Brief for the United States — Whitman v. United States

Supreme Court brief1961

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What actually matters in this document.

Text

Opinions below

Jurisdiction.

Questions presented_ ~

Statute, resolution and rule involved 1

Statement_.._.

Summary of argument_

I. The hearings at which petitioner appeared were properly

authorized

A. The resolutions establishing and continuing the

Senate Committee on Internal Security authorized

a subcommittee of the Judiciary Committee to

—— ee eee oe ee

A. e raise the First Amendment rights

of others.

B. The First Amendment is not violated by questions

asking the identity of other persons 2

III. The questions petitioner refused to answer were pertinent to

the subject under inquiry and this was madd clear to peti-

tioner by the Subcommittee.

A. Petitioner ‘failed to challenge the pertinency of the

questions when he appeared before the Subcommit-

tee and therefore cannot cigim at his trial that he

was not apprised of their pertinency. In any event,

de was apprised of their pertinency

B. The government proved that the questions were perti-

nent to the subject under inquiry

IV. The Subcommittee was not required to apprise petitioner of

the source of its authority

. The indictment was not required to specify the subject under

" inquiry or the pertinency of the questions to this subject,

or to state the delegation of authority from the parent

committee to the subeommittee

Conclusion. ........-.. 8

CITATIONS

Cases : 5

Berenblatt v. United States, 360 U. S. 109.

a 3

14.

15, 25, 27, 34, 37, 38, 29, 41, 42, 47, 48, 51

Barsky v. United States, 167 F. 2d 241, certiorari denied, 84

U.S. 848.2 — 49

Bates v. Little Rock, 361 U. . 516—— --- 2, 33, 37

Braden v. United States, 365 US. 4314— 2 26, 47

- 619867—461——_1 . 5

—

Cases —Continued :

„„ Communtet Party v. Subversive Activities Control Board, 367 Page

Us. 1 15,36“

Deutch v. United States, 361 U. 8. . 38, 39

Bhiapek v. United States, 208 ¥. 24 26, reversed, 309 U.S. 190... 221

Gtordencile v. United States, 357 U.. 480_ 18, 24

.. Malev. Benbel, 2M U.S. 4. 25

dab v. United States, 318 U. 8. 1 28

Joint Antt-Fescist Refugee Committee v. MoGreth, 341 U.8.123.. 20.

32, 3

Jones ¥. United States, 382 U. 257 4 5 20

Keesler v. Strecker, 30% u. 3... _. 2

MoPheui D States, 364 . 2 1

Morforé v. b nan 8.... 40

L. A 4 0 . r 14, 31, 88, 37

Pierce +. Bortety of Sisters, 2% US 9 30. 33

In the Supreme Gourt of the Writed States

j Oro Tn, 1961

No. 10

Ann WHITMAN, PETITIONER

Unrrep Stari or A0

* ‘

; % *

BRIEF FOR THE UNITED STATES

‘

‘OPINIONS BELOW

‘The eral opinion of the district court (J.A. 54-55)

is not reported. The opinion of the court of appeals

JURISDICTION

. kt sacle “een entered

on July 7, 1960 (R. 4). The petition for a writ of

certiorari was filed on August 5, 1960, and granted on

June 19, 1961 (R. 4; 366 U.S. 959). The jurisdiction

of this Court rests on 28 U.S.C. 1254(1)..

@UESTIONS PRESENTED ©

1. Whether the hearings of the Senate Internal

Security Subconimittee at which petitioner appeared

» Were properly authorised.

2 Whether the Subcommittee’s investigation into

Communist activities in the news media field violated

at Gn Same he sates ee

not, whether he can claim that he was not apprised of

their pertinency for the first time at his trial.

4. Whether the questions petitioner refused to an-

swer were pertinent to the subject under inq-iry.

5. Whether petitioner can raise the issue whether

the Subcommittee apprised“him of the source of its

authority for the first time at his trial and, if he ean,

oA whether the Subcommittee was required to apprise

\ petitioner of the souree of its authority. 8

6. Whether the indictment was invalid because it

failed to specify the subject under inquiry and the

pertinency of the questions to that subject, and did

„„

committee to the Subcommittee.

STATUTE, RESOLUTION, AND RULE INVOLVED

Section 192 of Title 2 U.S. C., Senate Resolution

366, Sist Cong., 2d Sess., and Rule 7(c) of the Federal

Rules of Criminal Procedure are set forth in the

appendix to petitioner’s brief at pp. 3-5.

‘STATEMENT

Petitioner was charged in a nineteen-count indict- |

ment (J.A. 46), returned in the District Court for

the District of Columbia, with having refused, in vio-

lation of 2 U.S.C. 192, to answer nineteen questions

asked him by the Subcommittee to Investigate the

Administration of the Internal Security Act and

Other Internal Security Laws of the Senate Com-

by the court on all the counts (JA. 54-55) and was

sentenced to serve six months’ imprisonment, which

was suspended, and to pay a fine of $500 (J.A. 62-63).

The judgment of the trial court was affirmed by the

court of appeals (Pet. App. 1a-3a)..

e fallen

On June 28 and 29, 1955, the Internal Security

Subcommittee heard the testimony of Winston Bur-

Lott, a newspaperman and benadenster, in connection

“with its continuing in since 1950 into Com-

munist subversion and the opération of the internal

security laws (Tr. 173-174); Hearings on Strategy

and Tactics of World Communism, Subcommittee

to Investigate the Administration of the Internal Se-

curity Act and other Internal Security Laws of the

Committee on the Judiciary, U.S. Senate (herein-

after designated ‘‘Hearings”), 84th Cong., Ist Sess.,

Part 14, pp. 1324-1363). Burdett, who said that he

had been ¢ member of the Communist Party from

1937 until the early 1940’s, testified concerning at-

tempts by the Communist Party to influence public

opinion by infiltration of Party members into the

newspaper field. He stated that he became 2 mem-

ber of the Party’s unit in the Brooklyn Eagle in

1937 while employed by that newspaper (Hearings,

Part 14, p. 1324); that the unit included several re-

Porters and editorial writers (id. at pp. 1325-1327,

1359-1360) ; that Party leaders induced him to be-

come a foreign correspondent for the Eagle in order

to use his position to act as an espionage agent for

- the Soviet Union and that he continued these activi-

ties while subsequently employed by Transradio

Press and the Columbia Broadcasting System during

World War II (id. at pp. 1328-1341, 1347-1353) ; and

that employees of other New York newspapers had

been Party members around 1940 (id. at pp. 1360-

1363).

The counsel of the Subcommittee testified at peti-

tioner’s trial concerning the reason petitioner was

„ eubpeenaed to testify. At the time petitioner was

subpeensed, the Subcommittee had information that

petitioner had been active in the Communist Party

in Commectieut in the mid-thirties; that he had been

an official of the American Committee for the Pro-

tection of the Foreign Born, which organization had

been cited by the Attorney General.as a Communist-

front organization; that he had been an executive

secretary of the New York Committee for the Pro-

tection of the Foreign Born, which had also been

cited by the Attorney General as a Communist-front ;

that he had been’ connected with a magazine called

“Science and Society,’’ which was part of a scheme

to recruit teachers from American universities and

colleges into the Communist Party; and that he had

been employed by TASS, the Soviet news agency,

which the Subcommittee believed to be a cover for

Soviet espionage * (J. A. 10-12).

*On February 8, 1956, the Subcommittee heard testimony

from Yuri Rastvorov, who was until 1954 a Lieutenant Colo-

The Subcommittee held public hearings in Wash-

ington, D. C., on January 4, 5, and-6, 1956." At the

opening of the hearings on January 4, Senator East-

land, the Chairman of the Subcommittee, announced

thiat the hearings about to eommence “stem from ses-

sions of this subcommittee held on June 28 and 29,

1955, in which we heard the testimony of Mr. Winston

Mansfield Burdett, a newspaperman and broadcaster”

(Gov. Ex. 8, p. 1587).“ Burdett had, the Chairman

continued, disclosed the names of persons whom he

ew as members of the Communist. Party in the

y 1940’s. The Chairman concluded that the in-

vestigation was of great importance because (ibid.):

[Almong the persons involved in“ this inves-

tigation have been many who were or are mem-

„bers of the press, and * * * the international

Communist conspiracy has as one of its pri-

mary aims the influencing of public opinion,

thus carrying on its psychological warfare

against the United States and its institutions

from inside by methods of penetration. * * *

The present hearings open up a subsequent

chapter to the Burdett testimony * * *.

Following the opening statement, another member

of the Subcommittee, Senator Hennings, apparently

apprehensive that the public might misconstrue the

Committee on the Judiciary, 85th Cong... 2d sess., Ph. 1, PP. 2,

18-19.

Robert Shelton, the petitioner in No. 9, this) Term, and

William Price, the petitioner in No. 12, this Term, also re-

fused to answer certain q at this same hearing and

were subsequently convicted for contempt.

