Brief for Petitioner — Gibson v. Florida Legislative Investigation Committee

Litshaar BRT OT

SUPREME COURT. us Pil c D

| ’

be | i th)

NING Clark

IN THE

Supreme Court of the Tnited States

October Term, 196) _

No. G

ee ee

THEODORE R. GIBSON,

Petitioner,

Vv.

PLORIDA LEGISLATIVE INVESTIGATION

COMMITTEE

Osx Writ of CERTIORARI TO THE SUPREME COURT OF THE

STaTe OF FLoRIDA

‘

BRIEF FOR PETITIONER G

Roverr L. Carter,

20 West 40th Street,

New York 18, New York,

G. E. Graves, Jr.,

s02N. W. Second Avenue,

Miami, Flodride,

Attorneys for Petitioner.

Maria L. Marcus,

Knank D. Reeves, y,

uf Counsel,

PAGE

EE No sca eer prow kek khs hae de 1

WOTUIIINODE onda nica hides ea llkl 1

SPOCREION FRONOMIOE oi a es Hicks oh a cae as chan 2

POURS BUNINNS iav a'r Ova dae pee cosi. 2

PAMNOUNONE 6c cnc ceubheckicccne, tLe eek nas ae ea te

The November 4-5, 1959, Hearings in Tallahassee,

a nrg Spr Oar ar OI lar chee ae 8

Phe Court Proceedings .............cccccccceeces 13

poetamnary Of AVQQMens oo oc s boinc cen cab bencisni. 16

A rgument :

Petitioner’s Conviction is Proscribed by the Due

Process Clause of the Fourteenth Amendment

As An Unwarranted Violation of Constitutional

Guarantees of Freedom of Association........ 17

Bo Serer ere rer rr rere eee ‘549008 as 27

Table of Cases

American Communications Association v. Douds;

OO Ri EE ans hae eek tans peek og ees 3 17

Barenblatt v. United cee o60 WU. &. 108........ 17, 20

Bates v. Little Rock, 361 U. $5. 516... .16, 17, 18, 19, 20, 22, 23

Braden v. United States, 365 UB. Gabe is 17, 18, 20, 21, 26

Communist Party of the United States v. Subversives

Activities Control Board, 367 U.S. 1............. 18

Dean v. Kochendorfer, 237 N. Y. 384, 143 N. E.

ROP ao i ee ee 25

Defnall v. Schoen, 73 Ga. App. 25, ‘a S. FE. 3d 564

CRUD aes bees hn ae ak ORE RNa oe eee ne Cas 25

Graham v. Florida Legislative Investigation Com-

mittee, 126 So. 2d 133 , See Ta Rat Pe Ree 19, 23, 26

fe PAGE

Kilbourn vy. Thompson, 103 U.S. ee :. - n r 25

L. B. Price Mereantile Co. y. Adams, 56 Ga. App.

(OG, 108 B. B. 20 (2987)... ss. Zee. “

Louisiana v. N.ALA.CLP., 366 US. S. 208... 16,17, 18, 19, 20, 23

NAACP. v. Alabama, 8O7 US. 499.16, 17, 18, 19, 23, 24

Peerless Oil and Gas ( ovV. Texas, 138 S. W. 2d 6237,

aff'd 138 ‘Tex. 301, 158 S. W. 2d 758 i) Sp enaney 2

Shelton v. Tucker, 364 U.S. #40. Pee eC Cn ote kn 16, 17, 18, 2¢

Sweezy v. Hampshire, 354 CLS. 254... 1 6, 20, 22, 24, 25. 27

Thomas v. Collins, 323 UsS. 516 .............. 17

Tranchina vy. Arcinas, 78 ¢ ‘al. App. 2d 522, 178 P. 2d

ag Nt ERE RS ae ROR ied MRR Ne eee saad 25

United States y. Rume ly, BX RE OE : rae Sa geal 19, 27

Uphaus v. W yma, 360) U. f. SE: 17, 20, 21, 26, 27

Wakkins'v. Unite WStatos, SUS TS 21, 24, 25

W ilkinséni ¥v. U dite d plates, 365 U.S. 399 200.17, 20, 26

Supreme Court of the United States

October Term, 1961

No. 70

-——— 0

THkopore RD Ginses,

Petitioner,

Vv.

Pionipa Leoisnarive INvestication COMMITTEE

— —_—_—

Ox Warrr or Citiogani po rik St PREMB COURT OF THE

Strate or Froripa

I

nt Aes | ae $e

BRIEF FOR PETITIONER _

Opinion Below

The opinion of the Supreme Court of Florida (R. 262)

is reported at 126 So. 2d 129. |

{

: Jurisdiction

The judgment of the Supreme Court of Florida was

entered on December 19,%960 (R. 262). Application for

rehearing was denied on January 17, 1961 (R. 269), but on

the same day, in a separate order, execution and enforce-

ment .of the judgment was stayed for 60 days to permit

petitioner to seek review of this cause here (R. 270).

Accordingly, petition for writ of certiorari was filed in

this Court on March 20, 1961 and granted on May 8, 1961

(R. 271). Jurisdiction of this Court to review the judgment

below rests on Title 28, United States Code, Section

1257(3).

Question Presented

Whether it is a violation ef constitutionally guaranteed

rights of freedom of association to require petitioner, as

custodian of the NOAALCLP, membership list, to bring those

records to hearings of the respondent committee to authen-

ticate his answers to Inquiries concerning membership in

the organization of alleged Communists, where the inevit-

able consequence is the public discrediting of the legitimacy

of the N.A.A.C.P. as an organization and of the loyalty of

its members, without justification theretor being established

in a showing that petitioner or the N.ALALCLP. is in some

Way connected with subversion?

Statute Involved

Carrer 359-207, Laws of Froripa, 1959

AN ACT to provide for the creation and appointment

of a committer oy the Legislature te make investigations

of Mhe activities in this state of organizations and individuals

wiyoeating violence or a course ofscondret Which would

; Aonstitute a Violation of the laws of Mlorida; forthe conduet

of hearings and the subpoenaing of? witnesses: providing

for circuit courts to enforee committee's processes: for a

report of such committee to the 196] Legislature; authoriz-

ing tae employment of specialized assistance by the com-

mittee; providing for the-expenses of the committee; pro-

viding an effective date: and providing for the extension

of the joint committee set up by Chapter 57-125, Laws of

Florida, 1957, until the committee created by this Act is

duly appointed and organized.

