Petition for Writ of Certiorari — Silber v. United States

Offica-Suy eme Court, U.S, |

Ss We og ©

SEP 27 1961

TRUES rt BROWNING, Clerk

-~_

IN THE

Supreme Court of the United States

October Term, 1961

No. 454 j

BERNARD SILBER, :

; Petitioner,

v.

UNITED STATES OF AMERICA.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA

me ae enn

a enn tment

Victor RaBinowl!Tz,

Lzonarp B. Bovnpiy,

Attorneys for Petitioner,

25 Broad Street,

New York, N. Y.

PAGE

Opinions Below ......... PereiTe (ovina sees 1

PE prank nin keh eaeke Vics bake askas oo 1

I Sa esa Wencex neccseaukanat 2

Constitutional Provisions and Statutes Involved ... 3

IR 4 sid ieee ndh ed ce siaees Ne ep ee ma meee 3

Reasons for Granting the Writ ................... 7

SPE Cc, Aad neha tie Keke ciceeesamenes 16

Opinion of Court of Appeals (Kx. A) ............. 17

Judgment of Court Below (Ex. B) ............... 23

Cases Cited

Barenblatt v. United States, 360 U. S. 109 ....7,9, 11, 12,

13, 14, 16

Bates v. Little Rock, 361 U.S. 516 ................ 12, 14

Braden v. United States, 365 U. S. 481 ............ 16

In re Bowling Green Milling Co., 132 F. 2d 279 .... 14

Cammer v. United States, 350 U. S. 399 ........... 15

Cervantes v. United States, 263 F. 2d 800 ......... 10

Contee v. United States, 215 F. 2d 324 ............. 10

Dennis v. United States 339 U. S. 162 ............. 15

Deutch v. United States, 367 U. S. 456 ............ 8

Frazier v. United States, 335 U. S.-497 ............ 15

Gold v. United States, 352 U. S. 985 .............. 16

Gojack v. United States, Oct. 1961 Term, No. 128 .. 16

Grand Opera Co. v. Twentieth Century Fox Film

CSRs ee EE haa ba cnciwds ya dsavventtes 14

Liveright v. United States, Oct. 1961 Term, No. 11 16

Louisiana v. NAACP, 366 U. S. 293 .............. 12

ii

PAGE

Muller v. Oregon, 206 U. 8. 412 ................6.. 12

NAACP v, Alabama, 357 U.S. 449 ................ 12, 14

Nebbia v. New York, 291 U.S. 502 ................ 12

Ohio Bell Telephone (Co. v. The Public Utilities Com-

mission of Ohio, 301 U. S. 292 ................ 13

Price v. United States, Oct. 1961 Term, No. 12 ..... 16

Quinn v. United States, 349 U.S. 155 ...00000000., 15

Shelton v Tucker, 364 U.S. 479 .................. 12, 14

Shelton v. United States, Oct. 1961 Term, No. 9°... 16

United States v. Aluminum Co. of America, 148 F.

on , BOE RE I nan a ee 14

United States v. Castle, 138 F. Supp. 436 .4........ 10

Watkins v. United States, 354 U.S. 178 ......3, 4,812, 15

Wilkinson v. United States, 365 U.S. 399 .......... 9, 16

Wrightson v. United States, 222 F. 2d 556 ........ 10

Constitutions and Statutes Cited

United States Constitution, First Amendment ..... 3

~United States Constitution, Fifth Amendment ..... 3

United States Constitution, Sixth Amendment ..... 3

ee ye dh a hs ak kk co ans 3

OPT SO ee 1

Other Authorities Cited

Hearings before the Subcommittee to Investigate

the Administration of the Internal Security Act

of the Senate Committee on the Judiciary, 82nd

Congress, Ist Session, May 14-June 14, 1951,

“Subversive Infiltration in the Telegraph In-

WN aver er Petes sees dk cus dense ceuset 2, 6

iii

Supplemental Hearings before the Subeommittee to

Investigate the Administration of the Internal

Security Act of the Senate Committee on the

Judiciary, 82nd Congress, 2nd Session, January

22, 1952, ‘Subversive Infiltration in the Tele-

Co age ere? eee. ee eee Ce ee

Hearings before the Subcommittee to Investigate

the Administration of the Internal Security Act

of the Senate Committee on the Judiciary, 83rd

_ Congress, 2nd Session, December 1953 and March

1954, ‘‘Subversive Influence in Certain Labor

i. ee eee eT ee Te TEE na uke aes

PAGE

IN THE

Supreme Court of the Huited States

October Term, 1961

No.

ray

Vv

BerNarp SILBER,

Petitioner,

v.

Unrtrep States or AMERICA.

“>.

Ms

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR

THE DISTRICT OF COLUMBIA

Petitioner prays that a Writ of Certiorari issue to

review the judgment of the United States Court of Appeals

for the District of Columbia, entered in the above case on

June 30, 1961.

