Brief of Respondent — Gibson v. Florida Legislative Investigation Committee

pi eonn aa $ PAGE

“Opinion Below Se voy Bere a i Yana apts A rt: Fae Ge

: Jurisdiction se Sie gh ey Reser iy ee 5

Question Presented fork a hems kd aes owe oe es Soa cone

Statute Involved... . vines i, BS ater Hieron ee fae

- Statement TR Ee ROS # bi ecene eee eas penne ge — 6

The November 4-5 Dy 19: 09, Hearings in Tallahassee, 3

POI ya teues ees Sy Ned aa ed ia peer rey

Jt he Court Proceedings ....... es “ s sae Se Arcee *

Summary of Argument ..............2%5 ee 16

Argument a | ge

Pétitioner’s; Conviction is Proscribed by the: Due

Process Clause of the Fourteenth Amendment

As An Unwarranted Violation of Conatiteiongl -

- Guarantees of Freedom of Association. Boe me 17

( ondionign PEG RERE RETESET CEC hic hin RE om

Table of Cases :

American Communications Association v. Douds

o J

ET Be eee we

Barenblatt v. United States 360 Ud &. 2 Bee 17, 20

Bates viLittle Rock, 361'U. £516... .16, 17, 18, 19, 20, 22, 23 - /

Braden v. United States, 365 U.S. 431. . 2°..17, 18, 20,21, 26 / —

,Gommunist Party of the U nited States v. Suby Tsives, OV ee

Activities Control Board, 367 U. ie Nar eee ee A8

Dean v. Koehendorfer, 237 N. Y. 384, 143 N. X / oF

ON a ere ee “95 >

Defnall v. Schoen, 73 Ga. pam 25, 35 S, E. 3d 564 i

me 49) he foe ne eR ere er rer fire 25

Graham v. Florida Legislative Investigation Com- |

mittee, 126 So. 2d 133 ............., eee ys Oe ee 19, = 26

Ske

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i

4

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1) “ : PAGE

Kilbourn re hompson; 103: U: 8. 168, 192. Seen ees 29 |,

“ye B. Price Mereantile Co, v. Adams, 56 Ga. App.

796, 194 8S. E..29 (1987)... 000.000. Tee ee ree 25

Louisiana v. N.ALA.CLP., 366 USS, 203... 16, 17, 18, 19, 20, 23

NA,A.C.P;: v. Satay white s_499 . 416, 17, 18, 19, 23, 24

-eorless Oil and Gas Co. vy. Texas, 138 4. W. 2d 637,

at"d 138 Tex. 301, 198 8. W. 2d 758 (1040) 000, 5

Shelton v. Tucker, 364 U.S. 476)... [-F..16, 17, 18, 2Q

16, 20, 22, 24, 25, 27

|

oy

|

|

|

Sweeay v. Hampshire, 354 U. 4: Jo

(Thomas v. Collins, 323 U.S. 516 ...... |. RIAN teal 17

“Vranchina vy. ‘Areinas,. 78 Cal. APP. 2d 022, 178.R. 2d :

65 (1947). Pe KEV TAKEN SOS EE Dee wie balk ak bee Be

United States vy. - Raney, ei U. EE Eargasm 19, 27

Uphaus v. Wyman, 360 U.S. 72 .......... 17, 20, 21, 26, 27

~ Watkins v. United States, ¢ 4 U. s. RG ests) a ok ey 25

Wilkinson v. AU nited States, 8365 U.S. 399... 0«.. 17, 20, 26°

>

’ \

IN THE \,

Supreme Court of the United States

: October Term, 1961 |

No. 70 ©

+

euainsinanenenpen -O

“Y

THeopore R. Ginson; .

, , Petitioner,

=“ ¥, ak .

Puoripa Leamtariye INvesrication COMMITTEE

On Wrrr or Crrktionant To THE Supkeme Court oF THE

StaTE OF FLoripa

ray

Vv

BRIEF FOR PETITIONER

Opinion Below

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

is reported at 126 So. 2d 129.

Jurisdiction

é

The judgment of the Supreme Court of Florida was

entered on December 19, J960 (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 seck review of this cause here (R. 270).

