Brief for the United States on Reargument — Yellin v. United States

Supreme Court brief1963

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Text

INDEX

Opinion below. -------------- eee CR ETOP

Jurisdiction - - - - -- an ene * ER Say ees Pe fe Pe

Questions presented - vapeur” ; weaeee ee

Statutes and rules inv olved. neko

Sietomemt...--<..---¢-- inches

Summary of argument . eat

Argument... .-.-----. hg ‘

I. The Cominittee’s use of compulsory proc “88 to

obtain testimony from petitioner in aid of its

investigation of Communist activity in the

basic steel industry was a valid exercise of Con-

gressional power that did not violate the First

Amendment. _.--- ~ ante rn 6

A. Congress has power to require testimony,

_ not otherwise privileged, in aid of an in-

. vestigation into any proper subject of

Congressional legislation. ...-.--.-- -.

B. Legislation safeguarding the national -

° security against subversive activities of

the Communist Party in the basic steel

industry was a proper subject of Con-. —

gressional consideration under the legis-

lative powers granted in Article I, Sec-

tion 8 of the Constitution _- sgpiieenie

C. The use of compulsory process to secure

testimony concerning activities of the

Communist Party believed to endanger

/ : the national security by ‘‘colonization”

late the First Amendment. --. -----

D. Petitioner has made no case of exposure

for the sake of exposure.” ---..-------

II. The trial court properly excluded expert testi-°

mony concerning the First Amendment issue. -

Ill. The statute under which petitioner was conv icted

is not unconstitutionally vague. ....---------

662429-—62——1 ; wn

of the basic steel industrv¥ did not vio-

os ts

u=-

a “it

ll .

) eioiiinieccilibiiios

: IV. The Committee’s rules did not require the Com-

mittee to grant petitioner’ 8 request toappearat . Page

. @M executive session. ... _. Se eee aka en whine . $i

_ V. The questions which were the bases for Counts ek

and 4’ were not too vague to support the indict- ,

; ee nt a a Dana tana nwee é 83

as ku acencaceswsad 5 2 Ee A Nae 91

Appendix. -..-.....--- eee Bee en aewnws 92

“CITATIONS

Cases: Sie

Adler v. Board of Education, 342 U.S. 485 SE ee 43, 55

. - American Communications Ass'n v:~Douds, 339 U.S. ;

SET ioe 2. 18, 37-38, 39-41, 55, 56, 68,77

Anastaplo, In re, 366 US. a aaa inaleietinin sos 44.

Anderson v. Dunn, 6 Wheat. 204_..-.....---.---.-- 17,29.

Arizona v. California, 283 U.S. 423_........--:----- * 70

Barenblait v. United States, 360 U.S. 109.......----- 17,

18, 19, 20, 21, 22, 24, 25, 43, 46, 47, 51, 56, 57, 58,

59, 66, 67, 69, 70, 71, 76, 77, 78, 79, 80, 84, 86, 87.

- Barry v. United States ex rel Cunningham, 279 US.

tiie eee pete behhhnshonswsonmenee "33-34

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

a il, er mated eegae 4

Beilan v. Board of Public Education, 357 US. 399.... 44,55 °

_ Braden v. United States, 365 U.S. 431...- 17, 19, 20, 21, 22,

: 25, 46, 51, 53, 56, 59, 66, 67, 70, 76, 77, 78, 80

Briggs v. MacKellar, 2 Abb. Pr. 30. --..---- Conte meni - 27-28 -

Cantwell v. Connecticut, 310 U.S. 296... .:-..-------- 47

Carlson v. Landon, 342 U.S. 524.......--.------ 41, 55,77

‘8 — Chapman, ‘In re; 166 U.S. 661...-..---.----- oe 30-31

a Communist Party v. Subversive Activities Control “Board, —

aati iaeetec 43, 55

-, -Dennis v. United States, 171 F. 2d 986,° affirmed,

i ccs etnckanenmoss 54

Dennis v. United States, 341 U.S. 494...-..---.----- 41,77

Deutch v. United States, 367 U.S. 456........._...-- 87-88 .

Esler v. United States, 170 F. 2d 273, certiorari dis- .

missed, 328 U.S. 883........-..:--.....--.2--.- hie 54

- Flemming v. Nestor, 363 U.S. 603__....---- eae 43, ba

-. Galvan v; Press, 347 U.S. 522

, >

”

\ ; : —s

ft ee a

Coiea-Canabighd ; , Page’

Garner-v. Board of Public Works, 341 U.S. tt 43, 55

Gerende v. Board of Supervisors, 341.U.S. 56.......-. 43, 55

Harisiades v. Shaughnessy, 342 U.S. 580_._--..-- 41-42, 55.

Hutcheson v. United States, 369 U.S. 599... ..------- 33, 67°

Jurney v. MacCracken, 204 U.S. 125...-..------ te gais

Kessler v. Strecker, 307 U.S/22...../...------------ 85 -

Kilbourn v. Thompson, 103 U.S. 168.-...-. 28, 29+30, 33; 67..

Konigsberg v. State Bar, 366 U.S. 36......-.-------- - 44

Kovacs v. Cooper, 336 U.S. DU ie cxeeneunveaonte _ 47

Kunz v. New York, 340 U.S. 290.....--.,---------- 4

Lawson v. United - 8, 176 F. 2d 49, certiorari st

denied, 339 U.S. 934... _- Se Bee Se

Lerner v. Casey, 357 U.S. 468... ---- Np erngesiamen .. 44,55»

Lovell v. Griffin, 303 @.S: 444. ___- Avena eames 47

‘ Marshall v. Gordon, a eee gies 31

Parshall v. United States, 176 F. 2d 473, certiorari

Pe) | enema

McCray v. United States TM Bln xn dc cndacnanc ‘. 69

McGrain v. Daugherty, 273 U.S. 135. -- --- ... 28, 30, 31-33

Morford v. Uriited States, 176 r 2d 54, reversed, 339 Z:

USS. 258....-----------------------------+---¢ 54-55

' National Labor Relations Board v. Jones arid Laughlin

eS) ere re . 38

Osman v. Bede, 208 US. GAB... . gccainccnvnencacane 38, 55

People v. Keeler, 99 N.¥. 463_. ----- ae Gaeanicmue ae » 33

Quinn v. Unkied States, 349 USS. 155...-..-----.---- 45>.

Ruséell v. United States, 369.US. 749_...----------- 85

' Sacher v. Unjted States, 252 F. 2d 828, reversed, 356

We Mn ccctindaddacunedensadedessowsasdonness 54, 78

Scales v. United States, 367 US. 203...--..-----+--- 43,55

‘ Schneider v. State, 308 U.S. 147..-.--------- ne 47

Sinclair v. United States, 279 U.S. 263. .....----- 30, 33, 70

Sweezy v. New Hampshire, , 354 U.S >, ae meee

. Tenney v. Bra ft eS ee camels a

Thornhill v. Alabama, 310 U.S. 88---.------------- - 47

Tpwnsend v. United States, 95. F. 2d .352, certiordri ,

domed, 203 U.S. 064............-...-.---.------ 54

United States v. Bryan, 72 F. Supp. 58, reversed, 7 i

174 F. 2d 525, reversed, 339 U.S, 323....--------- 55

United States v. Car-lene Products Co., 304°U.S. 144-- 64

United States v. Debrow, 346 U.S. 374--.- - eee aaiias ; 85

vee 2 py ‘ ° wie teehee

« a: toes ; -

eae i ..

a “é iz

v - e ry

, ‘ Iv . | ” =

‘ Sean” ied a egies ae

Casee—Continued aa | toe om

“United States v. Josephson, 165, F. ‘2d: 82 , cert orari

~ . .denied, 333 gp ee pee i ees i

-’ United-States v. Kamin, :136,F. ra 791_.- ge oy

: United. States v. Lattimore, 215 F: 2d 847-22. -5°

ae United States-v. Orman, 207 F. 2d 1482.2. -- i ee |

— ._..* . United.States v. Peace Friformation a enter,. 97 F. ‘Supp.

hitee Rees roe ened eee a ak ee ee - 65

_”.. United States-v, Rumety, 345 US. “ aay Vie A a

: .. United. Steelworkers v. United States, 361 US. 39.__\\. 38, 49).