Opinions Below

The District Court for the District of Columbia rendered

no opinion. The opinion of the Court of Appeals has not

been officially reported, and is annexed hereto as Exhibit A.

The judgment of the Court of Appeals is annexed as

Exhibit B.

Jurisdiction

The judgment of the Court of Appeals was entered on

June 30, 1961. Rehearing was denied on August 1, 1961.

An extension of time to September 30, 1961 for the filing

of this Petition was secured from a Justice of this Court

on August 16, 1961. The jurisdiction of this Court is in-

voked under 28 U. S. C. 1254(1).

Questions Presented

1. Were the questions which petitioner refused to

answer pertinent to the subject under inquiry by the sub-

committee? sate

2. Was there probable cause sufficient to justify the

issuance of a subpoena to the petitioner?

3. .Did the public interest involved in securing answers

to the questions here at issue outweigh petitioner’s interest

in the exercise of his rights under the First Amendment?

4. Did the District Court err in refusing to permit the

introduction of testimony’ relating to the relative weight of

the public and private interests affected by the investiga-

tion of the subcommittee?

5. Should the indictment have been dismissed because

of the presence of government employees on the Grand

Jury?

6. Was the statute under which petitioner was con-

victed unconstitutionally vague?

7. Was the investigation being carried on by the sub-

committee pursuant to a bona fide legislative purpose?

8. Was the investigation carried on by the subcom-

mittee permissible under the First Amendment to the

Constitution?

9. Was the resolution establishing the Committee in-

valid for vagueness?

10. Was the inquiry conducted by the subcommittee

within the scope of the resolution creating the Committee?

Constitutional Provisions and Statutes Involved

The constitutional provisions involved are the First, ©

Fifth and Sixth Amendments to the Constitution.

The statute involved is 2 U. S. C. § 192, which reads as

follows:

‘‘Refusal of witness to testify

‘‘Every person who having been summoned as a

witness by the authority of either House or Congress

to give testimony or to produce papers upon any

matter under inquiry before either House, or any

joint committee established by a joint or concurrent

resolution of the two Houses of Congress, or any com-

mittee of either House of Congress, willfully makes

default, or who having appeared, refuses to answer

any question pertinent to the question under inquiry,

shall be deemed guilty of a misdemeanor, punishable

by a fine of not more than $1,000 nor less than $100

and imprisonment in a common jail for not less than

one month or more than twelve months.’’

Statement

Petitioner was indicted under 2 U. S. C. § 192 for edn-

tempt of Congress on four counts (J.A. 2-4). Count two

was dismissed before trial (J.A. 10). Petitioner waived a

jury and, after trial, was convicted and sentenced to four

months’ imprisonment and a fine of $100 9: .A, 10-11, 97).

Petitioner was summoned to appear before a subcom-

mittee of the House Committee on Un-American Activities

(hereinafter referred to as the ‘‘Committee’’) by subpoena

issued June 21, 1957, five days after the decision of this

Court in Watkins v. United States, 354 U.S. 178 (J.A. 14).

He appeared on August 2, 1957 and testified, under ques-

tioning by Committee counsel, that he was at that time

employed by Western Union Telegraph Company, and that

he had been so employed for 41 years. In the course of his

work he had access to ‘‘Government coded messages,’’ but

he had no way of telling whether or not they were security

4

messages (J.A. 24, 25). He said that he had been a member

of the Communist Party ‘‘for a brief period’’ in about 1948

but was no longer a member (J.A. 26). He drifted away

almost immediately and was never active (J.A. 26). He

attended meetings infrequently (J.A. 33, 34).

He was then asked what group of the Communist Party

he was a member of. He refused to answer on grounds of

lack of jurisdiction of the Committee, his rights under the

First Amendment, the vagueness of the resolution setting

up the Committee and lack of pertinency. He relied heavily

on the decision of the Supreme Court in the Watkins case

(J.A. 26, 67-71).

The following colloquy immediately ensued:

‘*Mr. Scherer: You refused to answer Mr. Arens’

question as to the person who recruited you in the

Communist Party.' You refused to identify that

person.

Now, without identifying him or telling us his

name, is that person still a member of the Com-

munist Party today?

(The witness confers with his counsel.)

Mr. Scherer: As a communications worker?

Mr. Silber: To the best of my knowledge he is

no longer in the industry.

Mr. Scherer: Was he a communications worker?’’

(J.A. 27, 28).

Petitioner’s refusal to answer this last question forms

the basis of Count 1.

Counsel for the Committee then stated that if the person

who enlisted petitioner into the Communist Party was in

the communications field, ‘‘that person undoubtedly would

have some information of use to the Committee.” (J.A. 28).

After further questioning not here at issue, the follow-

ing colloquy took place:

‘Mr. Scherer: What union do you belong to?

1 No such“question had been asked by Mr. Arens.

Mr. Silber: The American Communication As-

Mr. Scherer: Were any of the officers of your

union members of the Communist Party at the time

you were a member of the Communist Party?