Wuereas, the joint committee set up by chapter 31498,

Laws of the extraordinary session, 1956. has expired with

the filing of its report to the legislature as provided by

said act; and

Wuereas, the joint committee set up by chapter 57-125,

Laws of Florida, 1957, will expire with the filing of its

report to the le gislature as provided by said act; and

Wuerkas, the said two committees’ records and reports

disclose a great abuse of the judicial processes of the Courts

in Florida, as well as certain activities on the part of

various organizations and individuals which constitute vio-

lence or the threat thet ‘eof, or violations of the laws of this

state and which activities are inimical to the well- being of

the majority of the citizens of this state; and

Witekeas, the joint committee set up by chapter 57-125,

Laws of Florida, 1957, was created to complete the work

commenced by the joint committee set up by chapter 31498,

Laws of the extraordinary session, 1956; and

Wuereas, there is in the committee’s files and records

evidence and sources of evidence disclosing that the Com-

munist party, its fronts and apparatus and other subver-

sive organizations, are seeking to agitate and engender

ill-will between the races of this and other states; and

Wuereas, the joint committee set up by chapter 57-125

has diligently pressed its investigations to determine the

exact nature, extent and effect of subversive penetration

and influence or. the actions of certain organizations and

individuals active in Florida; and

Wuersas, said committee has been prevented from ascer-

taining the same because of the deliberate and almost

unanimous action of the witnesses before it in resorting to |

litigation to frustrate said committee's investigations, a

which resulted in said committee being mired down in

numerous law suits in the Circuit Courts and the Supreme

Court of Florida, all of which litigation has ended in the

Supreme Court of Florida having tied upheld the author-

ity of said committce to pursue the investigations it has

undertaken, and which litigation has now culminated in the

United States Supreme Court having issued a stay order

4

against said conimittee on an unsworn and unverified appli-

cation for stay pending application by certain witnesses

subpoenaed before the committee for certiorari in the

United States Supreme Court; and

Wuereas, because of lack of time said proceedings still

are lodged undisposed of in the United States Supreme

Court with the committee ‘powerless to proceed with its

investigations because of that Court’s stay order; and

Whereas, the issues embraced in said litigation involve

fundamental principles of State’s rights and State’s sov-

ereignty as against centralized Federal power and Govern-

ment by judicial decree and constitute a fight for State

sovereiguty which this State can ill afford to abandon ; and

Wuereas, there still exists the same grave and pressing

need tor such a committee to exist in the interim between

the 1959 and 1961 sessions of the legislature of Florida, to

continue and complete the above two committees’ work,

and to participate in and contest the efforts represented by

the above referred to litigation to whittle away further at

this State’s rights and sovereignty, and to be every ready

to investigate any agitator who may appear in Florida in

the interim. e

Now THererore, the following biil is proposed to be

enacted by the legislature because of all the foregoing:

Be It Ewactep py tie Lecisuature or THE STATE OF Fiorina:

Section 1. There is hereby created a special committee

of the legislature to be composed of seven (7) members,

iuree (3) of whom shall be appointed from the membership

of the state senate by the president, and four (4) of whom

1

,

shall be appointed from the membership of the state house

of representatives by the speaker. The members of said

committee shall serve as such until discharged by the presi-

dent of the senate and the speaker of the house of repre-

sentatives upon receipt of their report at the regular 1961

session of the legislature,

Section 2. It shall be the duty of the committee to

make as complete an investigation as time permits of all

organizations Whose principles or activities include a coucse

of conduct on the part of any person or group which would

constitute violence, or a violation of the laws of the state,

or would be inimical to the well-being and orderly pursuit

of their personal and business activities by the majority

of the citizens of this state. Such investigations shall be

conducted With the purpose of reporting to this legislature

af the aetiwities of such organizations to the end that cor-

reetive legislation may be adopted if found necessary to

correct any abuses against the peace and dignity of the

state.

Section 3. (1) The committee is authorized to employ

such experts, vlerical and other assistance as may be re-

quired; to required by subpoena or otherwise the attendance

of such witnesses and the production of suck papers, bonds

and documents, and to administer such oaths and to take

such testimony and to make such expenditures within the

limitatien ‘herein authorized us it may deem necessary in

the performance of its duties.

(2) Should any witness fail to respond to the lawful

subpoena of the committee, or having responded fails to

answer all lawful iiquiries or turn over evidence to this

gemmittee, the committee may file a petition before any

cireuit court in Florida setting up such failure on the part

of said witness. On the filing of such petition the court

shali take jurisdiction of. the witness and the subject mat-

ter of said petition and shall direct the’witness to respond

.

&

to all lawful questions and to produce all documentary

evidence in its possession which is lawfully demanded. ‘The

failure of any witness to respond pursuant to the order of

the court shall constitute a direct and criminal contempt of \

court and ~ court shall punish said. witness accordingly.

Section 1 he committee shail repert to the 1961 regu-

lar session of the legislature the results of its investiga-

lions, together with its recommendations, if any, for neces-

sary legislation. The expenses of this committee, including

necessary and reguiar expenses shall be paid from legisla-

tive expense, such total expenses not to excced sixty-seven

thousand five hundred dollars ($67,500.00), whieh shall be

expended under the direction of the committee.

Section 5. ‘The joint committee set up by chapter 57-125,

Laws of Florida, 1907, is hereby extended in all respects so

that it may continue to discharge its responsibilities as a

party litigant on behalf of the state'of Florida in the litiga-

tion above referred to until the appointment and organiza:

tion of the committee provided for in this act shall become

effective.

Section 6. This act shall take effect immediately upon

/ecoming a law.

Statement .

The instant controversy has.a long history. Although

the creation of the respondent committee dates frem enact-

ment of Chapter 59-207, Laws of Florida, 1959, the investi-

gation in which it is involved and from which this case

irises began in 1956. In that year, pursuant to Chapter

34918; Laws of Extraordinary Sessions of Florida, 1956, a

committee of the legislature was established to make inves- >

tigations into the activities of organizations and individuals

‘‘advocating violence or a course of conduct which would

constitute a violation’’ of the laws of Florida.