Aceordingly, 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, Unitéd States Code, Section

1257(3). ; |

»

Question Presented

- Whether it is a violation of constitutionally guaranteed

rights of freedom: of assoetation to require petitioner, as-

custodian of the NOAA LP, niembership list, to bring those

records to hearings of the respondent conimittee to authen-

-tieate his answers to inquiries concerning membership in

the organization of alleged Communists, where the inevit-

her consequence is the publie discrediting of the legitimacy

of the NvAVA.CA’. as an organization and of the loyalty of

“its members, without justification therefor being established °

in-a showing that petitioner or the N.A.A.CLP. is in.some

Way connected with subversion ?-

’ Statute I nvolved

4 ~-

“CHAPTER 91-207, Laws or Fruonipa, 1999

AN ACT to provide for the ereation and appointment

‘of avcommittee of the Legislature to make investigations

of the activities in this state of organizations and individuals

* advoeating violence orca course of conduet which would

constitute a violation of the laws of Florida; for the conduet

of ‘hearings and thé sabpoenajng of witnesses: providing

for circuit courts to enforce committee's processes; for a

report of such committee to the’ 1961 Legislature; authoriz-

ing the employment of specialized assistance by the eom-

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. rs

Wuenreas, 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 ; : :

2

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

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

report to the legislature as provided by said act; and

Wuerkas, the said two committees’ records and reports

sre a great “abuse of the judicial processes of the Courts

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

various organizations and individuals which constitute vio-

lence or the threat thereof, or violations of the laws of this

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

the majorfty of the citizens of this state; and

Wuexeas, the joint committee set up by chapter 07-125,

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

commenced by the joint committee set up-by chapter 31498,

Laws of the extgaordinary session, 106; and

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

evidence and sources of evidence dise ‘losing 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

Wueress, the joint committee set up by chapter 57-125..

has diligently pressed its investigations to determine the

exact nature, extent and effect ef subversive- penetration

and influence on the aetions of certain organizations and

individuals active pn Florida; amd

Wuenreas, 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,

which resulted in said cormaittee being mired down in

numerous law suits in the Cireuit Courts and the Supreme

Court of Florida. ali of which litigation has ended in the

Supreme Court of Florida having twice upheld the author-

ity of said committee to pursue the investigations it has

undertaken, and which litigation has now culminated in the

United States Supreme Court having issued a stay order

against said committee 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. te proceed with its

investigations because of that Court’s stay order ;. and

Wuereas, the issues embraced in said litigation jnvolve ‘

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

sovereignty which this State can ill afford.to abandon; and

Wuekeas, there still exists the same grave and pressing

need for such a committee to exist in the interim tween

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

continue dnd complete the above two committees’ work,

and to participate in and contest the gtorts represented. by

the above referred to litigaticn 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. *~ :

_ Now ruererore, the following bill is proposed to be

enacted Ly the legislature beéause of all the foregoing:

Be It Bwacrep py tHe ecisLature oF THE STare or Fionma:

| Seetion 1. -There is hereliy created a special committee

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

‘three (3) of whom shall be appointed from the membership

of the stat® setiate by the president, and four (4) of whom

-

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 fhe 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 course

of conduct on the part of any, pérson or group Whieh would

constitute’ violence, or a violation of the laws of {he state,

or would be inimical te 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

of the activities of such organizations to the end that eor-

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, clerical and other assistance as may be re-

quired; to required by subpaena or otherwise the ‘attendance

of such witnesses and the produetion of such papers, bonds

and decuments, and to administer such owths and to lake

such testimony and to°make such expenditures within the

limitation herein authorized as it may Geen necessary in

the \performance of its duties,

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

subpoeha of the: committee, or having responded fails t6

answer all Jawful inquiries or turi over evidence to this.

committee, 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 cout

shall t fisdiction of the witness and ‘the subject mat-:

ter of Md petition and shall direct the witness to respond.

—_—

6 - : of :

is |

to all wy ful. qucstions and to produce all -docume ntlary

ev ile ce Meits possession Which is lawfully demanded. The

— of any witness to respond parounn( to the order of

the Court shall constitute a direet and criminal contempt of

court and the court shall Jiunish said witiless accordingly,

Section 4. ‘The committee shall ré@port to the 106] regu.

lar session of the levislature the results of its InVestiga-

tions, Logether’ with its recomnic hdatrons, i any, for neces-

sary legislation. The expenses of this comnpttes » theluding

hAacessary and regular expenses shall be atid trom legisla-

live expense, such total expetises not to exceed sixty-seven

thousand five huridred dollars ($67,000.00), ‘Which shall be

‘expe nded under the direction of the committee,

Seetion 5. ‘The Joint Committee se tup by chapter ave 125,

Laws of Florida, 1957, is heted ty extanded’ in all re speets so

that it may continue to.diséharge its re spanstbilities as a

party litigant on behalt of The state oof F lorida in the litiga-

tion above referred to ntil the appoiitmernt and organiza-

tion of the committee prov ited for in thus avt shall become a

effective, - 3

Vv «

Section 6. “This act shall take otteot jmmedisiely upon

: becoming a luw.