Mr. Silber: 1 must decline to answer that, sir.

Mr. Scherer: 1 ask that you direct the witness

to answer the question.

Mr. Doyle: I direct you to answer the question.

Mr. Silber: I must decline on all the grounds

previously stated.

Mr. Scherer: Were any of the present officers

of your union members of the Communist Party at

the time you were in the party?

Mr. Silber: I must decline for the same reasons.

I must decline to answer.

Mr. Scherer: I ask that you direct the witness to

answer the question.

Mr. Doyle: I direct you to answer the question.

Mr. Silber: I must decline to answer.

Mr. Scherer: And those questions were asked

you for the same reasons that Mr. Arens, our counsel,

gave you for asking the other questions. They are

pertinent for the same reasons that he advanced.’’

(J.A. 34)

These two refusals to answer constitute the basis of

Counts 3 and 4/

The witness was not asked any questions concerning his

own activities in the Communist Party.

Petitioner was indicted on or about August 4, 1958. He

moved to dismiss the indictment and for a hearing on the

qualifications of the grand jurors, filing an offer of proof

in conr ection with the latter motion (J.A. 3-9). The mo-

tions were denied, except that Count 2 was dismissed

(J.A. 10).

At the "aL the only witness for the prosecution wax

counsel for the Committee, Mr. Arens. He testified that

the Committee caused a subpoena to be issued to petitioner

because the Committee had information ‘‘that Mr. Silber

had been a member of the Communist Party engaged in

the communications field’’ (J.A. 15).

On cross-examination Mr. Arens testified that he had

previously been special counsel to the Internal Security

Subcommittee of the Senate Committee on the Judiciary

and that in 1951 he had conducted an investigation into

communism in the communications industry, particularly

into the American Communications Association. This was

the union of which petitioner was a member and which was

the subject of Courts 3 and 4 of the indictment. The wit-

ness recalled a ‘‘synopsis of some kind’’ resulting from

that investigation (J.A. 38). He also recollected hearings

in 1954.?

The witness further testified that the information he

received from the Committee files and from.Committee

investigators was sufficient m his mind to justify the issu-

ance of a subpoena to the petitioner. This testimony will

be considered in more detail below.

After the Government rested, an offer of proof was

made by the petitioner in support of his contention that his

individual interest and the public interest in protecting his

rights of free speech and assembly and his right of privacy

overbalanced the public interest in securing answers to the

questions put to him (.J.A. 94-6). The offer was rejected,

and petitioner rested (J.A. 96). The offer of proof ap-

pears ip the record at J.A. 97-118. The court denied a

motion for direction of acquittal and found the petitioner

guilty on all three counts (J.A. 96). He was sentenced to

imprisonment for a term of four months and to pay a fine

of $100. He was continued at large on bail of $1,000.

? In fact, extensive hearings, accompazied by a “Progress Report”

had been issued by the Senate Committee in 1951 and further hear-

ings with a “Supplemental Report” had been issued in 1952 ( Hear-

ings before the Subcommittee to Investigate the Administration of

the Internal Security Act of the Senate Committee on the Judiciary,

82nd Cong., Ist Sess., May 14-June 14, 1951 and Supplemental

Hearings, 82nd Cong., 2nd Sess., January 22, 1952, both entitled

“Subv-rsive Infiltration in the Telegraph Industry”). The 1954

hearings, also conducted by Mr. Arens, are dated December, 1953

and March, 1954, 83rd Cong., 2nd Sess., and are entitled “Subversive

Influence in Certain Labor Organizations”.

Reasons for Granting the Writ

1. This case presents directly for decision the question

which this Court declined to consider in Barenblatt v. United

States, 360 U.S. 109, namely, whether a witness may be held

for contempt for refusal to answer questions relating to the

names of other persons who are associated with him in

political activity under investigation by the Committee.

Count 3 in Barenblatt related to the following question:

‘‘Now you have stated that you knew Francis

Crowley. Did you know Francis Crowley as a mem-

ber of the Communist Party?’’

The Court stated, at page 115:

‘*As we conceive the ultimate issue in this case

to be whether petitioner could properly be convicted

of contempt for refusing to answer questions relat-

ing to his participation in or knowledge of alleged

Communist Party activities at educational institu-

tions in this country, we find it unnecessary to con-

sider the validity of his conviction under the Third

and Fifth counts, the only ones involving questions

which on their face do not directly relate to such

participation and knowledge.’’

The three questions at issue here likewise do not relate

to petitioner’s ‘‘participation in or knowledge of alleged

Communist Party activities’’, but rather to the identity of

other persons in the Party.