The committee undertook an investigation of the activi-

ties of the National Association for the Advanec mdnt of

Colored People in Florida, on the theory that the organi-

zation’s consistent efforts to undermine racial diserimina-

tion were Communist inspired.) A report was filed with

the legislature’ in 1957. Except for the enactment of

Chapter 97- -125, Laws of. Florida, 1957, which created a

committee to continue and complete the work of its prede-

cessor, howeyer, no legislation dealing with the infiltration

of subversives into. legitimate organization's operating in

the field of race relations was recommended or adopted at

the 1957 session of the Florida legislature.

The 1957 committee, pursuant to its statutory authority,

held ‘hearings in Miami and sought to secure~ physical

possession of the membership list of the Miami Branch of

the N.A.A.C.P., purportedly in order that the committee

could determine ‘the extent of Communist infiltration and

influence in the Branch. Disclosure of the names of

N.A.A.C.P. members was refused. Counsei for the com-

mittee, thereupon, secured a court order requirn: ng that

the membership list of the Branch be turned over to the

committee. This order was resisted, but before final adjudi-

cation at the trial court level, the Supréme Court of Florida

granted a stay pending a hearing and determination on the

merits.

- After hearing, that court sighatt Chapter 57-125, Laws

of Florida, 1957, as being consistent with constitutional

requirements. 1t concluded that,the committee was engaged

in a valid le sgislativ e purpose in seeking to uncover and

deterinine the extent 6f-Communist infiltration in organi-

zations such as the N.A.A.C.P. On the rationale that

the committee’s investigation of subversion overbalanced

the right to privacy and ancnymity in cne ‘s associaticnal

relationships, the court concluded that V.4.d.C P. y.-Ala-

bama, 357 U. S. 449, was inapposite, and that disclosure

of membership in the organization could be required, con-

—.-

«-

sistent with constitutional guarantee: of freedom of speech

and association. Therefore, the court decreed that the

custodian of the N.A.A.C.P. membership list could be

vrdered to bring the list to committee hearings for the pur-

pose of verifying answers to inquiries about membership

in the organization of persons designated by, the committee

at subversive (108 So. 2d 729). Application for writ of

certiorari was denied by this Court. 360 U. S. 919.

Before this Court acted, the committee, which had been

formed pursuant to Chapter 57-125, Laws of F iorida, 1957,

Was due to expire, and in establishing the instant committee,

under Chapter 59-207, Laws of Florida, 1959, the life of

the phd committee was extended ‘to enable it te discharge

its rdsponsibility’’ in the litigation then pending-in this

Lfoyrt until the appointme ‘nt and organization of the instant

if comunitec had become effective.

In i 959, as in rt #7, no remedia! legislation dealing with

the problem of Communist infiltration into organizations

operating in the field of race relations resulted from the

cojmmittee's Anvestigation. The instant committee, how-

ever, Was created to press and complete the investigation

indertaken. by the 1956 and 1957 committees to determine

the nature and extent to which vetitioner’s organization

had beén subjected to subversive penetration and influence.

The November 4-5,'1959, Hearings in Tallahassee, Florida

On October-40, 1959, petitioner was ordered to appear

heforetthe respondent committee on November 4, 1959, in

the State Capitol Building at Tallahassee, and to bring the

membership records in his possession or of which he was

Cuktodian, pertaining to the identity of the members and

those making contributions to the local and state N.ALA.C P.

organizations.

At the outset, the Chairman of the respondent committee

set forth the scope of the inquiry with which the committee .

9

a

.

‘

amet

was coyéerned. His remarks con: isted of a verbatim re-

cital of Chapter 59-207, Laws of Florida, 1959 (R. 8-13),

followed by a declaration that the hearing would be con?

cerned with the activities of various organizations operat-

ing in Florida in the fields of ‘trace relations . . . coercive

reform of social and educational practices and mores by

litigation and pressured administrative action . . . labor

_.. edueation ... and other vital phases of life in this

State... the Conifnunist Party ... and C®mmunist-front

organizations ... their aims and objectives . . . and the

decree, if any, to which Communists and Communistic

influence has {sic] been successful in penetrating, infiltrat-

ing, and influencing the various organizations and members

thereof which have been, or are now, operating in the above

fields’? (Ry 42-13). The Chairman disassociated the com-

mittee from any intent to give the impression that the mere

calling a witness to testify signified that the person called

was Communist. Each witness was given permission to

make a short disclaimer of membership in the Communist

Party, if he so desired (R. 15).

Arlington Sands, who, ax it developed, was respondent’s

only witness with personal knowivdge of the tacts it sought

to establish, was not present (R.6}. The first witness bear-

ing on this controversy was R} J. Stricklakd, emplo¥ed srt

an investigator by the committee. He state had

conducted investigations concerning the activities of Com-

munists in the South (R. 24); that one Augusta Birnberg

was a member of the Communist Party (R. 24); that one

Edward Waller had now left the Party, but was once a

member, and ‘‘stated to me’’ that he had then been under

instructions to infiltrate the N.A.A.C.P., and that he had

attended N.A.A.C.P. meetings at an unstated time in Dade

County (R. 24); that a James Nimmo, now a resident of New

York State, was once a Communist but was no longer asso-

ciated with the Party (R. 25); that ‘‘information indicates”’

that one Abe Sorkin was a member of the Party and at one

™«

10

time was a member of the N.A.A.C.P. (R. 25); that one

Charles Marks wus a member of the Party (R. 25); that

‘according to information.in hand’’ Myron Marks was a

member of the Party (R. 25); that deposit slips showed that

Leo Sheiner, a member of the Communist Party, was «&

contributor to the N.ALALCLP. OR. 26) 3) that Charles Smolli-

koff, a former Dade County resident, was a Commiunist (R.

26); that Tess Kantor, a one-time resident of Miami. was

a Communist (R. 26); that Leah Adler Benomovsky,

former residen tof Dade County, was a Communist (R. m1):

that Louis Popps had once been a member but was no longer

believed to be associated with the Party, (R. 27); that

Mmanuel ‘*Manny’’ Gratf and Bobby Graff, once residents

of Miami, were members of the Communist Party (R. ot);

that Michael Santzek was a member of the Party (R. 27);

and that ‘it is my information’’ that cach of the persons

named had been a member or participated in meefings and

affairs of the NAACP. Then he read a list of 33 persons

and stated that some were members of the Communist

Party; and that each in the recent past had been active in

Communist-front organizations in Dade County (R. 28).