ir Statement

The instant controversy has a long history. Although

the ere ation of the respondent committeetlates from enact-

ment of Chayter 59-207, Laws of F ‘lortda, 1994, the investi-.

xution in whieh it is involved and from which this. case

arises -began in 1956. In that year, pursuant to. Chapter

d4918, Laws of Extraordinary Sessions of Florida, 1956, ‘a

committee or the legislature was established to make inves-

tigations initd the activ ities of organizations and indiv iduals _

*tadvocating violence or a edurse Sf ‘cofiduct 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 Advancement of

>

> hae ? ; ‘3 5 . '

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

mittee, thereupon, secured a court order requiring that -

the membership fist of the Bratwh he turned over ta the

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

zation’s consistent efforts to andermine racial diserimina-

tion were Communist inspired, A report w & filed with

the legislature in 1957. Except for the aaa of

Chapter 57:125, Laws of Florida, i957, which created a

committee to continue ald ‘complete the work of its prede-

eWssor, however, no legislation dealing with the infiltration .

of subversives ito legitimate organizations operating in-

‘the field of race re ‘lations was recommended or adopted ¢ at

the 1957 session of the Florida legislature,

e 1957 committee, pursyant to its statutory authority,

y held earings in Miami and sought to Meer: re puysical

a, ufémbership dist of the Miami Branch of

the N.ALA.C.P., purportedly. in order that the coim#&ttec

could determine the extent of Communist infiltration’ and

influence’ in, the Branch. Disciosure of the namés of

camumittee. This order, was resisted, but he ‘fore final adjidi-

cation at the trial court level, the Supre me Court of Florida

Erduted a stay pending a he arin and de tgrmination on the:

-

merits. ‘ .

After ‘hearing, that court ae ld hapte r 57-125, Laws

, of Florida, 1957, as being consistent with constitutional

requirements. It concluded that the commif®ce was engaged —

in a valid legislative purpose an seeking to uncover and

determine the extent of Commynist infiltretion 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 anonymity/in one’s assoc “4 RR

relationships, ‘the court concluded that V.A.A.C.P. vo Ala-.

— bama, 397 Us S. 449, was snapposite, and that diselosure :

of membership in the organization could be required, ‘ecn-

Pe

o

Pb sis

Bitte. 4

:

fe

kL

.

>

-sistent with Constitutional guarantees of freedom of speech

and assotvialioit Therefore, the court deereed that the-_

custodian of- the N.ALALCLP. membership list’ could be

ordered to bring the list to committee. hearings for the pur-— -

pose of ve rifVing answers lo inquiries about membership.

in the organization ot pe rsons designated by the éommittee ¢

at subversive (108 So, 2d 729), Application forjwrit of

certiorarL was denied by’ this Court. 3860°U. 8, 919.

Before this Court acted, ‘the committee, which had been

formed pursuant io Chapter 57-1235, Laws of Florida, 1957,

Was due tWexpire, and in establishing the instant committee,

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

the old committe ¢ was extended ‘to enable it to dischgrge

its responsibility’? in the litigation then pending in this

Court until the appointment and olganization of the instant

_commitee had become effective. ;

‘In 1959, as in 1957, no remedial le veinkati on slealing w ith

the problem of Communist ‘infiltration into organizat tid

Operating in the field of race relations resuttedtrom the

vommiltee’s-investigatioug The instant committee, -how-

~ ever, Was created to press and complete the investigation .

undertaken by the 195 and” 1957 committees .to determine

~the nathre - and ‘extent to whieh petitioner's organization

had been subjected. to subversive ‘penetration and-influence

ITS | °

Pa

~~

Ww

The November.4-5, 1959, Peciee a in Tallahassee, F lorida.

On October 30, 1959, petitioner was ordered to appear

betore the. responde ‘nt 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

custodian, pertaining to the identity of the members and

those making contributions tp the local and state NLA. A.C Po

organizations,

ie the outset, the ¢ ‘hairman of the respondent committee

set forth the seope of the i inquiry with Which the committée

- 8 °

‘ '

S

‘ing. in F lorida in the fields of ‘‘race relations . .

‘ther “eof which.