* Government Exhibits i is Part 17 of the Hearings, entitled

Strategy and Tactics of World Communism 3 Ac-

6 York). ae

„

purpose of the hearings, further explained (Gov. Ex.

8 p. iss):

i tik any bens tai attatk upon the

Free press of the United States. * * *

Of course, the committee is interested in the

_ extent and nature of so-called Communist in-

filtration if such exists, into any news-dispens-

ing agency. * * [ TIhis is not an attack upon

, one pewspaper, upon an up of news-

e of

this committee to show such participation and

such attempt as may be disclosed on the part

of the Communist Party in the United States

or ee rere oF fe: sever

the ican press.

Ta response, the Chairman approved Senator Hen-

nings’ deseription of the purpose of the hearings as

ry fine and very accurate statement, one with

the Chair certainly agrees, in its entirety”

(bid. ). The Chairman went on to say (ibid.):

8 We are not singling out any newspaper and

not investigating any newspaper or any group

1 of newspapers. We are simply investigating

communism wherever we find it, and I think

that when this series of hearings is over that

no one can say that any newspaper or any em-

ployees of any one newspaper has been singled

out.

At petitioner’s trial, the counsel for ihe Saline: :

mittee testified concerning the purpose 1

tigation (JA. 31):

The purpose of these inquiries was to fur-

ther the committee's design to learn all it

could about the operations of the Communist

Party in as many fields as it could go into for

the purpose of determining what if any legis-

lation would be recommended which would

help to preserve and protect the Internal Secu-

rity and safetv and defense of the United

States. In these particular hearings we were

in an area within the broad area of tactics and

strategy, within the narrower area of infiltra-

tion of mass communications.

Later, the counsel for the Subcommittee testified that

the subject of the investigation was “into mass com-

munications infiltration by Communists” (J.A. 34).

Eighteen witnesses were called by the Subcommittee

to testify at the hearings on January 4, 5, and 6, 1956.

All had been or were then employed in the communi-

cations field. Clayton Knowles, who had previously

given the Subcommittee information on Communist

activity in newspapers (Gov. Ex. 8, p. 1717), vas

among the eee ee ee

Knowles testified d that he was then a reporter for the

New York Times; t. that he was a member from 1937 to

1939 of the Communist Party unit on the Long Island

Daily Press where he was a reporter; and that Party

members at that time had positions of importance and

exerted considerable influence in the American News-

paper Guild (id. at pp. 1635-1642). 8

On January 6, 1956 (two days later), the same day

that petitioner testified, the hearings opened with the

reading of a telegram sent to the Subcommittee by a

New York newspaper, the Long Island Daily Press,

in which that newspaper agreed with the Subcommit-

tee’s efforts to expose Communist infiltration where-

ever found (Gov. Ex. 8, p. 1717). The Chairman, in

responding to the telegram, repeated that the hearings

were directed to investigating Communist infiltration

61887612

into news agencies (id. at pp. 1717-1718). Senator

Hennings stated (id. at p. 1718):

I think that no one will quarrel with nor take

issue with the fact that this committee has the

right to inquire into all efforts or, indeed, all

consummations of efforts of the Communist

Party to infiltrate newspapers or other media

of communication.

The Subenmmittee called Robert Shelton, the

‘petitioner in No. 9, this Term, to testify. Immediately

after Shelton testified, petitioner was called to testify.

‘Petitioner, a espyreader for the New York Times

(Gov. Ex. 8, pp. 1728, 1729), testified that he was a

‘member of the Communist Party from 1935 to ap-

‘proximately 1949, and that he had belonged to Party

cells in Bridgeport, Connecticut, where he joined the

Party, Buffalo, ‘New York, and New York City (td. at

pp. 1730-1788, 1739, 1744-1745). When he was asked

to name the members of a cell to which he belonged in

New York City, however, he declined to answer on the

grounds that his private affairs, beliefs, and associa-

tions were not proper subjects for investigation; that

their pertinence to any valid legislative purpose was in

doubt; and that it was doubtful whether Congress had

the right to investigate the press (id. at pp. 1733,

1735). He disclaimed any relianee on the Fifth |

Amendment, relying instegd on the First Amendment

and the, doctrine of separation of powers (id. at pp.

1733-1735). He subsequently suggested that he would

not answer questions which might eause other indi-

viduals unnecessary harm or embarrassment’’ (id. at

p. 1737; see also td. at pp. 1741, 1742). Petitioner

was told by the Chairman that the question was

asked because the Subcommittee was investigating

a Communist cell which it had reason to believe

was active in New York City and that Sub-

committee wanted to know petitioner’s in

that cell (Gov. Ex. 8, pp. 1737, 1738). Petitioner was

then directed to answer the question (id. at p. 1739).

He again refused (ibid.), and this refusal constitutes

the basis for count 1 of the indictment (J.A. 4).

On the basis of his origina] objections to the inquiry,

petitioner declined to answer the questions upon which

the remaining counts in the indictnient are predicated

(J.A. 4-6).* He refused to state whether the cell to

which he belonged in New York City was located at one

of the major newspapers, on what newspaper he worked

at the time he was a member of the cell, and whether

during all or part of the period from January 1943 to

June 30, 1951, he was a member of a Communist cell

composed of employees of the New York Herald

Tribune where he was then employed (counts 3-5)

(Gov. Ex. 8, pp. 1740-1741). The Subcommittee

counsel then read petitioner a transcript of petition-

er’s appearance before the Subcommittee in executive

session. The transcript showed that petitioner was

asked, “while you were with the New York Herald

Tribune, were you connected with a Communist unit

in the New York Herald Tribune?“ (id. at p. 1742).

After first refusing to answer, petitioner final

gave a] very reluctant yes“ (ibid.). At the pub-

lie session, petitioner was asked whether this

testimony was true, and he said that it was (id. at p.

1743). The Subcommittee then asked who were the

The only question to which he gave different grounds for re-

fusal to answer underlies count 8 (see infra, p. 18). _

= 5

3 members of the cell bt the Herald Tribune, and whether

any of the members of the cell were currently employed

by the Tribune (eounts 6 and 7) (Gov. Ex. 8, pp. 1743-

1744). Petitioner declined to answer.

7 Petitioner testihed that his firet employment in New

York in 1938 was with the National Committee for Peo-

ple’s Rights (Gov. Ex. 8, pp. 1782, 1743). He was ad-

vised by the Subcommittee that in 1942 this organiza-

tion had been cited by the Attorney General “as a Com-

| munist organization, substantially equivalent to the

International Labor Defense, legal arm of the Com-

munist Party” (id. at p. 1743) . After working for this

organization for two or three months, he did research

on a book, but he refused to give the name of the book

or to state for whom he did the ount 9) (id. at

pp. 1745-1746). He also re! ‘to state whether the

book was published by a Communist publishing house

or whether the person for whom he worked was known

to him to be a Communist (counts 10 and 11) (id. at

p. 1746).

Petitioner testified that for a 1 1 of eight weeks

he was employed by the North American Committee to

Aid the Spanish Democracy (Gov. Ex. 8, pp. 1746-

1748), but he refused to state whether there were any

persons in that organization known by him to be Com-

munists (count 12) (id. at p. 1747). He was then ad-

vised by the Subcommittee that in 1949 the North

American Committee had been cited by the Attorney

General as a Communist organization and by the House

Committee on Un-American Activities as a Communist

front (ibid.). He was. further informed that it had re-

ceived funds from the Communist Party of Massachu-

setts and from the International Workers Order-and

that its Uieiubüre nad deen sold in Communist bal

stores (ibid.). Petitioner persisted in his refusal to

answer and further declined to name the person who

paid him for working for that organization (count 13)

(id. at p. 1748).

Petitioner testified that 1 also worked for about two

months as a press agent for Films for Democracy (Gov.

Ex. 8, pp. 1748-49). He was told by counsel for the Sub-

committee that, in March 1944, Films for Democracy

had been cited as a Communist-front organization ; that

the Cinema Bureau in Moscow had laid down directives -

in 1939 “eoncerning the building up of audiences for

the purpose of agitating against certain films opposed

to the current Communist Party line and supporting

those which favored the line; and that, pursyant to that

directive, Film Audiences, a Communist front, merged

with Films for Democracy to form a new Communist.

- front, Film Audiences for Democracy (id. at p. 1749).

_. Petitioner declined to state whether there were any per-

sons connected with Films for Democracy known to him

to be Communists or to.disclose who paid him for his

work (counts 14 and 15) (id. at pp. 1748-49):

After he left Films for Democracy, petitioner .

worked for several months for Veterans of Demoeracy

as a press agent and researcher for one of its officers

who was speaking once a week over radio station

WQXR (Gov. Ex. 8, pp. 1749-1750). He refused to

answer whether any persons connected with that or-

ganization were known to him to be Communists or

to name the officer for whom he worked — 16

and 17) (id. at p. 1750).

Petitioner testified that he had worked successively

fro the fall of 1939 to December 1941 for the Rus-

sii ˙— Mi tie Hoe Terk: Peat

Committee, and for the American Committee for the

Protection of the Foreign Born (Gov. Ex. 8, pp.

