Brief for Petitioner — Silber v. United States

LZR AKY

Office-Supreme Court, U.S.

YIRT, vu. & ae ew kK I)

JAN 20 l9bz

JOHN F. DAVIS, CLERK

Supreme Court of the United States

OCTOBER TERM, 1961

No. 454

BERNARD SILBER,

Petitioner,

v.

UNITED STATES OF AMERICA.

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia

BRIEF FOR PETITIONER

RasixowiTz & Bovpiy,

25 Broad Street,

New York 4, N. Y.,

WecusLer & DreyFvus,

004 Broadway,

Gary, Indiana,

Attorneys for Petitioner.

Victor Rarixowirz,

Leoxarp B. Bovpriy,

of Counsel.

SPN UI Sas ba $64 evn Cod hak bw ded think ke

a ik rr Ga I tae a Ee PE

CCST FV OROUIIEN 5 oc oo Sica Sows cnciess. acess

Constitutional Provisions, Statutes and Rules In-

SS REG 7A ak NR EIT AD gta Rael rw eins MERE Re eam, 8

8 EE SOIR HERR aa Ei re AE Ati peng ee ene ln

EY OE SMI Sos oles sie es oes bas cease

Argument:

I.

Il.

The questions which petitioner refused to an-

swer were not pertinent to the subject under in-

oniey te Tie Comte 65 i tacts

In the circumstances shown here petitioner's

interest in the protection of his First Amend-

ment rights, and his right of conscie ice and the

public interest in both outweighed the public

interest in securing answers to the questions

which were the subject of the indictment ......

A. The testimony which the petitioner was

called upon to give was, at most, cumulative

and the public interest in securing such

information was trivial ..................

B. The Court erred in excluding from the ree-

ord the proffered testimony of Professor

Emerson, offered on the issue of the bal-

aneing cf public interest .................

IL. There was no showing of probable cause suf-

ficient to justify the issuance of a subpoena

St MOE ind sock ddee ee eens a Pe ree

. Rule XI read in conjunction with 2 U.S. «.

192 is too vague to support a criminal con-

SN iS F aiid Sec ieee eee oe

1]

18

ii

PAGE

V. The indictment should have been dismissed be-

~ .

cause of the presence of Government employees

ce BR re eer Tee

VI. The Committee acted in violation of the First

| Amendment to the Constitution and in excess

Eg ORE ARO ly POED Me euas 31

OI ih 5s so eae eh oe ba 32

Citations

CASES:

Barenblatt v. United States, 360 U. S. 109 .. .9, 10, 11, 12,

15, 16, 17, 19, 20,

23, 25, 26, 29, 30, 31

Bates v. City of Little Rock, 361 U. S. 516 ..... 15, 17, 20

Bowers v. United States, 202 Fed. 2d 447 (C. A.

PE PS a eX reek Rea ces Lda dake s 14

Braden v. United States, 365 U. 8. 431 ........ 11, 15, 28,

29, 30, 31

Cervantes v. United States, 263 Fed. 2d (C. A. 9

rap pit eseneSTn Tce) iar Che ooe a a ek ame Re 26

Contee v. United States, 215 Fed. 2d 324 (C. A.

Re Mae a a iis OSs ir baie veh es NEST 26

Deutch v. United States, 367 U.S. 456 .......... 13, 14

Gojack v. United States, Oct. Term, 1961, No. 128 30

Grand Opera Co. v. Twentieth Century Fox Film

Corp., 235 F.. 2d 303 (C. A. 7, 1956) ........... 21

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

CGR ed hear ioe eeereicss <i 21

Koenigsberg v. California, 366 U.S. 36 .......... 15

Lanzetta v. New Jersey, 306 U.S. 456 ........... 28

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

BE eh) SES Kase Ley CUE Fe BER REy ad eis 30, 31

lil

Cases (Cont’d):

Matter of an Attorney, 86 N.Y. 563 ............ 16

National Association for the Advancement of

Colored People v. Alabama, 307 U.S. 449 ....17, 20, 23

Ohio Bell Telephone Co. vy. Publie Utilities Com-

mission of Ohio, 301 U.S. 292°................ 21

Price vy. United States, Oet. Term, 1961, No.12.... 30

Raley v. Ohio, 360 U.S. 423 20. e eee 2, 28

Russell v. United States, Oct. Term, 1961, No. 8 .. 30,31

Sacher vy. United States, 356 U.S.576............. 13, 28

Seull v. Virginia, 309 U.S. 344 ................ 12, 17, 23

Shelton v. Tucker, 364 U.S. 479 ....02.-c0cceee> 17, 23

Shelton v. United States, Oct. Term, 1961, No. 9 .. 25, 30

Sinclair v. United States, 279 U.S. 263 .......... 28, 30

Swezey v. New Hampshire, 354 U. S. 234 ........ 17,19

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

EF ome ame See. |: EE ea eee 21

United States v. Castle, 138 Fed. Supp. 436 (D. C.,

AE” i tg cae a BS ERCE DATS be he o> s 26

United States v. Orman, 207 Fed. 2d 148 (C. A. 3,

ES. Pc had td atone d+ SNS Canoe ns 14

Watkins v. United States, 354 U.S. 178 ....4, 5, 12, 13, 14,

15, 17, 19, 26, 28, 31

Wilkinson v. United States, 365 U.S. 399 ...... 10, 11, 15,

/ 24, 29, 30

Winters v. New York, 333 U.S. 307 ............ 28

Wrightson v. United States, 222 Fed. 2d 556 (C. A.