’ Party, if he so’ desired cR. 13): = oe

was concerned. His remarks consisted of a verbatim re-

cital of pga 09-207, Laws of IYorida, 1959 (R. 8- 13),

followed by a deel aration tliat the hearing would be con-

cerned with the activities) of various organizations: operat-_

. 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:-Communist Party and Communist- front

organizations ‘\ . their’aims and objective . and the

decree, if any,‘to’ which Communists. and Communistie

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

ing, and influgneing the various organizations: and members

ave been, or are now, operating in the above

fields’? (R. 1243). The Chairman disassociated the com-

mittee frony any inte nt to give the i impression thut the mere

calling a. witness’ to testify signified that the person called

was ‘Communist. Kach witness “was given.permission to

make a short disclaimer of membership in the ¢ ‘ommunist

°°

Arhiagton Satis, who, as it developed, was respondeént’s

Only witness with personal knowledge of the facets it sought

to establish, was not present (R.6). The«irst witnéss bear-

ing on this controversy was R. J. Strickland, employed. as

ba

-an investigator by the committee.

conducted investigations conce rning the activities of Com:

_munists in the South (R. 24);

that one Augusta Birnberg

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

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

member, ani-*‘stated to me’’ that he had then been- under

instruetions 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 aC ‘ommunist 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

He stated fhat he had 3

«

ie

ak

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

» Charles Marks was a member of the Party (R.'25); that

‘according to inform ation in hand’? Myron Marks was a

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

‘Leo Sheinér, a member of the. Communist Party, was a

. contributor to the NVALA,C: P. (R. 26) ;' that Chnsies Smoli- :

koff, a former Dade ¢ ‘ounty résident, Was a. ommunist (R,

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

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

former resident of Dade County, was a Communist (R. 27) :

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

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

_ Kmanuel ** a ** Graff and Bobby Graff, once residents

- of Miami, were members of the Communist Party (R. 27);

.

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

‘and that “it. is my.information’’ that each of the persons

oe

iztmed. had been a member or participated in meetings and |

affairs.of* thy N-A.A.C.P... Then hesread a list of -33 persons

and stated ‘that some | were members of the Communist.

Party, and. that each in the re cent past had been active in

- Communist-front orge inizdtions in Dade ¢ ‘ounty 7 (R, 28).

Strickland ki gave the name® of five persons whom ‘he

identified a

munist Party (R. 29). ” ;

"He was then asked to read the legend on the’ cards of

membexs of the Communist Party. Saal g their rights

and duties (R.29).. As read, paragraphs ‘

**present* and, or-past’’ members of the Com-

..

and 4 pledge .~

each member to fight all forms. of ‘discrimination and seg, |

regation, “and all ideological influences and practices of |

‘racial’ theories . . .” and to ‘fight for the full social,

political and eoonomiea: equality of the Negro people, for

Negr o-and white Unity i (R.

ns

These’ deposit slips were ney

30

a. W ).

r produced either at the committee

hearings on November 4, 5, 1939, and July 27, 1960, or at the court

hearingson May 30, 1960, and 30, 1960. °

‘

F , . O

*

Petitioner’s testimony followed. He stated that he was

custodian of the membership records of the Miami Branch

of the: NALA.C.P., but that he had. not brought those

records with him TR. 31); that there were approximately

1,000 members in the Miami Bratieh (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 12-

.month. period from the date of joiping (R. 32); that at the

end of the 12-month pericd, a person avas no longer a member

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

his eard was removed from the files. (R. 32). He testified

that he had been President of the Miami Branch and active

‘in the N.A.A.C.P. for the past five years (R. 40).

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

beginning with its annual convention in 1950, and gach year

thereafter, had adopted resolutions condemning» Com-

munism and excluding: from, the orgamzation all Com-

munists and members of other subversive’ ogganizations. x

Copies of these resolutions | were left with the equumittes

(RB, 35). ec ee WN

Petitioner volunteered to cooperate -with the comilitte e,

by agreeing to answer any questions out of his own petebnal

' knowledge concerning membership in the N.A.A.C.P. of aly

person identified by the committee as subversive, hut flatly ..

refused to bring or produce the N.A.A.C.P. membyrship

records at the committee hearings for the pu: ‘pose of an-

swering any such-inquiries (R. 45). Petitioner based| this

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

bership reeords at the conimittee hearings, and to testity

from these recards would create the same fears, concarns

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

ciation by members. and prospective members of the “

N.A.A.C.P., which would result from the membership rec;

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

He was asked about 14 people prev lously at. as.

members of the € ‘ommuunist Party by Strickland (R. 24-28).