1751-1752). He was told by the Subcommittee that

the American Committee for the Protection of the

as a subversive and Communist-front

that it was known as ole of the oldest a

SS eo ce ee d. at

pp. 1729, 1752). He declined to state whe any

persons in the New York Peace Committee or the

for the Protection of the Foreign

Born Were known to him to be Communists .

18 and 19) (id. at p. 1752).

From December 1941 to January 1943, petitioner

worked for the Buffalo Evening News (Gov. Ex. 8,

pp. 1728, 1753). He testified that he joined a Com-

: munist unit in Buffalo, but he refused to state who

were the members of that unit (count 2) (id. at pp.

1739, 1753). In January 1943, he returned to New

Vork where he became a copy reader for the New

Vork Herald Tribune (id. at p. 1753). He remained

with the Tribune until the end of June 1951, when

he began his present employment with the New-York

Times (id. at p. 1754).

Petitioner testified that he left the Communist

Party in 1948 (Gov. Ex. 8, pp. 1730-1731, 1745). He

could not recall writing a formal resignation but at

about that time he stopped going to meetings aad

paying dues (id. at p. 1745). „Oln the basis of

privileged communication between me and my. wife,

he declined to state whether he told anyone that he

was quitting the Party (count 8) (ibid.).

SUMMARY OF ARGUMENT

7 1 =

The hearings at which itioner appeared were

«properly authorized. As we have shown in our brief

in Liveright v. United States, No. 11, this Term, pp.

19-28, the Senate authorized the Judiciary Committee

or one of its subcommittees to investigate Communist

activities. S. Res. 366, 8lst Cong., 2d Sess.; S. Res.

58, 84th Cong., Ist Sess. The record at the trial

clearly showed that the Judiciary Committee in 1955

authorized the continuance of the Internal Security

._Subcommittee, established under Senate Resolution

366, during the 84th Congress. Moreover, petitioner

cannot claim: that the Judiciary Committee had not

delegated its authority to the Subcommittee since he

did not raise this issue when he appeared before the

Subcommittee (see our briefs in Shelton v. United

States, No. 9, this Term, pp. 25-29, and Liveright, pp.

29-32) nor in his petition for a writ of certiorari in

Similarly, petitioner cannot contend that the Sub-

committee failed to authorize, as required by its own

rules, the particular ‘hearings at which petitioner

appeared because he did not raise this issue before

the Subcommittee or at trial. If the issue had been

raised at the trial, the government could have pre-

sented evidence directly on this issue. See Giordenello

v. United States, 357 U.S. 480, 487-488. In any event,

since a majority of the Subcommittee’s members were

present at the start of the hearings, and none objected,

they implicitly approved the invbatigition And, even

“a

if they had not done so, the Subcommittee counsel

testified at petitioner’s trial that the Subcommittee

did not consider the hearings as the start of a major

imyestigation and therefore under the Subcommittee’s

rules no new approval was required. :

For the same reasons in our brief in Shelton

v. United States, supra, pp. 48-50, which involved the

sathe investigation and hearings, the Subcommittee’s

investigation did not violaté the First Amendment.

See Barenblatt v. United States, 360 U.S. 109, 125-

134.

Petitioner attempts to distinguish Barenblatt on

the ground that the questions he refused to answer

sought thé identity of other persons. In fact, how-

ever, only seven of the questions were of this type.

In any event, this contention is without merit.

A. Petitioner has no standing te claim the First

Amendment rights of other persons. He admitted

that he was a member of the Communist Party. The

questions which he refused to answer eich the

identity of others.

This Court has held in Wannerben eines that a liti-

gant cannot invoke the constitutional rights of others.

The only exception is when the litigant can be said to

represent the persons whose constitutional rights were

Pred violated. Thus, an association can invoke

the rights of its members. See N.A.A.C.P. v. Ala-

bama, 357 U.S. 449. In contrast, here petitioner’s

only connection with the unnamed other persons is

at most friendship and common membership, in the

past, in the Communist Party. |

; B. Even if petitions had standing to raise this is-

sue, the First Amendment is not violated by questions

asking the identity of other persons. In Barenblatt,

Ae Court held that “the balance between the individ.

ugl

and the governmental interests here at stake must

be struck in favor of the latter, and - therefore

the provisions of the First Amendment have not been

offended” (360 U. S. at 134). The governmental interest

in questions disclosing the identity of other persons

involved in Communist activities is at least as strong

as its interest in the questions involved in Barenblatt

concerning the Communist activities of the witness

himself. Moreover, a witness’ individual interest in

asserting the First Amendment rights of others, if he

has standing to assert these rights at all, is substan-

tially less than the interest the witness has in elaim-

ing his own rights. At the most, petitioner, in claim-

ing the rights of others, stood in the same position as

if those persons were claiming their rights for them-

selves—that is, the same position as Barenblatt was

in.

In addition, the issue as to three of the counts, in-

volving=questions seeking the identity of persons in

the Communist Party cell, is substantially controlled

by Communist Party v. Subversive Activities Control

Board, 367 U.S. 1. There the Court upheld the con

stitutionality of an order requiring the registration of

all Party members. 4 fortjori, then, a Congressional

committee, seeking information in order to legislate,

can require a witness to disclose the names of mem-

bers of Party units to which he belonged.

619367—61——__ 3

8 —

Petitioner cannot excuse his refusal to answer by

the alleged lack of pertinency of the questions.

A. Petitioner made no objection before the Sub-

committee to the pertinency of the questions. While

he did claim that the questions could not be pertinent

to any valid legislative purpose because of the prohi-

bitions of! the First Amendment, this is not a claim

that the questions were not pertinent to the subject

actually under inquiry. Therefore, as we have shown

in our brief in Shelton, supra, pp. 25-29, petitioner

cannot claim that the Subcommittee failed to apprise

him of the subject under inquiry or the pertinency of

the questions to that subject.

“Moreover, petitioner was clearly apprised by the

Subsomidnithee of the subject under inquiry: Commu-

nist activities in news media. The pertinency to this

subjeet of seven of the questions which petitioner

refused to answer and on which he was convicted was

made clear either by the questions on their face or

by the explanation of the Subcommittee. _

B. The government proved, as 2 U.S.C. 192 re-

quires, that the questions petitioner refused to answer

were pertinent to the subjects under inquiry. By

ere the transcript of the hearings, the gov-

ernment established the subject under inquiry de-

scribed above. As we bave noted, the pertinency of

seven of the questions was made clear to petitioner

by the Subcommittee. The government showed,

through oral testimonf, that the other two questions

were also pertinent.

—

= \ ae ,

Petitioner contends that the Subcommittee counsel

testified and the Assistant United States Attorney

statéd at the trial that the subject under inquiry was

Communist activities generally. This subject, how-

ever, is perfectly consistent with the subject of Com-

munist activities in news media; the latter is merely

a portion of the broader subject. Moreover, if the

oF subject was Communist activities generally, this is a

proper subject within the authority of the Subcom-

mittee (see our brief in Liveright, supra, pp. 42-44).

All the questions were pertinent, either on their face

or as shown by the government's evidence at the trial,

to this subject.

| IV

Petitioner contends that thé “Subcommittee failed

to apprise him of the source of its authority from the

Senate. Petitioner, however, did not even suggest

this objection when he appeared before the Subcom-

mittee when the Subcommittee could readily have met

the objection. Therefore, he cannot raise it at his

trial for contempt. In any event, there is no need

for a Congressional committee to apprise a witness of

the source of its authority since the authority of the

committee, unlike the subject under inquiry, is con-

tained in the authorizing resolutions which are public

documents.

Petitioner contends that the indictment: was re-

quired to specify. the subject under inquiry and the

pertinency of the questions to those subjects, and to

state the delegation of authority from the parent

Committee to the Subcommittee. As shown in our

brief in Shelton, supra, pp. 78-83, under Rule 7(c) of

the Federal Rules of Criminal Procedure and the de-

. Gisions of this Court and the courts of appeals, an

reasoning underlying the allegation that the questions

were pertinent; We show in our brief in Price v.

— alleged the authority of the Sab-

committee. 3

ARGUMENT

‘Petitioner was convicted of refusing to answer

nineteen questions asked him by a Congressional com-

mittee. Four of these questions directly involved his

_ own activities in the Communist Party—whether the

Party cell to which he belonged was in one of the

major newspapers in New York City (count 3); what

was the name of the newspaper (count 4); whether

he was a member of a Party cell on the New York

e (count 5); and whether the book he

ed was published by a Communist publishing

house (count 10). We agree, however, with peti-

tioner (Pet. Br. 39) that petitioner answered the

questions involved in counts 3, 4, and 5 (Gov. Ex. 8,

pp. 1742-1743) avd therefore his conviction on these

counts was improper.’ Eight questions concerned the

* Petitioner first refused to answer, even after being directed

to do so. Subsequently, however, he was confronted with the

transcript of his appearance before the Subcommittee in execu-

tive session where he answered these questions and he then ad-

mitted that this answer was true (see supra, pp. 9-10). Petitioner

did nat claim that he had answered these three questions in the

district court, the court of appeals, or in his petition for a writ

of cert*orari. Apparently, this fact was overlooked by him, the

government, the Subcommittee, the Senate, and the courts

below.