Uphaus x. Wyman, 360°U'S. 72-2. -- = 18,46, 5 53, is

- Viereck v. United Stafes;318 U.S "eae: \i 4

. / Watkins’ v. United- fates: 354 US i ren. a 21

sppepee ss 77 T,% 67, 69 7: ao

oo : Whitney ¥. California, 274 (8-357 ree oe

Wilkinson v, United States, 365 U.S. 499--17, 19, 20, 21, 22,

ee _ 25, 46, 51, 53, 56, 59, 66, 67, 69, 70, 18, 77, 78,

sae Koungstown Co. Vv. Sa ayer, 343 U. S. 579... -.-- aa hat

a Bar or ae. hep : AOE Nek

ar “Article 1, Se a

RK st Amendment..:._ /-.--22--, 17,18, 21, 46, 54, 56, 76 Nes =

Fifth Amendment... ---- guaran A cua pmenee Re oe é

__/Sixth SE oon es) otal: keke

ert . Fourteenth Amendment. _ - ee a yee pee hi

. Statutes and Rules: —

‘Act of June 23, 1947, 61 Stat. 143, 29 U. 5c. 150(h)_-

ao o Act of September: 14; 1959, 73 Stat. 536, 29° ae

es * i ne ca lak elms ds ccdensncdae ct cavesatisentess

Communist: Control Act SE \Gugiat 24. 1954, c. 886, = a

oh Stet..775:,.- 2° -/ 5 Bt ee set

etree f BE ccikaiy. jC 39:

eS, 0B) 8 een oc es

ke ee (50 U.S.C. ee “B1, 94

504, 73 Stet. 536,20 U.S.C: 804.20 2-2-2. ae )

nal ébor Relations ‘Act (A +. of July 5, 1935), a arse

dati

ee = as amended-by the Labor Manageinent Re-

lations Act [of June 23], 1947, ¢:.120, § 101, 61 Stat. —

6: $ 91h) 29. USC. 159(h)).-.-.-- ci -18ap- 38-40, if

ARs tee ar nee ane

erie :

“f bog aseh Pes EE} BOE , ; , 's

{ ae oF a re ae : ae Ge.

'nited States v. Harriss, 847° US. 612. ene ee,

: s _ Statutes and fRulee—igeiinined | - Fie

“Subversive Ac tivities Control: Act of 1950, Act of Sep:

*' tember 23, 1950, .64 Stat.. 987, ‘as ere by the — es

‘Act.of August 24, 1954, § 10, 68'Stat. 778, 50.US.C. page

79a ee ee 268

a, ee es Pere ope Fe oe ewer kaa

i, Revised Statutes.102, 2 USC. 192. [Te oe oa

ee oo © SF 78, 79, 80, 85,

Tee ae Federal Rules of C ‘vil Procedure: Rule 7(c)_. we 85

Free Rules of the Supreme C ourt: Rule. 40(1)(d)(2) 23,85

* American Ac tivities:

Rules of Procedure of the House ‘mt a

Wo eage

| “Rule XI of the House of Representative, 60 Stat.

| ‘ongressional Materials: .

a ‘before the House Committee» on Un- Ameri-

-ean Activities, 85th -Cong.; . 2d_ Sess.; entitled

= ° “Investigation of C ommunist Infiltration and Propa- -s

ganda Activities in Basic: Industry (Gary, Ind., :

er 3... >> s eee Pere pies: wees - 3- a -90

Hearings on Administered Prices, Subcommittee on

_ Antitrust and’ Monopoly. of the Senate;t'ommittee

ree. on the Judiciary, Oct =Nov. 1957, = ‘Cong.,, Ist

Sess.” Ee a ad ae ae ae arian) Ni ra rig” Sah aay wh 48.

‘Hearings, Subcommittee. on the. Study - Monopoly ahd

Power, House Committee on the Judiciary, 8ist

| Cong.,.2d Sess., Serial No. 14, Pt. 4A, Steel +. |. 2 _- * 48

Re ar ae Temporary National Economic 4) ommittee, laventioh- a

g eS: _/ tion of Economics Power, Prige Discrimination in. :

aes / Steel, Monograph ‘No. 41, 76th C ‘ong., aaSeme:...:.--° 48. /*

| H.-R: 2369, 85th Cong: .*.2....\.. 2.22.22... noagk. | a

| : H.R.°3903, 81st Cong., Ist Seas)... 2522220222212. 7.920;

H.R. 9352, 85th Cong: -......-2--\.-- Nekenepames 5, 13, 94

~ H.R. 8121, igs Cong., Ist Sess.._}._... 22. 2-13, 69,94, 95,“

H. Rept. 112! aia) C ong., Ist’ Sess. bt. ee ae 95

Be ‘Misseliante é Wat ey ale

Exec eee 10865, eingttclareary 20;1960-____- "\ @5 -

‘Housé Committee on Un “American Agtivities, 1960.8 °

_ Annual Report. .-..2- 20... + Maakviddonen regents Cee

ee ne eet eee -.+ 2; 22, 78, 80, 88 .

c¥

"he ae vi.

| -Miscéllaneous—Continued a. ate

Industrial Personnel Security Review eiliid 1 (20 ok,

Fed. Reg. 1553, 6213, 7139; 32 C.F.R. 67.1 through = Page le:

OF. §-5).---- ccd Chane dake hdaethandeanses sane e a _ . 92

* Landis, . Constitutional Limitations on the Congressional i.

' Power of Investigation, 40 Harv. L. Rev.153.....° 27, 29,30. -

~ National Labor Relations Board Directive Orders and _

Opinions in the Little Steel Case (1942)... -.---=--- 49

‘al Reporte on the Expulsion of Communist Domi- —

d Organizations from the CIO, compiled by. the 5

Publicity Dept., CIO (Sept. 1954, i a oss cen —_ 50

~, Research Study’ by

of the Library. of Congress,

tions by House Committee On Un-A ;

. - Subsequent Action Taken: by Congress Or Exe “SAPs ae .

_ Agencies (released: Dec. 30, 1960) --:-----.-------- a ee :

U.S. Steel. Industry Board, Report to the President | oF tei

on the Labor Dispute in the Basic _— Industry . ce

(1048)... ....-..---+-- pennwefagponaseees eaekon 49

: . ad ;

os the Supreme Court of the Bnited Sites

. OcTOBER TERM, 1962

~~ - No. 35

Epw-ARD Y ELLIN, . PETITIONER

rt.

_ Unirep Staves OF AMERICA

ON WRIT_OF CERTIORARI TO THE UNITED. NTATES “Cor RT OF

APPEALS _ THE SEVENTH CIRCUIT

: BRIEF FOR TE seed cee ON REARGUMENT '

Sf OPINION BELOW

The opinion of the court of appeals is. snieitaet at

287 F. 2d 298. 7 } 7

- Pata JURISDICTION | _

The judgment of the court of ‘appeals was satered:

“oti February 16, 1961, and: a petitiof for ‘rehearing

‘was denied on April 3, 1961.. On April 21, 1961.

Mr. Justice Black extended the time to file the, peti-

_ tion, for a_writ of certiorari to and: ineluding June

2.196%. The: petition was: ‘filed on’ May 31, 1961 and

certiorari was granted on Oc tober 9, 161: (358-U.8.

' 1 This. brief replaces the original, sete oh the merits filed be

the United States. :

816; R. 229). The jurisdict

28 U.S.C. ad).

QUESTION

1. Whether -thé,questioning - of petitioner . by the

House Un-American Activities Committee concerning

lis membership in the Communist Party and the

Party’s program.of “colonization” of the steel indus-

try was yalrsuant to 2. valid legislative purpose and —

consistert) with ee rights under: the First

Amendment. 3 ae |

2. Whether the. trial court. erred ip excluding ex-

pert testimony on the factors which should be con-

PRESENTED

‘ sidered by the court in srivegamcmaad petitioner’ s rights -

under the First Amendment..

3. Whether ‘petitioner was conv ictéd- undér a stat

ute which is unconstitutionglly vague.

i - Whether the Committee violated its own rules

” tn ene to question petitioner in . executive. session.

STATUTES AND RULES INVOLVED

Section 192 of, Title 2, US 3c, (RS. 102; as.

- amended) and the pettinent portions of Rule XI of

the House of Representatives and of. the Rules of the

Committee on Un-American Activities are_set forth”

in meet ts brief at pages 34. , oer 7 oe

oe ‘STATEMENT

Petitioner was charged in a five-count indictment

with having refused, in violation of 2 U.S.C. 192, to-

answer questions ‘pertinent to the matter under. in-

quiry asked him /by. the Committee on. Un-American

Ac tivities. of. thé House of Representatives. Count or

was dismissed on motion of, ‘the government AR. uy:

‘ ve *

rs ae

’ P : — o i .

: vA te

ka an

ion of this Court rests on

; ec.

‘ties in’ Basic Andus

Upana trial without a jury, the court found peti- —

thoner guilty as charged in ‘Counts 1, 2. 3, and 4:

The court. imposed a sentence of one year on each’

count, the sentences to’run concurrently, and a fine of

$250 (R. 116-118). The court of appeals affirmed the

conviction. fess Court granted certiorari (368*U.S.-

816; R. 299); and after briefing. and oral argument,

the Court « set tie ease for reargument (370 8. 931).