It will, we believe, be admitted by the Government that

the three questions involved, although not directly requir-

ing the names of persons who were members of the Com-

munist Party with petitioner, were preliminaries to such

questions. Mr. Arens so stated in arguing the pertinency

of the first question (J.A. 28). Congressman Scherer re-

peated this explanation of pertinency in relation to the

third and fourth questions (J.A. 34), and the Court below

accepted the fact that the questions were designed to get

at the identity of other persons (infra, p. 21).

esx

The witness was, it will be noted, quite willing to answer

all questions concerning his own participation in and

knowledge of the activities of the Communist Party, though

the Committee showed a lack of interest in such activities

and asked no questions concerning them.

In effect, therefore, the questions put to petitioner really

constituted a discovery proceeding. The Committee was

using him, not to get evidence concerning activities of the ©

Communist Party but to get the names of other persons so

that they in turn could be questioned.

We do not understand that the Committee has any such

authority: indeed, the questions here asked were in aid of

the ‘‘exposure’’ purposes of the Committee and not of its

legislative purpose. The Committee had received scores

of names from other witnesses testifying at the same

hearing. (Hearings before the Committee, 85th Cong. Ist

Sess., entitled ‘‘Investigation of Communist Penetration

of Communications Facilities, Part 1’’) to say nothing of

the hundreds of names secured in the 1951, 1952 and 1954

hearings. Few of these persons were in fact called by the

Committee; the fact that their names were made public

was sufficient for Committee purposes.

This Court has recognized that in this area, in which a

close balance exists between the individual and public rights

involved, the issue of pertinency should be scrutinized with

great care. Cf. Watkins v. United States, 354 U. S. 178;

Deutch v. United States, 361 U.S. 456. The questions here

under consideration cannot bear such scrutiny.

Furthermore, it must be noted that petitioner had not

been a member of the Communist Party for about nine

years prior to his testimony. Testimony as remote as any

the petitioner was required to give likewise fails to meet

the test of pertinency.

Finally, a consideration of the testimony relating to

the specific counts on which petitioner was convicted would

9

call for a reversal. The first count involves a question

which was answered sufficiently prior to the refusal to

answer. It will be noted (J.A. 27, 28) that Mr. Scherer

asked, ‘‘Is that person still a member of the Communist

Party today * * * as a communications worker?t’’ The

petitioner answered ‘‘To the best of my knowledge he is no

longer in the industry.’’ He was then asked, ‘‘ Was he a

communications worker?’’ His refusal to answer did not

deprive Congress of information; that information had

been fully supplied by the previous answer.

With respect to Counts 3 and 4 it will be noted that no

explanation of pertinency was made until after the witness

had been directed to answer the questions and he had

refused to do so (J.A. 34). The witness was never given

an opportunity to make answer after pertinency had been

pointed out to him.

2. There was no probable cause to issue a subpoena to

petitioner. This Court in Barendfiitt said, at page 134:

‘‘Nor did petitioner’s appearance as a witness

follow from indiscriminate dragnet procedures, lack-

ing in probable cause for belief that he possessed in-

formation which might be helpful to the Subcom-

mittee.’’

The Court, in a footnote, referred to sworn testi-

mony given before the Committee identifying Barenblatt

as a member of the Communist Party, and to ‘‘evidence’’

in its files to the same effect.

See also Wilkinson v. United States, 365 U. S. 399, at

412, where this Court again refers to sworn direct testimony

as constituting ‘‘ probable cause’’.

Here the only ‘‘probable cause’’ for belief that the

petitioner had information which might be helpful to the

Committee consisted of: (1) a seventeen year old news-

paper report that members of an opposing political faction

10

had called petitioner, and ninety-eight other persons,

‘*reds’’ in the course of a primary fight (J.A. 87); (2) a

hearsay report that unidentified persons had said that. peti-

tioner and his son were members of the Communist Party

(J.A. 89, 90), and (3) an assertion that many years ago

petitioner had signed a Communist Party nominating peti-

tion (J.A. 87).

The term ‘‘probable cause’’ is no stranger to the law,

and its meaning has often been defined. Thus the Court

said in Contee v. United States, 215 F. 2d 324, 327 (C. A.

D. C. 1954):

‘‘An uncorroborated tip of an informer, whose

identity and reliability are both unknown, does not

constitute probable cause to make an arrest.’’

In Cervantes v. United States, 263 F. 2d 800, at 803

(C. A. 9, 1959), the Court noted:

Se

suspicion.”’

probable cause means more than a large

And in United States v. Castle, 138 F. Supp. 436 (D. C.

D. C. 1955), Judge Youngdahl, in ruling evidence inadmis-

sible, said:

‘*An arrest or warrant for an arrest may not be

based upon the suspicion or opinion of some person,

unsupported by personal knowledge of the facts, and

a warrant to search a private home may not rest

upon a mere statement of cuspicion without the dis-

closure of supporting facts and circumstances to

justify the suspicion.”’

