matter of January, 1967 Reports of Grand Jury, 51 Misc 2d 895.) II. The privilege against self incrimination does not permit apppellants to refuse to appear before the Grand Jury to give testimony. (Matter of Grand Jury [Cioffi], 10 A D 2d 425; Gardner v. Broderick, 392 U. S. 273; People v. Steuding, 6 N Y 2d 214; People v. Laino, 10 N Y 2d 161; Sweezy v. New Hampshire, 354 U. S. 234; Matter of Osborne, 62 Misc. 575; People v. Woodruff, 26 AD 2d 236, 21 N Y 2d 848.)
   Burke, J.

Appellants are faculty members of the State University of New York at Stony Brook, in Suffolk County. They have been subpoenaed and requested to appear before the 1968 Suffolk County Grand Jury, which was impaneled solely for the purpose .of investigating possible drug abuses on the university campus. The District Attorney, acknowledging that appellants are targets of that inquiry, caused the subpoenas to be issued so that he could—according to appellants — proffer the following questions:

1. Have you ever used illegal drugs with students?
2. Have you ever advocated to students the use .of illegal drugs?
3. Have you ever discussed with an administrator your advocacy of illegal drugs or your use of drugs with students ?

Upon receipt of the subpoenas and after learning of the purpose and scope of the contemplated inquiry, the appellants commenced the present action to quash these subpoenas. Their application was denied and that denial was affirmed by the Appellate Division. The constitutional question raised by petitioners permitted an appeal as of right to this court.

Before proceeding with the merits of this litigation, it should be noted that the denial of an application to quash a subpoena, instituted in the County Court, is a final and appealable order. (Matter of Inter-City Assoc. [People], 308 N. Y. 1044; Matter of Ryan [Hogan], 306 N. Y. 11, 17.)

Appellants contend that prospective defendants or targets of a Grand Jury investigation may not be compelled to attend a Grand Jury hearing. This proposition is implicit, we are told, in the recent decisions of both this court and the United States Supreme Court. Specific reference is made to our decisions in People v. Steuding (6 N Y 2d 214) and People v. Laino (10 N Y 2d 161). We begin therefore by discussing those decisions.

In People v. Steuding .(6 N Y 2d 214, supra), an employee of a company involved in the sale of road oils to various Highway Superintendents in Ulster County was deemed, for purposes of that appeal, to be a prospective defendant or target of a Grand Jury investigation of corruption of that county’s public officers. The witness appeared and testified, without invoking his privilege against self incrimination, then contained in section 2447 of the former Penal Law. The majority of this court there concluded that “ a prospective defendant * * * may not be called and examined before a Grand Jury and, if he is, his constitutionally-conferred privilege against self incrimination is deemed violated even though he does not claim or assert that privilege.” (6 N Y 2d, pp. 216-217, supra; emphasis added.)

People v. Laino (10 N Y 2d 161, supra) was merely a logical extension of Steuding. In Laino, the defendant was a target of a Grand Jury inquiry concerning violations of the State Tax Law. The defendant and his books were subpoenaed before that body where he unequivocally demanded complete immunity prior to answering any questions. Upon receiving that immunity, he testified freely. Subsequently, that testimony was used as the foundation of an unrelated prosecution for income tax evasion. In setting aside that conviction, this court stated: “In such a case the subpoena is deemed to be a form of compulsion, and the testimony thus compelled may not be used against the defendant as a basis of an indictment, or any other purpose ” (10 N Y 2d, pp. 170-171, supra). Both of these decisions are clear in their requirement that the defendant or target be both called and examined in order to receive immunity from self incrimination. They are, therefore, inapplicable to the case before us.

The question then arises whether we must go beyond the prior decisions of this court and adopt the rule, proposed by appellants, that subpoenas issued to prospective defendants be quashed prior to an appearance before the investigating body. The Supreme Court has recently (had occasion to comment upon the breadth of the privilege against self incrimination which accompanies a prospective defendant when he testifies before a Grand Jury. (Gardner v. Broderick, 392 U. S. 273; Sanitation Men v. Sanitation Comr., 392 U. S. 280.) While the Supreme Court did not deal specifically with the problem posed by the present appeal—as the subsequent discussion will make clear —■ nevertheless, it is an essential underpinning of these decisions that a public employee who is a target of an investigation may be subpoenaed by a Grand Jury and the issuance of that subpoena does not of itself constitute a violation of the employee’s Fifth Amendment rights.