Le Ee Perey. OR Pelee ee 26

Constitution and Statutes

ConxsTiITUTION OF UNttEp STATES:

First Amendment ...:........... 2. 3, 3, 8, 9, 10, 15, 20, 31

eee NS TEES PPO RIOR OP EET LOT Pe oe 3

ES BORE PONS GLAD ES eg > 3, 10

iv

FeperaL STarutes: l

PAGE

Aes AS UE orc ke aikha sande n 0a aca 3, 10, 28, 30

Public Law 601, 79th Cong., See. 125 and House

SN Oe IS i 6k a ows Sho he cae cm 3

Rule XI of the Rules of the House of Representa-

OOD Sis Cede ok a rs Os Se crete 3, 28, 29

Hearings

Hearings Before the Committee on Un-American Ac-

tivities, 85th Cong., Ist Sess., pp. 1377-1529 ..... ae

Hearings Before the Sub-Committee to Investigate

the Administration of the Internal Security Act

of the Senate Committee on the Judiciary, 83rd

Cong., 2nd Sess., Dec. 1953-March 1954 .......... 7

Hearing. Before the Sub-Committee to Investigate

the Aducristration of the Internal Security Act

of the Senate Committee on the Judiciary, 82nd

Cong., Ist Sess., May 14-June 14, 1951 .......... 7

Charles Black: Mr. Justice Black, The Supreme

Court and The Bill of Rights, 222 Harper’s Maga-

et OP La Sd iG i koe kee ca. 16

Coke, Third Institute, 194 (4th ed. 1669) .......... 16

Kalven: Mr. Alexander Meiklejohn and the Baren-

blatt Opinion, 27 U. of C. L. Rev. 314 ............ 15

Kalven and Steffen: The Bar Admission Cases, 21

Rt: 08: SO SO Se oe iyi ee 15

Meiklejohn: Political Freedom (1960) ............ 16

Suprene Court of the Anited States

OCTOBER TERM, 1961

No. 454

r

Lu

Vv

BERNARD SILBER,

Petitioner,

v.

Unirep STaTes OF AMERICA.

On Writ of Certiorari to the United States Court of

Appeals for the District of Columbia

ra

Vv

BRIEF FOR PETITIONER

Opinions Below

The District Court for the District of Columbia rendered

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

officially reported, and is printed at R. 119.

Jurisdiction

The judgment of the Court of Appeals was entered on

June 30, 1961. A petition for certiorari was granted on

December 4, 1961. The jurisdiction of this Court is invoked

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

Questions Presented

Petitioner was convicted of contempt under 2 U.S.C.

192 and was sentenced to four months imprisonment and

ty

a fine of $100 for refusing to answer certain questions at

a hearing of a Sub-Committee of the House Un-American

Activities Committee (hereinafter referred to as the Com-

mittee). The questions presented are:

1. Were the questions which petitioner refused to

answer pertinent to the subject under inquiry by the Com-

mittee and was that pertinency made clear to the witness?

2. Was there a probable cause sufficient to justify

issuance of a subpoena to petitioner?

3. Did the public interest involved in securing answers

to the questions here at issue outweigh petitioner's rights -

under the First Amendment and the public interest in pre-

serving freedom of speech.

4. Did the District Court err in refusing to permit

the introduction of testimony relating to the relative weight

of the public and the private interests affected by the

investigation of the Committee?

5. Was the statute under which petitioner was con-

victed unconstitionally vague?

6. Was the investigation being carried on by the Com-

mittee pursuant to a bona fide legislative purpose?

7.. Was the investigation carried on by the Committee

permissible under the First Amendment to the Constitution?

8. Was the resolution establishing the Committee invalid

for vagueness?

-

9. Was the inquiry conducted by the Committee within

the scope of the resolution creating it?

10. Should the indictment have been dismissed because

of the presence of government employees on the grand jury?

3

Constitutional Provisions, Statutes and

Rules Involved

The constitutional provisions involved are the First,

Fourth and Fifth Amendments to the Constitution of the

United States. :

The statutes involved are:

(1) 2 U.S. C. 9 192, which reads as follows:

‘*Refusal of witness to testify

‘*Every person who haying been summoned as

a Witness by the authority of either House or Con-

gress to give testimony or to produce papers upon

any matter under inquiry before either tlouse, or

any joint committee established by a joint or con-

current resolution of the two Houses of Congress,

or any committee of either House of Congress, will-

fully makes default, or who having appeared, refuses

to answer any question pertinent to the question

‘ under inquiry, shall be deemed guilty of a misde-

meanor, 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.’’ (| ~

~~

(2) Legislative Reorganization Act of 1946, Public Law

6U1, 79th Congress § 121 and House Resolution 5 of the Soth

Congress, which reads in relevant part as follows:

‘*(b) Rule XI of the Rules of the House of Repre-

sentatives is amended to read as follows:

‘Rute XI

‘* Power and Duties of Committees

**(1) All proposed legislation, messages, peti-

tions, memorials. and other matters related to the

subjects listed under the standing committees

named below shall be referred to such committees,

respectively * * *.

**(q) (1) Committee on Un-American Activi-

ties.

**(A) Un-American Activities.

‘*(2) The Committee on Un-American Activi-

ties, as a whole or by subcommittee, is authorized

to make from time to time investigations of (i)

the extent, character and objects of un-American

propaganda. activities in the United States, (ii)

the diffusion within the United States of sub-

version and un-American propaganda that is insti-

gated from foreign countries or of a domestic

origin and attacks the principle of the form of

government as guaranteed by our Constitution,

and (ili) all other questions in relation ‘thereto

that would aid Congres$ in any necessary remedial

legislation.’’

Statement

Petitioner was subpoenaed to appear before the House

Un-American Activities Committee by subpoena issued June

21, 1957, five days after the decision of this Court in

Watkins v. United States, 354 U. S. 178 (R. 14). He

appeared before the Committee on August 2, 1957 (R. 15).

He testified, under questioning 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

they were security messages or not (R. 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

(R. 26). He drifted away almost immediately and was

never active (R. 26). He attended meetings infrequently

(R. 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

qr

First Amendment, the vagueness of the resolution setting

up tie Committee and lack of pertineney. He relied heavily

on the decision of this Court in the Watkins case (R. 26;

67-71).

The following colloquy immediately ensued :

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

question as to the person who recruited you in tae

Communist Party. You refused to identify that per-

son.

Now, without identifying him or telling us his

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

nist Party today?

(The witness confers with his counsel.)

Mr. Silber: I have no knowledge of such—

Mr. Scherer: Is he still associated in the same

type of work you are associated in?