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.A.A.C.P.) (R. 39-44). Then he was asked whether he

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

cate his testhmony concerning membership in the N.AA‘C.P.

of the 33 persons described by Strickland as either members

of the Communist P arty or active in Communist-front or-

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

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

persons to be me ‘mbers- of the N.A.AC.P., but refused to

bring the NvALALC.P. membership records to the committe e

hearing for the purpose of such testimony. Shortly there-

after the hearings’ adjourned.

When the hearings resumed the’ next day, November. 5,

the first. witness called was Arlington Sands. He stated

that he was‘a memberwf the N. A.A.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- tor the past ten years (R. 64).. He had

not been to an N.A.A.C.P. megting in, two: ‘years . (R. 65).

He was then asked about the 14 ide ‘ntified as members of

the, Communist Party’ by Strickland. He ree cognized San-

tzek (R. 65) and. Leah Benomovsky (R. 66), but: did not.

~ reéeall seeing thenr at N.A.A.C.P. meetings. He did net

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

_ &. 67), and had never seen Marks’ father at an. NAACP.

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

Charles Smolikoff had been an N.A.A.C.P. member bécause

“the latter had not thought very highly of the organiza-

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

resented the N.AJA.C.P. as an attorney during the period |

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

believe that Sheiner was a Communist (R: 70).. He saw oe

o

Abe Sorkin at N.ALALC.P. meetings, bit didn.

whether he was a miember (R. 70).

at N.ALA.C.P. meetings (R. 70),

at any (R. 71).

know

He saw Janies Nimmo -

but never saw Ed Waller /

He denied having ever told Stri¢kland on:

the prior Wednesday that he had seen Augusta Birnberg | ee

72), Ed Waller (R. 72), Charles Smolikoft, Leah Benomev-’ ; |

sky, Myron Marks (R. 723), ar Mike Santzek.(R. 73) at /

N:A.A.C.P. meetings. He did see Leo Sheiner there because

he-came to‘an NAA.¢ ies meeting at Sands’ imvVitation (R..

3). es

\ ; Ke

14 sssple in ‘sagion as mpohsise ‘Ts of thie c ‘ommunist

and of the NALA.C.P. (R. 74-75).

\. Vernell, Albury (RK. 76-86), Ruth Perry (R. §

\G. EK. Graves (R. 9s. 103), Treasurer, Secretary

wnd Counsel, ;

respectively.of the Miami Branth; were show1 photographs

‘ot the 14 alleged © Communists. ‘Phey unjfurmly de nes

nowing these people as me nhbers of thy NVALALC iP.

ough in rare instances one or. TWO ofthen had bee ‘Hy seen

> ‘ > : if ‘

at N.A.A.C.P. mettings. ap, oe v7, | hy

Petitioner Wary then recalled.

Ve explained that a

‘thorough investigation is mdde ot All prespective Branch ©

officers to make certain that no ideas connected with any

é :. {

\. subversive group decoinds » wt ‘offiéer ot the organization.. He . 7

- pointed out that no suckuinv stigation of eacly individual fe

“member is possible. If,

jayweve ‘r, it comes to the atte ntion’ ‘>

udividaal raember is engaged in

Avis conmmenced to te ‘rminate his

Gk I’. (R. 105). There had been -

he Brajich during the past five years

five activities (R. 105).

of Branch officials that-aty

“suby ersive-activities, acy

‘membership in the. N

po expulsions from

precause 0 ot subve

. e

The Court Proceedings :

S oeee pe ME eae ;

, On ‘the/basis of petitioner’s refusal to produce the

N.A.A:C

. membership records at the committee hearings,

2

=

14

Q. All right, sir.” (R.23-29)

- _——_——_— — ee

Arlington J. Sands’ testimony appears in the Rec-

ord, pages 64 through 73. This witness is a life- long

ee resident of Miami, Florida. (R.64) He though his

‘membership in the Miami Branch of the N.A.A.C.P. was

——eurrent and in good standing, but was sure of the year

previous. (R.64) His membership in N.A.A.C.P..went

back about ten years. (R.64) He was an ex-vice presi-

dent of the Miami Branch of N.A.A.C.P. (R.65) This

witness recognized photographs of, the following iden-

tified’ ‘members of the Communist Party in Dade

- County: _”

-

I

%

Miclrael Shantzek (R.65)

er hee

if 92° ISeah Benomovsky' (R.66) .

