Brief in Opposition — Silber v. United States

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STATEMENT

Cases:

Barenblatt v. United States, 360 U.S. 109_____- 13,

14, 15, 16, 18, 20, 22

Braden v. United States, 365 U.S. 431_.__.__- 13, 20

, Deutch v. United States, 367 U.S. 456____-_--- 17

~ Gruman v. United States, pending on petition

for a writ of certiorari, No. 436, this Term_- 7

Joint Anti-Fascist Refugee Committee v.

McGrath, 341 U.S. 123...._...----------- 17

Jones v. United States, 362 U.S. 257_.._.-_-- 16-17

Oklahoma Press Publishing Co. v. Walling, 327

ee i ee ink cs 20, 21

Pierce v. Society of Sisters, 268 U.S. 510__..-- 17

Shelton v. United States, No. 9, this Term. ---- 19,

20, 24

Tileston v. Ullman, 318 U.S. 44__._-.-.------ 16, 7

Ullmann v. United States, 350 U.S. 422____-- .

Uphaus v. Wyman, 360 U.S. 72......------- 17

Wilkinson v. United States, 365 U.S. 399____- 13, 20

Yellin v. United States, No. 477, this Term,

certiorari granted, Oct. 9, 1961_......--.-- 18

617287—¢1——1 (~

Statute:

2 U.S.C. 192 (R.S. 102, as amended) - - - -

Miscellaneous:

Hearings before the Committee on Un-Ameri-

can Activities of the House of Representa-

tives, 85th Cong., 1st Sess., July 17, 18, 19,

August 2, 9, 1957, entitled Investigation of

Communist Penetration of Communications

Hearings before the Subcommittee to Investi-

gate the Administration of the Internal

Security Act and Other Internal Security

Laws of the Committee on the Judiciary,

United States Senate, 82d Cong., 1st sess.,

on Subversive Infiltration in the Telegraph

Indusiry, May 14, 15, 16, June 5, 6, 12 and

H. Rep. 1241, 85th Cong., ist Sess., p. 16....-

H. Res. 409, 85th Cong., ist Sess... ---.----

Gn the Supreme Court of the Wnited States

OcToBerR TERM, 1961

No. 454

BERNARD SILBER, PETITIONER

v.

UNITED STATES OF AMERICA

ON PETITION FOR A WRIT OF CERTIORARI TO THA UNITED

STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA

CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINION BELOW

The opinion of the court of appeals (Pet App.

17-22) has not yet been reported.

JURISDICTION

The judgment of the court of appeals was entered

on June 30, 1961. A petition for rehearing was

denied on August 1, 1961. On August 16, 1961, Mr.

Justice Black granted an extension of time for the

filing of a petition for certiorari to and including

September 30, 1961, and the petition wag filed on

September 27, 1961. The jurisdiction of this Court is

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

(1)

1. Whether the resolution of Congress authorizing

the House Committee on Un-American Activities is

unconstitutionally vague and whether the investiga-

tion was carried on by the Committee for a valid legis-

lative purpose.

2. Whether the investigation violated petitioner’s

rights under the First Amendment.

3. Whether the trial court erred in excluding expert

testimony on the factors which should be considered

by the court in balancing the public and private in-

terests involved in order to determine petitioner’s

rights under the First Amendment.

4. Whether a Congressional committee may sub-

poena a person to testify if it has reasonable basis

for believing that he possesses information of value to

it and, if so, whether the Committee had such in-

formation as to petitioner.

5. Whether the questions which petitioner was con-

victed for refusing to answer were pertinent to the

subject under inquiry and whether petitioner was

properly apprised of such pertinency.

6. Whether a defendant, who is indicted by a gi and

jucy composed, in part, of federal government em-

ployees, is entitled to a hearing on the basis of

general allegations that such jurors are biased and

intimidated as a result of the government security

program.

STATUTE INVOLVED

Section 192 of chapter 2 of the United States Code

(R.S. 102, as amended) is set forth in the petition at

page 3.

STATEMENT

Petitioner was charged in a four-count indictment

(J.A. 2-3)' in the District Court for the District of

Columbia with having unlawfully refused, in viola-

tion of 2 U.S.C. 192, to answer four questions perti-

nent to the matter under inquiry, asked him by a

subcommittee of the House Committee on Un-Ameri-

ean Activities. Count 2 was dismissed on motion of

petitioner (J.A. 10). Having waived trial by jury,

petitioner was found guilty on Counts one, three,

and four, and was sentenced to four months’ im-

prisonment and to pay a fine of $100 (J.A. 10-11).