(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?”’

This last question forms the basis of Count 1.

After the witness’ refusal to answer on the grounds

previously given, counsel for the Committee stated that

the Committee was considering legislation to safeguard

the nation from possible espionage or sabotage of com-

munications facilities and that if the person who enlisted

petitioner into the Communist Party was in the Communi-

cations field, ‘‘that person undoubtedly would have some

information of use to the Committee in developing facts

respecting Communist penetration of the communications

facilities of this country’’ (R. 28).

After some further colloquy, the witness persisted in

his refusal for the reasons stated above, and added:

“Mr. Silber: Including the matter of personal

conscience which prevents me from doing things that

I am not sure of, aad also on the grounds that I

don"t see what this question has to do with the ques-

tion [of] propaganda which this committee is con-

cerned with.’’ (R. 30)

Subsequently in the hearing the following occurred:

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

Mr. Silber: The American Communications

Association.

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: I must decline to answer that, sir.

Mr. Scherer: I ask that vou 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: 1 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 coun-

sel, gave you for asking the other questions. They

are pertinent for the same reasons that he advanced.’’

(R. 34). -

These two questions constitute Counts 3 and 4.

The witness was not asked any questions concerning

his own activities in the Communist Party. When he was

excused, the Chairman of the Subcommittee congratulated

the witness ‘‘for getting out of the Communist group when

you did.’’ He urged the witness to help the Committee,

but the witness responded:

‘*T have given you the best answer that I could

under the circumstances. I have a conscience to

protect, and other things. I am sorry.’’ (R. 35)

7

i

The House of Representatives subsequently cited peti-

tioner for contempt. He was indicted on or about August

4, 1958, by a grand jury in this District. He moved to dis-

miss the indietment and for a hearing on the qualifications

of the grand jurors, filing an offer of proof in connection

with the latter motion (R. 3-9). The motions were denied,

except that Count 2 was dismissed (R. 10).

At the trial, the only witness for the proseeution was

counsel for the Committee, Mr. Arens. After stating that

the Committee had decided to proceed with the investiga-

tion, he testified that it caused a subpoena to be issued

to petitioner stating that the Committee had information

‘‘that Mr. Silber had been a member of the Communist

Party engaged in the communications field’’ (R. 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, the union

of which petitioner was a member and which was the sub-

ject of Counts 3 and 4 of the indictment. The witness

reealled a ‘tsynopsis of some kind** resulting from that

investigation (R. 38).'- Again in 1954 he conducted a hear-

ing into the communications industry.”

Mr. Arens further testified that the information he

received from the Committee files and from Committee

1 In fact a “Progress Report” was issued by the Senate Committee

i 1951 and a “Supplementa! Report” in 19° 2. (See, Hearings

hefore the Subcommittee to Investigate the Administration of the

Internal Security Act of the Senate Committee on the judiciary,

&2nd Cong., Ist Sess., May 14-June 14, 1951, at p. v, and Supple-

mental Hearings, 82nd Cong. 2nd Sess., Jan. 22, 1952. at p. v.)

2 See hearings before the same Subcommittee Dec. 1953-March,

1954, 83rd Cong. 2nd Sess., entitled “Subversive Influence in Certain

Labor Organizations.”

8

investigators was sufficient in his mind to justify the issu-

ance of a subpoena to the petitioner. This testimony will

be considered in more detail in connection with the diseus-

sion of Point ll, ixfra.

After the Government rested, an offer of proof was

made by the petitioner relating to his contention that his

individual and the public interest in protecting his rights

of free speech and assembly and his right of privacy over-

balanced the public interest in securing answers to the

questions put to him (R. 94-96; 97-118). The offer was

rejected, and petitioner rested (R. 96). After trial the

Court denied a motion for direction of acquittal and found

petitioner guilty on all three“counts (R. 96). He was

sentenced to imprisonment for a term of four mouths and

to pay a fine of $100, the sentence being ‘‘on the indictment

rather than on the individual counts’’ (R. 97). He was

continued at large on bond of $1,000.

The Court of Appeals affirmed on June 30, 1961 (R. 119).

Summary of Argument

I

Petitioner admitted casual membership in the Commu-

nist Party 9 years prior to his interrogation; he answered

all questions pertaining to himself and his own activity but

declined to answer certain questions on the ground that it

would require the naming of other persons. His objection

was based, inter alia, on First Amendment grounds, lack of

pertinency and the fact that his conscience would not permit

him to name others. Qn the record here, it is clear that

the purpose of the Committee was not to secure information

for legislative purposes, since it addressed uo such ques-

tions to the petitioner, but, rather, to secure the names of

other persons, and thus to expose their political affiliation.

9

Furthermore, the remeteness in point of time of petitioner's

membership in the Party and his knowledge of party activi-

ties destroyed whatever pertinency the questions might

otherwise have had.

/

In Barenblait v. United States, 360 U.S. 109, this Court

held that ‘‘where First Amendment rights are asserted to

bar governmental interrogation resolution of the issue

always involves a balancing by the courts of the com-

peting private and public interests at stake in the par-

ticular circumstances shown.’? The instant case pre-

sents questions involving the application of the ‘*bal-

ancing’’ doctrine in two respects: First, the testimony

which the Committee songht to elicit from the petitioner

was partly cumulative and partly merely corroborative of

sworn testimony already in the possession of the Commit-

tee; furthermore, it would have compelled petitioner to

become an informer, in violation of his reasonable con-

scientious scruples. Hence, the public interest in securing

such trivial information could not outweigh the substantial

public and private interests protected by the First Amend-

ment. Second, the District Court erred in refusing to accept

expert testimony offered to establish that the basic premise

upon which the Committee seeks to justify its interroga-

tion, namely, that there is a danger to internal security

which justifies interference with First Amendment rights,

is not supported in fact. Under the circumstances shown

by this record, the issues should be resolved by a determina-

tion that the First Amendment rights asserted by the peti-

tioner are sufficient to bar governmental interrogation.