Cs 3. Myron Marks (R.67) )

a> Charlie Smolikoff (R67) ;

5. Leo Sheiner (R69) ;

Abe Sorkin (R.70)

o~

James.Nimmo ( R.70).

a Waller (R.71)

\

© o

Auguste \Birnberg. AR. 72):

_ Smolikoff, ideint{tied by Strickland as a man who

used the alias’ of Charles Doraine, Charles Small,

Charles Stevens and’ ‘Charles Boraine and who had car-

ried Communist Card No. 64511, and Who was a top

ee organizer in the unions of Dade County, F! (R.26) :

- told the witness, Sand s, that they. (Communist Party

“a © dint have ne-organization here, and they needed

an organization of thatisort, the FDR Chub, and i that’s:

15

why he was trying to organize one.” (R.68) This wit-

~~jress-stated-Smolikoff probably was the founder of the

FDR Club and discussed it with him before it was found-

-ed. (R.68) This witness had,seen every established |

member of the Communist Party, whose photograph he

identified at various meetings in Dade County., He

knew Leo Sheiner attended ‘the meetings’ of the

N.A.A.C.P. (R.69) He thought he had seen Abe Sor-

kin and James Nimmo at N.A.A.C. P. meetings. (R.70)

He could not specifically recall whether he\had seen

the others at N.A.A.C.P. meetings, or whether he had

seen them at other types of meetings. * | x a

_As shown on Page 13 of Petitioner's rief, some

of the fourteen Communists whose pictur werd ex: '

hibited to the witnesses Albury, Perry and Grayes, were

seen occasionally at N.A. A.C.P.. meetings.

oa

In “addition to the fourteen Communists whose pho-

tographs: were exhibited to the witnesses, Mr. Strick-.-

land identified thirty-three other people who were, up

‘to the very recent past, either members of: the Com:

munist Party itself or active participants in the Com-

munist Party front organizations in Miami, Dade Coun-

ty, Florida. (R.28) In addition, he .identified five

others as Communist Party members bv theiy.card num-

bers. (R.29) The following questions and answers, °

while petitioner Gibson was on the stand, appear on

Pages 44 and 45 of the Record: ;

“Q. Now. the names, of course, of people that I°

just called off to’ you, sometimes you recognize

the name, sometimés you don’t?

A. That's true.

Q._Sometimes you associate’ a face with a name;

sometime you don’t.” f

i

|

i nce rl

16

' A. ‘(The witness nodded affirmatively)

‘Q. -I have here in front of me, Reverend, a list of

thirty-( fol.88) three peoplé who, the information

in the Committee's files and previous testimony

show have. recently been members, either of the

» Communist Party or actively affiliated with some

one or more-Communist front organizations in Dade

County; and I want to know whether cr not—I

don’t have photographs of these people that I can

show you; I want to know whether or not you will,

or whether you will refuse to bring your member-

ship lists here for the purpose of comparing them

with these thirty-some-odd names that I have here

before me, which you might identify some or you

might not, off of your membership list, waareds

you might not recognize the name?

Will you do thet or will you not?

A. Counsel, our position is that if you.call those

names, and I know those people, I will acknowledge,

honestly and truthfully, but so far as identifying

those people on the basis of our membership lists,

sir, I must respectfully say that we wil! not bring

it, we will not do that.” (R.44,45)

In addition to all of the above, the petitioner Gib-

son testified that each year since 1950, the N.A.A.C.P

in national convention had passed a resolution concern

ing Communists. (R.34) He gave copies of the reso-

Jution to the Committee and asked that they be made

a part of the record. (R.35) The resolution reads

as follows: .

“Anti-Communism”

Whereas, certain.branches of the National Asso-

ciation for the Advancement of Colored People are

being rocked by internal conflicts between groups

who follow the Communist line and those who do

17

not, which threaten to destroy the confide nce of the

public in the Association and which will inevitably °

result in its eventual disruption; and

(fol.228) W ioe it is apparent ‘from numerous

attacks by Communists in their official organs

‘The Daily Worker’ and ‘Political Affairs’ upon of-

ficials of the Association that there is a well-organ-

ized, nationwide conspiracy by Communists either

to capture or split and wreck the NAACP; there-

fore be it

‘Resolved, that this Forty-First Convention’ of

the National Association for the Advancement

_of Colored People go on record as unequivocally un

condemning attacks by Communists and their

fellow-travelers upon the Association and its offi-

cials, and in order to safeguard tHe good-name of.

the Association, promote and develop unity, elim-

inate internal ideological frictiofi, increase the

membership and build the necessary power effec-

tively to wage the fight for civil rights, herewith,

call upon, direct and instruct the National Board of

Directors to appoint a committee to investigate and °:-

study the ideological composition and trends 8} the. ,

membership and leddership of the local units with

a view to determining causes of the aforementioned

conflicts, confusion anti loss of membership; he it

' further

Resolved. that this Convention go on record as di-

recting and instructing the Board -of Directors to

take the necessary action to eradicate, such infil-

tration, and if necessary to suspend and reorgan-

ize, or lift the charter and expel any unit, whith, in

the judgment of the Board of Directors, upon a

basis of the findings of the aforementioned inves-

tigation and study of local ukits comes under Com-

munist or other political contr! and combination.”