Strickland then gave the names of five persons whom’ he

identified @s a and or past’? members of the Com-

munist Party (R. 2 4),

He was then akee to read the le ‘vend on the cards of

members of the Communist Party describing their rights

und duties (R. 20). As. read, paragraphs 3 and 4 pledge

each members to fight ail forms of ‘discrimination and seg-

regation, and all ideological influences and practices ‘of

‘racial’. theories . . ."* and to ‘‘tight for the full social.

political and economical equality of the Negro people, for

Negro and white unity’’ (R? 30).

' These deposit slips were never produced either at the committee

hearings on November 4, 5, 1959, and July 27, 1960, or at te court

—— on May 30, 1960, anc August 30, 1960.

¥

2

11

Petitioner’. testimony followed. He stated that he was

eustodian of the membership records of the Miami Branch

of the NAACP, by that he had not brought those

records with him (R. 3!); that there were apjrOoxinately

1,000 members in the Miami Branch (R. 33). He informed

\- the committee that the membership records in his posses-

-sion were kept for and covered the current year only (R.

31); that membership in the organization was for a 1l2-

month period from the date of joining (R. 32): that at the

end of the 12-month period, a person was ao longer a member

of the N.A.ALCLP., and unless his membership was renewed,

his card was removed from the files (R. 52). He testified

that he had been I’resident of the Miami Branch and active

in the N.A.A.C.P. forthe past five years qR. 40)."

Petitioner advised the committee thygt the N.A.A.C.P.,

_ beginning with its annual convention im 1950, and each year

thereafter had adopted resolutions condemning Com-

mynjsm and excluding from the organization all Com-

munists and members of other subversive organizations.

Copies of these resolutions were left with the committee

(R. 35).

Petitioner volunteered to cooperate with the committee,

by agreeing to answer any questions ont of his own personal

knowledge concerning membership in the N.A.A.C.P. of any

person identified by the committee as subversive, but flatly

refused 4u bring or produce the N.A.A.CeP. wembership

records at the committee hearings for the purpose of an-

swering qny such inquiries (R. 45). Petiti@ner bascd this

refusal on the grounds that to produce the N.A.A.C.P. mem-

bership records at the committee Learings, and to testify

from these,records would create the same fears, concerns

and deterrents to the exercise of rights of freedom of asso-

ciation by members and pfospective members of the

N.A.A.CP., which would result from the membership rec-

ords being physically turned over to the committee (R. 37).

ee»

‘

bie? 12 °

He was asked about 14 people previously identified as

members of the Communist Party by Strickland (R. 24-25).

He was given the names and shown photographs of these

individuals. In each instance petitioner stated that he was

unable to identify the person named as associated with the

N.ALA.CLP. OR. 389-44). Then he was asked whether he

would bring the N.A.A.C.P. membership records to authenti-

cate his testimony concerning membershipein the N.ALALC.P.

of-the 53 persons described by Strickland adeither members

of the Communist Party or active in C ommunist-front or-

ganizations. This petitioner refused to do (R. 45). He

reiterated his offer to say, if asked, whether he knew these

persons to be members of the N.A.A.C.P., but refused to

bring the N.ALA.C.P. membership records to the committee

hearing for the purpose of such testimony. Shortly there-

after the hearings adjourned.

When the hearings resumed the noxt day, November 5,

the first witness called was Arlington Sands. He stated

that he was a member of the N.ALA.C.P., but did not know

whether his membership had expired (R. 64). He had been

active in the organization prior to 1949, and had been a

_ member off and on for the past te an years (R. 64). He uad

not been to an N.AVA.C.P. meeting in two years (R. 63).

He was then asked about the 14 identified as members of

the Communist Party by Strickland. He recognized San-

tzek (R. 65) and Leah Benomovsky (R. 66), but tit rye

=

recall seeing them at N.A.A.C.P. meetings. He did not

remember Myron Marks as a member of the N.AA.C.P.

i R. 67}, and bad never seen Marks’ father at an NAACP.

meeting (R.67). He stated that he did not believe that

(natles Smolikotf had been an N.A.A.C.P. member because

the latter had not thought very highly of the organiza-

tion. (UR. 68). Sands asserted that Leo Sheiner had rep-

resented the NAACP. as an attorney during the period

when he had been an official of the Branch, but he did not

behleve that Sheiner was a Communist \(R. 70). He saw

<<

9

Abe Sorkin at XVALALC.P. meetings, but did not know

whether he was adnember*( R. 70) . He saw James Nimmo

at NOAALC UP. meetings (R270), but never saw Md Waller

at any (R.71). He sdemed having ever told Strickland on

the prior Wednesdiry that he had seen Augusta Birnberg. (R.

72), ed Waller CR. 72), Charles Smolikoff, Leah Benomov-

~ky,, Myron. Marks (Rv 73). or Mike Santzek (R. 73) at

Nd .C.P. Meetings. Ihe did see Leo Sheimer there because

he came to an NvALACC.Ps meeting at Sands’ invitation (R.

72)". | 7 we

Strickland was recalled aud testitied that he had talked

t) Sands in Miami and that whe latter had identified the

14 people in question as members,or the Communist Party

and of the N.ALALCLP. (CR. 74-75).

Verneli Albury (R. 76-56), Ruth Perry (R. S6-95), and

G. BE. Graves (R. 95-105), Treasurer, Secretary and Counsel,

respectively, of the Miami Brauch, were shown photographs

of the 14 alleged Communists.) They uniformly denied

knowing these people as’ members of the N.ALALC.P. al-

though in rare ingtances one Or two of them had been seen

~ at N.ALA.CLP. meetings.

Petitioner was then recalled. He explained that a

thorough investigation is made of all prospective Branch

officers to make certain that no person comrected with any

subversive group becontes an officer of the organization. He

pointed out that no such investigation of cach individual

member is possibies If, however, it comes to the atteAtion

of Branch officials that,an didividual member is engaged in

subversive acuvities, aation is conmmenced to terminate his

membership in the NAACP. OR, 105). There had been

no expulsions from the Branch during the past tive years

because of subversive activities (R. 105), ‘

The Court Proceedings

On the basis of petitioner’s refusal to produce the

N.A A.C.P. membership records at the committee hearings,

naeneen ere,

14

proceedings were instituted in the Circuit Court of -Leon

County to require him to do so. In his response to the

order to show canse issued by that court, petitioner invoked

the protection afforded by the Fourteenth Amendment to

the Constitution of the United States to the exercise of

rights of freedom ef association as a justification for his

refusal to comply with the state's request.