The alleged ground for issuance of a subpoena to peti-

tioner consisted, first, of the fact that he had at some unde-

termined year in the past signed a Communist Party noni-

/

10

nating petition and, second, that an unidentified and

unknown informer had named him as a Communist. This

does not constitute ‘* probable cause’’ for the issuance of a

subpoena within the meaning of Barenblatt., United States,

supra, and Wilkinson v. United States, 365 U.S. 399. Law-

ful participation in an election campaign, together with

gossip and rumor, without more, do not justify subpoenaing

a Witness before a Congressional committee.

IV

Rule XI of the Rules of the House, read in conjnnetion

with 2 U. S. C. (192, is too vague to support a criminal

conviction. The meaning attributed to it by this Court in

the Barenblatt case can be derived from the language of

the rule only through extensive investigation into legisla-

tive history. Such an investigation is not justified in a

criminal prosecution. The Fifth Amendment requires that

a criminal statute, to support a conviction, must be clear

on its face.

Vv

Fifteen members of the Grand Jury were Government

employees and, under the circumstances, petitioner should

have been offered the right to conduct an inquiry into their

possible bias in a case of this nature. The Court below

erred in denying the motion for such inquiry.

Vi

The powers exercised by the Committee are outside its

jurisdiction and in violation of the First Amendment to

the Constitution.

This point is not briefed herein since it appears to be

in conflict with the decisions of this Court in the Barenblatt

11

and Wilkinson cases, and Braden v. United States, 365 US,

431, but petitioner does not wish to be understood to have

acquiesced in those decisions without, at least, this note of

protest.

POINT |

The questions. which petitioner refused to answer

were not pertinent to the subject under inquiry by the

Committee.

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 persous who are associated with him

in political activity under investigation by the Committee.

This Court will recall that 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 ?’’

This 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 relating

to his participation in or knowledge of alleged: Com-

miunist Party activities at educational institutions

in this country, we Und it unnecessary to consider

the validity of his conviction under the Third and

Fifth counts, the only ones involving questions which

on their face do not direetly relate to such participa-

tion 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. This Court in specifically

omitting consideration of this question in Barenblatt, in

effect reserved decision on that issue for subsequent cases.

The issue is now squarely presented in this case.

The Government argued in its opposition to the petition

for certiorari that the questions which are the subject of

the indictment had relevance independent of their value

in disclosing the names of party members. This may or

may not be true but it is clear from Watkins and Scull v.

Virginia, 359 U. S. 344 that the pertinence of questions

must be explained to the w)tness, especially When, as

here, he objected on grounds of lack of pertinence (R. 71,

29, 31). To argue now, as an afterthought, that the

answers to the questions would *‘probably provide infor-

mation of consideravle value to the Committee’’ (Brief

for the United States in opposition to petition for certiorari,

p. 12) is a belated and. impermissible effort to justify a

relevancy argument that was never made to the witness

and, henee, cannot be made now. To permit such a change

in theory would not only fail to meet the test of clarity

required by Watkins, but would constitute the ‘‘active

misleading’? condemned in Raley v. Ohio, 360 U.S. 423.

The explanation of pertineney to the witness is clear

beyond any shadow of doubt. Mr. Arens» explained the

pertinency of the first question as follows:

‘If the person who enlisted you into the Com-

munist Party was engaged in the communications

field, that person undoubtedly would have some

information which would be of use to this Com-

mittee in developing facts respecting Communist

penetration of the communications facilities of this

country’’ (R. 28).

In explaining the pertinency of the question in Count

2 (dismissed before trial) Committee counsel had the

following to say:

13

“Tf you do have such information [as to whether

there are persons engaged at Western Union who

at any time were known to appellant as Communists |

and if we can get the names of those people and

if we can get them to testify, we, will have informa-

tion which will form a solid foundation upon which

this committee can recommend legislation to the

Congress, to protect the security of this Nation’’

(R. 31).

In explaining the pertinence of the questions contained

in Counts 3 and 4, Congressman Seherer said:

**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 he advanced’* (R. 34).

The witness was, so far as the record appears, willing

to answer all questions concerning his own activities in

the Communist Party. True, the Committee which is

always more interested in names than in substance, showed

a lack of interest in such activities and asked no questions

concerning .them. But the witness’ refusal related only

to the activities of other persons.

In effect, therefore, the questions put to petitioner really

constituted a discovery proceeding. _The Committee was

using him, not to get evidence concerning his own activities

in 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,

or that such inquiry constitutes a proper legislative pur-

pose.

This Court has made it clear enough that in this area,

in which_a close balance exists between the individual and

public rights involved, the issue of pertinency should be

<erutinized with creat care. Sacher v. United States, 356

U.S. 3576: Deutch v. United States, 367 U.S. 456; Watkins

14

v. United States, supra. And see United States v. Orman,

207 Fed. 2d 148 (C. A. 3, 1953). 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. The Committee was indeed

reaching far back to secure information which might have

served Congress in 1957 when the witness testified. Testi-

mony as remote as any the petitioner was requisitioned to

vive likewise fails to meet the test of pertinency. Bowers

v. United States, 202 Fed. 2d 447 (C. A. D. C., 1953) ; Deutch

v. United States, supra. -

Finally, a consideration of the testimony relating to the

specific counts on which petitioner was convicted would

call for a reversal. Indeed, the first count involves a

question which seems to have been answered immediately

prior to the refusal to answer. It will be noted (R. 27, 28)

that Mr. Scherer asked, ‘‘I1s that person still a member of

the Communist Party today * * * as a communications

worker?’’ 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?’’ It would

seem that the response immediately preceding the ques-

tion which forms the basis of Count 1 had been sufficiently

answered by the witness by the response that ‘‘he is no

longer in the industry.”’

The record with respect to Counts 3 and 4 is likewise

insufficient in 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. The witness was

never given an opportunity to make answer after perti-

nency had been pointed out to him. Clearly, his refusals

when made were proper and he cannot be held for contempt

in the absence of a clear statement of pertinency before

the direction of an answer.

13

POINT II

In the circumstances shown here petitioner’s inter-

est in the protection of his First Amendment rights,

and his right of conscience and the public interest in

both outweighed the public interest in securing znswers

to the questions which were the subject of the indict-

ment.