The pertinent facts may be summarized as follows:

In the summer of 1956, the Committee began an

investigation of Communist penetration of communi-

cations facilities (J.A. 12-13). During its investiga-

tion the Committee received information that peti-

tioner was employed in the communications industry

as an employee of Western Union Telegraph Com-

pany, that he handled government coded messages, that

he was a member of the American Communications

Association, a Communist controlled union, and that

he was a member of the Communist party (J.A. 81-

82, 87, 89-90). On the basis of that information, the

Committee believed that petitioner had information

which would be useful to it in its investigation (J.A.

14-15; Gov. Ex. 4, pp. 1-2).

1“J.A.” refers to the Joint Appendix in the court of appeals.

4

On July 10, 1957, the Committee adopted a resolu-

tion authorizing (J.A. 20-21) :

the holding of hearings in Washington, be-

ginning July 17, 1957, * * * for the purpose of

considering whether or not members of the

Communist Party, or persons subject to its dis-

ciplhue are employed in various media of com-

munications used in the transmission of vital

communications, and the advisability, in the na-

tional defense and for internal security, of the

adoption of renfedial legislation authorizing

the Defense Department and other Govern-

ment agencies to adopt and enforce appropriate

regulations designed to protect and preserve

inviolate secret and classified Government in-

formation and investing in appropriate Gov-

ernment agencies, power to preclude access to

vital communication facilities in time of war

or other national emergency, persons who prob-

ably will engage in, or probably will conspire

with others to engage in, acts of espionage or

sabotage.

On July 12, 1957, the Chairman of the Committee

appointed a subcommittee of three to conduct the

hearings (J.A. 21).

The subcommittee met on July 17, 1957. In his

opening statement the chairman of the subcommittee

tread the Committee’s resolution of July 10, 1957, and

went on to say (Gov. Ex. 8,’ p. 1378):

*Government Exhibit 8 is Part I of the Hearings before the

Committee on Un-American Activities of the House of Repre-

sentatives, 85th Cong., 1st Sess., July 17, 18, 19, August 2, 9,

1957, entitle! Investigation of Communist Penetration of Com- .

munications Facilities.

5

In these hearings beginning now, the first of

a series of this general subject, the committee

hopes to ascertain the extent of the penetration

and control exercised by members of the Com-

munist Party over an industry which is vital

to our defense; namely, communications. In

the event that testimony given during these

hearings reflects a situation correctable by leg-

islation, the committee will recommend the ap-

propriate measures at the proper time. It is

the purpose of the subcommittee in the conduct

of these hearings, to discharge the duties placed

upon us by the Congress by calling witnesses

who, we have reason to believe, possess informa-

tion which will be of value to us and to the Con-

gress in the consideration of such legislation.

Witnesses heard on July 17 testified to the vulner-

ability of the communications system to sabotage and

of the efforts of the Communist Party to infiltrate

that industry. The first witness was the president of

_ American Cable and Radio Corporation, Admiral

Ellery W. Stone. Admiral Stone testified that that

corporation was engaged in international communica-

tions by wire and radio, that it also operated a shore-

to-ship system, and that its services were used by

private companies engaged in defense work and by

agencies of the United States Government including

the State Department and the Armed Forces (Gov.

Ex. 8, pp. 1379-1380). He also testified that em-

ployees have access to confidential and coded messages,

disclosure of which would be dangerous to national

security, that a subversiely inclined employee could

deliver copies of such messages to outsiders and com-

mit acts of sabotage to delicate and complex equip-

ment, and that employment on international commu-

nications facilities would give employees the means of

sending information to the enemy (td. at p. 1381).

Admiral Stone testified that one of the three prin-

cipal labor organizations in the communications in-

dustry was the American Communications Associa-

tion, and that that union had been expelled from the

C.L.0. in 1950 because it was dominated by the Com-

munist Party and because the union’s policies and

activities from 1939 “resulted in subservience to the

interests of the Comfnunist Party, and through that

party to the Soviet Union” (Gov. Ex. 8, pp. 1381-

1383). He testified that, in 1951 and 1952, witnesses

before a Senate subcommittee had identified some

of the principal officers of the union as Communists

and that those persons were still (in 1957) officers

of the union (id. at pp. 1386-1387). Nevertheless, he

said, the union was still certified by the National

Labor Relations Board as a bargaining agency for

communications workers, and he submitted recom-

mendations for amendments to Section 9(h) of the

Taft-Hartley Act to prevent Communist-dominated

unions from being certified (id. at pp. 1392-1396).