Party activities of other persons, but did not ax

the disclosure of their names—whether the mem-

bers ef the Party cell on the Herald Tribune were

still employed by that newspaper (count 7); whether

he told anyone when he quit the Party (count 8);

whether the person for whom he had done the re-

search work was a Communist (count 11) ; and whether

there were any Communists in the North American

Committee to Aid the Spanish Democracy (count

12), Films for Democracy (count 14), Veterans for

Democracy (count 16), the New York Peace Com-

mittee (count 18), and the American Committee for

the Protection of the Foreign Born (count 19). Only

seven questions required the disclosure of the iden-

tity of other persons—who were the members in the

Party cell in New York City to which petitioner ad-

mitted he belonged (count 1); who were the members

of a Party cell in Buffalo to which petitioner ad-

mitted he had telonged (count 2); who were the

members of the Party cell in the Herald Tribune,“

In our Brief in Oppositi ion, p. 15, note 9, we suggested that

this question may, in view of petitioner’s testimony, duplicate

the question involved in count 1. This suggestion, however,

seems erroneous. Petitioner testified that he was in a Party

cell in Bridgeport, Connecticut, from 1935 to 1937, and that he

then came to New York City where he joined a Party cell

(Gov. Ex. 8, p. 1782). After being asked what unit he first be-

longed to in New York, he was asked the question involved in

count 1—who were the members of that cell (id. at pp. 1733, 1737).

Petitioner subsequentiy testified that he left New York City and

joined a Party cell in Buffalo and that he had belonged to more

than one cell in New York City (id. at p. 1739). Petitioner ad-

mitted that he had been a member of a Party cell on the Herald

Tribune while working there and that he worked for the Tribune

from 1943 to 1951 (id. at pp. 1741-1743). He then refused to

to which petitioner admitted he belonged (count 6);

whai was the name of the book which petitioner

researched and who waa the person for whom he had

done the work (count 9); who had paid petitioner

when he worked for the North American Committee

to Aid Spanish Democracy (count 13) ; who paid him

when he worked for Films for Democracy (count 15);

and who was the officer of Veterans for Democracy

who spoke over WQXR (count 17). Petitioner was

given a general sentence and a fine on all nineteen

counts (J.A. 62-63), which was less than the maxi-

mum authorized by 2 U.S.C. 192 under any one count ;

therefore the judgment below must be affirmed if any

one of the counts is valid. E. g., Barenblatt v. United

States, 360 U. S. 109, 115.

THE HEARINGS AT WHICH PETITIONER APPEARED WERE

PROPERLY AUTHORIZED

_ Petitioner contends (Pet. Br. 46-50) that the hear-

ings at which he appeared were not properly author-

ized because (1) Senate Resolution 366, 8lst Con-

gress, which is the authorizing resolution of the Sub-

committee, is ambiguous; (2) the resolution author-

izes “the Committee on the Judiciary, or any duly

authorized subcommittee thereof” to mvestigate Com-

munist activities and the record does not show that

disclose the members of that cell (count 6) (id. at p. 1743). Thus,

it appears that petitioner's answer to the question involved in

count 1 would have disclosed the members of the cell to which he

belonged when he first arrived in New York City in 1938, while

his answer to the question involved in count 6 would have dis-

closed the members of the cell on the Herald Tribune to which

belonged after 1943. 3 :

wm r , .

the Sudicidry Committee had so authorized its In-

ternal Security Subcommittee; and (3) a majority of

the Subcommittee never approved these particular

hearings, as required by the Subcommittee’s rules.

We submit that these ‘contentions are without merit.

A. THE EZSOLUTIONS ESTABLISHING AND CONTINUING THE SENATE

SUBCOMMITTEE ON INTERNAL SECURSTY AUTHORIZED A SUBOCOM-

MITTER OF THE JUDICIARY COMMITTEZ TO INVESTIGATE COM-

MUNIST ACTIVITIES IN THE UNITED STATES a

We have shown in our brief in Liveright v. United

States, No. 11, this Term, pp. 19/28, that the Senate

Jauthorized the Judiciary Committee or one of its sub-

committees to investigate Communist activities. 8.

Res. 366, 8lst Cong., 2d Sess:; S. Res. 58, 84th Cong.,

Ast Sess. Therefore, the Judiciary Committee was au-

thorized to establish a subcommittee which could ques-

tion petitioner concerning the subject under inquiry

when, he testified—+.e., Communist infiltration of news

media (see tnfra, pp. 40-41, 43-46).

B. THE JUDICIARY COMMITTEE AUTHORIZED THE INTERNAL SECURITY

SUBCOMMITTEE

Petitioner cannot claim that the Subcommittee was

not authorized. by the Judiciary Committee since he

failed to raise this contention before the Subcommit-

tee. As explained in our briefs in Shelton v. United

States, No. 9, this Term, pp. 25-29 and Liveright, pp.

29-32, a witness before a Congressional committee

cannot raise at his trial procedural issues on which he

did not rely at the time he refused to answer the ques-

tions. See United States v. Bryan, 339 U.S. 323, 330

335; Emspak v. United States, 203 F. 2d 26, 54, 56 (C. A.

D.C.), reversed on other grounds, 349 U.S. 190. The

issue whether the Judiciary Committee properly dele-

gated the powers conferred on it by the Senate in-

volves the internal procedures of the Judiciary Oom-

mittee. Just like the defects said to be involved in

Liverigit v. United States, supra—whether the Sub-

committee could sit while the Senate was in session

and whether the Judiciary Committee had authorized

an executive session—the defect alleged here could

: easily have been remedied (assuming petitioner’s con-

tention were correct that the Judiciary Committee had

not already authorized the Subcommittee) by having

the Judiciary Committee vote“ an authorizing

resolution. | : ©

_ Petitioner is also precluded from raising this issue

because it was not presented in his petition for a writ

of certiorari. Therefore, under Rule 40(1)(d)(2) of

the Rules of this Court, he cannot raise it in his brief

on the merits unless there was plain error.“ F. g.,

Kessler v. Strecker, 307 U.S. 22, 34.

_In any event, petitioner’s contention is clearly with-

out substance. Government Exhibit 3, an excerpt

from the official minutes of a meeting of the Judiciary

Committee on January 20, 1955, states that the Com-

mittee adopted the following resolution: :

Resolved, by the Committee on the Judiciary,

that the Special Subcommittee to Investigate the

Administration of the Internal Security Act and

Other Internal Security Laws under S. Rés. 366

(81st Cong.) be continued as a Special Subcom-

mittee of the Committe on the Judiciary during

the 84th Congress and that the Committee re-

port an appropriate original resolution favor-

ably to the Senate for this purpose.

The minutes of another meeting of the Judiciary Com-

mittee on February 7, 1955, show that the Chairman

appointed Dine members oi tunt Cunumtice w die

Subcommittee (Gov. Ex. 4). And on March 18,

Petitioner cannot claim that the government did

not prove that the Subcommittee had voted to au-

thorize this particular hearing. First, petitioner did

not raise this issue before the Subcommittee. Since

it is an issue involving the internal procedures of the

Subcommittee, it cannot be raised at petitioner’s trial

for the first time. If petitioner had raised it before

the Subcommittee, it could easily have been remedied

by having the Subcommittee authorize the hearing.

since he did not raise it in the district court or in

the court of appeals. It is well established that this

Court will not notice errors which have not been

raised below unless they are obvious. E. g., United

States v. Atkinson, 297 U.S. 157, 159-160; United

States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239;

Jonson v. United States, 318 U.S. 189, 200. More-

over, this Court has held that an issue involving

questions of fact cannot be raised for the first time

on appeal since such a procedure deprives the other

party of /the opportunity to introduce evidence on the

issue. United States v. Di Re, 332 U.S. 581, 588;

619967—¢1__-4

lec

—

Giordenello v. United States, 357 U.S. 480, 487-488.

This principle is applicable here since the government

is entitled to have the 8 to introduce evidence

direetly on this issue. |

In any event, we submit that the record shows

.that the Subcommittee authorized the hearings.

Under Rule 1 of the Subcommittee’s rules, a major

Wr voted by a majority of the

Subcommittee’s members. Since seven of the nine

members. were present at the start of this hearing

(Gov. Ex. 8, p. 1587), and fone objected to it, they

implicitly wonsidered the investigation as approved.

While petitioner states (Pet. Br. 48 and 49, note 26)

that Senator Hennings said that the hearing was

notauthorized, and cites the Hearings, Part 17, p. 1588,

the reference does not support his confention. The

transcript of the hearing shows that Senator Hen-

, Rings was concerned with an entirely different prob-

lem—whether the Subcommittee was investigating

Communist infiltration of the press or the press itself.