At the hearing, an attempt was made to introduce testi-

mony showing that the committee had ne evidence of Com-

miunist infiltration in the N.ALALCLP. CR. 126); that the com-

mittee had no knowledge as to whether the 14 persons

identified as Communists wére members of the N.ALA.C.P.

or the Communist Party (R. 126); that most of the persons

had not been residents of Florida for the past five years

(R. 126); that Strickland had no personal knowledge as to

whether any of the persons identified were members ot the

Communist Party (R. 222); and that except for Nimmo,

Waller and Popps, whom he indicated had left the Party,

he had spoken to none of the persons about whom he had

testified. The court ruled this evidence out of order, and

proffers to that effect were read into the record, —

Petitioner presented evidence to show the anti-Commu-

sf pohcy of the N.ALA.C.P? (R. 130); that the organiza-

tion’s officers charged with implementing the anti-Com

munist resolutions had no "knowledge or eviaenee of any

Commuuist infiltration in’ the Miami Braneh during the

past five vears (R.,180); that there had been a loss in

membership m the NOALALC.P. because of fear of reprisals

wgainst persons identified as being members of the organi-

zation (R. 159-160, 152-155); and = incidents of { persons

publicly known to be affliated with the N.A.ALC.P. being

subjected to threats and other pressures were cited (R, 133,

134, 136, 152, 165, 168).

On July 19, 1960, the trial court held that there were

no constitutional barriers to prevent petitioner from heing

?

g

ee

required to produce the NOALALCLP. membership list, at

committee hearings for‘the purpose of verifying his testi-

mony in respect to person. about whom he might be ques-

tioned. Petit)oner was ordered to appear before the com-

mittee on July 27, 1960 with the N.ALA.CLP. membership

records tor the purpose of answering committee inquiries

(R. 229).

Qn uly 27, 1960, petitioner appeared before the com-

mittee as ordered. He again indicated a willingness to

testify from his own personal knowledge respeeting the

NAACP) affiliation of any persons alleged by. the com-

mittee to be subversive, but refused to produce the mem-

bership records to verify his answers (R. 235).

On August 150, 1960 an order to show cause as. to why

petitioner shewuid het be adjudged in contempt was entered

by the Cireut Court CR, 253)—-In response to the rule to

show/eause (R. 254) and at the hearing thereon on, August

80, 1960, petitioner rested his case on the Fourteenth

Amendment’ cuarantée of rights of freedom of associa-

tion. ,

At the close of the hearing on August

tioner was adjudged? in’ gontempt and senteaced’ to six

months’? dnprisoument and $1,200 fine, or in defadlt thereof

an additional six moiths’ imprisonment (R. 208).

On December 191960, the Supreme Court ¢f Florida

afffrmed the judginentcand cotvigtion -of the trial court

(R, 262-267). Application was made for rehearing and, in

lien thereof, a stay to enable petitioner to apply for writ

of certiorari to this Court (R. 268, 270). On January 17,

1961, application for rehearing was denied, but execution

and enforcement of the judgment was stated to enable

petitioner to bring the cause here (R. 270-271).

80, 1960, peti-

oe

16

Summary of Argument

<It is now’settled constitutional doctrine that the Four-

teenth Amendment forbids state interference with freedom

of speech and association unless the intrusion can be justi-

fied by a subordinating state interest of major proportions.

See Shelton v. Tucker, 364 U. S. 479; Louisiana v.

NAACP... 366 U.S. 293; Sweezy v. New Hampshire,

854 UL S. 234; NAACP. v. Alabama, 3857 U.S. 449; Bates

v. Little Rock, 361 U.S. 516 A simulated interest does not

suffice. See Sweezy v. New Hampshire, supra.

In the instant case, the issue raised is “hether petitioner

can be required to bring the membership list of the

N.ALA.C.P. to hearings of the respondent committee td

authentieate his responses to inquiries concerning member-

ship in the organization of persons allegedly subversive.

Petitioner has manifested a willingness to ‘answer such

questions out of his personal knowledge. He takes the po-

sition, however, that to require a check of the organization’s

membership list to confirm these rephes would east sus-

picion on the N.A.A.C.P.’s legitimacy as an organization

and would fatally diseredit the organization without proof

of subversive infiltration, thereby ‘accomplishing as effee-

tive a deterrent upon the cxercise of -rights of freedom of

assvciation by members and prospective inembers as if the

entire list had been published. Cf. Sweesy v. New Hamp-

shire, supra; N.A.A.C.P. y, Alabama, supra.

Chapter 59-207 of the Laws of Florida, 1959, empowers —

respondent to ‘‘make investigations of the activities .

of organizations and individuals advocating yiolence or a

course of conduct which would constitute a violation of the

laws of the State of Florida.’? The committee has used

this mancate in an attempt to link N.ALA.C.P. activities in

Florida wit subversion. But without a showing jin this

record of © uexus between the N.A.A.C.P. and petitioner

on thetone hand, and Communist aetivities.on the other,

'

there is no foundation upon which interference with freedom

of association rights ean be based. Therefore, the ratio dece-

dendi of Barenblatt v. United States, 360 U.S. 109; Braden

v. United States, 36) U.S. 4351: Wilkinson ve United States,

369 U.S. 399; and Uphaus ve Waman, 360 U.S. 72, is in-

apposite.

The power of the legislature to investigate. is abused

when that authority is used for the sake of exposure and for

the purpose of investigation as ends in themselves, See

Watkins v. United States, 304 U.S. 178. Such petitioner

contends, is the situation here, and for these reasons the

conviction below constitutes an infraction of the due process

requirements of the Fourteenth Amendment.

ARGUMENT

—

Petitioner’s Convietion is Proscribed by the

Due Process Clause of the Feurteenth Amend-

ment As An Unwarranted Violation of Constitu-

tional ‘Guarantees of Freedom of Association.

\

The right\ to determine for oneself which thoughts,

sentiments and emotions should be communicated to =

dates back to the common law, Warren and Brandeis, ** The

Right of Privacy,’’ + Hare. L. Rev. 198, 196 (1se0). It

is now an unquestionable tenet of constitutional law that

~ the Fourteenth Amendnient bars state interference with

the exercise of rights of freedomoof speech or association,

uniess sueh intrusion can be justified by a subordinating

societal interest of compelling proportions. See dmerican

Communications Assne v. Deouds, 239 UL S. 882; Thomas v.