We think this Court made a serious error when it

said in Barenblatt v. United States, supra, at 126:

‘*Where 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.’’

We suggest that this was a mistake for two reasons.

Fundamentally it reduces the force and significance of

those basic rights protected by the First Amendment which

are essential to the preservation of our democracy (see

_ dissenting opinions in Bareublatt v. United States, supra,

at page 134; Wilkinson v. United States, 365 U.S. 399, 415;

and Braden v. United States, 365 U.S. 481, 438). In addi-

tion, the Court has set up a standard of criminal liability

which is difficult, if not impossible, to apply and which

adds immeasurably to the vagueness which is inberent in

the resolution which defines the Committee's jurisdiction.

See Wathins v. United States, supra, at 202.

However, this Court has made its decision, and is

therefore confronted with the task of defining and explor-

ing the ‘‘balancing concept’’ which has been the subject

of so much diseussion in the past few vears. See dissent-

ing opinions cited above; also Koeniashera v. California,

266 U.S. 36. 56: Bates v. City of Little Rock, 361 U.S. 516

and many other cases. Also, Kalven: Vr. Alecandes Metkle-

john and the Barenblatt Opmion, 27 Univ. of Chicago, -L.

16

Rev. 314; Kalven and Steffen: The Ber Admis ‘on Cases,

21 Law in Transition 155, 173; Charles Black: Mr. lustice

Black, The Supreme Court and the Bil of Rights, 2°2

Harpers Magazine 63 (February, 1961); Meiklejohn:

Political Freedom (1960). This is a very difficult task

but must be undertaken unless the process of balancing

is to become a cover-up for arbitrary and ad hoc decisions

which would be intolerable in any case but even more so

in a criminal prosecution.

The questions raised by the Barenblatt formula are

many and most of the answers await illumination hy this

Court. We are required to balafice competing rights and

usterests. The private right involved in this case is quite

clear. It is the right to refuse to be an informer—the

right to retain his self-respect and self-esteem. As the

New York Court of Appeals has said: **Informers have

always been a despicable race’’ (In the Matter of—,

an attorney, 86 N. Y. 563, 570). And petitioner sought to

avoid that deep stigma, which is universally attached to

such ‘*viperous vermin” (Coke, Third Institute, 194, 4th

ed. 1669).

The public interests are not so easy to define, but they

would seem to fall, some on one side and some on the other

side of the seale.

On the one side, in favor of the broad right of govern-

mental interroyation, is the vital interest to preteet public

order against subversion and illegal or violent overthrow ;

on the other is the public interest in keeping open channels

of free discussion so that our democracy may live.

Having once determined on the scope of private rights

and public interests to be weighed in this balance, the next

question is who performs this weizhing operation and how.

Clesriy the balance must be struck by the Court: rather

than the Jegislature because otherwise the determination

of the legisiature to invade private rights would be deei-

}

/

17

sive, and we know that this cannot be true. Bates v. City

of Little Rock, supra; Natwnal Assocaation For The

Adrance ment of Colored People _ Alabama, 30% U. Ss. 44%:

Scull v. Virginia, 359 US. 344; Shelton v. Tacker, 364. ULS.

479.

But this leaves open two eritical issues: (1) how does

the Court get the information which would enable it to

balance private rights and public interests, and (2) what

did this Court mean when it directed that the balance was

to be related to “*the particular circumstance shown."’

Did the Court mean that in the circumstances in which we

now find curselves, in this decade of the Twentieth Century

in the United States, free speech rights and the right to

remain silent, asserted by alleged) Communists never out-

balance the Government's right to interrogate (as com-

pared, for example, to the constitutional rights asserted

by Negroes which evidently always outweigh governmental

interrogation by southern states)! Or did this Court mean

that the Trial Court would hear evidence on the ciream-

stances shown in each case and would, on that evidence,

decide the way the balance must fall?

This case was tried shortly after the decision in

Barenblatt had made it clear that the rights which we

thought were protected by Watkins and Sweezy vo New

Hampshire, 354 U.S. 254 were in fact not protect.« at all.

So petitioner and counsel addressed themselves to the

problem of balaneing in accordance with the opinion of the

Court in Barenblatt, We argued beiow, and argne here,

that in our system of laws, guilt is individual and each

defendant is entitled to be tried on the record made in his

own individual case. [It follows that the Trial Court mast,

in each case, weigh the evidence separately. Among the

elements to be considered in determining gult is the balance

that this Court has ordered to be struck between the

various rights and interests at -take and so we offered

evidence, first. that in view of the information already in

18

the possession of Congress, the interest of Congress in

vetting the additional information it sought from petitioner

was trivial and could not outweigh the public interest and

private rights on the other side of the scale, and, second,

that the general political situation was such that the

information sought by the Committee was not substantial.

The Court below disposed of this argument with the

remark that ‘‘this ‘balancing’ is strictly a matter of law

for decision by the Court and, therefore, ‘expert’ testi-

mony is irrelevant’? (R. 123).

We respectfully suggest thatahis holding is an evasion

of the issue. The question remains, how does the Court

decide? Does each Judge make this decision on the basis

of his personal political views as to the relative importance

of things in this changing world so that the standard is as

variable as the Chancellor's foot, or does the Court act

in what we have all understood to be a judicial manner,

namely, upon the consideration of objective facts presented

to it on the basis of a record made in open court with full

opportunity on the part of all parties to present these facts

and have them determined by the tribunal?

A

The testimony which the petitioner was called upon

to give was, at most, cumulative and the public interest in

securing such information wes trivial.

This ix not the first time there has been a Congressional

investigation of ‘‘Communist infiltration’’ in the telegraph

industry. As Committee counse] testified, similar investiga-

tions have been carried out over a period of vears (R. 38,

39: see footnotes 1 and 2, p. 7, supra). These prior hear-

ings were not casual or preliminary to the hearing at

which petitioner testified, but oeenpied several hundred

pages of testimony and involved the naming of over 100

alleged Communists in the industry, At the several hear-

19

ings mentioned above, many names were repeated over

and over again by the various witnesses called.