Senator Hennings claimed that the latter was the

cerrect purpose of the investigation, and the Chair-

man agreed (see supra, ).

In addition, the

petitioner’s trial that the Subcommittee did not con-

| AN; Tr. 189-184), Which, under its rules, would

require approval of the Subcommittee. He ex-

plained that the basic investigation, which had been in-

itiated long before, was into “the strategy and tactics of

world Communism” and this investigation into Com-

mist activities in news media was merely an offshoot

ä A. 37). Thus, under the Subcom-

nittee counsel testified at

25 ~~

mittee’s own interpretation of its rules—which, unless

clearly inconsistent with the language of the rules, is.

conclusive—no new approval of these hearings was

0 5 II

THE SUBCOMMITTEE’ s INVESTIGATION DID NOT VIOLATE

THE FIRST AMENDMENT

Petitioner and the Amicus Curiae (the New York

Civil Liberties Union) claim (Pet. Br. 52-58; Amicus

Br. 14-21) that the Subcommittee’s investigation

violated his rights under the First Amendnient. As

we have demonstrated, however, in our brief in

Shelton v. United States, No. 9, this Term, pp. 48

50, which involved the same investigation and hear-

ings, petitioner’s contention is without merit. See

also Barenblatt v. United States, supra, 360 U.S.

at 125-134.

Petitioner attempts (Pet. Br. 53, 54) to distinguish

- Barenblatt on the ground that he and his associates

engaged in “lawful political activity, entirely uncon-

“nected with overthrow of the government.“ Even

if we assume this is true—and petitioner’s refusal to

answer may well have foreclosed questions which

would have shown the contrary '"—the Subcommittee

was clearly entitled to ask the questions and require

petitioner to answer. This Court, in Barenblatt,

rejected a similar claim on the ground that there is a

Lelose nexus between the Communist Party and vio-

* Petitioner offered to prove at his trial that he himself

had not engaged in illegal activities (J.A. 46-48), but he could

ee ee

—

lent overthrow of government” and 3 upheld

an investigation into the extent to which the

Communist Party has succeeded in infiltrating into

our universities, or elsewhere, persons and groups

committed to furthering the objective of overthrow”

(360 U.S. at 128-129). The Court held that a Con-

‘committee could properly inquire into the

i manifestations, of the Party’s tenets. The

strict requirements of a prosecution under the Smith

“ Act ** * are not the measure of the permissible

scope of a congressional investigation into ‘over-

throw’, for of necessity the investigatory process

must proceed step by step.“ 360 U.S. at 130. Sitni-

larly, in v. United States, 365 U.S. 399, 414,

the Court ;

IWie ee that, simply because the

.. saistuent may have boon en-

gaged in lawful conduct, his Communist activi-

‘ties in connection therewith could not be inves-

tigated. * * As the Barenblatt opinion

makes clear, it is the nature of the Communist

And in Braden v. United States, 865 U.S. 431, 485,

the Court again stated: .

Barenblatt did not egnfine congressional eommit-

tee investigation to overt criminal activity * * *.

Information as to the extent to which the Com-

munist Party was utilizing legitimate organiza-

tions and causes in its propaganda efforts in [the

South] was s not constitutionally nd

prea dpe ppg canes inquiry. sel

Petitioner also attempts to distinguish Barenblatt

on the ground that petitioner “discussed fully his

own membership in the Communist Party and refused

only to give information which would reveal the iden-

tity of his associates (Pet. Br. 53; see the Amicus Br.

_14-21). He reasons that the public interest under-

‘ lying the Subcommiiittee’s questions—the legislative

value of the identity of petitioner’s associates—was

never shown and that petitioner’s private interest—

the non-disclosure of his associates—is the most com-

pelling possible private interest. Thus, he concludes

that balaneing the competing private and

public interests at stake in the particular circum-

stances of this case (Barenbiatt, supra, 360 U.S. at

126), results, unlike in Barenblatt, in giving the witness

immunity from answering the Subcommittee’s

We submit that this contention, even if it were

correct, is not sufficient to reverse petitioner’s con-

viction. As we have indidated above (pp. 18-19), one

of the questions petitioner refused to answer related

directly to his own Party activities—whether the book

for which he did research was published by a Communist

publishing house (count 10)—and eight others, while

relating to the activities of other persons, did not require

the disclosure of their identity. In any event, as we will

now showy, ‘petitioner’s contention with regard to the

Amendment since any. interference with those richts

had already occurred when he testified as to his own

activities. While conceivably he might be reluctant

to associate with others if he knew that he would have

to divulge their names to a committee,

tue reason for this reluctance his own moral

scruple against testifying about other persons. But

“moral, seruplea,” if not based on some valid legal

ground, are not legal justification for refusing to

answer. Insofar as inquiry by the Subdéommittee

might inhibit petitioner’s own speech or association,

it is entirely as a result of petitioner’s moral beliefs

which arg not protected by the First Amendment.

Insofar as the questions asked . petitioner might in-

valve rights which arg protected by the First Amend-

ment, they would be the rights of association and

dz speech of other persons who conceivably might be in-

hibited. by the knowledge that their identity could

We do not concede that there was any invalid interfer-

ence with such rights (see , pp. 25-27). |

\ 29

be revealed by colleagues to an investigating com-

mittee.

It is well settled that, in the absence of exceptional

circumstances, a litigant can raise only his own con-

stitutional rights. For example, a defendant cannot

complain of an illegal search and seizure under the

Fourth Amen ess he himself was injured by

it. Jones v. United States, 362 U.S. 257, 260-267.

Similarly, the Fifth Amendment: privilege against

self-incrimination is exclusively personal. See Hale

v. Henkel, 201 U.S. 43; Rogers v. United States, 340

_ U.S. 367. In Tileston v. Uliman, 318 U.S. 44, the

Court unanimously dismissed an appeal by a physician

from a decision of a state court upholding the consti-

tutionality of a statute prohibiting the use of drugs

or instruments to prevent conception and the giving

of assistance in their use (id. at 46):

Me are of the opinion that the proceedings in

the state courts present né constitutional ques-

tion which appellant has standing to assert.

The sole constitutional attack upon the statutes

under the Fourteenth Amendment is confined

to their deprivation of life—obviously not ap-

pellant’s but his patients’. There is no allega-

tion or proof that appellant’s life is in danger.

His patients are not parties to this proceeding

and there is no basis on which we can say that

he.has standing to secure an adjudication of

his patients’ constitutional right to life, which

they do not assert in their own behalf. Cronin

Jones held that a person legitimately on the premises at

the time of the allegedly illegal search and seizure is sufficiently

injured to claim the Fourth Amendment even though he was

only a “guest” or “invitee”,

2⁰

v. Adame, 192 U.S. 108, 114; Standard Stock

Food Co. v. Wright, 225 3

McLaughlin, 236 U.S. 385, v. United

Skates, 250 U.S. 273; The Wins 205 U.S.

954, 360; Davie & Farnum Mfg. Co. v. Los An-

"gales, 189 U.S. 207, 220.

„„

litigant can raise only his own coristitutional rights

two corporations to invoke the Four-

Court allowed

teenth Amendment rights of patrous of their schools

in order to protect their own business and property

from destruetion by unconstitutional governmental

action taken against their patrons. Id. at 535. In

Joint Anti-Fascist Refugee Committee v. McGrath,

3⁴¹ mne » elaim thet plain-

The threat which it carries for those members

who are, or propose to become, federal em-

ployees makes it not a finicky or tenuous claim

to object to the interference with their oppor-

tunities to retain or secure such employment as

members. The membership relation is as sub-

stantial as that protected in Trwaz v. Raich

and Pierce v. Society of Sisters

And Mr. Justice Jackson similarly stated (id. at 187) :

<wW

opinions in Joint Anti-Fascist in holding unconstitu-

comply with a state order to produce the names of the

guests. The Court, however, refused to decide this

issue (id. at 77-78) and held that Uphaus’ claims,

assuming he had standing to raise them, were invalid

on their merits. |

We submit that petitioner’s assertion of the rights

of the unknown other persons goes far beyond

the circumstances of Pierce, Joint Antt-Fascist,

N. A. A. C. P., Bates, and Uphaus. In Joint Anti-Fascist

and N. A. A. C. P., organizations were asserting the rights

of their own members on matters of common concern.

In Bates, officers of the organization asserted the

rights of the organization’s members on matters of

common concern. In Pierce, while the individuals

whose rights were claimed did not actually belong to

the organizations which brought the action, neverthe-

less the organizations and the individuals (schools and

their patrons) were integrally related, especially with

regard to the impact of the particular statute and

right involved in the case. Moreover,

the organizations were threatened with direct and

severe harm, indeed destruction, if the statute were

enforced. Similarly, in Uphaus, while the individuals

involved were, strictly speaking, guests and not mem-

bers of an organization, they too were integrally

related to the organization. And Uphaus, as the

executive director of the organization, was asserting

the right of the organization to represent its guests

in a matter of common concern. In contrast, in the

instant case, petitioner is, of course, not an organi-

zation to which the third persons belonged, or of

which they, were guests or patrons; nor is he an officer

who can claim to represent such an organization.