J. L. Wileox and Clarence Willis of the Western

Union Telegraph Company also testified that the

American Communications Association was operating

in the field of international communications, that cer-

tain ofticers of the Association had been identified as

members or one-time members of the Communist

Party, and that there was a substantial possibility of

sabotage by employees who had an inclination to com-

mit such gets (Gov. Ex. 8, pp. 1400-1410).

7

Another witness before the subcommittee on July

17 was Michael Mignon, a union representative for

the Communications Workers of Americ, A.F.L.—

C.1.0. (Gov. Ex. 8, p. 1410). He had been a vice

president of the Association in 1938 (ibid.). Mignon

testified that he had been a member of the Communist

Party from 1936 to probably late 1940, at the same

time that he was active in union affairs in the Asso-

ciation, and that he participated in closed Communist

cell meetings in which union policy was secretly deter-

mined and adopted without the knowledge of the

membership in general (id. at pp. 1411-1412). He

stated that “the importance of obtaining control of

the communications industry in times of stress or

in revolutionary times was a primary factor, and

therefore the efforts of the Communist Party in sub-

sidizing the union and offering whatever assistance

they could in building the union in the com~aunica-

tions industry was primarily the main objective”

(id. at p. 1411). He said that, even if the Party

was unable to gain control of the union, it would

still be in a position to sabotage (id. at p. 1420).

After hearing testimony on July 18 and 19, the

subcommittee continued the hearings over to August

2, 1957. In an opening statement on that day, which

was heard by petitioner (J.A. 29), the chairman

announced (J.A. 20):

This morning’s hearings are a continuation of

previous hearings started on July 17, 1957, this

*One of the witnesses who appeared on July 18 was Frank

Grumman, who, like petitioner, refused to answer numerous

questions and was convicted of contempt. See Grumman v.

United States, pending on petition for a writ of certiorari, No.

436, this Term.

617287412

;

%.

+

being a continuation of a series of hearings

in the communications industry in the United

States, namely, the position and influence held

by members of the Communist Party and or-

ganizations dedicated to the Communist objec-

tive in that field of communications industry,

principally.

The chairman then set forth the Congressional resolu-

tion authorizing the Committee and the Committee’s

own resolution of July 10, 1957 (see supra, p. 4), au-

thorizing the hearings (J.A. 20-22). He continued

(J.A. 22-23) : .

In these hearings * * * the committee hopes

to obtain additional information respecting the

extent of the penetration and coutrol exercised

by members of the Communist Party in the

United States over an industry which is vital at

all times to our defense, namely, communica-

tions.

In the event the testimony given during these

hearings reflects a situation correctable by leg-

islation or which ‘may be remedied by leg-

islation, the committee will recommend the

appropriate measures at the proper time.

It is the purpose of the subcommittee in the

conduct of these hearings to discharge the du-

ties placed upon us by the Congress by calling

witnesses who, we have reason to believe, pos-

sess information which will be of value to us

and to tke Congress in the consideration of

such legislation.

Petitioner, who was the third witness on that day,

testified that he had been a service writer for Western

Union Telegraph for forty-one years and that he had

access to government coded messages (J.A. 24-25).

He testified that he was not at that time (1957) a

member of the Communist Party, but that he had been

a member of the Pa.ty in 1948 (J.A. 26). When he

was asked who enlisted him into the Party, petitioner

refused to answer “on the grounds set forth in the

decision of the Supreme Court in the Watkins and

Sweezy cases, and the statement filed with the com-

mittee by Mr. Grumman on July 18, including (1) the

lack of jurisdiction of the committee; (2) my rights

under the first amendment; (3) the vagueness of the

resolution setting up this committee; and (4) the lag

of pertinency of this committee” (J.A. 26).*

Petitioner was then asked the question which

formed the basis of Count one of the indictment, #.¢.,

whether the person who recruited him into the Party

was a communications worker (J.A. 27-28). Upon

his refusal to answer for the reasons previously given,

the staff director of the Committee said (J.A. 28):

Mr. Chairman, I respectfully suggest that I

be permitted to explain to the witness why it is

pertinent to this inquiry for us to insist that

this witness tell us whether or not the person

who recruited him into the Communist Party

was at that time in the communications field

as a communications worker.