The pertinent facts may be summarized as follows:

1. The Committee on . Un-American: Activities

passed a resolution on January 15, 1958, providing

that hearings. would be - held - ini Gary, Indiana, to

, &

——, into ( Hearings.’ p. ree) ?

een The extent, characte, and objects of Com- ,

cease infiltration and. Conamunist arty

propaganda activities in basic ind stry: in the -

. . Gary, Indiana, area, the legislative purpose

heing to obtain additional information for. use

by the Conmittee in its consideration of Section:

16 of H.R. 9352, relating: to the. proposed:

amendment of Rectivss 4 of the Communist Con-

trol Act ef 1954, prescribing a penalty for

knowingly and willfully becoming or remaining. —

a member. of. the Communist Party with knowl-

edge of the purpose or objective thereof, and

for the additional legislative purposes of addifig

to the Committee’s overall knowledge ori .the '

_— ~~ subject, so that Congress ‘may be kept informed

? Hearings before the Committee on Un-American Activities.

House of Representatives, 85th. —— 2d Sess. /entitled “Th-

vestigation of Commynist Infiltratién-and Propaganda . Active

pa (Gary, Ind.. Area). This document.

which “is, hereinafter, referred to as “Hearings.” constitutes

Ger. Beis: ««:.” ‘

}

eta et 4

and thus prepared to enact-remedial legislation

in the national defense and for internal secu-—

rity when and if the exigencies of the situation

require it.

2. Execution by obmaimistrative agencies con-

_cerned of Public Law 637, of the 83rd Congress.

known as the “Communist Control Act of

'1954°", relating to the eligibility to exerc ise the

rights and privileges provided under the .

National Labor Relations Act of- lat, ir organi-

zations determined by the Subv ersive Activities

Control Board to be Conimunist-infiltrated or-

ganizations. The legislative purpose is to as-

sist Congress in appraising the administration

of the Communist Control Act of 1954° and

to, enact such amendments de as the

' exigencies of the situati«.. requi

3. Any ‘other matter within

thereof, appointed to conduct this hearing. may"

Peti

designate. gee *.

tioner was subpoenaed ts appear “at the hear-

~ ings in Gary en February 10, 1958. . His. counse! sent

a telegram to the Committee's counsel on Febriiary

_ 1958, asking that. petitioner be questiéned in, exec

‘tive session because “ft ]estimony needed for legisla-

- tive purposes can pe secured in executive session

without exposing witnesses to publicity’. (Def. Ex. 1)/

On that same date, the Staff Director of the Commit-

tee telegraphed” petitioner ongng _ — 1m.

Ex. 2).

ef é

Public hearings were held in Gary, Indiana, ‘tes

_ subeommittee on February 10 and, 11. 1958. At the

opening of the —— on February 10, the chairman

- ye

e intiieliibinsn :

of the Committee which it or any subcommitter

x %

of the Committee, in petitioner's presence (Hearings,

p. 1977), read the above-quoted resolution of | the

‘Committee authorizing the hearings and explained at

length the purpose of the hearings. in Gary (id. at

1955-1957). The chairman stated, inter alia, that the

subcommittee was “in Gary for the purpose of re-

‘ceiving testimony concerning Communist. teehniques

and tactics of infiltration and the extent, character,

_ and objects of Communist Party propaganda activi- |

, tes Tnybasi industries”; that such an inquiry had

great importance to internal security; that the hear-

‘ing was intended as ‘part of the Committee's “sure

veillance over existing sec urity legislation, *ineluding

_ the Internal Security Act, the Foreign Agents: Regis-

tration Act, the Communist Control Act, and various.

| espionage statutes “for the purpose © | recommend- _

ing any needed legislative amendments’’: and that the

Committee hoped to. secure in ifermation useful in its

consideration of H.R. 9352, an omnibus bill to ariend

the Internal Security Act of 1950, which was pending

hefore it (td. at. pp. 1956-1957).

Petitioner was present (Hearings, p. 1976) at the

time John Lautner, the first witness.at the hearing, -

' testified (id. at pp.s1958-1974). Mr. Lautner, who -

was an organizer and high funetionary in the Com- .

munist Party from 1930 to 1950, testified that in.

1945 the Party condemned the. “revisionist” policies

which it had followed ander its former leader, :

Browder, and retu ved to the basic principle,

Marxism-Léninism ; that, after the Party“was recon-

stituted, it re-established its policy of concentration _.

Vas rh

‘in basie industry; that as a result of, this policy

“colonization” was begun ‘and Party “colonizers” were

sent to all parts_of the country to coordinate Party

- work in basic industries including the steel industry

+ (id. at pp. 1964-1965) ; and that these colonizers were

generally young Party ‘members from colleges and

universities: who. left to become “professional TeVvo-

lutionaries”. (id. at p. ~—a Mr. Lautner further

testified that (id. at p.. 1968) : ¢

Lenin said: ee

“Tt is necessary to be able to withstand all

this, to agree to any and every sacrifice, and

: ce

even-if need be—to resort to all sorts of “

devices, manoeuvres, and illegal methods, to

evasion and subterfuge, in order to pene-

trate into the trade unions, to remain in

them, And to cart y on Communist work in

them ‘at all: costs.”

This’ is the underlying principle on the binsis

of which these’ people [the colonizers] will deny

_their ‘name, avill deny their education, will

deny everything, because that denial furthers

| the aims and objectives’ of the Communist

Party. It would be.a Mability for him to be

a worker in the mill’ if he has a college de-

gree; it wouldn't look good. “ There would be

immediately a death of anculterior motive

in that, so they are — out a Leninist'

_poliey. when they do that.

Petitioner, the ‘second w ites appearing on Febr u-

-ary. 10, was questioned immediately after Lautner

(Hearings, pp. 1974-1988). Petitioner answered pre-

liminary questions as“to his’ namé cand present resi-

dence. When the Committee chairman refused to_-

_ the record showed | that the exchange of. telegrams ”

: had occurred (id. at-p. Agi). Petitioner then re- |

fused ‘to answer the question, “Where did you, reside

prior to September, 19572” (Count 1) (id. at pp.

x e i 7

allow petitioner's ssn to read into the record the

- telegrams between himself and the Committee, peti-

*tioner’s. couse] stated that he would be: satisfied if

1974-1975). He stated as his. grounds for refusing

to answer: that the ‘First Amendment forbids Con-

' gress; to investigate opinions and beliefs; that the

authorizing resolution: of the Committee. is so vague

that it might deprive him of, due process of law;.and

that the question was not pertinent to any legislation

(id, at pp. 1976-1977). After petitioner was directed

-- to answer the question, he explicitly stated that he

relied on the First Amendment and not the privilege

against | self-inerimination (td. at: p. 1977). Appar-

ently in doubt whether. petitioner was ehallenging the

pertinency’ of the: question to the’ subject under in-

oe quiry; the committee counsel ascertained that peti-

‘ing’ statement which explained the - purpose of the >

_ hearing and then stated (id. at. p. 1977):

tioner was present when the chairman made his” open-

This is a hearing which involves a subject

Cescribed by the. chairman, and it relates to

of Gary. As far as pertinency.of the question

is concerned, as to which you seem to express;

some doubt, it would be impossible/for us to-

learn. anything from you regarding Commu-

nist Party ‘activities in this area without /

_Lasee rtaining whether or not you were here for”

‘- a period of time. :

=v,

Communist Party activities within the area”.

8 |: :

Petitioner then. was again directed: to nn ae the

question and he again refused (id.'at p. 1978). |

' Petitioner. next was asked to staté his formal edu-_

cation. He refused to answer because the question |

; could serve no legislative purpose and violated his

First Amendment rights (Hearings, p. 1978). WwW hen

asked whether he was a student at the College af the -

‘City of New York for several years prior to. 1948 he

invoked the same:grounds and said (ibid.) : |

(1). the committee knows all these things, I

can’t see: the purpose or. the pertinency of ask-

‘ing me what they consider a known fact.

: ‘\ Furthermore, it kind of appears to me as if

this line. of uestioning is merely trying to

create arr siiftensinn and éxpose. me for the

sake of( merely exposing me and. not leading to

day valid, legislative purpose. ,;

The. Committee chairman then assured petitioner that

_it was not the purpose of the question to expose him.