Petitioner's membership in the Party had been remote

in time and casual in substance. At the most, if he had

answered, he- might have added to the hundred or more

names already in the possession of Congress, the names of

two or three more persons who might or might not have

been ealled by the Committee to add a few words to the

thousands of words already in the record. There is nothing

to suggest that this witness could have named anyone

who could have come forward to add anything of signifi-

cance to the vast bulk of material already submitted to

the Congress on this and other occasions. Any testimony

he might have added would have been entirely cumulative

and of such trivial nature that it is difficult to understand

how it can be said to outweigh any private interest at

all. As the record of those hearings shows, there have

been many witnesses in the industry who have come forth

voluntarily to give testimony to the Committee and cer-

tainly Congress had all of the information it could con-

ceivably need to consider any legislation on this subject.

Ageinst this we must weigh the very substantial rights

of the petitioner. In addition to the constitutional rights

which this Court agreed were of utmost importance in

Watkins, Sweety and Barenblatt, there is here an addi-

tional right, namely, the right to remain silent and to

refuse to be an informer.

The role of an informer, throughout the history of the

human race, has been a despicable one. Twice in the course

of his testimony the witness referred to his conscientious

scruples, in addition to the extensive legal arguments pro-

posed by him (R. 30, 35). If there ever was a case in

which substantial and important private rights might be

said to outbalance the public interest ti securing trivial

and useless information, this record presents that case.

20

The Court erred in excluding from the record the

proffered testimony of Professor Emerson, offered on the

issue of the balancing of public interest.

If the Court, in its enigmatic language in Barenblatt

meant to refer, not to the specific circumstances surround-

ing a particular hearing, but rather to a general political

situation which is presumed to exist, we must, difficult

though it may be, address ourselves to this general political

situation. ‘

4

@

It should be noted first, that this Court does in fact

balance interests separately in each case. Thus in NAACP

v. Alabama, 357 U.S. 449, and Bates v. City of Little Rock,

361 U. S. 516, the Court did consider the faets separately.

And, after balancing them, it came to the conclusion that

the rights of the individuals involved outweighed the

right of the state in securing information which impinged

on First and Fourteenth Amendment rights. The same

procedure should have been followed here but it was not.

In the Barenblatt case, the Court (at p. 128 et seq.)

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 reeord 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 for

the basis on which any finding could be made that Com-

munism constitutes a sufficient threat to the communica-

tions industry in:the United States or to our internal

security to justify interference with First Amendment rights

which, it must be generally conceded, exist here. So: we

must assume that the District Court took judicial notice

of the facts it was required to find under the Barendlatt

decision, namely, that in balancing the competing rights

and public interests at stake in these circum: ‘ances, govern-

mental interrogation was permitted.

Generally speaking, a court may take judicial notice

of facts which are ‘‘common knowledge’? but the doe-

trine of judiciai notice ean never constitutionally be utilized

to bar evidence seeking to contradict such **common knowl-

edge’’. Testimony is always admissible or any factual

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

Ohio Bell Telephone Co. v. The Public Utilities Commis-

sion of Ohio, 301 U.S. 292, 301:

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

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

troversy of the burden of resorting to the usual

forms of evidence, Wigmore, Evidence § 2567: 1

Greenleaf, Evidence, 16 Ed., p. 15.) ‘It does not

mean that the opponent is prevented from disputing

the matter by evidence if he believes it disputable.’

Ibid.’”’

‘\

In Grand Opera Co. v. Twentieth Century Foxr Film

Corp., 235 F. 2d, 303, 307 (C. A. 7, 1956), the Court said:

** Judicial notice is merely a conventional method

of taking evidence to establish facts.’’

To the same effect, see Ju Re Bowling Green Milling Co.,

132 F. 2d, 373 (C. C. A. 6, 1942) ; United States v. Aluminum

Co. of America, 148 F. 2d, 416 (C. ( ", A. 2, 1945).

In order to establish his contention, that in the cireum-

stances shown in this case private and public interests in

protecting freedom of speech outweighed the public inter-

est in permitting interrogatior, petitioner offered ex-

pert testimony on the subject. ‘t being difficult: to con-

ceive of any alternative way in which proof addressed to

this issue could be presented in a court. Henee, expert

testimony of Professor Thomas 1. Emerson, Professor of

Law at} Yale University was prepared in writing and was

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

admissibility. ‘Lhe Court refused to accept the testimony,

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

R. 97-118. This testimony may be summarized as follows:

22

The witness first qualified himself as an expert, setting

forth his professional background since his graduation

from Law School in 1931. After extensive and widespread

experience in yovernment service he became a member of

the faculty at Yale Law School in September, 1946. Since

that time his major field of research has been public law

and within that general area, political and civil rights.

He has written a two volume work on the subject, a second

edition of which was published in 1958, and since 1946 he

has maintained an extensive file of material on this sub-

ject. In the academic year 1953-1954 he studied civil

liberties in Great Britain; fog the academic year 1960-1961

he received a Fellowship from the Ford Foundation

to study the legal foundations of the right of political

expression. He is in close touch with other academic

communities through contacts with faculty members,

students and other organizations within various educa-

tional institutions. He is fully familiar with the work of

the House Committee on Un-American Activities (R. 97-

101).

Professor Emerson then outlined in considerable

detail legislation already in existence relating to the pro-

tection of internal security in the United States. He dis-

cussed the social conditions which might give. rise to

political and social unrest, and the strength of the Com-

munist Party, the organization against which this Com-

mittee has directed moat of its activities. He pointed out

that in political activity, in industry, agriculture, labor,

religion, education and in cther areas of American life the

Communist Party has substantially no influence (R. 102-

113).

Professor Emerson then turned ‘‘to the other side of

the seales’’ and considered the interest of the individual

and of society in freedom of speech. He discussed the

interests of the individual in his right of expression and

in his right of silence and the nature of the interest of

society in freedom of political expression in a democratic

society. Such a right of expression is, he pointed out,

necessary to a healthy funetioning of society. He con-

sidered in some detail the economic and social effects upon

the witness called before the Committee as well as the effect

on his right of association (R. 113-117).