(R.119,120, emphasis supplied)

18

The above resolution is sufficient standing alone to,

stablish the necessary nexus between the N:A.A.C.P.

he one hand: and Communist activities on the other,

to form-the foundation, on a showing of. probable cause,

which justifies the interference with any associational

freedom which might be involved in this investigation.

Certainly the resolution taken in connection with the.

facts above set out in the record are more than amply

sufficient to establish this necessary nexus. The reso--

Intion constitutes a ringing indictment of the N.A.A.C.P.

and it must be assumed that the association in solemn

convention assembled would not continue .to put such

a resolution upon its public record if the factual allega-

tions conce rning infiltration of the- association by Com-

munists were not. trué.

The inescapable conclusion is that these facts make

the ratio decedendi of the Barenblatt, Braden, Wilkinson

and Uphaus cases, supra, applicable to and controlling

of the case at bar. It requires no argument to demon-

‘strate that if the facts in the case are sufficient to set.

the rationale of those decisions.in action, they require

the affirmance of the petitioner's conviction. Indeed.

the petitioner admits as much on ‘Pages 16 and 17 of

his Brief.

The Circuit Court of Leon County and. the Supreme

Court of Florida in the case of. Theodore R. Gibson v.

Kiorida Legislative Investigation’ Committee,. 126-So.

2nd, 129 spéaking on the record in the case at bar, spe- —

cifically found that the facts above recited were suf-

ficient to bring the instant cause within the ambit of

the Barenblatt case. < ee

°

19

Petitioner's Position No. 4

Finally, the petitioner conténds that the Florida

Legislative Investigation Committee is motivated by

improper impulses to expose tor the mere sake of ex-

posure and to punish and destroy the N.A.A.C.P. In

this connection, the petitioner's Brief contains several

unsupported and- untrue attacks upon the mot. ives Of the

“Committee. . Not. ae are these attacks untr ue, they are

i

the avove are as Sohicna’ :

“The record eonclusively demonstrates petitioner

submits that the only real basis for ihe Commit-

. tee’s investigation of the N.A.A.C.P--and ‘its efforts

to link it with “subversion is the fact that the

Committee .is opposed to the organization’s ad-

vocacy of desegregation and seeks to use state

power to-—impair the N.A.A.C.P.’s effective- ~

ness yt ace (Petitioner's Brief, Page 24) .

“Respondent is attempting to use a. valid legisla-

tive mandate, viz., authority to investigate organi-

zations advocating violence or violation of-the laws, —

to curb N.A.A.C.P. activities by posing a threat of

exposure of the organization's members, and.of —

publicly tainting the organization as being Com-.

munist domniated. * * *” “( ‘etitioner’s Brief, Page

25) . Boos \éd

“Here the committee is in disagteement with the

Association’s use’ of the courts and other lawful

means to promote desegragation. It attempts to

use its legislative mandate to coerce the giving up

of the right to-associational privacy. of members of

~ the N.A.A.C.P. The’ damage which will result, in-

°

terms of the deterrent effect upon the exercise of

personal liberty by members vand prospective mem-

bers is amply demonstrated | by this Tehord. "(Bet

>titiongr’s s Brief, Pagey ol ee ,

5

Ao

In his effort to demonstrate that the Committee is

seeking simply to destroy N.A.A.C.P., petitioner im-

properly represents to the Court that no remedial leg-

islation dealing with the problem of Communist infil-

tration into the organizations operating in the field of

race relations resulted from the Commitee’s investiga-

tion in either the 1957 or 1959 session. (Petitioner's

Brief, Page 8) - He entirely omits to inform the Court

that he and his association have effectively stymied

the completion of the investigation: since 1957 with a

studied and deliberate course of definance and: obstruc-

tion to the Committee and resort to a series of unnec-

essary appellate proceedings.

20

It neither adds to nor detracts from the merits of

the case, nor the legal issues before the Court, but it is

just as proper for the respondent to point out that it

and its prédessor committees, referred to in the record,

invesigated John Casper, Klu Klux Klan and the Sea-

- board White Citizens Counsel, as it is for the petitioner

to pretend that the sole aim of the Committee has been

the destruction of the N.A.A.C.P. \ e,

The motives of the members of the Committee

- cannot vitiate the investigation even if it be. assumed

that the petitioner is right in regard to his opinion of

the reason for the investigation. See Barenblatt

United States. 8360 U. 8. 109, 3 L.Ed. 1115, 79 S. Ct.