The Committee received in evidence copies of peti-

tioner’s, college record showing\, that: he transferred

. from the College of the City of. New York.-to- the .

| University of Michigan and from the College. of

Literature; Science’ and Arts at’ the University of ©

Michigan to its Engineering Department in 1948

(Hearings, pp.- 1979,. 1980-1981) ; it also received

in evidence petitioner’s application for employment ~

- at the Carnegie-Illinois Steel Corporation dated June

23, 1949, which left blank the/line asking for the

applieant’s college education: (id. at pp. 1982, ;1983-

1984). Petitioner refused. to answer whether his

name_ was t ‘the boftom of the lattey- application, v4

where he was. S ieee ou June 23, 1949, whether. -

, \ : 4

9 p c ry

; . cS)

he lived at a specified address in Ciaty at that time

(as the application for employment said), whether !

he was ever employed at the Reo Motor Company :

in Lansing, Michigan (the application stated that r

petitioner had’ been employ ed at Reo from 1946

to February -1948), w, iether he had been employed

by Modern Distributors from February 1948 to April

1948 (as the "employment application showed despite

the statement in the University of Michigan records

that he was at the University from February 1948:

Autil June 1949), whether he was employ ed by Reo

from April 1948 to May 1949 (as the employ me

~ application also said), why hhe_had failed to include

on his employment application his education, at “the

College. of the City of New York or the University

of Michigan, and whether .“at ‘the time you>seught

that employment in Gary, Indiana, in steel, you a

doing it at the instance or under counseling from the

‘Communist Party or leaders in’ the Communist

- Party” (id, at pp. 1982-1985). Petitioner_refused to

‘ answer all these questions for the same Feasons he had _

earlier stated.

Petitioner was then asked, “will you tell the com-

niittee please, whether or not incidents came to your

attention of the colonization of the steel unions in -

Gary. by the Communist Patty at any time prior to

September 19579” (Count 2) (Hedrings, p. 1985).

- When petitioner refused’to answet for the same rea-

sons, the Committee counsel again explained the per-

tinency of the question (ia. at p. marae

_ It has beenrtestified here that colonization off{ .

young men in the iniddle of their educational

td |

St:

os courses in. indiietry: was a ‘Nicepracdtied plan of >

-"» the = Communist Party to. strenzthen iteelf_

withini basic industry. The. chairmanh’s aa

it statement ‘indicated that the activities of the — ;

ee Communist Party within basic industries was ae

the: subject. * inquiry here. .

=. : a . “a 5 \ a P - an + ead

7, \ The statement \ was Thad, hes of the’ practice |

z of, the Communist Party ‘in colonizing industry .

)

, \

3 i 4 "Flint, Michigan; at the University of Colo-

ar rado, which’ is at Fort Collins, Colorado, where 3 :

; you: now reside; and other places,

In-order to ‘understand the full tactics of the

‘Communist - ‘Party in its opérations here in: :

Gary, it'is necessary the committee understand |

“fully wee extent of-such practices, the full. pur- -

poses: o it and ‘the methods by which it ‘is put

' into. eff - That. is the connective: reasoning »

of the ¢ inmitice in asking the question.

_ On se grounds already stated, petitioner’ “declined to~

answer whether he was. a’member of the Neafus Chad’

at of the Communist Party. at the University: of Michi-

/ gan, whether he Was . acquainted: ‘with Francis x7:

" Crowley at, the University of Michigan, and whether .

'; Crowley was | correct : when: he- ‘testified before, the .:

Committee. in 1954, that petitioner has been a member 3

vir ‘with him of the: Neafus Club (id. at-p. 1987). *..

Retitioner refused, for the same. reasons, - to answer

a question, “Were you a member of ‘the Communist “

"Party on the, 23rd: ‘day of, June, 1949, which is the date

"of" application filed in. your. name for employment ib

~ Gary ®” €Count 3) (Hearings, p- 1987). He similarly

| ) vefused to answer whether he was active in the Ameri- :

a can’ 7 eterans . Coinmittes prior to. BA une . 1949, and

—s

. AY)

° rn 9 2 O- Ohi 3° :

EE Bi.

whether he was. -aciqisinted with Edward Shaffer of

Pittsburgh. ’ Petitioner was ‘shown a copy of the

Detroit. News dated January 7, 1949, -reporting that ’,

three students, including ‘Edward Shaffer’ of. ‘Pitts- “a

, burgh and petitioner, resigned . from the Univ ersity of

. Michigan Chapter of the American Veterans Commit-

-tee ‘after the. Committee in ‘its «annual. convention

adopted a resolution calling for the ouster of members

‘belonging’ to. the Commiinist Party. . ‘Petitioner re-_

- fused ‘to answer whether this report was correct. (id..

at pp. 1987-1988). He then declinied to answer; ‘* Will

you tell the. committee whether or not in 1957 there: |

+, were present in any of the steel unions: at. Gary,’ ‘Tn-

ane diana, | ‘persons who were known to you to have heen,

’ colonizers of the: ‘Communist Party” (Count 4) ‘Gd: ;

at ‘p. 1988). Finally, petitioner refused. to answer.

three more questions: ‘whether he was a member ofthe.

“Communist. Party i in August 1957; what stand: did'the .

Party take in Gary- regarding. the acts of ‘the Soviet 7

Union i in-Hungary in 1956; and whether he was at fhe

time of ‘the. hearing a member of the Communist a

* Party. (1 tBid.).

Later. on February 10, the sabeotmittee heard the :

" testimony: of J oseph. LaFleur, who: worked in the. steel

‘industry i in Gary. and. had joined therCommunist ‘Party :

at the: request of the FBI. © He discussed at. length ..

_ Communist: activities, in the Gary ‘area a nd i in the steel.

industry in. particular. - Mr. LaFleur described peti- |

tioner as one of sevéral well- educated, young Party

: : members who had come to Gary to help organize Party

activities in’ the steel mills. (Hearings. pp. 2016-2017):

_, Shbsequently, the Committee asked two other wit- |.

- 662428622

7 12.

a nu who. worked i in the steel iis whather. they oo

Were’ acquainted with petitioner. /Both refused to |

. answer this. question, as well as humerous other ques-

des tions concerning: Communist activities, the-basis of es

* First Amendment (id. at pp. 2055, ).

ee “At petitioner’ s trial, the: government's sole wit=: :

Be was Frank S S. .Tavenner, counsel for the _Com-

_ mittee, who was. present at “the Gary hearings and

interrogated petitioner. He testified that the purpose

_._ of the hearings was “to find out how serious: the -Com-

munist ropaganda activities and infiltration were in-

basie in ustry, : particularly. with regard to the steel

industry\in this area” (R. 18) ;. . that: the season: ‘that

the Committee wanted the information was that it had | .

held.a series. of meetings on this subject in’ Baltimore,

oungstown,, Ohio, and other places, arid the Com-

with reg rd to Communist activities in this field” (R.

_ 18); and\that the Committee considered the steel in--

dustry to be. the most important basic industry in the’

country, ‘and Gary, Indiana, was one of. the centers

” of the steel industry (R. 25).

/ . Tavenner further testified that members of the

| ‘Committee introduced several bills around the time of ©

these hearings relating to the internal security field :

HR. 2369, sponsored by. Congressman Walter, the

Chairman of the Committee and of. the subcommittee.

holding: the hearings in Gary, to redefine the term

“organize” as. used ‘in the Smith Act so as to include

3 continuing. acts of canis (R. 27) s

see $4

mittee - was of the’ opinion that it might be necessary —

to am nd. various acts of Congress to “‘tighten up laws

| a |

The Defense Facilities Pritection Aet- of 1939, in-

‘troduced by Congressman. Scherer (who: was one-of © ~

the. members of the’ subcommittee holding the hear- “.

‘ings in Gary), to permit the federal -government to

. guard strategic defense facilities against espionage, -

sabotage, and other subversion (R. 23); ee

— HLR., 9352, an omnibus bill ‘introduced by Congress- ’

/man “Walter to.amend the Internal oe Act. ee

ts _ 1950 (Gov. Ex. 14; R.-23-24) ;

“LR, 8121, A~bill ‘to amend the Subversive’ Activ:-

ities Control Act of 1950 by authorizing the Secretary °

of Defense to provide” for a.secirity program ‘with

respect to defense contractors and their employ ees ae

(Gov. Ex. 18; R. 65): 4 RS ee

/ Tavenner stated at the trial that prior te calling "ae

“f- petitioner the Committee ‘had- information that peti-: :

tioner wag a’ member of the Communist Party ‘while *

at. the University of Michigan in 1949; that. he had

* prey iously attended City College of New York; and °

that he ‘had “filed an‘ application for employment. in

1949 at the Carnegie-Illinois Steel €orporation _ An*”

_ Gary, Indiana, in which he failed to set out his ¢ol-

lege-and university education (R. 34-35). Tavenner |

testified that the Committee. wanted té find out from —

petitioner what knowledge he had of the execution.of

the. Communist Party’s plan to colonize the steel

- industry (R. 35): |

On eross-examination, Tavenner stated that it was

the practice of. the Committee to interview’ prospec-

tive witnesses before subpoenaing them “if there is ~

any chance in the world of: obtaining co- -operation

~ gram, (R. 55) =.