It is also clear that the burden of establishing probable

cause is on the Government. Wrightson v. U1ited States,

222 F. 2d 556 (1955); Cervantes v. United Staies, supra.

If, as this Court has held, probable eause-is necessary

for the issuance of a subpoena, it is clear that no probable

11

cause existed here. Unlike the other cases which have

come before this Court we have here no sworn testimony

but only rumors and gossip, originating with persons who,

so far as we know, were no‘ even known to the Committee.

Added to this is the fact that petitioner, along with thou-

sands of others, is alleged to have once signed a Communist

Party nominating petition.*

3. In the Barenblatt case this Court assumed the diffi-

eult burden of balancing ‘‘the competing private and public

interests at stake in the particular circumstances shown.’’

360 U.S. at 126.

So long as the Barenblatt rule remains in effect, a court

trying a case affeeting First Amendment rights must like-

wise balance the competing private and public interests at

stake in the ‘‘particular circumstances’’ of each case. —

Every defendant in a criminal case is entitled to a trial

on the record in his own case and not on the basis of

findings made in some other case.

We do not understand the holding of the Court of

Appeals (infra, p. 21) that the ‘‘balancing’’ is a ‘‘a mat-

ter of law for decision by the ‘‘ourt.’’ Certainly it is facts

which must be balanced; otherwise the balancing doctrine

enunciated by the Court is merely a way of denying con-

stitutional rights whenever Congress feels that national

security is at stake. Some clarification by this Court is

necessary if the lower courts, and counsel trying these

eases, are to apply the balancing doctrine in this and other

eases involving the First Amendment.

It is clear, of course, that this Court does in fact balance

interests separately in each case and that such balance is

3 There is no evidence in the record as to when such petition

wa: signed. The most recent date on which appellant could have

sig vd a nominating petition for Davis was 1946, when Davis ran

for Attorney General of New York State on the Communist Party

ticket. A nominating petition for that office would require 12,000

signatures. Amter had run for governor in 1942 and for member

of the City Council in 1937 and 1939.

12

based on a factual analysis. In NAACP v. Alabama, 357

U. S. 449; Bates v. Little Rock, 361 U. S. 516; Shelton v.

Tucker, 364 U.S. 479 and Louisiana v. NAACP, 366 U. 8.

293, this Court considered the facts'in each case and ufter

balancing them came to the conclusion that the rights of the

individuals involved outweighed the rights of the states in

enforcing legislation which impinged on First and Four-

teenth Amendment rights. This offers no unusual or un-

precedented problems; this Court has long followed a

similar process in considering the constitutionality of legis-

lation which sought to regulate commercial enterprises.

Muller v. Oregon, 208 U. S. 412; Nebbia v. New York, 291

U. §. 502. ,

It is clear that the interest of the Committee in securing

the answers to the question it put to petitioner was minus-

cule in the circumstances presented in this case and can

hardly be said to outweigh the substantial rights of peti-

tioner which were being infringed, to say nothing of the

rights of the public in the free exercise of political freedoms.

As is noted above, this is not the first time there has been a

congressional investigation of the communications industry.

In the 1951, 1952 and 1954 hearings about a hundred alleged

Communists had been named. (See Hearings cited supra,

at p. 6.) Is petitioner to lose his basic rights because he

refused to name two or three more?

Petitioner’s membership in the Party had been remote

in time and casual in substance. There is nothing to sug-

gest that he could have named anyone whose name had

not been submitted to the Committee, or who would come

forward to add anything substantial to the material already

submitted to the Congress on this and other occasions.

Against this we must set the constitutional rights of

petitioner—constitutional rights which the Courts generally

agree are of the utmost importance. See Baresblatt at

page 112 and Watkins at page 197. The issue between the

majority and minority members of the Court in Barenblatt

13

was the circumstances under which those First Amendment

rights could be invaded. We submit that under the cir-

eumstances shown here the invasion is not justified by any

overwhelming or even important public interest which

required the petitioner to surrender those rights in order

to add a couple of names of alleged Communists to the

many names already in the possession of the Committee.

4. The trial court erred in excluding the proffered

testimony of Professor Thomas I. Emerson on the issue of

the competing public and private interests at stake.

In Barenblatt, the Court (at p. 128, et seg.) made certain

‘*findings’’ with respect to the alleged threat of Communism

to the United States. We assume that those findings were

made on the basis of the record in that case, together with

additional facts of which the Court took judicial notice. In

the instant case, there are no facts in the record on the basis

of which any finding could 4e made that Communism con-

stitutes a sufficient threat to the United States to justify

the interference with First Amendment rights which, it

must be generally conceded, existed here. So we must

assume that the District Court took judicial notice of the

facts it was required to find under the Barenbdlatt decision,

namely, that in balancing the competing private and public

interests at take in these circumstances, the public inter-

ests outweighed the private.