* The petition states that no question was asked by Mr. Arens

as to who enlisted petitioner into the Communist Party (Pet.

4, note 1). That is an error, apparently resulting from the fact

that in the Joint Appendix, p. 26, two lines of the interroga-

tion were inadvertently omitted. The two lines read:

“It had no real name, no designation for it of any kind [in

answer to the question what cell or group of the Party he be-

longed to].

“Mr. Arens. Who enlisted you in the Communist Party?”

Petitioner’s statement of objections followed (J.A. 26; Gov.

Ex. 8, pp. 1497-1498).

10

Now, Mr. Witness, this committee is consid-

ering legislation to safeguard this Nation from

possible espionage or sabotage facilities by

Communists.

ee If the person who enlisted you into the Com-

—_—aas engaged in the communica-

tions fie person undoubtedly would have

some information which would be of use to this

committee in developing facts respecting Com-

munist penetration of the communications fa-

cilities of this country.

Therefore, I respectfully suggest now, Mr.

Chairman, that this witness be ordered and di-

rected to tell the committee whether or not the

person who recruited him into the Communist

Party was, to his knowledge, engaged in the

communications industry.

When directed by the chairman to answer, peti-

tioner persisted in his refusal to answer “on the rea-

sons stated previously * * * [i]neluding the matter

of versonal conscience which prevents me from doing

things that I am not sure of, and also on the grounds

that I don’t see what this question has to do with the

question propaganda which this committee is con-

cerned with”’ (J.A. 30).

The staff director then stated to petitioner (J.A.

30-31) :

On the basis of extensive staff investigation

it is the judgment of the staff that there is now

in the establishment in which you are engaged

at least one cell of the Communist Party

operating.

We should like to have you tell us now

whether or not there are any persons engaged

at Western Union who at any time have been

known by you to be Communists.

ll

After petitioner declined to answer ‘on the grounds

stated,’ the staff director further advised him (J.A.

31):

I say to you that the pertinency of that ques-

tion is this: 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 ‘in-

formation which will form a solid foundation

upon which this committee can recommend leg-

islation to the Congress, to protect the security

of this Nation.

The chairman directed petitioner to answer the

question, stating that **[¢]Jounsel now for the second

time has explained the pertinency of the other ques-

tion, and that the same explanation plus this explana-

tion as to pertinency applies’? (J.A. 31). Petitioner

still refused to answer, and his refusal constituted the

basis for Count two of the indictment.

Petitioner denied that he was relying on the self-

incrimination clause of the Fifth Amendment (J.A.

33). After answering questions about his withdrawal

from the Partv, he was asked to what union he be-

longed (J.A. 33-34). He replied, ‘‘the American

Communications Association’’ (J.A. 34). He was

then asked and refused to answer the questions on

which Counts three and four were based—namely,

‘‘were any of the officers of your union members of

the Communist Party at the time you were a member

of the Communist Party,” and ‘‘were any of the pres-

ent officers of your union members of the Communist

Party at the time you were in the party” (J.A. 34).

Petitioner was advised that ‘‘the questions were asked

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

12

gave you for asking the other questions” and that

the questions ‘‘are pertinent for the same reasons that

he [Mr. Arens] advanced”’ (J.A. 34).

The subcommittee reported the fact of petitioner’s

contumacy to the full Committee which in turn made

its report to the House of Representatives (Gov. Ex.

4; H. Rep. 1241, 85th Cong., Ist Sess., p. 16). The

House directed that the report be certified by the

Speaker to the United States Attorney for prosecu-

tion (Gov. Ex. 5; H. Res. 409, 85th Cong., Ist Sess.),

and the certification was made as directed (Gov.