‘

> , ae eee

from them”’ (R. 53). Petitioner was ‘nk inter iewe id :

since he was then in Denver... Tavenner admitted,

- however, that if petitioner liad been i in Gary, he prob-

_ably would not ‘have been. interviewed, even though

the Committee did not know whether he would coop-

erate, since the Committee had information that he

was a. member of the Communist Party (R. 53, 58;

62). Tavenner emphasized that the Committee sub- | :

poenaed petitioner to testify with the _ he would

cooperate (R. 52-54) and inform the Committee

‘ whether he had concealed facts on ‘his employment

application “pursuant to a Communist Party plan to —

colonize [the steel] industry, and the extent to ‘which,

-that colonization was progressing” (R. 53). Taven-

ner explained that the Committee believ ed that peti-

tioner had’ information which had not been preserited

by any of the witnesses at the Committee’s previous |

hearings on the Party’ s industrial concentration pro- .

We knew nothing about the actual activities

of the Communist Party in the steel plants in.

Indiang as of the time of’ this | hearing, 1)

fore. Mr: LaFleur, who did téstify

Fary a — to my recol-

_ we had tes imony by several ping had been

- a member of the Communist Party at Michigan .

University, and had, left there and come down

and taken employment in Gary. ee

s Joseph LaFleur testified that he left the Party in 1952

(Hearings, p. 2013): agree

the Committee counsel,’ to whom the telegram wa

eh! ee

Tavenner later testified (R. 57); ‘

Now, with’ that information vel; iting o. Mr. .

Yelliny We felt certain that Mr, Yellin. qwas in

a position, if he would/do. so, to tell thi: Lec ¢.

mittee. a great many things regarding the plan |

‘i of the Communist Party to infiltrate the steel

\ industry here, and to building up. the C ‘mumu-

| nist Party from its grass roots level, a1 d, just

what the Communist Party plans-were to\ make -

these bright young men Jeaders who did | this

thing of colonizing. , |

"Representative Walter, the chairman of the Com-

mittee and of, the subcommittee that - conducted the

hearings. in Gary, was called to testify by: petitioner.

Mr. Walier stated that he did not knéw of petition

‘telegram asking” for an. executive session until after

the public hearing in Gary started, since it. was not

addressed to him and he had ‘left Washington for

Gary by the time the telegram arrived; that -ne ‘ithér

addressed, nor the Committee. staff director, whe sent

the telecgram refusing to hear petitioner In xpeu-

tive session, chad the authority’ to pass’ on suéh a

request (R, 68-69) ; ‘that, at the time -petitioner’s

comnsel attempted to introduce the telegrams at tlic

hearings, “it was’ too late then. to raise any question €

that might: have heen raised by the telegram’”’ for

“the Committee [had] already passed on the question

of whether or not we would hear Mr. 7 at a

session whe n the: purpose of calling him was scussed.

and it was decided then that the rule with respect

te an executive session was not appli able * * '** ;

@R. 69-70). hd asked what. consider ‘ations the -°

' .

Committee used — in sadness whether to hold

vane executive session, Congressman Walter testified

(R. 82):

“This is usually ie when-the Committee is

fearful lest a. witness will mention the name

of somebody against whom there is no sworn |

testimony, and in order to prevent the name

of somebody being mentioned in public that we

are not sure has been active in the conspiracy,

at least that there isn’t sworn testimony to that.

effect, we. have an executive hearing.

As to the Committee’s purpose in subpoenaing peti-

tioner, Congressman ‘Walter stated that “[we] con-

- eluded that. this would be a fine witness for the.

Committee in support of proposed legislation having

— to do with colonization, and, two, having to do with

the protection of ‘our defense efforts. And it is

- always worth a ‘chance: that somebody will testify”

(R. 70)\ “While Congressman’ Walter admitted that - |

’ many witnesses refuse to testify, “occasionally we are

asantly surprised by having somebody give us

‘information that is of great value in the main of

legislation” (R. 82).

Petitioner called Professor Thee I. Emerson of

- Yale to testify as an expert on the factors which

‘should be considered by the district court in balanc-

ing the public and private interests in order to deter-

mine whether péetitioner’s First. Amendment rights

had been violated. The. court ruled that this testi-

mony was not admissible because it. was opinion evi-

dence.on questions of law (R. 98-100, 116). Pro-

-- fessor Emerson’s ‘testimony was. then heard as an.

offer of proof (R. 99-115). © |

SUMMARY OF ARGUMENT

: .

The Committee's use of compulsory process to ob-

tain testimony. from petitioner in aid of its inv estiga-

tion of Communis ctivities in basic industry and j par-

ticularly in the steel industry, in the Gary, Indiana, —

_ area was a valid exercise of Congressignal power that

did not. violate the First Amendmgnt. | Petitioner's

basic contentions on this point, as Ke himself -admits,

have been answered by this Coyft in Barenblatt v.

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

States, 365 US . 399, and. na n Vv. United States,

365 U.S. 431.. There, the: Conrt held that, in circum-

stances comparable to the present’ case, _ Congr essional

' investigation of Communist activ ities has a valid leg- |

islative purpose and committees conducting such in-

vestigations. may compél witnesses to testify concern-

ing their Commmunist activities without” violating

-: their rights under the First Amendment.

A. Congress has power to require ‘testimony, not.

otherwise privileged, in aid of ‘an investigation into

- any proper subject of Congressional legislation. This

_ power was first exercised by Parliament, and was

- earried over to the colonial and then state legislatures.

Congress has exercised the power since 1792, and this

‘Court, ces § in Anderson v. Dunn, 6 Wheat. 204, |

has approved it.. tah i

B. Congress has found on the basis of detailed inves-

tigations, such as the one involved here, that a foreign

» ° gover nt controls the. world Communist: movement :.

. “~T that it establishes organizations designed to overthrow

existing governments “by force if unecessary and to

establish in their place totalitarian dictatorghips sub-

servient to that foreign government; and that Com-

mutiists seek to gain contrel of labor unions in order

_to‘use their power for conspiratorial purposes. On.

the basis that such findings were, at least, not

unreasonable, this Court has upheld the constitution-

ality of Congressional. legislation concerning Com-

munist activities in labor unions (American Com-

munications Ass’n.v. Douds, 339 U.S. 382), as well |

as numerous additional statutes punishing or regu-

lating Communist activities, against attack under the

First Amendment . and other provisions of the ‘Con-

; stitution. These cases establish that legislation safe-

‘guar ding the internal security against subversive ac-

tivities by the Communist Party in the steel industry,

would he a proper subject of Congressi onal: -legisla- --

‘tion under the power granted by Article) 1, Section 8,

‘of the Constitution. A ‘fortiori, Congrdss could con-

stitutionally inv estigate an area where egislative ane-

tion would be proper.

C. The use of ‘compulsory process/to secure testi-

‘ommiunist activ.

ities believed to endanger the internal security did

not violate the-First Amendment.

1. This Court, in Barenblatt, 360 U. S. at 127,128, and

U phers ¥. Wyman, 360 U.S. S. 72, 79, 80, emphasized

that the governmental interest involved in investiga- - 7

‘ >

MOEN from petitioner concerning

tiens of Communist activities was “the right of self-

preservation, the “ultimate talue of any Seciety.” “> Tn.

~ Barenblatt, Braden, and Wilkinson, that prerequisite

was applied to uphold. a Congressional investigation -

concerning the general nature of the Communist con-

spiracy as reflected in education and in propaganda.

In this-case, the governmental interest is manifestly

stronger, for here the- investigation was into Com-

inunist activity in the erucial area of the basic steel

industry, in which political strikes or sabotage could

— endanger the internal security.

. There was every reason fo believe that petitioner

coat furnish. pertinent and valuable. information.

"The Committee had information that he was a lone-

time Party member who had actively participated | in

the Party's organization of the steel industry. More-

‘over, it is beyond dispute that the questions © peti-

‘tioner refused to answer sought relevant information.

concerning the legislative purpose of the ae

Indeed, one of the questions concerning - petitioner’

membership in the ‘Communist Party at‘a par vari

time—which ® in itself sufficient to sustain the con-

viction—was .virtually identical to questions upheld

by this Court in Barenblat, Wilkinson, and Braden.