The doctrine of judicial notice can never constitutionally

be utilized to bar evidence seeking to contradict ‘‘common

knowledge.’’ Testimony is always admissible on any fac-

tual issue before the Court. As the Supreme Court said in

Ohio Bell Telephone Co. v. The Public Utilities Commission

of Ohio, 301 U. 8. 292, 301:

‘‘Moreover, notice, even when taken, has no other

effect than to relieve one of the parties to a contro-

versy of the burden of resorting to the usual forms

of evidence, Wigmore, Evidence § 2567; 1 Greenleaf,

14

Evidence, 16 Ed., p. 18. ‘It does not mean that the

opponent is prevented from disputing the matter by

evidence if he believes it disputable.’ Ibid.’

To the same effect, see Grand Opera Co. v. Twentieth Cen-

tury Fox Film Corp., 235 F. 2d 303, 307 (C. A. 7, 1956);

In Re Bowling Green Milling Co., 132 F. 2d 279 (C. C. A. 6,

1942) ; United States v. Aluminum Co. of America, 148 F. 2d

416 (C. C. A. 2, 1945).

Petitioner contends that if ‘‘competing private and

public interests at stake’’ in the circumstances here are

balanced, the private interests far outweigh the public.

To establish his contention on that point, Professor Thomas

I. Emerson, Professor Law at Yale University, was offered

as a witness. His testimory was reduced to writing and

was submitted to the Court at the trial for a ruling as to

admissibility. The Court ret:sed to accept the testimony,

but the offer of proof is a part of the record and appears at

J.A. 97-118.

We shall not summarize that testimony here except to

say that after qualifying himself as an expert who has

made an extensive study of the subject (J.A. 100-102),

Professor Emerson came to the conclusion, on the basis

of facts set forth in the record ‘‘that the interests of the

Government in obtaining answers to the questions put to

this defendant as an aid in developing further legislation

to protect internal security are substantially outweighed

by the interests of the individual in freedom of speech or

silence, as he may prefer, and by the interests of the com-

munity in maintaining freedom of political expression and

other conditions essential to maintaining an open society’’

(J.A. 117-118).

We shall not here consider the merits of Professor Em-

erson’s testimony or its weight but only its admissibility.

It seems clear that if the balancing concept established by

the Court in the Barenblatt, NAACP, Bates and Shelton

15

cases, supra, is to be applied in a way that will protect the

constitutional liberties of petitioner and others similarly

situated, testimony on the subject must be admissible.

d. Prior to trial, petitioner moved for an opportunity

for a hearing on the qualification of the Grand Jurors,

pointing out that fifteen members of the Jury that indicted

petitioner were government employees (J.A. 5). The mo-

tion was denied.

In Frazier v. United States, 335 U. S. 497, this Court,

in a five to four decision, held that the mere fact that

members of a Jury were government employees would not

disqualify them, but that they could be challenged for actual

bias. In Dennis v. United States, 339 U.S. 162, this Court

rejected the argument that the loyalty procedures of the

Government in that past few years ipso facto created bias

and fear in the minds of any government employees acting

as a Juryman in a case involving a Communist. The Court

held that actual bias had to be shown and said ‘‘The way

is Open in every case to raise a contention of bias from

the realm of speculation to the realm of fact.’’ (339 U. S.

at 168.) In Cammer v. United States, 350 U. S. 399, when

an attorney sought to investigate actual bias, he was con-

victed of contempt and while the conviction was reversed

in this Court, his experiences hardly offer encouragement

to counsel who would make a direct and private investiga-

tion of factual bias.

The only way which seems to remain to ‘‘raise a con-

tention of bias from the realm of speculation to the realm

of fact’? would seem to be the procedure sought to be fol-

lowed in this case. If the District Court was right in deny-

ing petitioner’s motion, the promise of this Court in Dennis

is an empty one and the fears expressed by the minority

of the Court in the Frazier case will be well justified.

This issue has been implicit in a number of similar

eases heretofore before this Court, but they have not been

reached. Quinn v. United States, 349 U.S. 155; Watkins

elt

16

v. United States, 354 U. S. 178; cf. Gold v. United States,

352 U. S. 985. It is, we believe, raised by the petitioners

in Shelton, Liveright, Price and Gojack, now awaiting

argument in this Court.

6. In the court below petitioner urged that the activ-

ities of the Committee violated his First Amendment rights,

that the resolution creating the Committee was unconsti-

tutionally vague and that the Committee was not engaged

in a bona fide legislative purpose. This Court rejected

those arguments in the Barenblatt, Wilkinson and Braden

cases and they will not be repeated here, since there is

little that we could add to the petitioners’ briefs and the

eloquent dissenting opinichs in those cases. Those con-

tentions, however, are not abandoned and petitioner hopes

that this Court will once again review those issues and

correct what we conceive to be a serious impairment of

the constitutional rights of petitioner and all others in

similar positions.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted,

Victor Rasrxow!rTz,

Lzonarp B. Boupin,

Attorneys for Petitioner,

25 Broad Street,

New York, N. Y.