The appellant in Gardner was requested by a Grand Jury investigating alleged bribery and corruption of police officers to waive his privilege against self incrimination at the time of his examination. When he refused to sign the waiver, he was discharged. The court held that this discharge could not stand. (392 U. S. 273, supra.) This rationale was carried over to the companion decision in the Sanitation Men’s case, wherein the court concluded that public employees, like all other persons, are entitled to the benefit of the constitutional protection against self incrimination and, when called before a Grand Jury, may not be faced with the Hobson’s choice of surrendering their constitutional rights or their jobs. (392 U. S., p. 280, supra.) In light of the above, we conclude that the Fifth Amendment does not extend to the present situation. On the contrary, there is no discernible reason for holding that a prospective defendant or target may not be compelled to at least attend a Grand Jury investigation.

The additional argument is advanced that appellants should not be made to respond to the subpoena because they are teachers and thus are entitled to protection from such inquiry under the First Amendment. We are specifically referred to the Supreme Court decisions in Keyishian v. Board of Regents (385 U. S. 589) and Domhrowski v. Pfister (380 U. S. 479). In Pfister, each of the appellants had been indicted for violating section 364(7) of the Louisiana Subversive Activities and Communist Control Law by failing to register as members of a Communist-front organization. Certain appellants were also individually indicted for violating other provisions of that law. However, no prosecutions had been secured and, indeed, no prosecutions had even been commenced. The argument was, therefore, advanced that the appellants ’ constitutional' rights were not adequately protected despite the possibility of vindication in the anticipated- prosecution. (380 U. S., p. 485.)

1 ‘ [A] substantial loss or impairment of freedoms of expression will occur if appellants must await the state court’s disposition and ultimate review in this Court of any adverse determination. These allegations, if true, clearly show irreparable injury.” (380 U. S., p. 486.) In accepting the argument and reviewing the statute prior to any prosecution, the Supreme Court held that the statute was sufficiently dangerous to the First Amendment rights of the appellants to warrant a review of its constitutionality without first subjecting the appellants to a prosecution under the act. Otherwise, the court concluded, the act would interfere with freedom of expression and association.

Keyishian is distinct from Pfister in that the appellants in Keyishian either had their employment terminated or at least threatened by their refusal to comply with requirements imposed by the State University Trustees that (1) each faculty member certify that he was not a Communist and, if he had ever been one that he so advise the university president, and (2) that non-faculty members state under oath whether they had advocated or been a member of a group that had advocated the forceful overthrow of the Government. While not all of the appellants in Keyishian faced sanction, it was quite apparent that certain of their number had in fact been punished for violating the statutory provisions summarized above. In holding these statutes unconstitutional, the Supreme Court repeatedly cautioned against laws which infringe upon First Amendment rights. “ The danger of that chilling effect upon the exercise of vital First Amendment rights must be guarded against by sensitive tools which clearly inform teachers what is being proscribed.” (385 U. S., p. 604.)

These two cases, it is contended, irrefutably establish that the proposed questions concerning advocacy must be stricken as they violate appellants ’ First Amendment right of academic freedom. We disagree.

In Keyishian and Pfister, the Supreme Court reviewed State laws which, as I indicated, were in both instances found to be unconstitutional. The passages from those cases and their precursors which stress the necessity for a free play of spirit ” guaranteed by the First Amendment illustrate the necessity for entertaining those declaratory judgment suits. Otherwise, the appellants would either have been intimidated in their conduct or risked punishment by continuing to ignore the contested laws. We have no statutes attempting to proscribe conduct in this case. Bather, the specious argument made here is that teachers will be intimidated in their lectures merely because of the potential threat of being compelled to appear before a Grand Jury inquiry. If this allegation is true, the intimidation is attributable to something other than a violation of constitutional rights. Keyishian and Pfister are clearly inapplicable.

