# Brief for Petitioner — Silber v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385001_0217%3A4 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitioner - **Published:** January 1, 1962 - **Citation:** 370 U.S. 717 ## Text 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 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