Ex. 6). ‘

ARGUMENT

Petitioner was convicted for refusing to answer

three questions asked him by a Congressional com-

mittee concerning the Communist Party—whether

the person who recruited him into the Party was a

communications worker (Count one), whether any of

the officers of his union were members of the Com-

munist Party at the time he was a member of the

Communist Party (Count three), and whether

any present officers of the American Communi-

cations Association were Party members when he

was in the Party (Count four). While all

three related to the activities of other persons, none

asked for the disclosure of the names of Party mem-

bers. Admittedly, if petitioner had answered these

questions, the subcommittee would have likely asked

further questiéns concerning the names. Neverthe-

less, it is clear that answers to each of these ques-

tions, and particularly the question involved in Count

four, would in themselves probably provide informa-

tion of considerable value to the Committee. And

13

we emphasize that since petitioner was given a gen-

eral sentence and fine on all three counts which was

less than the maximum authorized by 2 U.S.C. 192

under any one count, the judgment below must be

affirmed if any one of the counts is upheld. £.g.,

Barenblatt v. United States, 360 U.S. 109, 115.

1. Petitioner claims (Pet. 16) that the hearing at

which he appeared had no valid legislative purpose

and that the resolution creating the Committee was

unconstitutionally vague. But as petitioner himself

admits, these issues are controlled by the decisions

of the Court in Barenblatt, Wilkinson v. United

States, 365 U.S. 399, and Braden v. United States,

365 U.S. 431.

2. Petitioner’s basic contentions concerning the

First Amendment, as he himself seems to admit (Pet.

16), have been answered by the Barenblatt, Wil/:in-

son, and Braden cases, which establish that the First

Amendment does not prohibit Congress from a

gating Communist activities. There are, however,

three First Amendment issues which might be said to

be based on the particular circumstances of this case.

a. Petitioner argues (Pet. 11-13) that Barenblatt

v. United States, supra, 360 U.S. at 126, requires

that “[w]hen First Amendment rights are asserted

to bar governmental interrogation resolution of the

issue always involves a balancing by the courts of

the competing private and public interests at stake in

the particular circumstances shown”’ and that here the

balance must be struck in favor of the individual

interests. We submit, on the contrary, that the pub-

lic interest in this case outweighs the individual in-

14

terests involved even more clearly than in the Baren-

blatt, Wilkinson, and Braden cases.

In those cases the House Committee on Un-Ameri-

ean Activities was investigating the Party’s organiza-

tion and Communist activity in education, in propa-

ganda, and in the South. Important as such investi-

gations were, we submit that the investigation in this

case was of considerably greater importance to the

national security. For, as the hearings before the

Committee showed (see supra, pp. 5-7), the Com-

mittee had considerable information that the Com-

munist Party has had freat success in infiltrating the

communications industry, to the extent that it even

controlled an important union in that imdustry.

Moreover, the Committee heard testimony that Com-

munists were in a position to intercept secret govern-

ment messages and to engage in sabotage.

The Court in Barenblatt mentioned three particu-

lar considerations in weighing the private and public

interests (360 U.S. at 134). First, the Court found

that ‘‘[t]here is no indication in this record that the

Subcommittee was attempting to pillory witnesses”

(tbid.). Similarly, there is no such indication in this

record. The subcommittee allowed the petitioner to

state his objections fully, and then made a consider-

able effort to persuade petitioner to testify (see

supra, pp. 9-11).

Second, the:Court found in Barenblatt that the wit-

ness did not appear as a result of “indiscriminate

dragnet procedures, lacking in probable cause for be-

lief that he possessed information which might be

helpful to the Subcommittee” (360 U.S. at 134).

4

15

Here, the Committee had information, and subse-

quently petitioner admitted, that he had been a Party

member, that he was a member of the American Com-

munications Association (which, according to con-

siderable information possessed by the Committee,

was controlled by Communists), that he worked in the

communications industry for forty-one years, and

that he had access to government coded messages.

Clearly, it was reasonable for the Committee to ques-

tion petitioner as part of the investigation of Com-

munist activities in the communications industry.

And, third, the Court in Barenblatt said that “the

relevancy of the questions * * * is not open to doubt’’

(360 U.S. at 134). As we will show (pp. 21-23), the

same is equally true in this case; the pertinency of

the questions to the subject under inquiry was clear

and was explained to petitioner at the hearing.

Petitioner claims (Pet. 12), however, that the Con-

gress (through the Senate Internal Security Sub-

committee) had previously conducted investigations of

Communist activity in the communications industry

in 1951, 1952, and 1954, and that there was nothing

to suggest that petitioner had any information of use

to the House Committee. Since the Senate Committee

had found considerable Communist activity in the

communications industry endangering national secu-

rity,’ the House Committee clearly had a great interest

in bringing this information up to date in 1957. More-

‘See e.g., Hearings before the Subcommittee to Investigate

the Administration of the Internal Security Act and Other

Internal Security Laws of the Committee on the Judiciary,

United States Senate, 82d Cong., 1st Sess., on Subversive In-

filtration in the Telegraph Industry, May 14, 15, 16, June 5,

6, 12, and 14, 1951.