September 25, 1961. /

17

Appendix A

(Opinion of United States Court of Appeals, for the

District of Columbia Circuit)

UNITED STATES COURT OF APPEALS

For tHe District or CoLtumBia Circuit

—

Ww

No. 15,779

BERNARD SILBER,

Appellant

v.

Unitrep States oF AMERICA,

Appellee

APPEAL FROM THE Unirep States District Court

FOR THE District oF COLUMBIA

Decided June 30, 1961

Mr. Vicror Rasinowrrz, of the bar of the Court of

Appeals of New York, pro hac vice, by special leave of

court, with whom Mr. Davin Rein was on the brief, for

appellant.

Mr. Wuuiam Hitz, Assistant United States Attorney,

with whom Messrs. Otiver Gascu, United States Attorney

at the time of argument, Can. W. Bricuer, Assistant

United States Attorney at the time of argument, and Miss

Doris Spancensure, Assistant United States Attorney,

were on the brief, for appellee.

Before Mr. Justice Reep, retired,* BazeLon and Bas-

TuaN, Circuit Judges.

Me ey by designation pursuant to Sec. 294 (a), Title 28,

U. S. Code

18

Bastian, Circuit Judge: This case is a companion to

Grumman v. United States, No. 15,747, decided today.

Appellant, like Grumman, was called to testify before a

subcommittee of the House Committee on Un-American

Activities during a series of hearings on communist infiltra-

tion into the communications industry.

Appellant was called on August 2, 1957. At the com-

mencement of proceedings on that day, and in the presence

of appellant, the subcommittee chairman, Mr. Clyde Doyle,

made the following statement:

‘‘This morning’s hearings are a continuation of pre-

vious hearings started on July 17, 1957,.this being a

continuation of a ser#es of hearings in the communi-

cations industry in thé United States, namely, the

position and influence held by members of the Com-

munist Party and organization dedicated to the Com-

munist objectives in that field of communications

industry, principally. ° aa

(Mr. Doyle then read into the record the resolution

of the full committee authorizing the hearings cur-

rently in progress. The language of that resolution

is quoted in Grumman.)

e ° °

‘*[In] these hearings, the second of a scries on

this general subject, the committee hopes to obtain

additional information respecting the extent of the

netration and control exercised by members of the

unist Party in the United States over an in-

dnstry which is vital at all times to our defense,

namely, communications.

‘In the event that testimony given oy oom

hearings reflects a situation correctable by legisla-

tion or which may be remedied by legislation, the

committee w'll recommend the appropriate measures

at the proper time.’’ /

In response to questioning by a staff member of the

committee, appellant testified that he had been a member

of the Communist Party some years previously, and that

19

in his work for Western Union Telegraph he handled

Government coded messages. He refused to name the

person who had recruited him into the Party and refused

to state whether he knew any communists presently in

the industry. The exact questions forming the basis of

the indictment are as follows:

Count One: ‘‘Was he [the person who recruited de-

fendant in the Communist signa a com-

munications worker?’’

Count Two: ‘We should like to have you tell u us now

whether or not there are any persons

engaged at Western Union who at any

time have been known by you to be Com-

munists.”’

Count Three: ‘‘Were any of the officers of your union

members of the Communist Party at the

time you were a member of the Commu-

nist Party?’’

Count Four: ‘‘ Were any of the present officers of your

union members of the Communist Party

at the time you were in the Party?’’

When appellant declined to answer these questions,'

referring to the statement of objections filed by Grumman,

the pertinency of the questions was explained to him as

follows:

‘Mr. Arens [Counsel for Committee]: Mr. Chair-

man, I respectfully suggest that I be permitted to

explain to the witness why it is pertinent to thie in-

quiry for us to insist that this witness tell us whether

or not the person who recruited him into the Com-

munist Party was at that time in the communications

field as a communications worker.

‘‘Now, Mr. Witness, this committee is considering

legislation to safeguard this Nation from possible

espionage or sabotage facilities by Communists.

‘‘If the person who enlisted you into the Commu-

aist party was engaged in the communications field,

that person undoubtedly would have some informa-

1Appellant, like Grumman, did not urge the Fifth Amendment.

20

tion which would be of use to this committee in devel-

oping facts respecting Communist penetration of the

communications facilities of this country.

” . *

‘If you do have such information and if we can

get the names of those people and if we can get them

to testify. we will have information which will form

a solid foundation upon which this committee can

recommend legislation to the Congress, to protect the

security of this Nation.’’

The pertinency of the specific questions forming Counts

Three and Four of the indictment was explained to appel-

lant by Mr. Gordon H. Scherer, a committee member, as

follows:

‘*T }hose questions were asked you for the same

reasons that Mr. Arens, our counsel, gave you for

asking the other questions. They are pertinent for

the same reasons that he advanced.”’

At the trial in the District Court, Count Two of the

indictment was dismissed on motion of appellant. He was

convicted on the remaining three counts and was duly

sentenced. This appeal followed.