Petitioner contends that the Committee had no gov-

ernmental interest in questioning him because it had

all the information concerning Communist. activities:

-which petitioner could have supplied. ‘Even if, how- -

ever, the witness had no new information, there is a

strong governmental interest in having the Wiiiess

corroborate previous testimony—particularly since

the existing evidence is ina controversial area and -is

an ee 20

ee therefore likely to be challenged. In addition, while

r rn

the Committee had conducted hearings on Communist

- activities in 1 the steel industry in other localities, it

‘had conducted no such investigation on the related, but

distinct, subject of Communist activities in the steel

~, industry in Gary, Indiana. There is no evidence in

the record that petitioner could not have provided :

valuable informati is subject. Petitioner could

not bind the Committee by ‘his unilateral determin-

_ation—made by comparing his own knowledge. which

he has not disclosed with the information possessed

by the Committee—that “he could ——— no new

information. © . z

Finally, in this. case, petitioner’ S claim of 2 dice

to fundamental freedom is considerably weaker than . .

in Barenblatt, Wilkinson, and Braden. Those cases

involved the sensitive areas of education, propaganda,

and, according to the defendants, political opposition.

Here, on the other hand, petitioner was called‘to .

testify concerning Communist infiltration of the criti- —

‘eally important steel industry.

D. The Committee in this case clearly had a proper

legislative purpose, i. e., the investigation of.Commu-

_ nist activities in the steel industry, and was not merely

attempting exposure for the sake of exposure. The au-

thorizing resolution and opening statement of the chair-

man specifically referred to legislation in that area

‘ which the Committee was considering. Moreover, this

Court has repeatedly held that the courts have no power

to inquire into the motives of committee members. But,

even if ‘this power existed—as the dissents ir’ several

cases have suggested—there is not the slightest indica-

tion.in this record that the purpose of ~ Committee .

was: t)expose petitioner.

—

_ 2

The trial court properly excluded the testimony of

Professor Emerson concerning petitioner’s. claim that

gis rights _ ‘under “the First Amendment had been

violated: ‘The. questions asked Professor Emerson

sought his “opinion’” ‘‘as to the various factual con-

siderations which haye to be taken into account in bal-

ancing the competing public and private interests at

- stake.’ Professor Emerson’s answer principally de-

scribed what legal factors the courts should consider

and what weight should be given to-each of these fac-

tors; it was not factual information for the court to

consider. While this statement could properly. be “is

‘presented as legal argument, the trial court ee

held that it was not evidence.

Even if, ‘however, Professor Emerson’ S statements

were _properly admissible, petitioner’s conviction

—ghoule ld still be sustained. The statement was offered

solely in relation to the First ‘Amendment issue,

which was a question. of law. Since the entire state-

ment is in the record, it can properly be considered

by this‘Court. Professor Emerson,; however, added

little to the basic contentions already considered by

_ this Court in the Barenblatt, Wilkinson, and Braden

cases. Therefore, we ‘submit’ that here, as in those

eases, the Congressional investigation of Communist

- activities did not violate the First Amendment.

(NT

‘Pasitienae contends that the statute under which —

he was convicted . is unconstitutionally vague. Peti-

atte , ;

3 te : ; r

tioner, however, was convicted of violating 2 U.S.C,

192, the contempt-of-Congress statute and this Court

has repeatedly upheld convictions: under that statute.

The argument is ‘in reality aimed,. not at the statute

under which petitioner was convicted, but at the |

House resolution authorizing the Committee. House.

Rule XI is, of course, not a criminal statute, and —

therefore this Court has never construed it as one.

The Court has three times held that House Rule XI

is sufficiently clear to authorize the Committee to com-

pel testimony in an investigation into Communist

activities. Barenblatt v. United. States, supra, 360

U.S. at 117; Wilkinson v. United States, supra, 365 —

USS. at 409; Braden v. United States, supra, 365 U.S.

at 438. +

Rule IV-A. of the Committee’s rules. did not re-

quire that petitioner’s request to appear at an‘execu-

_ tive session be granted Rule IV-—A provides that a

witness may ke heard in executive-session whenever

‘ta majority of the Committee * * * believes that the

interrogation of a witness in a public hearing might

* *.* injure his reputation.’’ Clearly, this rule does

not give a witness a right, upon request, to appear at

* an executive session; instead, the rule leaves.it to the.

discretion of a majority of the Committee whether to

‘interrogate the witness in executive session. The evi-

dence here showed that the Committee had considered

- the matter and decided that petitioner ‘should not be

ealled i in executive session. Even if Rule IV implic-

itly provided for judicial « rev iew—which we ‘do not

23 /

think it deinn-<thaeie Is nothing in this record to sug.

we st that the Committee ‘abused! its dise retion

Vv i i

Petitioner contends that the. questions involved in

Counts 2 and 4 are too vague to meet the require- a

ments of. the Sixth Amendment and Rule 7(¢) of the

Federal Rules 6f Civil Procedure. However, even if

this contention were valid, the conviction must be sus-.

tained since petitioner was gin "en concurrent sentences - .

on. all four counts. Morovef, petitioner is precluded

from raising this issue because it was not presented in

his petition for a writ of certiorari. Rule 40(1) (d) (2)

~ of the Rules of this Court..

In any event, the Sixth Amendment and Rule 7(¢)

- require that **[t]he. indictment * * * be a plain, con-

cise and definite written statement of the essential

~fgetS constituting the offense charged"’ (Rule-7(c)),

“

“Aso that the accused can a equately defend himself

and prevent a second prosecution for the same, of-

fense. The indictment clearly stated all the elements .

of the offense, including the\ questions which :peti-

tioner refused to answer, The fact that the indict-

ment did ‘not spell out the meaning of the questions

did not prejudice petitioner since\no possible defense

‘turns on their meaning except that the reason peti-

-) tioner had not answered the questions is that he did

not understand them. But that isste—w hich peti-

- tloner specifically refuses to claimy—depends on

whether the ‘witness understood the question at the

time’ he refused to answer, before the Cominittee ; it

would do no good, on that issue, to explains the ques-

~ tion subsequently in the indictment. oF \ \

‘ ‘ acer

b Fee

' °

: \

of 2 amatnerger rae

‘Petitionei “was convicted “for refusiiig: ts answer Be

four questic ns asked hini by: a Congressional, commit-

“tee during. an ‘investigatio of Communist. activities in”

__ baste industry, and partict Harly in the steel industry, |

- “in the Gary, Indiana, area.’ Two of these questions be = es

»- where he resided prior to- September 1957 ' (Count 1), ee

“and whether he was‘a Party member on June 23, 1949 |

(Count 3)concerned énly | his own “Party activities.

. | "fhe other. two. questions—whether he knew of Pasty: 7 a

: fs colonization: in the steel unions’ in’ Gary’ before ‘1957-5

{Count 2). and’ whether there were Party colonizers

3 inxthe | steel unions in Gary’ in 1957 (Count -4)—econ- —

cerned the -Party a tivities of’ other persons: but did -

not. require the div Igence ‘of their identity.” Since. w ee

me petitioner was sente to- serve coneurrent terms of -

' . imprisonment and to pay a fine: which was less than .

: THE COMMITTEE 8 USE. OF COMPULSORY PROCESS TO OBTAIN

beste ‘on motion of the. — 7 11)..

the maximum authori: by the statute under any oné -

count, the. judgment: low must be affirmed’ if ‘peti-

- “tioner’s refusal to answer any one. of «the questions els Ben

"was aeeere-* Fa ¥ ‘Barenblat v. vated Benes 360

U8. 109, 445 ee ee ee rd

TESTIMONY. FROM PET:TIONER IN alD OF ITs INVESTI-- 7

GaTION OF: COMMUNIS? ACTIVITY. IN THE BASIC ‘STEEL. f (-

\_. INDUSTRY | WAS ‘VALID EXERCISE OF CONGRESSIONA cet

POWER THAT DID NOT VIOLATE THE FIRST AMENDMENT <

In Barenblatt v.. United States, 360 v. S. 109, this.

‘Court squarely held that the use ‘of compulsory proe- .

* The: indictment contained ‘five coutits, but’ Count } 5 was dis.”

| esssin aid: of Congressional’ investigations of Com-.’

‘munist activities in circumstances comparable to the

present case has a valid legislative purpose, and that

‘the use’ of compulsory, process to require witnesses to ~

give testimony concerning Communist activities in aid

re ‘of such an investigation does not. violate the. First

Amendment. | The holding was reaffirmed in Wilkin- |

SOn V. United States, 365 ‘US... 399 and Braden v.

U nited States, 365 U.S, 431. Petitioner, himself. ad-

“mits (Pet. Br. 14-15,. 34) that the case at bar is”

_indistinguishable, a

¢ fore dispose of. bis basic contentions that the Cuin-

_ mittee’s action | violated rights under = First Ee

and that the ‘precedents cited there-

‘Amendment.