In conclusion Professor Emerson stated as his opinion

‘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 treedom of speech

or silence, as he may ‘prefer, and by the interests

of the community in maintaining freedom of political

expression and other conditions essential to main

taining an open society’? (R. 117-118).

We shall not here consider the merits of Professor

Emerson’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, Scull and Shelton

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 admissable,

Otherwise, there is no way in which the Court can balance

those interests save by its own speculation,

POINT III

There was no showing of probable cause sufficient

to justify the issuance of a subpoena ito petitioner.

The Supreme Court in Barenblatt said, at page 134:

‘*Nor did petitioner’s appearance as au witness

follow from indiscriminate dragnet procedures, lack-

ing in probable cause for belief that he possessed

information which might be helpful to the Subcom-

mittee.’’

okt

24

' The Court, in a footnote, referred to page 124 and to

note 24 of the opinion. The references are 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. Similar language, and a similar

footnote appear in Wilkinson vy. United States, 365 U.S.

399, 412, footnote 9.

Eleven witnesses appeared before the Committee in

July and August, 1957 at the hearings at which petitioner

testified, and named about sixty persons as having been

members of the Communist Party.’ In the 1951, 1952 and

1954 hearings before the Senate Committee (conducted by

Mr. Arens, presently conunfel to the House Committee)

about a hundred more had been named as members of the

Communist Party by witnesses appearing before those

Committees. No one had ever named petitioner either as

a member of the Communist Party or in any other respect.

At the trial, the prosecution preserted testimony, through

its only witness, Mr. Arens, that the Committee had informa-

tion in its files as to the Communist Party membership of

petitioner, but he did not state the nature of that informa-

tion. On cross-e*amination it appeared that the evidence

in the Committee’s files consisted of:

(1) A photostat of the New York Times dated January

15, 1940, over 17 years prior to the issuance of the sub-

poena to the witness, which stated that, in a factional

dispute within the American Labor Party in New York,

99 persons of whom petitioner was one, had been named

as **Reds’’ by the opposing political group because they

* Hearings before the Committee on Un-American Activities,

Sth Congress, Ist Session, pp. 1377-1529.

‘see hearings cited at footmate 2. p. 7, supra.

95

had signed Communist Party nominating petitions (Deft.’s

Ex. 3), and

(2) A report in the Committee file, reading as follows:

**ConGress or THE Usiten Srares

House o¢ REpKESENTATIVES

Committee on Un-American Activities

Washington, D. ©,

MEMO

June 12, 1957

To: Mr. Richard Arens, Director

From: Louis J. Russell

Investigator

Sussect: Bernard Silber

This individual is employed as a service writer

by Western Union and as such would have access

to messages and facilities of the Western Union

which would present sabotage and espionage possi-

bilities.

As a service writer, his position would be con-

sidered important.

He signed Communist Party petitions on behalf

of Israel Amter and Benjamin Davis.

His son, whose first name is unknown, was also

identified as a member of the Communist Party by

a confidential source.

LJF:v’’ (Deft.’s Ex. 4)

It is submitted that this information does not establish

probable cause to justify the calling of petitioner as a

witness, and that the subpoena issued to him resulted from

exactly the kind of **indiscriminate dragnet procedures”

which the Court condemned in Barcnblatt.

The issue of probable cause in the issuance of a sulyppoena

to a witness was treated exhaustively by the brief submitted

in behalf of the petitioner in Shelton v. Luited States, No.

9, at this Term of the Court, and we respectfully refer

the Court to the excellent histerical discussion contained in

26

that brief, and particularly at page 29 ef seq. thereof. We

shall not burden the Court with a repetition of that argu-

ment but shall add merely a few comments.

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

and its meaning has often been defined. In Contee v. United

States, 215 Fed. 2d 324, 327 (C. A., D. C. 1954), the Court

said:

‘*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 Fed. 2d 800, at 803,

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

‘** * * probable cause means more than a bare sus-

picion.’’ se

And in United States v. Castle, 138 Fed. 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 suspicion without the disclosure

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. United States,

222 Fed. 2d 556 (C. A., D. C. 1955); Cervuntes v. United

States, supra.

If, as this Court has held, probable cause is necessary

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

cause existed here. We do not have, as in Barenblatt (and

in Watkins and in most of the other cases which have come

before this Court), sworn testimony identifying petitioner

as having been a member of the Communist Party. Instead,

we have a tip from undisclosed ** confidential sources,’’ who,

so far as we know, were not even known to the Committee.

Added to this is the fact that petitioner along with thousands

of others, is alleged to have signed a Communist Party

nomination petition.'

Petitioner, in signing a Communist Party nominating

petition (if he did sign) was exercising a constitutional right

to participate in the electoral process and a right given

under the laws of the State of New York to petition to have

a member of the Community Party on the ballot for election

to public office.

Evidently petitioner was subpoenaed because over a

decade ago he signed one or two Communist Party nomi-

nating petitions and, so far as this record shows, for no

other reason. If this does not constitute an abuse of the

subpoena process such as that referred to by the Court,

we find it difficult to conceive of a case in which such abuse

could exist.

'The charge that petitioner was one of 99 ‘Reds in the

American Labor Varty (New York Times, Deit’s Ex, 3) was

apparently based on the fact that petitioner had signed a Communist

Party nominating petition. There 1s no evidence in the record

as to when these petitions were signed. The mest recent date on

which petitioner could have signed a Communist nominating petition

was 1946, when Davis ran for \ttorney General of New York State

on the Communist Party ticket. \ nominating petition for that office

would require 12,000 signatures. Amter had run for governor in

1942 and for member of the City Couneil in 1937 and 1939.

28

POINT IV

Rule XI read in conjunction with 2 U. S. C. § 192

is too vague to support a criminal conviction.

House Rule XI treated in conjunction with 2 U. S. C.