Collins, 323 U.S. 016; N.AAL.P. ¥. Alabamags357 U.’S.

449; Bates Wr Littl Ror ‘ ool 4B . olt; Shelton es Tuvker,

364 UL 8. 470; Lowsiana v, NAA WP., 566 U.S. 298; ef.

Uphaus v. Wyman, 360 U.S. 72; barenblatt v. United States,

360 U.S. luv; Wilkinson v. si a States, 365 U. 3. 399 ;

18 [

Braden v. United'States, 363 U.S. 481; Communist Party

of the United States v. Subversives Activities Control

Board, 367 U.S. 1. |

The Alabama case, in weighing the impact of an enforced

disclosure of associatiohal ties onthe unfettered exercise

of the right of freedom of «ssociation in respect to an

unpopular, albeit lawful, group. activity, held at page 462:

‘‘Inviolability of privacy in group association may in many

circumstances be indispensable to freedom of association,

particularly where a group espouses dissident beliefs.”’

In Bates, application of the same rationale resulted in

invalidation of an ordinance xequiring the publication of

the N.A.A.C.P. membership list, even though there the

state sought to justify the enforced disclosure as an inci-

dent to the valid exercise of its power to raise revenue.

In Shelton, when the siate sought to require teachers in .

ll educational institutions supported by public funds to

reveal all their associational ties, the statute was declared

invalid because in its ‘‘ unlimited and indiscriminate sweep”’,

it resulted in a broad interference with personal freedom

not essential to the accomplishment of a valid governmental

purpose.

Finally, in the Lousiana case, enforcement of legis!a-

tion, enacted in 1924 to curb the Ku Klux Klan, so as to

requiré the public identification of membership in an organi-

zation not shown to be engaged in lawlessness, was invali-

dated as an unconstitutional interference with fundamental

rights. There this Court enunciated at page 2$7 a principle

particulariy in point here:

At one extreme is criminal conduct which cannot

have shelter in the First Amendment. At the other

extreme are regulatory measures, which, no matter

how sophis:ieated, casnot be employed in purpose

or in effect to stifle, per. ‘ize, or curb the exercise of

F rst Amendment rights.

19 ,

i

e ® .

This, as was said in that case, marks “the area in which

the present controversy lies.

The record here fully documents the contention that

public disclosure of the names of members and contributors

of the NALA“. in Florida results in reprisals of various

proportions. Petitioner testified as to a threat to bomb

his home (R. 134), and concerning the firing of an Alvin

Berkman from his job because of his connection with the

N.AVA.C.P. (R. 136), Rath Perry, Secretary of the Miami

Branch, testified that persons called the library where she

worked demanding that sie be discharged and that she

received numerous harassing phone calls at home, after

her membership in the NUALA.C.P. was made public (R.

165). Reverend Lowry testified that after it had / been

announced in the public press that he was an officer of the

state organization, two shots were fired into his bedroom

(R. 168). Under these eireunistanees, the deterrent effect

of publie disclosure of membership im the NALA... on the

exercise of fundamental personai freedoms would seem to

have been conclusively demonstrated, and the Supreme

Court of Florida so held. See Graham v. Florida Leaisla-

tive Lnvestigation Committee, TStSo. 2d 133, 135.

‘In the Alabama, Bates and Loutstena eases, the question

at issue was whether the state could require production of

the entire membership list.. In the instant case, the ques-

tion is whether petitioner can be compelled to bring that

list to committee hearings for the purpose of answering

inquiries propounded to him in respect to the organizational

connection of persons identified as subversives by respond-

ent.

This is a mere difference in form and has no bearing

on the central issue, which is whether a state.may limit or

stifle the exercise of rights of freedom of speech and assoc‘a-

ion except to protect a countervailitg interest of paramount

importance. (Cf. United States v..Rumely, 345 U.S. 41;

424 Bois \ }

aa - . , ~ T Office. Supreme Cou rt, US

7 etter S yd ied

SUPREME COURT. Ui &-

196]

? ¢ “t . d BROWNING ‘Clerk ;

2 s ; : \ ;

_aN THE 5 aoe \ rat

“Supreme Court of the Hnited. States \ a

a i “October —_ 19g” Be aera case

, | ; <3 = .

No. “2 eee é eee

* “THEODORE R. GIBSON,

; Petttioner,

eis v. -

-F LORIDA L EGISLAPIV E INV BS ' IGATION

COMMITTEE”

\ ‘

Ox Wir ar CERTIORARI TO THE Su PREME Cotrkr OF THE .

STATE OF Fioripa “

48

BRIEF FOR _PETITIONE

- 4 _ Rosert L.. CaRTER;*

. . 20 West 40th Street,

New York 18, New York,

G. E. Graves, VB GM as . : a

802 N. W. Second Avenue, - ee

* _ | Miami, Florida,-

Attorneys for Petitioner.

Marita L. Marcus, ° fs

: FRANK D. Reeves, .~ \

/ of C ounsel.

’ -

20

*

Sweezy v. New Hampshire, _ U. S. 234. As this Court

-gaid in Shelton, at page 488: **. .. even though the gov-

* The*asserted justifigation for the interference with the

constituth nally protect freedom of the organization’s -

* members ¢ ndoned below is the state’s oVverbalancing inter-

“est in ascertaining the scope of the activities of the Com- .

munist Party, in Florida. While the substantiality of the

state’s intérest in this regard must: be conceded, see Wilkin-

son v. United States, supra ; Braden vy. United States, supra;

Uphaus v. Wi yman, supra, its inquiry cannot be merely an

excuse for a broad inter feire icé with the exercise-of personal

liberties by members of dissident .or unpopular . groups.

Cf. aweee zy v. New Hampshire , supra; Louisiania v.

N.A.A.C.P.\ gupra.- Undoubtedly, a mere assertion that; a

- subordinafihgz interest exisis or a mere statement that the

\ committer has ‘‘knowledge,’’. that subversives are ig oe

_ Louisiang

ing the o ‘ganization does not constitute justification

intrusion] in this area. \ Cf. Bated:v little Rock, supra;

. N.A.AIC.P.) supra.