16

over, while petitioner testified that he had joined the

Party in 1948 and yemained a member only in a

casual way for “a few years’’ after 1948 (J.A. 26),

the Committee could reasonably believe that he had

information of value to its investigation. If peti-

tioner had answered the questions involved in this

proceeding, the Committee would have probably

learned of other Party members in the communica-

tions industry. If these people were still Party mem-

bers, this would further add to the Committee’s

knowledge of present Party infiltration of the com-

munications industry. Even if they were no longer

members, they could be asked to testify concerning

Party methods and operations, as well as about other

persons in the communications industry whom they

knew to be Party members.

b. It makes no difference that/the questions as to

which petitioner was convicted relate to other persons.

First, the questions petitioner ‘refused to answer did

not interfere with his own First Amendment rights

of speech and association since any interference with

those rights had already occurred when he admitted

his own Communist Party membership. Moreover,

petitioner claimed only his own First Amendment

rights before the subcommittee and not those of other

persons (J.A. 26). And it is well established by

decisions of this Court that a witness before a Con-

gressional committee can raise at his trial for con-

tempt only those dpjections he stated to the committee

at the time he refused to answer its questions. £.g.,

Ullmanav. United States, 350 U.S. 422, 439, note 15

(a claim under the First Amendment) ; Barenblatt v.

17

United States, supra, 360 U.S. at 123-124 (a claim

that a committee failed to apprise the witness of tle

pertinency of the questions),

Second, it is also well established that a person can-

not claim the constitutional rights of other persons.

E.g., Tileston vy. Ullman, 318 U.S. 44, 46; Jones v.

United States, 362 U.S. 257, 260-267. The only

exception is when a litigant can properly be said to

represent the persons whose constitutional rights were

allegedly violated, and, in addition, the litigant him-

self was seriously injurea. We submit that the ques-

tions as.to other persons did not seriously injure

petitioner. Moreover, petitioner did not have the

close relationship necessary to claim that he repre-

sented other present or past members of the Com-

munist Party. He of course was not an organization

to which the third persons belonged (ef. Pierce v.

Society of Sisters, 268 U.S. 510; Joint Anti-Faseist

Refugee Committee v. McGrath, 341 U.S. 123); nor

was he apparently an officer—or at the present time

even a member—of the Party.’ Petitioner’s only

connection with the unnamed third persons is at most

one of friendship and association in the recent past.

See the government’s brief in Deutch v. United

States, No. 233, Oct. Term 1960, pp. 29-35.

Third, on the merits, a Congressional committee has

at least as much reason to question a witness concern-

ing other persons as about himself. As we have indi-

cated above (p. 16), information about other per-

*Cf. Uphaus v. Wyman, 360 U.S. 72, 77-78, where the Court

refused to decide whether the director of a summer camp

could assert the constitutional rights of his guests.

——

18

sons has at least two purposes: (1) to show the

number and position of Party members in order to

ascertain the extent of and danger from Party activ-

ity; and (2) to discover other witnesses who can pro-

vide information concerning Party activities. And

the interference he of speech and associa-

tion is, at most, the as the interference resulting

from questions as witness’ own Communist

activities. Thus, just as in Barenblatt, supra, 360

U.S. at 134, “the balance between the individual and

the governmental interests here at stake must be

struck in favor of the latt»r, and * * * therefore the

provisions of the First Amendment have not been

offended.”

c. Petitioner claims (Pet. 13-15) that the trial court

erred in refusing to consider the proffered testimony

of Professor Emerson (J.A. 97-118) in weighing the

private and public interests involved in order to

determine petitioner’s First Amendment rights. The

proffer of evidence was identical to that in Yellin v.

United States, No. 477, this Term, certiorari granted,

October 9, 1961 (J.A. 95). Except for preliminary

questions designed to show his qualifications as an

expert, the sole questions asked Professor Emerson,

a Professor of Law at Yale, were: “Have you an

opinion as to the various factual vonsiderations which

have to be taken into account in balancing the com-

peting public and private interests at stake in the

circumstances here presented?” and “Professor Emer-

sou, in your opinion, in view of the facts that you

have stated, in whose favor should the balance be

struck between the various interests here at stake?’’