Petitioner’s only connection with the unnamed third

3⁴

: persons is at most Ge of friendship and common

membership, in the recent past, in the Communist

Party. This is not a sufficiently close relationship to

allow him to raise and vindicate their rights. if it

were held to ‘be adequate, deep inroads would be

made in the settled principle that a litigant is limited

to-the prosecution of his own rights.

6 8 ASKING

r IDENTITY OF OTHER PERSONS

_ Ewen if the Court were to consider the First

Amendment rights of other persons, the Court should

hold that such rights were not violated.

‘When it subpoenaed and sought to question peti-

tioner, the Subcommittee had under inquiry the sub-

ject of Communist activities in news media (see

infra, pp. 40-41; 43-46). Any question whether Con-

gress has the power to investigate ist activity-

in this field has been determined by this ’s holding

in Barenblatt v. United States, supra. There, the

Court first stated: generally that “Congress has wide

power to legislate in the field of Communist activity

in this Country, and to conduct a riate investiga-

tions in aid thereof (360 U.S. 127), and that

„Ii Justification for its exercise in turn rests on the

long and widely aecepted view that the tenets of the

Communist ‘Party include the ultimate overthrow of

the Government of the United States by force and

violenee (id. at 128). The Court concluded that

“the balance between the individual and the govern-

merital interests here at stake must be struck in favor

of the latter, and * therefore the provisions of

the First Amendment have not been offended’’ (360

U.S. at 134).

es,

e t interest at stake in inquiring about

other persons involved in Communist activities is at

least. as strong as those in Barenblatt concerning the

Communist activities of the witness himself. It is

just as important to a Congressional committee to

ascertain the Communist activities of other persons as

of the witness. Indeed, it may be more valuable

since the committee is required to have some informa-

tion concerning the witness in order to subpoena

‘him. The Court has indicated that a Congressional —

committee can subpoena a witness only if it has prob-

able cause to believe that he has some information of use

to it (see our brief in Shelton, supra, pp. 50-55). In

contrast, the committee presumably does not know

the identity of the other persons. And if it deter-

mines their identity, the committee can question them

in order to determine their own Communist activities

and knowledge of Communist activities generally.

On the other hand, the individual interests here are, -

at best, no greater than in Barenblatt, and are prob-

ably weaker. If petitioner has standing to assert the

First Amendment rights of other persons (but see

supra, pp. 28-34), his individual interest in this asser-

tion is substantially less than the interest Barenblatt

had in claiming his own First Amendment rights.

Petitioner has chosen to protect what he believes to

be the First Amendment rights of other persons who

have apparently no more intimate connection with

himself than friendship. Barenblatt, in contrast, had

the direct interest of protecting his own privacy of

belief, association, and activity. Thus insofar as peti-

tioner is concerned, there is even more reason in the

circumstances of this case than in Barenblatt to strike

the balance in favor of the governmental, rather than

individual, interest. And insofar as the case is viewed

from the standpoint of the other persons, their inter-

est in preventing disclosure through third parties .

(such as petitioner) of their beliefs and activities is

less than their interest in not being compelled them-

selves to testify as to those matters. But Barenblatt

holds: that if these other persons were themselves

called before the Subcommittee, they would have to

answer such questions as to their own conduct. At

the very most, petitioner, in claiming the rights of

these others, stands in the same position as if they

were claiming their rights for themselves—that is,

the same position as Barenblatt was in. Therefore,

this Court’s decision in Barenblatt is, we believe, in-

Moreover, the issue as to three of the counts is sub-

stantially controlled by Communist Party v. Subver-

sive Activities Control Board, 367 U.S.1. There, this

Court held constitutional a provision of the Internal

Security Act of 1950 requiring the registration and

filing of membership lists by organizations claimed

to be substantially controlled by the foreign powers

controlling the world Communist movement, and

which operate primarily to advance the objectives of

that movement: the overthrow of existing government

by any means necessary and the establishment in its

place of a Communist totalitarian dictatorship. The

Court found that the danger to the national security

from such organizations justified the Congress in re-

quiring disclosure of their members, unlike the situa-

tion in N. A. A. C. P. v. Alabama, supra, Bates v. Little

Rock, supra, and Shelton v. Tucker, 364 U.S. 479,

*» — ꝶ6)5—*—k—

where, the Court said, the state had shown no sub-

stantial interest in the disclosure of the organization's

members (367 U.S. 88-105). The Court further held

that the evidence before the Subversive Activities

Control Board sustained the Board’s determination

that the Communist Party was required to register

under the Act (id. at 69).

This Court has indicated that the power of Con-

gress to investigate is broader than the area within

which it can constitutionally legislate. Barenblatt v.

United States, supra, 360 U.S. at 130; Wilkinson v.

United States, 365, U.S. 399, 414-415. The questions

involved in counts 1, 2, and 6—who were the members

of a Communist Party cell in New York City, of a

Party cell in Buffalo, and of a Party cell on the New

York Herald Tribune, to which cells petitioner ad-

mitted he belonged—are obviously far less broad than

the requirement of the Internal Security Act that all

Party members must register. Since Congress can,

consistent with the First Amendment, pass legisla-

tion requiring the registration of all Party members,

a fortiori, then, a Congressional committee, seeking

information in order to legislate, can require a wit-

ness to disclose the names of members of Party units

to which he belonged.

III *

THE QUESTIONS PETITIONER REFUSED TO ANSWER WERE

PERTINENT TO THE SUBJECT UNDER INQUIRY AND THIS

| PERTINENCY WAS MADE CLEAR TO PETITIONER BY THE

SUBCOM MITTEE

Petitioner contends that the government failed to

prove the subject under inquiry by the Subcommittee

oF the pestineney of the subject to the subject under

inquiry (Pet. Br. 20-42) and that the Sulisommittee

— (os) Bt en

peared before * (Pet. Br

are without merit.

A. PRPITIONER FAILED 6 a er w om

QUESTIONS WHEN ur APPEARED een THE o Hr AND

— CANWOT CLOIM AT HID TRIAL THAT HR WAS MoT ar-

FRISED OF THEIR PERTIXENCY. m AKY EVENT, BR WAS APPRISED

Or THE PERTINENCY I

1. As we have shown in our brief in Shelton v.

United States, supra, pp, 25-32, a witness before a

Congressional committee cannot claim that the com-

mittee has failed to apprise him of the subject under

inquiry and the pertinency of the questions to this

subject, unless he raises the issue of pertinency be-

fore the committee itself. Barenblatt v. U nited

States, supra, 360 U. S. at 123-124; Deutch v. United

States, 367 U.S. 456, 469. He cannot wait until trial

to raise an objection which the committee could easily

Before the Subcommittee, petitioner’ failed to ob-

ject to the questions on the ground of pertinency.

Except for stating that he did not want to inform on.

others, petitioner relied entirely on various objections

based on the First Amendment (see supra, pp. 8-9).

The only possible objection based on pertinency in

his written statement, which was’ undoubtedly pre-

: 30

quiry is in serious doubt since the first amend-

‘ment ‘to the constitution prohibits legislation

affecting freedom of speech and assembly.

i Similarly, petitioner, who was accompanied by counsel

(Hearings, Part 17, p. 1728), orally stated at the hear-

ing the substance of this part of his written statement

as: IMly private affairs, my beliefs, my associations,

are noi I believe, proper subjects for investigation by

this subeommnittee and that their pertinence to any valid

legislative purpose is in doubt” (id. at p. 1735). These

objections plainly were that the investigation could not

be pertinent to any legislative purpose valid under the

First Amendment. They do not mean that the questions

were not pertinent to the subject in fact under inquiry.

Moreover, even if petitioner meant to object to the

pertinency of the questions to the subject under inquiry,

he did not say that he was refusing to answer because

he believed the questions were not pertinent. Instead,

he said merely that their pertinence was in doubt.

Even if petitioner’s objection was intended to ques-

tion the pertinency of the questions to the subject under

inquiry, this Court held in Barenblatt that the issue of

pertinency is not properly raised by statements of a

_ witness which “constituted but a contemplated objec-

tion to questions still unasked, and buried as they were

in the context of [the witness’] general challenge to the

power of, the Subcommittee * * *” (360 U.S. at 124).

Similarly in Deutch, the Court held that the issue of

pertineney was not raised by indications of “doubt as

* to the importance of the questions, [since] the peti-

tioner’s main concern was clearly his own conscien-

tien unwillingness to act as an informer” (367 U.S.

—

the subject of the indictment and when petitioner

subsequently refused to answer he merely referred to

at most only doubt as to pertinency. And petitioner's

unwillingness to answer was clearly based on his

claim that the Subcommittee lacked the constitutional

power to conduct this investigation and on his desire

to avoid being an informer.