The appellants may of course both advocate the use of drugs and discuss advocacy with an administrator. Moreover, were statutes enacted attempting to curtail these rights, such statutes would be unconstitutional. Nevertheless, no constitutional right is violated by a subpoena which requests a teacher to appear before a Grand Jury inquiry and discuss matters — relevant to an investigation of misconduct— which he may freely discuss in a classroom.

The order appealed from should be affirmed, without costs.

Chief Judge Fuld (concurring).

I agree with the court’s conclusion that the subpoena may not be quashed and that the order should, therefore, be affirmed. The District Attorney unquestionably has the power to subpoena the petitioners and to ask them whether they have engaged in criminal conduct or whether they have competent information concerning such conduct by others. Upon attending in response to the subpoena, the petitioners may, if they wish, assert their privilege against self incrimination under both the State and Federal Constitutions. However, I am constrained to add to what has been written because, it seems to me, statements in the opinion, touching on the petitioners ’ right to freedom of expression, carry with them implications which, though not necessary to decision, should be dispelled.

The scope of the Grand Jury inquiry to be conducted is — as both the District Attorney and the County Court below intimated— actually broader than that suggested by the three questions set forth in the opening paragraph of the court’s opinion. One branch of that inquiry is aimed at suspected criminal conduct, including—to quote from the County Court’s opinion — “ official misconduct, obstructing governmental administration, hindering prosecution and the various dangerous drug offenses.” Insofar as the investigation is directed either at criminal conduct not consisting of speech or at speech which, by statute and within constitutional limits, is defined as criminal,1 we have before us only the Fifth Amendment question already discussed. On this aspect of the case, as I have indicated, I concur in Judge Burke’s opinion. The other branch of the inquiry—which 'raises questions of serious and far-reaching import affecting the publicly operated colleges and universities of this State—is proposed to be undertaken under subdivision 1 of section 253-a of the Code of Criminal Procedure which was enacted in 1964 (L. 1964, ch. 350). That subdivision provides .that the Grand Jury may submit to the court a report ‘ ‘ concerning non-criminal misconduct, nonfeasance or neglect in office by a public officer or employee as the basis for a recommendation of removal or disciplinary action (Emphasis supplied.) And the District Attorney states that the Grand Jury plans, on the strength of that provision, to go beyond questions of possibly criminal behavior and to inquire into the concededly noncriminal ‘ ‘ misconduct ’ ’ of the publicly employed college teachers who are the petitioners herein.

It is difficult to imagine —• and the District Attorney does not suggest — the sort of wowcriminal conduct of a teacher which might be deemed to be “ mis conduct,” unless it be a kind of teaching or writing that a Grand Jury might regard either as “ wrong ” or insufficient or ineffective. Thus, we deal here with sensitive problems of free expression — accentuated because they arise in an academic setting — and it is, therefore, appropriate to speak to the issue at this stage of the case, as the court itself does, and not to wait until, by an improperly extended inquiry, the damage to protected freedoms is already done. (See, infra, pp. 145-146.)

Whether the Grand Jury, in its search for nóncriminal ‘ ‘ misconduct ’ ’ on the part of university teachers and administrators, were to look toward 'the content or the quality of what was said upon the campus —• or even toward what may have been left unsaid —■ it would, in my opinion, exceed its lawful powers. The Legislature may not be thought to have intended, by section 253-a of the code, to have entrusted questions of this sort to local Grand Juries and District Attorneys. Such a construction of section 253-a would vastly distort and encroach upon the carefully designed scheme for the administration of public colleges and universities provided by the Education Law—manifestly, a more likely place in which to find the legislative purposes on these subjects than the Code of Criminal Procedure.

The framework of the Education’Law reflects the Legislature’s long-standing awareness of the unique character and importance of education and of the need for adapting the governance of State colleges and universities to their special function of encouraging scholarship and the free interchange of ideas. Supervisory authority is thus vested in the Regents (§ 207) and in the State University Trustees (§§ 350-355-a). In addition, and subject to these higher authorities, each state-operated institution of the State University is “ supervised locally ” by a council of nine members appointed by the Governor (§ 356). And each institution, of course, has its own full-time administrative officers. We may not assume that the Legislature meant this well-conceived administrative plan to be subject to the occasional and haphazard intrusion of Grand Juries (insofar as noncriminal behavior is concerned) in whatever locality the institution happened to be placed. The methods and legal weapons of Grand Juries, designed for the enforcement of the criminal law, are totally unsuited for and out of place in the direction of colleges and universities, whether they be public or private.