(J.A. 102, 117). These questions clearly sought con-

7

19

clusions concerning a question of law. Professor

Emerson’s answers were concerned in large part with

what Jegal factors the courts should consider, and what

weight should be given to each of these factors, not

with evidence relating to factors which the court

might consider.

Professor Emerson’s statements, coming at the

close of petitioner’s case, read like the closing argu-

ment of able counsel summarizing his client’s legal

position under the First Amendment. While sich a

statement could be properly presented by the peti-

tioner’s counsel as legal argument, either orally or

in a brief, the trial court correctly held that it was

not evidence.

3. Petitioner, relying heavily on cases involving

arrests under the Fourth Amendment, contends ( Pet.

9-11) that the Committee did not have probable cause

to subpoena him. We submit that this claim is without

merit.

a. As we will show in our brief in Shelton v. United

States, No. 9, this Term, the issue whether a Con-

gressional committee has probable cause to subpoena

a witness must be raised when the witness appears

before the committee. Here, petitioner read a state-

ment which was prepared with the aid of counsel

(J.A. 26-27) giving four grounds for his refusal but

which clearly did not even suggest that he was rely-

ing on the Fourth Amendment or, even more gen-

erally, on any lack of probable cause. Thus, peti-

tioner cannot raise his contention as to probable

cause, at least insofar as it rests on the Fourth

Amendment.

b. In any event, as we will show in our brief

in Shelton v. United States, supra, the Fourth

Amendment does not apply to subpoenas to testify

as contrasted to subpoenas duces tecum. We further

show that, even if it does apply, this Court has held

in Oklahoma Press Publishing Co. v. Walling, 327

U.S. 186, that its restrictions om inistrative sub-

poenas (with regard to ms pom are

not nearly so strict as with regard to arrests and

searches and seizures. The only requirements are

that “the investigation is authorized by Congress, is

for a purpose Congress can order, and the documents

sought are relevant to the inquiry”’ (id. at 209).

If the Fourth Amendment applies at all, we submit

that this standard is applicable to subpoenas to testify

as well as subpoenas duces tecum, and to Congres-

sional committees as well as executive agencies.

Even if the Fourth Amendment does not apply to

subpoenas to testify, this Court has indicated in Bar-

enblatt v. United States, 360 U.S. 109, 134, Braden v.

United States, 365 US. 431, 433-435, and Wilkinson

v. United States, 365 U.S. 399, 412-413, that a Con-

gressional committee investigating Communist activi-

ties cannot, consistent with the First Amendment, sub-

poena a witness ‘‘as the result of an indiscriminate

dragnet procedure, lacking in probable cause for be-

lief that [the witness] possessed information which

might he helpful to the subcommittee” (365 U.S. at

412). As we will contend in our brief in Skelton,

the Barenblatt, Braden, and Wilkinson cases clearly

do not apply the same standard of probable cause as

for arrests or searches and seizures. Rather, they

21

apply essentially the same standard as was laid down

for subpoenas duces tecum in the Oklahoma Press

case.

ce. Applying that standard to the facts here the

Corumittee clearly had reasonable ground to believe

that p«titioner “possessed information which might

be helpful to the committee’’ and that was “rel-

evant to the inquiry.””’ The Commitee bear! consider-

able testimony that Communists held Positiogg in the

communications industry by which they could sen-

ously endanger national security through expronage

and sabotage (see supra, pp. 5-7). The record shows

that the Committee had information that there was

a Communist cell in the establishment where pe-

titioner worked and that the American Conmuni-

cations Association was Communist controlled (see

supra, pp. 3, 10). Petitioner admitied that he had

been a member of the Communist Party, that he

worked in the communications industry, that he was

a member of the American Communications Associa-

tion, and that he had access to government coded

messages (see supra, pp. 8-9,11). Thus, the Committee

had reasonable grounds to question petitioner con-

cerning the Committee's investigation of Communist

Party activities in the communications industry.