It is scarcely. necessary - to recall that the. nites :

ee of ‘decision according to law depends in considerable

_ Mfeasuree upon the weight accorded to prior decisions. -

se ee made by the court of last.resort after full arguinent

i and deliberation. The: decisions in Barenbdlatt, Wilk-

Brae inson, and. Braden are neither sports nor. outmoded

precédents based upon conditions or factual assump-

tions that timehas altered or disproved. ‘The under-.

lying principle, that Congress is exercising an in-

herent. ‘power to investigate, and: does not violate the

.. First Amendment in Famed requiring a witness to

oie testi} ‘eoncerning bulversive Communist: activities, -

. ig in keeping with the full sweep of our constitutional

history; it is sustained, as we ‘shall show, by a score..

of related precedents resting upon the same hypothesis

. concerning the nature of the Communist conspiracy.

The specific rule. in question was laid down after full %

deliberation in 1959 nd pir in 1961. “It is now

‘settled éunstitutional | ;

Under. normal circumstances, therefore, and per-

haps. :in- the present. instance, it. would ‘be enough to

~ show’ that the case at bar is indistinguishable from ‘

the controlling precedents. We aré mindful, however,

. that the present controversy involves the most ‘deli-~

* cate and dangerous of the Court’s responsibilities—

a review of the manner ‘in which the Congress, an =

equal and coordinate ‘branch of gov ernment, has. | per-

‘formed. one of its own Congressional functions. FThe -.

: dangers | of collision which led. the Court invariably —

to exercise ‘deference and self-restraint | in’ ‘passing ”

upon the: constittitionality of legislation are’ * multi-

“plied when the Court.is asked to review the legislative |

“\. process: itself, for any judicial review of the function-

a tng of © Congress, necessary as it may be under our.

“constitutional system, not only intrudes into the sensi-

tive area of Congress’ internal affairs but affects its

ability to legislate intelligently. . For these reasons, we

would be derelict in our duty, despite the precedents, -

_ if we failed: to show in some detail the constitutional

foundation for the. Congressional investigation into

~, Communist activities: in the basic steel industry, dur-

..ing the course of which the Committee asked. peti- ~

tioner the pertinent questions that: he refused to

answer. >. a, . .

. A CONGRESS ‘Has POWE. TO REQUIRE TESTIMONY, NOT OTHERWISE

PRIVILEGED, IN AID OF AN INVESTIGATION INTO ANY. PROPER SUB:

JECT OF CONGREASION AL LEGISLATION .

In: Watkins v. United States, 354 US. lis, in

‘the course of an admirable restatement of the extent

b7 *

f and limits of the Congressional power of investiga- ¥

. tion, the Chief Justice wrote (td. at 187) : |

‘The power of the. Congress. to conduct inv vestiga-

tions is inherent in_ the legislative. process.

That pow er is.broad.: “It encompasses inquiries

- concerning the. administration of existing laws

as well as proposed” or. possibly needed

statutes. 5 * * But, broad as is this power of

inquiry, it\is not unlimited. There is no gen-

eral authority: to expose the private affairs of ©

individuals without justific ation in terms of the

functions of the Congress.

This inherent power: to compel testimony in aid of

bona: fide investigations extends to any subject upon

- which Congress has power to legislate.

In the Anglo-American tradition the power was first ..--

exercised by the British Parliament. Early im the

sixteenth céntury and particularly after the, Revolu- i

tion of 1688 established the supremacy of Parliament,

Parliament asa whole, or one. of its many committees,

conducted investigations compelling the production of .

- persons or ‘papers . during its investigations. See

_ Landis, Constitutional Limitations on the Congres-

- sional. Power of Investigation, 40 Harv. L.. Rev. 153, oe

- 459-164. These powers were car ried over to the

United: Statés both in the colonial, ‘and later State, :

‘legislatures; indeed, Professor Landis says that until

. 1880 no State coutt had denied or even curtailed the

‘power of the State legislatures to investigate.. Id. at

- 165-166. The hasis ‘of this power in the United States

was aptly summarized by a Néw York court (Briggs |

vy. MacKellar, 2 Abb. Pr. 30, 56-57 (1855) :

662429—62——3

o Pw

ae :

’

‘28

-It-is a well-established principle of this par

liamentary law, that either house may institute —

: to”

‘any investigation having reference

any matter affecting the public interest upon

which it is important that it: should have exact

information, and in respect to- which it would

‘be competent for it to legislate. The right .to

pass laws, necessarily implies the right to ob--

tain inforination. upon any matter which may.

‘

heeome the subject of alaw. It is essential to

the full and intelligent exercise of the legisla-

‘tive function * * *: (In Ameriean legislatures

the investigation of public matters before com-

mittees, preliminary to. legislation, or with the

view of advising the house appointing the com-

mittee, is, as a parliamentary usage, As well

established as it Ts in England, and the right

_of either house to compel witnesses to appear

and testify before its committees, and to punish |

for disobedience, has been frequently enforeed. .

The power of ‘Parliament to investigate was also

carried over to the Congress. At the time of the

constitutional convention, legislative power in ¢om-

“mon-law countries included the power ty form investl-

cative committees authorized to send for persons and

papers. This was the practice in nunierous Congres-

s Ss

5In Kilbourn v.. Thompxon, 103 U.S. 168, 180, this Courtssaid

that the history of investigations by Parliament was not rele-

vant to Congress’ powers since Parliament had both judicial

and legislative powers and that its investigations were carried:

out under the former power. However: Professor Landis has

shown, that, by the time Parliament conducted investigations, it

chad only legislative powers and that therefore Congress’ powers

can be traced back directly to the practices of Parliament. This

_ position was accepted by this Court in MeGrain v. Daugherty

273 US. 135, 161.

sional Investigations beginning” as early: ‘as 1792 and

continuing through | the Civil War. Landis,’ supra,

pp. 168-191, And, of course, since the Civil, War,

Congress has ‘increasingly. relied on investigations

Using Compulsory process. to ssaidaie whether and

how it should legislate. .

Cntil after World War IT, the courts rarely ruled |

on the-power of Congtess to investig ate, for the power

was seldom challenged. Nee ee ery pet 212. As

early as. 1821, however: i "Anderson Y.. Dunit, 6°

~ Wheat. 204, this’ Court. era the power of the

Speaker of the House to conyiet a person for attempt-

ing to ‘bribe a member. The Court held that this

power Was necessarily imp ied in order for the legis-

lative’ power to: oper ate (jd. at 99(5— 297):

But if there is one maxim which necessarily

‘rides over all others, in the practical applica-

tion of government, it-is, that the public: fune-

tionaries ust be left at liberty to exercise the |

‘powers which the | people have intrusted to

them. The interests and dignity of those whe

—_ereated them require the % exertion of the powers

indispensable to the attainment -of the ends of

their creation. Nor-is a casual conflict with

the rights of particular individuals any reason

to be urged against the exercise of such powers.

In Ailbourn v. Thompson, 103 U.S. 168, however,

the Court Inposed an important limitation. There,

A witness wis arrested. by the House for refusing ie

‘answer questions asked by a committee’ whieh was

- investigating a real estate pool, the hankruptey of

. creditors including the United States. The Court did

not find it necessary to decide whether Congress had

the power to investigate as part of its legislative func-

tion. |For ‘the Court held that the investigation was

' not into the administration of the government (it had,

deposited money with Jay Cooke & Co.) or into the

' need for new legislation, but rather into the “private

affairs of individuals.” Id. at 195... This subject was

already befére a federal court in a bankruptcy pro-

ceeding, and the Court. held that Congress has no

. Judicial power to conduct a similar proceeding. /

While Kilbourn ¥. Thompson furnished ‘Aus Unper-

tant counterpoise to the Anderson case by making it

plain that the power of Congress is not to prosecute,

expose, or put on trial, nothing in that decision cast

doubt upon the power of Congress to investigate in

aid of a legislative purpose.’ _ The later decisions con-

firm the power and emphasize its breadth.

In In re Chapman, 166-T.S. 661, the Court sustained

the power of a Senate committee to requirf a witness

to testify concerning the allegedly corrupt influences

' attempted to be exerted during the Senate’s considera- >

- tion of a tariff bill. This decision also upheld the consti-

tutionality of Section 102 of the Revised Statutes—the

—— ;

‘Insofar as Ad/bourn inay suggest a strict and unfriendly

interpretation of the purpose of a. Congressional invest iga-

‘tion or a niggardly view of the constitutional power to inves-

tigate, we submit. that this decision is no longer the law.