2. In any event, petitioner was apprised of the sub-

ject under inquiry. Petitioner admits (Pet. Br. 43)

that he was present at the start of the hearing on

January 6, 1956, a few minutes before he testified

(he was the second witness on that day). At that

, time the Chairman of the Subcommittee stated that

the hearings were directed to investigating infiltration

of persons identified as Communists into news agen-

cies (Gov. Ex. 8, pp. 1717-1718). Senator 1 1

said (id. at p. 1718): *

I think that no one will quarrel with nor take

issue with the fact that this committee has the

right to inquire into all efforts or, indeed, all

consummations of efforts of the Communist

Party to infiltrate newepapers or other media

of communication, . [Emphasis added.

And petitioner’s prepared statement, on which he

relied at the hearings as stating his reason for refusing

to abwer the questions underlying his conviction,

demonstrates clearly that he knew that the Subcom-

mittee’s investigation was into Communist activities

; 41

tn news media. The statement is largely. devoted to

the claim that the Subcommittee’s investigation of

the newspaper field violated the freedom of the press.

guaranteed by the First Amendment (id. at pp. 1733-

1734). On the basis of similar objections, this Court

held in Barenblatt that [in light of [the witness’]

proposed memorandum of: constitutional objections

there can be no doubt that this petitioner was well

aware of the Subcommittee’s authority and purpose to

question him as it did” (360 U.S. at 124).

Of the questions petitioner refused to answer, at

least four were pertinent on their face to the subject

of Communist activities in news media: who were

the members of the cell on the Herald Tribune (count

6); whether any members of that cell were still em-

ployed by the Herald Tribune (count 7); whether a

book on which petitioner had admittedly done re-

search was published by a Communist publishing

house (count 10) ;** and whether the person for whom

u Petitioner contends (Pet. Br. 39) that count, 10 is invalid

because the question on which it is based was vague. Petitioner,

however, did not object. on this basis beforeSthe Subcommittee

and therefore cannot raise the issue now (see our brief in

Shelton, supra, pp. 25-29). If petitioner had claimed before

tho Subcommittee that he did not understand the question,

the Subcommittee could easily have made it more clear.

In any event, we believe that the question was sufficiently

clear for a*Congressional committee to require a witness to

Peoples’ Rights, which the Subcommittee told petitioner had

been cited by the Attorney General as the equivalent of the

“legal arm of the Communist Party“ (Gov. Ex. 8, p. 1743).

In this content, the phrase “Communist publishing house”

surely meant, not a publisher of Communist writings,

ich was controlled and run by Party members.

2 oo

petitioner had done the research was known to peti-

tioner to be a Communist (count 11).

In addition, petitioner refused to answer whggher

any persons connected with Veterans of Democracy

were known by him to be Communist or to name the

officer of that organization for whom he had worked

(counts 16 and 17) (see supra, fp. 1144) Petitioner

had previously admitted working for that organiza-

tion, in part as a researcher for one of its officers

‘who spoke weekly over a radio station. Thus, the

pertinence of these questions to Communist activities

in mass media was likewise clear.

The question involved in count 8—whether peti-

tioner told anyone when he quit the Communist

Party—was likewise plainly pertinent. The question

whether a witness is a member of the Communist

Party is on its face, as the Court held in Barenblatt,

360 U.S: at 125, pertinent to an investigation of any

aspect of Communist activities. Here, after peti-

tioner testified that he left the Communist Party in

1948 (Gov. Ex. 8, p. 1744), he was asked what he did

to evidence his withdrawal (id. at p. 1745). He an-

answered that he had not written a resignation. Pe-

Ute was then asked whether he d told anyone

Subcommittee directed. him to answer and he refused.

Clearly, this series of questions was, as the district

court held (J.A. 37-38), an attempt to ascertain

whether petitioner had actually left the Party, an

issue which was clearly pertinent to the subject under

inquiry. e

B. THE GOVERNMENT PROVED THAT THE QUESTIONS WERE PERTINENT

TO THE SUBJECT UNDER INQUIRY

1. We have shown that petitioner was apprised that

the subject under inquiry was Communist activities

in news media. We have also pointed out that seven

of the questions on the basis of which he was con-

victed were clearly pertinent to this subject. Since

the government introduced the transcript of the hear-

ings at petitioner's trial, it amply proved that these

questions were in fact pertinent to the subject under

inquiry.

Moreover, other evidence introduced by the govern-

ment at petitioner’s trial showed that the subject

under inquiry when petitioner testified was Com-

munist activities in news media. The transeript of

the hearings (Gov. Ex. 8) showed that, at the start

of the hearings on January 4, the Chairman of the

Subcommittee indicated that the purpose of the

hearings was to investigate this subject. Senator

ee, e eee, ee

his

Hennings reiterated that “the Committee is interested

in the extent and nature of ed Communist in-

filtration if such exists, i any news-dispensing

agency” and the investigation was “an effort on the

part of this committee to show such participation and

such attempt as may be disclosed on the part of the

ist Party in the United States or elsewhere,

indeed, to influence or to subvert the American

press“ (see supra, pp. 5-6). All the eighteen wit-

nesses who testified at the hearings on January 4, 5,

and 6, 1956, worked in the communications field. And

the Subcommittee counsel testified at petitioner's trial

that the Subcommittee was investigating “within the

broad area of [Communist] tactics and strategy,

within the narrower area of infiltration of mass com-

munications” (see supra, p. 7).

2. Petitioner contends (Pet. Br. 24-26) that the

subject under inquiry, despite “some evidence to that

effect” (Pet. Br. 25), was not Communist activities

in news media. This contention rests upon state-

ments made by the Subcommittee counsel both at the

hearings and petitioner’s trial, by the Assistant

United States Attorney at the trial, and by the district

court. Since virtually the same contentions are made

in Price v. United States, No. 42, this Term, which

involved the same hearings, we respectfully refer the

Court to our brief in that case (pp. 29-31). There

we demonstrate that these statements do not prove

4 Petitioner was apparently not present when these state-

ments were made and therefore we do not rely on them to show

that he was apprised of the subject under inquiry.

munist activities generally, since that general subject

is perfectly consistent with the particularized subject

of Communist activities in news media. But even if

petitioner were correct that the subject under inquiry

was Communist activities generally, this is a proper

subject within the authority of the Subcommittee.

See our brief in Ltveright, supra, pp. 42-44. All

questions which petitioner refused to answer which

were pertinent to Communist activity in news media

are a fortiori pertinent to the broader subjeet; indeed,

the other nine questions were also pertinent, either on

their face or as shown by the government’s evidence

at the trial, to the subject of Communist activities

generally (see supra, pp. 18-20, 10-11).

Petitioner notes (Pet. Br. 26-27) that the Assistant

United States Attorney said in his opening statement

at the trial that the Subeommittee was conducting ‘‘a

very broad investigation, generally speaking, of the

internal security and the national security of the

United States (Tr. 6). He reasons that this state-

ment is, like a bill of particulars, binding on the

government. First, however, it seems clear from the

context of the statement itself that the Assistant

United States Attorney was merely describing the

authority of the Subeommittee and the totality of

the Subcommittee’s investigations, instead of these

particular hearings. Second, even if this is not cor-

rect, the subject of Communist activities in news

media is perfectly consistent with the broader subject

of jnternal security generally (just as it is consistent,

as we noted above, with the subject of Communist

United States Attorney’s statement suggesting that

the broad subject was the only one under inquiry and

that the Subcommittee was not concentrating on a

narrower area within the broader subject.

Third, even if the Assistant United States Attorney

meant that no partieularised subject was under inquiry

and even if his opening statement is as binding as a

, bill of particulars, we have shown in our brief in

Shelton v. United States, supra, pp. 38-41, that the

government can, unless the defendant is prejudiced,

amend the bill of particulars either formally by mo-

the opening statement and the evidence introduced by

the government showing that Communist activity in

news media was the particular subject under inquiry.

Petitioner came to the trial prepared to rebut the

government’s evidence that the Subcommittee was in-

vestigating Communist activity in news media since

this subject was expressly stated at the hearings

themselves, as petitioner clearly understood. He ob-

jected both at the hearings (see supra, p. 8) and at

his trial (J. A. 52, 56; Tr. 211-215) that the Subcom-

mittee’s investigation infringed on freedom of the

press. And\if petitioner had been surprised by the

evidence introduced by the government at his trial, he

should have moved for a continuance to allow him to

prepare his defense. See United States v. Neff, 212 F.

2d 297 (C.A. 3).

94 1 n

3. Petitioner contends that, assuming arguendo the

subject under inquiry to have been Communist activi-

ties in news media, nevertheless the questions were not

pertinent to the subject. First, he says, the questions

as to It be identity of individuals engaged in lawful

associational and political activities * * * is not ‘clearly

pertinent (Pet. Br. 35). Most of the questions,

however, did not seek the identity of other persons

(see supra, pp. 18-20). As to those that did, we show

below that the identity of the people who engage in

Communist activities is plainly part of an investiga-

tion into those activities (see infra, pp. 48-50). This

Court upheld the pertinency of questions concerning

lawful activities in Barenblatt, Wilkinson v. United

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

365 U.S. 431, on the ground that they were clearly

pertinent to an investigation of an aspect of Com-

munist activity. 360 U.S. at 114-125; 365 U.S. at

414-415; 365 U.S. at 433. And in those three cases

the Court also upheld the constitutionality under the

First Amendment of investigations of lawful Com-

munist activities because of their close connection

with the illegal aims and methods of ae te (see

supra, pp. 25-27).