4. Petitioner argues (Pet. 8-9) that the pertinency

of the questions which resulted in his conviction to the

subject under inquiry was not made sufficiently clear

to him at the hearings and that the government failed

to prove pertinency at his trial.

a. As to whether petitioner was sufficiently apprised

of the pertinency of the questions, he admitted at the

trial that he heard the opening statement of the chair-

man of the subcommittee on the day he testified. The

chairman stated that the hearings were a continua-

..tion of the earlier hearings which investigated ‘‘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, principelly’’ (J.A. 20). He then read the

resolution of the Committee authorizing the hearing

for the purpose of investigating Communist activi-

ties in the communications industry and of adopting

legislation to protect government secrets and prevent

espionage or sabotagé in this industry (J.A. 20-21).

Finally, the chairman said that ‘‘[i]n these hear-

ings * * * the committee hopes to obtain additional

“information respecting the extent of the penetration

and control exercised by members of the Communist

Party in the United States over an industry which

is vital at all times to our defense, namely, commu-

nications’? (J.A. 22). Thus, petitioner was clearly

informed that the subcommittee was investigating

Communist activities in the communications industry.

The questions on which petitioner was convicted

sought information concerning the Communist activ-

ity of persons in the communications industry as to

whom petitioner would likely have knowledge. Those

questions were on their face clearly pertinent to the

subject of Communist activity in the communications

industry. As this Court said in Barenblatt v. United

States, supra, where a committee was investigating

23

Communist infiltration of education: “petitioner re-

fused to answer questions as to his own Communist

Party affiliations, whose pertinency of course was clear

beyond doubt.”’ 360 U.S. at 125.

Moreover, when petitioner refused to answer

whether the person who had recruited him into the

Party was a communications worker (Count one), the

staff director of the Committee explained that “[i]f

the verson who enlisted you into the Communist Par-

ty was engaged in the communications field, that per-

son undoubtedly would have some information which

would be of use to this committee in developing facts

respecting Communist penetration of the communi-

cations facilities of this country” (J.A. 28). After

the staff director said that the Committee had informa-

tion of at least one Communist_cell in the “establish-

ment” where petitioner worked, he asked petitioner if

he knew any persons in Western Union to be Commu-

nists at any time (Count two, which was dismissed)

(J.A. 30-31). The staff director then explained the

pertinency of this question (J.A. 31):

I say to you that the pertinency of that

question is this: If you do have such informa-

tion 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 leg-

islation to the Congress, to protect the security

of this Nation.

After petitioner was asked and refused to answer the

questions involved in Counts three and four he was

24

told that the previous explanations of pertinency

applied to this question (J.A. 34)."

b. Since, as we have shown above, the subcommittee

clearly apprised petitioner of the pertinency of the

question to the subject under inquiry, the govern-

ment proved at petitioner’s trial the pertinency of the

questions, For the transcript of the ings was in-

troduced at the trial (Gov. Ex.8).

5. Lastly, petitioner contends (Pet. T3-16) that the

trial court erred in denying petitioner’s motion for a

hearing in which to prove that government employees

on the grand jury were biased against him. As we

will show in our brief in Shelton v. United States,

supra, a defendant is not entitled to a hearing as to

the bias of grand jurors unless he, at the least, al-

leges specifie and convincing facts of strong bias in

individual grand jurors. As in Shelton, however.

petitioner claimed only that government employees

in general are biased in cases involving security issues

becdifSe of the government’s loyalty and security pro-

grams (see J.A. 5-9). He is not entitled to a hear-

ing to conduct a general exploration into the motives

of each of the fifteen government employees on the

grand jury.

‘Pacitioner notes (Pet. 9) that he was not told that the

previous explanations of pertinency applied to the question

involved in count four until after he had been directed to

answer (J.A. 34). But petitioner could have asked to answer

the question after the pertinency was explained to him.

Moreover, as we have shown above, the further explanations

of pertinency after petitioner refused to answer were not nec-

essary; the questions were on their face pertinent to the sub-

ject under inquiry which had been fully explained to petitioner

at the start of the hearings.

25

CONCLUSION

Since several of the issues in this case are now

pending before the Court in other cases, the Court

may wish to defer passing on the petition for a

writ of certiorari until those cases are‘decided. We

respectfully submit, however, that, for the foregoing

reasons the decision below is correct and that ulti-

mately the petition for a writ of certiorari should be

denied.

ARCHIBALD Cox,

Solicitor General.

J. WALTER YEAGLEY,

Assistant Attorney General.

GerorcGeE B. SEARLS,

Attorney.

OcToBER 1961.

5.8. COVERRUCET PRINTING OFFICE, 1908