Moreover, and this is of high importance, we run into a serious constitutional question if we read section 253-a as authorizing Grand Jury interrogation of teachers in order to enable that body to report on whether their noncriminal speech or behavior may be branded as misconduct.

Speech may, of course, be effectively stifled by measures which fall far short of indictment and conviction for crime, and, when such measures are resorted to by the State, they violate the guarantees of the First and Fourteenth Amendments. (See Freedman v. Maryland, 380 U. S. 51, 60; Dombrowski v. Pfister, 380 U. S. 479, 487.) Thus, in the Dombrowski case, the Supreme Court (per BRENNAN, J.) noted (380 U. S., at p. 487) that it has avoided making vindication of freedom of expression await the outcome of protracted litigation ” (386 U. S., at p. 487). And, the court added, “ the improbability of successful prosecution [does not make] the case different. The chilling effect upon the exercise of First Amendment rights may derive from the fact of prosecution, unaffected by the prospects of its success or failure.” (Emphasis supplied.) Moreover, in Freedman (380 U. S. 51, supra), the court held that a too cumbersome and time-consuming procedure for judicial review, in motion picture censorship cases, was enough to produce an unconstitutionally ‘1 chilling effect ’ ’ on free expression.

We would have to be blind to reality not to recognize that a subpoena commanding a teacher to appear before the Grand Jury—a body not given, ordinarily, to academic discussion — to testify, against his will, concerning his talks with students or his lectures in class is suppressive and intimidating in effect, even though the questions may not be designed to expose him as a criminal but merely as the holder of unpopular views. How better to inhibit open discussion, the vital quickening current of education itself, than by such means? A Grand Jury subpoena carries with it, and particularly in contexts such as the present one, the implication of danger and the unmistakable suggestion of disapproval by agencies charged with enforcing the criminal law. Scholarship cannot flourish in an atmosphere of suspicion and distrust.” (Sweezy v. New Hampshire, 354 U. S. 234, 250.) Were District Attorneys to take encouragement, from the court’s opinion, to summon before Grand Juries teachers whose utterances were unorthodox, though not criminal, we might well have a shadow cast over our classrooms and universities of the very kind the First Amendment was designed to avert, the shadow of the censor, the policeman and the inquisitor. Our Nation ”, the Supreme Court declared in Keyishian v. Board of Regents (385 U. S. 589, 603, supra), “ is deeply committed to safeguarding academic freedom, which is of transcendent value to all of us and not merely to the teachers concerned. That freedom is therefore a special concern of the First Amendment, which does not tolerate laws that cast a pall of orthodoxy over the classroom.”

It serves no proper purpose of District Attorney or Grand Jury — insofar as .they are not investigating criminal conduct —■ to ask a teacher what he is teaching. Considering the scope of our constitutional guarantees, I can think of few instances, indeed, in which a teacher’s statements to his class might he relevant to the commission of a crime. Only in such cases should a teacher be compelled to submit to questioning before a Grand Jury on what has passed between himself and his students.

In holding that the subpoena may not be quashed, we should not, therefore, appear to sanction an investigation into the wow-criminal speech and conduct of the petitioners before us. We should make clear, as I have sought to do, the limits placed, by both Constitution and statute, upon the Grand Jury’s power to pursue such inquiries.

Judges Bergan, Keating and Breitel concur with Judge Burke; Chief Judge Fuld concurs in a separate opinion; Judges Scileppi and Jasen concur in result only.

Order affirmed. 
      
      . We need only note here that mere discussion or advocacy (in the abstract) of conduct which might itself be criminal, as distinguished from the .actual solicitation of crime with the specific intent of having it committed (Penal Law, § 100.00-§ 100.10), may not constitutionally be prohibited. (See Keyishian v. Board of Regents, 385 U. S. 589, 599-601; Yates V. United States, 354 U. S. 298, 318-327; People v. Epton, 19 N Y 2d 496, 506.)
     