Second, petitioner contends .(Pet. Br. 33-38) that

the questions were not pertinent because they related

to events which were too remote in time. But in

order to determine, and particularly to understand,

the present and future activities of the Communist

Party, the Subcommittee must of necessity inquire

à considerable distance into the past. The questions

petitioner refused to answer concerned Communist

activities from 1935 up to the time of the inquiry

48 .

in 1956. At the very least, the questions in count 6,

which related to petitioner’s associates in a Party eell

in the New York Herald Tribune between 1943 and

1951, count 7, as to whether any members of that

cell were still employed by the Herald Tribune in

1956, and count 8, coneerhing whether he told any-

one when he left the Party in 1948, were plainly not

In Barenblatt, this Court held (360 U.S.

at 125) that the pertineney of questions as to

[the witness ] own Communist Party affiliations,”

including membership in a Communist Club between

1947 and 1950 (id. at 114), “was clear beyond doubt”

to an investigation of Communist activities in edu-

eation conducted in 1954.

The amicus curiae argues (Amicus Br. 11-14) that

the questions were not pertinent since they sought the

names of other persons. First, we repeat that an-

swers to most of the questions would not have re-

quired petitioner to disclose the names of other

persons (see supra, pp. 18-20). In any event, the dis-

closure of other persons engaged in- Communist

activities is, and was in this case, pertinent to the

subject under inquiry for at least two legitimate pur-

poses: first, to obtain information concerning the

number and importance of persons engaged in the

Communist activity under inquiry; and, second, to

discover new witnesses who might have information

concerning Communist activity not N to the

witness or the committee.

* As stated above (p. 20), petitioner’s conviction must be

Sustained as long as any one of the counts is upheld.

PPP eee *.

We know of no judicial decision holding that per-

sonnel is not pertinent to the subject of Communist

activity. On the contrary, the Court of Appeals for

the District of Columbia Circuit has explicitly held in

Barsky v. United States, 167 F. 2d 241, 246 (C.A.

D.C.), certiorari denied, 334 U.S. 843:

If Congress has power to inquire into the

subjects of Communism and the Communist

Party, it has power to identify the individuals

who believe in Communism and those who be-

long to the party. The nature and scope of the

program and activities depend in large measure

upon the character and number of their adher-

ents. Personr~! is part of the subject.

Accord, Morford v. United States, 176 F. 54, 57

(C. A. D. C.), reversed on other grounds, 8.

258. Similarly, in McPhaul v. United States, 364

U.S. 372, 381, this Court recently held, with regard to

the pertinency of records subpoenaed from the Civil

Rights Congress:

It would seem clear enough that the auspices

under which the Civil Rights Congress was

organized, the identity and extent of its afflia-

tions, the source of its funds and: to whom

distributed would be prime considerations in

determining whether the organization was being

used by the Communists in the Detroit area.

If the Civil Rights Congress was affiliated with

known Communist organizations, or if its fuhds

were received from such organizations or were

used to support Communist activities in the

Detroit area, those facts, it is reasonable to

Suppose, would be shown by the records called

for by the subpoena, and those facts would be

Cf. United States v. Bryan, 839 US. 323; United

States v. Fléischman, 339 U.S. 349. In short, both

logically and by judicial: the disclosure of

names of other persons in the Communist

activity under sctutiny is just gs pertinent to an in-

vestigation of an aspect of Communist activity as is

the disclosure whether the witness himself is a Party

member. 10

THE SUBCOMMITTER WAS NOT BBQUIRED TO APPRISE

PETITIONER OF THE SOURCE OF ITS AUTHORITY

Petitioner contends (Pet. Br. 50-52) that the Sub-

committee failed to apprise him of the source of its

authority from the Senate. This contention is un-

sound for three reasons. | 1

First, petitioner did not even suggest this objection

when he appeared before the Subcommittee. While

he claimed that the Subcommittee had no constitu-

tional power to question him since the inquiry violated

the First Amendment, he did not contest that the Sen-

ate had purported to give the Subcommittee authority

to investigate Communist activities (see supra, pp.

8-9). We have shown in our brief in Shelton v.

United States, supra, pp. 26-29, that, unless a witness

objects before the committee to the pertinency of the

questions, he cannot claim at his trial that the com-

mittee failed to apprise him of this pertinency. By

the same reasoning, petitioner cannot claim that the

Subcomtnittee failed to apprise him of some of its

authority, when he did not claim before the Sub-

committee that the Senate had not authorized the in-

vestigation. If petitioner had objected, the Subcom-

mittee could easily have apprised the witness of the

source of its authority, just as it could have specifi-

eally explained the pertinency of the questions,

Second, while petitioner claimed below that Senate

“Resolution 366 did not authorize this inquiry, he did

not raise the distinct issue Whether the Subcommittee

told him that its authority was based on this resoln-

tion. Petitioner cannot raise the latter issue in this

Court for the first time (see supra, p. 23).

In any event, Wathins v. United States, 354 U.S,

178, and Berenblatt require only that Congressional

committees apprise witnesses, upon proper objection,

of the subject under inquiry and the pertineney of the

questions. In Watkins, the Court did state that the

witness has the right to be informed of the “standard |

of criminality before the commission of the alleged

offense” and “[p]art of the standard of erimi-

nality * * * is the pertinency of the questions * e

(354 U.S. at 208). Similarly, it is possible to argue

that the Senate’s authorizing resolution is part of the

standard of criminality. But there was no need for

the Subcommittee to apprise petitioner of the source

of its authority since the authority of the Committee

18 contained in the authorising resolutions (S. Res. 366,

» 8Ist Cong., 2d Sess.; S. Res. 174, 84th Cong., 2d Seas. ),

which are public documents that are readily available.

In contrast, the subject under inquiry and therefore

the pertinency of the questions can only be obtained

from the committee itself. .

THE INDICTMENT WAS NOT REQUIRED TO SPECIFY THE SUB-

JECT UNDER INQUIRY OR THE PERTINENCY OF THE QUES-

TIONS TO THIS SUBJECT, OR TO STATE THE DELEGATION OF

AUTHORITY FROM THE PARENT COMMITTEE TO THE son-

The indictment upon which petitioner was convicted

alleged that hearings were being conducted “pursuant

to Senate Resolutions 366 of the 8ist Congress and

58 of the Sith Congress” and that the questions “were

pertinent to the question then under inquiry” (J. A. 4).

Petitioner claims (Pet. Br. 58-65) that the indictment

was invalid because it failed (1) to specify the subject

under inquiry when petitioner testified, (2) to specify _

the pertinency of the questions to this subject, and (3) to

state the delegation of authority from the parent

Judiciary Committee to the Subcommittee. —

As we have shown in our brief in Shelton v. United

States, supra, pp. 78-83, petitioner’s contention that the

indictment was required to state the subject under in-

quiry is inconsistent with Rule 7(c). of the Federal

Rules of Criminal Procedure and with decisions both of

this Court and the courts of appeals. While petitioner

that he needed to know the exact subject under

inquiry in order to prepare his defense as we have seen

(pp. 40-41, 43-45), this was clearly shown by the tran-

seript of the hearings which was available to him.

Moreover, the fact that petitioner didnot even attempt

to secure this information by moving for a bill of partic-

ulars strongly indicates that he understood the subject

under inquiry. Although it is tru we show in our

brief in Shelton, pp. 38-40, that the Yovernment is not

irrevocably bound in its proof at trial by the bill of

particulars, the defendant is entitled to be protected

from prejudice if the government introduces evidence

conflicting with the bill. The trial court would not be

required to allow the government to introduce the evi-

dence and, if it did do se, it must allow the defendant

a reasonable time to prepare his defense.

For the same reasons that the indictment is not

required to specify, the subject under inquiry, an indict-

ment which states that the questions are pertinent to the

subject under inquiry need not provide the specific rea-

soning underlying this allegation of pertinency. As we

show in our brief in Price v. United States, No. 12, this

Term, p. 34, the indictment properly 1 the

authority of the ee,

CONCLUSION 7

For the foregoing reasons, we respectfully submit

that the judgment of the court of appeals should be

affirmed.

ARCHIBALD Cox,

Solicitor General.

J. WALTER YEAGLEY, ;

Assistant Attorney General.

Bruce J. :

Assistant to the Solicitor General.

Kevin T. Maroney,

Caro. M. BRENNAN,

: Attorneys.

_ NoveMBER 1961.

—

5 U.S. GOVERNMENT PRINTING OFFICE: 1965

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