192 must be treated as a criminal statute. Sacher v. United

States, 356 U.S. 576, 577; Watkins v. United Statese, supra,

at 208. Therefore, to be valid, Rule XI must establish

a standard of conduct that meets the test of Lanzetta

v. New Jersey, 306 U. S. 451; Winters v. New York, 333

U. S. 507, and Raley v. Qhio, 360 U. 8S. 423. Quite aside

from petitioner’s right to rely on the decision in Watkins

which was argued before this Court on behalf of the peti-

tioner in Braden v. United States, supra, and disposed of

by reference to Sinclair v. United States, 279 U.S. 263,

we raise here a due process question going to the uncer-

tainty of the meaning of the criminal statute under which

petitioner was convicted. If a criminal statute is uncer-

tain, it cannot support an indictment. This Court said

in the Raley case, supra, at page 438: :

“°° * A State may not issue commands to its

citizens, under criminal sanctions, in language so

vague and undefined as to afford no fair warning

of what conduct might transgress them. Lanzetta

v. New Jersey, 306 . S. 451. Inexplicably contra-

dictory commands in statutes ordaining criminal

penalties have, in the same fashion, judicially been

denied the force of criminal sanctions. United States

v. Cardiff, 344 U. S. 174. Here there were more

than commands simply vague or even contradictory.

There was active misleading. Ct. Johnson v. United

States, 318 U.S. 189, 197. The State Supreme Court

dismissed the statements of the Commission as

legally erroneous, but the fact remains that at the

inquiry they were the voice of the State most

presently speaking to the appellants. We cannot hold

that the Due Process Clause permits convictions to

be obtained under such circumstances’ (360 U.S.

425, 438-9).

29

I. is true that the majority im the Bareublatt case was

able to assign a meaning to the vague language contained

in Rule XI. This it did after a study of the twenty year

history of the Committee in the course of which reference

was made to debates on the original authorizing resolution

in the 75th Congress, to seventeen House Reports from the

76th Congress to the 85th and to twenty-three House Resolu-

tions extending over the same period of time. It may be

that such an historical survey justifies the conclusion to

which the Court came as to the intent of Congress. The

difficulty is that we are not here concerned with the intent

of Congress, but rather with the guilt or innoeence of

petitioner who is entitled to read a statute and to base

his conduct on a fair interpretation of the words set forth

therein.

It is unreasonable to expect that petitioner would under-

stand that the word **un-American’’ really meant **Com-

munist Party’’, especially a few months after the Chief

Justice of the United States, in an opinion joined in by

a majority of this Court, had been unable to define the

words. It is unreasonable to expect that petitioner would

interpret the words ‘propaganda activities’? as meaning

‘‘any activity’’. Indeed the witness himself indicated his

understanding that the statute referred only to propaganda

activity (R. 30).

We know of no case prior to Berenblatt in which a

Court was compelled to rely on Jegis:ative history in order

to uphold a criminal conviction and we respectfully sug-

vest that to the extent to which the Court was compelled

to rely on such history in the Barenblatt, Braden awd

Wilkinson cases it did so in clear violation of the most

fundamental rights guaranteed under the due proces.

clause. If a statute is clear on its face (and no one ean

reasonably contend that this statute ts clear), there is ne

occasion to resort to legislative history; if a state ts

unclear on its face it cannot support a criminal conviction.

30

We are aware of the fact that the contention we are

here making was inherent in the record in Barenblatt,

Braden and Wilkinson and it seems to have been argued

in the Braden case. However, it was not considered in

any of the three opinions.

Assaming that the Committee had the jurisdiction it

claims (as the Court found in Barenblatt) and assuming

further that the intent of the defendant in a ‘ 192 case is

not relevant, as the Court held in Sinclair and Braden,

the constitutional objection remains. that the statute is

unclear and that the tests set forth by this Court in the

earlier cases, cited above; cannot be met.

POINT V

The indictment should have been dismissed because

of the presence of Government employees on the Grand

Jury.

Fifteen members of the Grand Jury which indicted peti-

tioner were employees of the United States Government

(R. 5). On September 16, 1958, the petitioner moved to

dismiss the indictment on the ground, among others, that

the indictment was not found by a sufficient number of

qualified and unbiased Girand Jurors (R. 4). Several days

later a motion for a hearing on the motions of the quali-

fications of the Grand Jurors was filed, together with an

offer of proof (R. 5-9). The motion was denied by the

Court and this question was reserved for argument here.

This issue has already been presented to the Court in

many cases at this ‘Term, including Russell v. United States,

No. 8, Shelton vy. United States, No. 9, Liveright v. United

States, No. 11, Price v. United States, No. 12, Gojack v.

United States, No. 128, and perhaps others. There is little

we can add to the learned and extensive discussion by

counsel in the briefs submitted in those cases, and par-

31

ticularly in the briefs submitted in behalf of petitioners in

Russell and Live right. Since we have no desire to burden

the Court with exeesive duplication of material which has

been presented to it in other briefs, we respectfully refer

the Court to those briefs. To the best of our knowledge,

the issue presented in all of those cases is identical in all

substantial respects with that presented in the instant case.

POINT VI

The Committee acted in violation of the First

Amendment to the Constitution and in excess of its

authority.

In the Barenblait, Braeden and Watkins cases, to say

nothing of the other cases argued at this Term of the Court,

the petitioners generally have contended that there was no

genuine legislative purpose to the invesiigation carried

on by the Committee and that the Committee in general was

engaged in activities which violated the First Amendment

to the Constitution. This Court has on several occasions

now, by closely divided vote, rejected these argtiments and

we shall therefore not set them forth again. We mention

them here merely as a reminder to the Court that in the

opinion of many this Committee constitutes a basic threat

to American freedom and that it has over a period of a

veneration functioned ino violation of the constitutional

rights of those who have been called before it.

a

CONCLUSION

Petitioner’s conviction should be reversed.

Respectfully submitted,

Rapixnewrrz & Bovprs,

25 Broad Street,

New York 4, N. Y.,

Wecuster & Drerrus,

. 504 Broadway,

Gary, Indiana,

Attorneys tor Petitioner.

Victor Rasinow1tz,

Leonarp B. Bovpty,

of Counsel.