LbbatTV-Enited States, supra; Wilkinson v. United

Bare

States, s s Jipra ; Braden, United States, supra; and Uphaus

Fs, VT ymdn, supra, .are » inapposite. In Barenblatt, at page

128,.the}Court, recognizing **. . .

the Communist Party and) the Aiolent overthrow of the

government, ’’ held that questigfs to the petitioner concern-

ing his.pwn Communist Parfy. membership were valid and

constitutionally permissible. >. .

In Wilkinson where the issue faised also concerned peti-

° ' . . °

tioner’} membership in the Communist ‘Party, the Court

pointed] out that Wilkinson had not been summoned as a

result

he close nexus between

» cause for belief that he posséssed information

rnmental pecaaid be Py aaa - spectros’ ‘that pur-

f an indiscriminate dragnet procedure, lacking in .

™

oat

that might be helpful to the tommittee, but that the com.’

mittee had reason to believe that petitioner/was then an

_activesUommunist deader’ The same situatipn existed in

Bradep when petitioner had refust d to say whether he was

aC ny munist. 2

x &

In i ‘phaus the Court stated at: pag ge 74, that the ‘‘nexus'

betwhen World fellowship and subversive activities dis-

closdd by the record furnished a deqiiate justification for

e.

the investigation we heresreview.’> None of these justify. +

ing lerite ria are present in this cé Ise.

|

peered? in the above cited cast x, Where disclosure of

e ofa valid. legislative ie would bt have ac

suflicfent.» See W ase ve U wited States, 354 U. S. 178, 198,

199, where the Cuurt\stated: |

D

We cannot simply assume, however, tHat every

congressional investigation is justified by a public

necd that overbalances any private righfs affected.

To do so would abdicate the responsibility placed by

the Constitution upon the judiciary to imsure that

-Congress does not unjustifiably encroach upon .an

indiv nae s right to privacy nor abridge his liberty

of speech | phos, religion or assembly.

L ontinuing at page 200, the Court added:

Weave no dgubt that there is no power to expose

-for the sake of exposure. .The publie is, of course,

entitled to be informed concerning the workings of

its government. That cannot be inflated into a gen-

eral power to expose where the predominant result

can only be an invasion of the private rights of indi-

viduals, ie th

a bare a person. is not himself accused of engaging in

subversiye activities, and w here there is no basis for a be-

lief that his group is subversive, this Court has construed

the Fourteenth Amendment as proscribing enforced dis-

closure of the names of members of the organization, when

sr

~ J é

0 ' beer

.

Oo

—

| necessary result exercise of personal liberty guaranteed

therNuidemwould be jeopardized. See Sweezy v. New Hamp-

ra; Bates vy. Little Rock, supra.

nstant ease, as in.Sweezy v. New-Tlampshire,

supra, the petitioner and the organization to which he be-

longs deny evehKengaging in or-advocating subversive activi-

ties. \On the cottrary, it is asserted that they have been

ek opposed to Communism and its tengts, and that

membership in the N.A.A.C.P. is barred to Communists.

Rev. Gibson indicated that membership runs {rom year

to year, and when not-renewed at the end of the year, the -

individual ’s name is removed from the files. Thus, inquiries

concerning a relationship te the organization, involving the

necessity for verification against the membership list, must

relate to the current. year (R. 32).

"A specific investigatién is made by the Association

clearing all prospective officers of any connection with sub-

version (R. 105). While it is not possible to do this with

members-at-large, Rev. Gibson testified that if the Branch

has knowledge of-a member engi ging in subversive activi-

ties, that person would be expelled (R. 105), and that there

had been no expulsions in the last five years (R. 104). It

might be addéd that the loyalty of the organization has

never been questioned by federal agencies concerned with

the menace of Communism to the nation as a whale.

Neither the committee, nor its paid-investigator, had any

personal knowledge that any of the persons described as

subversives-were members of the Communist Party or of

the N.A.A.C.P.

The only’ witness who could ¢estify from personal knowl-

edge dispated the investigator's assertions (R. 72 and 73).

Moreover, he was Obviously testifying concerning matters.

which predated 1950;(R..65), so that his testimony could

not be related to.thé present, and he had not been to an

N.A.A.C.P. meeting in two years. Further, there was abso-

o

—e

ey

lutely no proof that any of those named as members of ‘he

_ Communist Party are presently residents of Florida. “ In

short, the recore here utte rly fails to establish any. con-

nection hetween the NAA PP. and any subversive group.

or subvegsive activities in any ‘degree Ww hatsoev er,

Petitigner voluntarily agreed to answer from his own

knowledge questions coneerning membership in the organi-

zation of person’ identified as subversive. If, however, he’

must also produce the nembership list and check it to

wuthenties ite his responses to 4hese infjuiries, grave doubts

are cast upon the legitimacysot the organization, itself, He

ae

thereby, links the organizatign to- Communist activities. ——

Thus, without proof, the organization's disloyal orientation

becomes to the public an established fact. The org anization

is damaged and its effectivencss impaired. Doubts and sus-

picions about it arise, therefore, which Would necessarily

adversely affect the organization’s ability to attract,mem-7

bers and contributors.

The N.ALALC.P. becomes sus rect withent proof of sub-

versive infiltration and without any need for publication

of the entire membership records. Members who there-

after might be identified in another connection ‘would fear

not only” reprisals as dissidents, but public vilification as

disloyal Ame trieans. Prospective members would fear con-

nection with an caeiataniion whieh had been. established

in the pulfie’s mind as sybversive. Nothing in the record

creates any /basis for thus handicapping the organization,

which had been described by the Supreme Court of F lorida,

see Graham v. Florida Legislative Investiqation Commit-

tee, supra, at pase 136, as ‘tperfectly legitimate but al-

legedly unpopular in the community.” Thus, the rationale

wl ich his Court in the dlabame, Bates and Louisianna

cases to ho that & state could not require disclosure of

the N.A.A.C/P. membership list applies here, and bars en-

forcement of an order that petitioner,testify from that list,

since the deterrent’ to free exercise of freedom of associa-

tion would be the same as that condemned in those cases.