1081. In Barenblatt, this Court ‘said:

Nor can we accept the further conten-

tion that this investigation should not be deemed

to have been in furtherance of a legislative purpose

because the true objective of the Committee and of

the Congress was purely ‘exposure’. So long. as

Congress acts in pursuance of its constitutional

4

; 21

il * ,

power, the judiciary lacks authority to intervene

on the basis of the motives which spurred the ex-

ercise of that power * * *”

To like effect, see Watkins v. United States, 385

U.S. 178, Wilkinson v. United States, 365 U.S. 399 and

Braden v. United States, 365 U.S. 431.

Th the case of Theodore R. Gibson v. Florida Legis-

lative Investigating Committee, 108 So.2d 729, Text 73T-

740, the Supreme Court of Florida points out the valid

power of the legislature of Florida to conduct this inves-

- : -

tigation. : :

In the last analysis, thé petitioner is seeking tio

have this Court throw up * constitutional sanctuary

from inquiry into matters y iich are otherwise within

‘the constitutional legislative domain, merely because .

the inquiry is made of someone engaged Yn racial rela-:

tions as-an associational group. In an analogous ‘sit-

uation, this Court in the Barenblati case, supra, de-

clined to’erect such a barrier of constitutional sanctuary

around educational institutions. See Barenblatt where-

in this Court_said:

“* * * But this does not mean.that the Con-

gress ig precluded from interrogating a witness

merely because he is a teacher. An educational in-—

stitution is not a constitutional sanctuary from. in- ,

quiry into matters that may otherwise be within

the constitutional legislative domain merely for the -

reason that inquiry is made of someone w ithi nits ..’

walls.”

bh

i

2

¢

é

oe,

* ?,

Be, i. .. ae

CONCLUSION

i ese to this cause are in ‘substantial agree-

ment onthe’ law. Basically, this case hinges entirely ©

on the, question of whether the evidence before the

; Committeeiis sufficient to show probable cause or nexus

between the N.A.A.C.P. Miami Branch, and Communist

y activties, If it is the rational of the decisions of this

Court, in: ‘Barenblatt, Braden, | Wilkinson and. Uphaus,

supra, ate: “controlling and th “petitioner’s conviction

‘ thust be-affirmed.. Hf it is not he rationale of the de-

gisions of this Court, in N.A.A.C P v. Alabama, 857 U. 8S.

499, and Bates v. Little Rock, $61.U.S. 516, and similar

cases are controlling, petitioner's conviction should be

reversed. :

/

“The record — that som igcunbers of the N. A.A.

_C.P. do not attend its eeting . Petitioner admits he

may not recollect some names members relying upon

his memory, alone. Refourse, to the records by the pe-

-titioner himself to ve ify his answer, furnishes to the

state the bare minimu cor peration it needs to conduct

its investigation. At thé same time; this procedure

grants the maximum protection to N.A.A.C.P. and its

members. All members who are not shown to-have en-

gaged in subversive activities remain anonymois.

U

w

“8 .

e

nee 23

WA

’ In fine, the sole question is whether or not thentrial ,

court had .sufficient evidence before it, Bee Ng ~

lieved, was sufficient to,show the necessary nexus, We \

; submit that the evidence was amply sufficient and that | \

the time-honored rule that appellate courts are bound ~ ©

by findings of fact, made by the trier of fact, when the ~ i BS

evidence is sufficient to support those findings, should |

be applied in this case with,the result that petitioner's

conviction should stand affirmed.

s

Respectfully submitted,

ge eam

ae MARK R. Hawes, Boe

: : \ 500 First Avenue, North,

St: Petersburg, Florida, ~

Attorney for Respondent. »

ERLE B. ASKEW,

of Caunsel.

x ; 4

24

Picks "CERTIFICATE OF SERVICE

er» HEREBY. CERTIFY that a copy of the foregoing -

~ Brief of Respondent. has been furnished to Mr. Robert L.

” Carter, 20 West 40th Street, New’ York 18, N. Y. and to —

Mr, G. E. Graves, Jr., 802 N.W, 2nd Ayenue, Miami, Flor-

ida, Attorneys for Petitioner, by mail this 28th day of

ee: 196}.

Manx R. HAWES

500 First, Avenue. North’ ,

St. Petersburg, Florida

Attorney for Respondent