# Brief for Petitioner — Gibson v. Florida Legislative Investigation Committee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0168%3A3 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for Petitioner - **Published:** January 1, 1963 - **Citation:** 372 U.S. 539 ## Text 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 . . 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 « ° . ° - - —— 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 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. : --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0168%3A3. Public record. Not legal advice.