»- 24 oon JN

Petitioner, and the organization to which he belongs,

have views and beliefs respecting the status’ o£,Negroes in.

the society at variance with those of the duminant majority

‘in Florida. These views and _beliets, ies that the funda-

mental law requires that Negroes be accordéd equal treat-

~~~ petitioner's objectives are distasteful to some does not

22

make them disloyal, or warrant interference with his right

and the right of N.A.A.C.P. members in Florida to espouse

such dissident beliefs, and to engage in lawful activities to

effectuate their. views. The record conclusively demon-

strates, petitioner submits, that the only real basis for the

-committee’s investigation of the N.A.A.C.P4 and its effort

to link it-with subversion, is the fact tha} the committee is

opposed to-the organization’s advocacy of desegregation

and seeks to use state power to impair the N.A.A.C.P.’s

effectiveness. Measured by applicable constitutional stand-,

ards, the committee's action cannot be sustained. See

NAACP. vy. Alabama; Sweezy v. New Hampshire, supra.

The instant -statute creates a committee’ to ‘‘make

- investigations of the activities of organizations and indi-

viduals advocating violence or a course of conduct which

would constitute a vieclation of the laws of Florida .. .’’

The committee is necessarily limited to carrying out those

functions in Which-the state hasJan interest—the investi-

gation of subversive organizatigns adveeating yiolence or

‘a Violation of the jaws: See Watkins v. United States, supra,

where the Court said, at. page 19S, referring to Umited

States v. Rumely:

The magnitude and complexity of the problem

of applying the First Amendment to thaf case led the

Court,to constrze narrowly the resolution describing

the committee’s authority. It was concluded that,

when the First Amendment rights are threatened,

the delegation of power to the- committee must be

clearly revealed in its charter. -

‘

=

I e -

‘ — 3

§ : s ° ws

° P is :

i « ° .

° - - ——< a '

FQ ra ‘

a : ‘

“missions Welegated te—them, ic. yo acquire certain

data tto be-tsed by the. Hfouse or tht Sondte in coping

rf with a problem: that falls within its legislative

4 ca? Sphere.” ,

~ Wi ; . « , “ae + . ;

In SiweZzy Vo New Uq@ushire, supra, the Court stated,

avo 945: : : '

——art_ page 245s ot. . —

/> Tt is particularly important that the eXereise of

the. power of the, compulsory process be carefully

eireuniseribed when the investigative proeess tends”

te impinge upon such highly sepsitive areas as free-

dom of speech or prress, “Yreedoni of pohtical asso-

| ciation, atid freedom of eemmunication of ideas. . .

f aes ¢ 7

tp. When an investigatory committee exceeds these limits,

it is abusing the jevislative: process and carrying Oban

activity which is boti unauthorized and vielative of con-

- ; t 6 Tee oe a

stitutionally secured freedoms, Cte Aiibourn vy. Thompson, -

« 7 ae %O <

; «

b) sg /

; ,

| Respondent is attempting to uses cHiegislative man-

ws viz., duthority to investigate Orjanizations advocating

violence or vidlation_of the Iyavs, to turb N.AA.CP. activi-

. ties _by-posier nemate: “eens of the organization's

members, and of publicly tainting the organization as being

. —Commramst dom ijated. This constitutes an abuse of the leg-

7 } “islative process see, Watkins v. United States, supra, Kil-

Ao bourne, Thompson, Supra, which, like abuse of the judicial

* ” proéess, is not-perntissible, 1: of v. Kochendorfer, 237N.Y,

384, 143 N. BE. 229 (1924), L. B. Price Mercantile C6. 7.

Adams, 56 Ga: App. 756, 194 S. E-.29 (1987); see also

.¢ Tranchina x, Arcinas, 7$Cal. App. 2d 922, 178 P,. 2 65

(1947); Defnall v. Schoen, 43 Ga. App. aa 3%, S. KE. 2d 564

(1945) ; Peerless Oitand Gas Co. v. Texas, 138 8. W. 24/637, ;

aff’d. 138 Tex. 301, 158 S, W. 2d 758 (1940). * ++ >

s,

> ° a“

Pa Reh ’ igi ee :

Plainly these committees .are restricted ©

—

a

9 a 4 a

v "~~ ® ® F

. ; ; P :

| tlere the committee is in disagreement with the Asse

ciation’s use of the courts and other lawful means te. pro-

mote desegregation. It attempts te use its lezislative man-

date to coerce the giving up.ot the raga Lo assne ‘tational pri

vacy of members of+the Nida: .! The damage which

will result, in-terms of the siatecrent effect tipon the: exer.

cise of personal liberty by me mibe ‘rs and prospective mem

ybers is amply demonstrated by ‘this record. :

In those cases-ire whicli interference with the exerci of

associational rights and privacy therein has been permitted,

not only was a connection to subversion shown, see Wilkin-

son Vv. United States, supra; Braden vy. United States, SUPTE,

but the data gathered was to be, used as a basis tor

legislation, ! : 4.

WWE ede -

In Wilkinson, supraythe ¢ ‘oyrt points owt that'gle com

mittee. resolution authorizing the Atlanta. hearing expressly

referred to two ‘legislative proposals, an amendment to

Section 4+ of the © ommunist Control Aet- and amendments

to th®Pureign Agents Registration Aet. “The Chairman’s

and the Staff Director’s statements egntained lengthy dis-

cussions of legislation which the committee had under con-

_ sideration. In the instant case, the only legislation enacted

or apparently under consideration was a periodic extension

of the committee’s life. As Mr. Justice Brennan in, ‘dissent

pginted out in Uphaus-v: Waman, supra, at 2, mvestiga-

tion and exposure are not self eotitained legislative powers

in themselves. -

.

oS

If exposure is the purpose, as it seems to be, revelation,

of mémbership, rather than leading, to legistation, would

inerely mean that,an the words of Judye Vliornalan Graham

v. Florida Legislative Investigation Committec, supra, at

page i34, **. . . the NAALCLP. woald become completely

non-existent ip Florida.’’ To permit the legislative process

to be used for this purpose and to a discrediting of the

organization, without any showing of a nexus between the

. @ - | * e

Communist Party and the N.AJA.CLP., is constitutionally ,

. impermissible, petgtioner submits gnder the decisions of

this Court.’ See Sweery vo New Hampshire: UE phaus v.

Wiauman; United States vo Rumely.

vm CONCLUSION

Wherefore, for the reasons hereinabove stated,

is respectfully submitted that the judgment - below

should be reversed. ; _

Rosert L. Carter,

20 West 40th Street,

New York 18, New York,

. G. E. Graves, Jr.,

802 N. W. Second Avenue,

a Miamu, Florida,

Attorne ys for Petiliones.

z

Marri L. Marcus,

Frank D. REEVEs, ;

of Counsel. :