Richard Arens, the committee counsel, testified at the

tria! that appellant was called to testify before the com-

mittee on the following basis: (1) his name appeared on

a list given the committee by Western Union Telegraph

of its employees who, in their work, had access to Gov-

ernment coded messages; (2) the committee files listed

appellant as a member of the American Co.amunications

Association [as stated in Grumman, testimony before the

committee had identified certain officers of that Associa-

tion as communists]; and (3) a New York Times article

published in 1940 contained an account of union litigation

in which it was alleged that appellant was a ‘‘ Red.”’

W. have already decided, in Grumman, that the sub-

committee’s investigation of the subject was authorized

by Congress; that the subcommittee was pursuing a valid

21

legislative purpose in conducting this investigation; and

that the subcommittee’s interrogation in the course of its

investigation in the communications field did not violate

First Amendment rights of free association aud free speech.

We think the questions asked appellant were clearly

pertinent to the subject matter under investigation. It

is difficult to imagine questions more pertinent to an effort

to discover the identity of persons possessing the very

information the committee sought. We think, too, that

the explanation of pertirency given appellant made that

pertinency clear beyond any doubt. In such circumstances,

appellant’s refusal to answer amounted to a refusal to

identify to the committee persons who might possess up-

to-daie knowledge of the details and extent of communist

conspiracy in the industry under investigation, and a

refusal, in effect, to state even whether or not such a con-

spiracy existed.

Appellant further complains of the exclusion by the

trial court of his proffered expert testimony on the ques-

tion of ‘‘balancing’’ the interest of the Government in

eliciting the testimony sought against the First Amend-

ment rights asserted by the witness. This ‘* balancing”’ is

strictly a matter of law for decision by the court and,

therefore, ‘‘expert’’ testimony is irrelevant.

Appellant seeks to distinguish this case from Wilkinson

v. United States, 365 U. S. 399 (1961), and Braden v.

United States, 365 U. S. 481 (1961), on the ground that

the committee lacked probable cause for calling him inas-

much as he was not identified by prior witnesses as a

communist. Calling him in such circumstances, he con-

tends, amounts to an ‘‘indiscriminate dragnet proce.‘ure.”’

See Barenblatt v. United States, 360 U.S. 109, 134°(1960).

We know of no requirement that a prospective witness

actually be named as a communist by a prior witness before

he may legally be called by a congressional investigating

committee. Certainly the committee had probable cause

to inquire whether appellant was a communist. His affirma-

tive answer to the questioning as to party membership

22

in and of itself was sufficient to induce the committee to

seek from him the information it wanted. This, we think,

is what the Supreme Court meant, in Wilkinson, when it

aid : ‘‘ Indeed, it is difficult to imagine a preliminary ques-

tion more pertinent to the topics under investigation than

whether petitioner was in fact a member of the Communist

Party.’’

In accordance with our action in delaying decision in

Grumman, we delayed decision in this case, which, like

Grumman, is readily distinguishable from Deutch v. United

States, decided June 12, 1961. As in Grumman, the ques-

tions asked of appellant here were clearly pertinent to the

subject under inquiry and ip no way represented an excur-

sion beyond the announced purpose and scope of the com-

mittee’s inquiry.

We have examined the other contentions of appellant

and find no error.

Affirmed

Bazeton, Circuit Judge, concurring in the result: Two

principal grounds of error are raised on this appeal:

(1) that the questions which appellant refused to answer,

relating to the names of other persons associated with

him in political activity, were not pertinent to the con-

gressional inquiry; and (2) that there was no showing of

probable cause sufficient td justify the issuance of a sub-

poena to appellant. I agree that the first contention must

be rejected if we are to consider the question of pertinency

to be resolved without reference to First Amendment

rights. I also agree that the second contention must fail

since we are bound by this court’s decision in Shelton v.

United States, 108 U. S. App. D. C. 153, 280 F. 2d 701 (1960),

cert. granted, 365 U. S. 857 (1961).

Appendix B

(Judgment)

UNITED STATES DISTRICT COURT

For THE District oF CotemMena Cirrevir

September Term, 1960,

Criminal 755-58

4%.

7

No. 15-779

Bernnaky SiLBEK,

Appellant,

v.

Usivrep States oF AMERICA,

Appellee.

APPEAL FROM THE Unitep States Disteict Covert

FOR THE District oF CoLUMBIA

Before:

Mr. Justice Reep, retired, and Bazetoxn and Bastian,

Circuit Judges.

JUDGMENT

This cause came on to be heard on the record on appeal

from the United States District Court for the District of

Columbia, and was argued by counsel.

On consideration whereof It is onpERED axv abscDGED

by this Court that the judgment of the Distriet Gourt

appealed from in this canse be, and it is hereby, affirmed.

Per Crrcvrr Jepce Bastian.

Dated: Jun. 30, 1961.

Separate opinion by Cirevit Jvoce Bazetosx concurring

in the result.