“Thus, the Court in United States V. Rumely, 345 U.S: 41, 46,

characterized AiJbourn Vv. Thompson as having included “loose

language.” as having been subjected to “weighty criticism,”

and as having been eroded by the later ‘decisions in Me(rrain

v. Daugherty, 273 U.S. 135, and Sinclair v. United States, 209

U.S. 268. See also Landis, svpre. pp. 214220.

predec vessor of the statute under which petitioner was

convicted (2 U.S.C. 192)—which gave the federal dis- .

trict courts power to punish for contempt of Congress.

The Court stated that a house of Congress could in-

vestigate any matter within its. jurisdiction. Id. at

667, 671 | ae

During the 1920's, the Court ‘decided the leading

CAS dealing with the investigatory ‘powers of Con-

> gress.’ In MeGrain v. ‘Daigherty, 973 U.S. 135, the.

Senate was holding a ‘witness in custody, pending trial:

before the Senate itself, for refusing to appear before

a committee . investigating the administration of the

De partment of Justice. The Court held that a house

of Congress has the powe r to compel witnesses before

one of its committees, Jo give testimony needed to

legislate, and to punish the witness for contempt if

he refuses to comply. Relying on the history of in-

vestigations © by arliament, the colonial and’ State

legislatures, and Congress itself, statutes enacted: by

' Congress, and numerous decisions by State courts (id.

at 161- 168, 174), the Court stated that “(ijn actual

* The only ro cnse ‘sk TAY elev ance Is Mavehcll! \.

Gordon. 243 U.S, 721. A. United: Staies Attorney after ap—

pearing meee a “House cominittee investigating his conduct.

had written a letter whic ‘lh was defamatory and ipsulting to the

House asa whole. The House convieted) hing of contempt:

This Court, on petition for a writ of habeas corpus, held the

‘conviction invalid, The basis: for the Court's decision wits it

conclusion tliat the conviction constituted punishment for writ-

ing the letter, not for obstruction ‘of Congress’ legislarive re

sponsibilities. Id. at 49-546. The Court said that the implied

power to panish for. contempt extends only te actions which

actually obstruct Congress, such as “eontumtes in refusing 10

obey orders to produce documents or give testimony which there

was w right to compel. Id. at 548.

\-: $2

legislative prac ‘tice power to secure needed informa-

tion by [investigation], has long beén treated as an-

attribute of the power ‘to legislate” (id. at 161) and

that “the power of inquiry—with process to enforce

it—is an essential and appropriate auxiliary to the

‘legislative. function” (id) at 174). The Court. rea-

.soned (id. at 175): | |

A legislative hody cannot legislate wisely or

effectively “in the absence of information re-

spécting the conditions which the legislation is.

intended to.affect or change: and where the leg-

islative body does not itself: possess the requi-

\ site mformation—which not infrequently is

true—recourse iwust*be had to others who do

- possess it.’ Experience has taught that mere

requests for such information: often are une.

availing, and also that information which is

volunteered is not always accurate or complete:

so some means of’ compulsion are essential to

obtain, what is needed. -All this was true be-

fore and when the Constitution was framed and.

adopted: In that period the power of inquiry—

with enforeing process—was regarded and em-

os das a necessary and appropriate attribute -

of the power to legislate—indeed, was treated

as inhering in it. Thus'thére is ample warrant

for thinking, as we do, that the corstitutional

provisions whieh commit the legislative fune-

tion to the two houses are intended to include this

attribute to the end that the function may be

effectively exercised. :

te response to an argument that the purposeof the ©

investigation was not in aid of legislation, the Court

answered that “the subject) was ond on which legis-

lation could be had** and that, in the absence of ¢ con

See 33

trary evidence, “the — should: be indulged

that this was the real object". Td. at 177, 178. It

quoted awith approval a-decision of the New York»

Court of ‘Appeals (People ¥. Kecler, 99 N.Y. 468, 487)

that “*[wJe are hound to presume that’ the action of

the legislative hody was with a legitimate object if

it ix capable of Dei ‘ing so construed os 0” - Td. a

178. ; or

— In Sinclair \ a nited States, 279 U.S. 263, a wit-

hess was atten of contenipt in a federal district

court for refusing to answer questions asked by a

Senate committee investigating the: Teapot Dome

seandal. The Court, in sustaining the conviction, re-

peated its holding in the Daugherty case that ‘Con-. |

gress has the power, as part of its legislative fune-

| tion, «to conduct investigations. 7d, .at 291. The

Court stated that, under Kilbourn ¥. Thompson, Con-

gress could not investizate purely private or personal

affairs : similarly, the Court said. Congress could not

-compel disclosure In or der to aid the prosecution of

pending: suits. However, if the investigation has a

‘legislative purpose, the “constittiticnal power [to In-

vestigate] 1s -not abridged) because the information.

sought to he elicited may also be of use in such suits.””

‘Jd. at 295. Accord; Hutcheson © United States, 369

U.S. 599, G18.” eas er

| Subsequent cases plied the same fundamental

principles. In Barry v. United States cx rel. Cun-

“ningham, 279 U.S. 597, the Court applied them to an

investigation of corruption in a Senate election, say-

ing that, “if judicial interference can be successfully.

invoked: it can only be upon a showing, of such arbi- .

trary and improvidc it use of the power as will consti-

tute a denial-of due proc ess of law.” Jd. at 620.". And

in Tenney v. Brandhove, 341 U.S. 367, although the

central holding was that menibers of a State investi-

gating committee had an absolute privilege against

liability under 8 U.S.C. 43; 47(3), the Court stated -

that “[t]o find that a committee’s investigation has

exceeded the bounds of legislative power it must be

= obvious that there wes a usurpation of functions ex-

. Clusively vested in the J 7 or the Executive.”

Id. at 378. 7

Thus, the history of Parliament, of the State legis-

latures, and of Congress itself, and also, the uniform

decisions of this Court demonstrate the breadth of

the power of Congress to conduct. investigations, to

compel the attendance of witnesses and the production

of papers, ‘and to punish disobedience as contempt. In

a democracy these legislative powers arise out of

_ necessity and are inherent in the legislative body.- As .

Professor Landis has waiiien (pp. 20G-210) :

— § Jurney v. Macl'racken, 294 U.S. 125, involved a witness who

destroyed records subpoenaed by a Senate committee investi-

gating government air and ocean mail contracts. The Court

upheld the power of the Senate to hold the w itness, pending

trial by the Senate, for contempt.

°In United States v: Rumely, 345 Us 41; the Court re —

versed a conviction for contempt’ on the ground that the reso-

lution -which authorized the committee to investigate lobbying

activities did not encompass an investigation of efforts to in-

fluence the public generally. The Court construed the resolu-

tion narrowly. to avoid a serious issue under ‘the First

‘Amendment, but did not. resolve this issue. Of course, the

First Amendment issue in Rumely did-not involve the- question

whether Congress . can om a Communist

activities, the issue in this case. a3

i 30

Little need be said of the necessity for i-

vestigation where new problems are faced by

‘ongress to be met with different devices for

legal control. To deny Congress. power to

acquaint itself with facts is. equivalent to re-

quiring it to preseribe remedies in darkness.

The use of committees for such purposes 1s,

perhaps, most common. In 1892 the activities

of the Pinkerton Detective Agency as strike

-preakers in the railroad troubles in the West,

caused investigations to be conducted by both

Senate and House. Such investigations have

“left major imprints upon legislation. . The

Court of Customs Appeals owes its origin

thereto; restrictions upon the immigration of

foreign contract labor followed upon the work

of a House committee: in 1889; the Transporta-

tion Act of 1920 followed in part the recom-

‘mendations of the joint ‘subcommittee of the

Senate Committee on Interstate Commerce and

the House Committee on Interstate and Foreign

— Commerce, appointed by the Act of July 20,

1916. Whether existing legislation protects

competing interests, whether governmentak con-

' trol should penetrate still further into fields of

rivate endeavor, whether conditions’ are eriti- '*

eal enough to demand legislative interposition=—~ —

answers to such problems require knowledge.

For its attainment Congress has appointed

committees authorized to 1m juire and to demand

all necessary information ; it cannot escape in

the future from-employing the same device.

B LEGISLATION SAFEGUARDING THE NATION AL SECURITY AGAINST

SUBVERSIVE ACTIVITIES OF THE COMMUNIST PARTY ‘IN THE BASIC

STEEL INDUSTRY WAS A PROPER SUBJECT OF CONGRESSIONAL CON-

-_- §IDERAFION UNDER THE LEGISLATIVE POWERS GRANTTD IN ARTICLE

I, SECTION 8 OF THE CONSTITUTION ie

When the Committee subpoenaed petitioner and

questioned him concerning his alleged Communist

activities and Communist. Party membership, it was

investigating an. effort of the Communist. Party to

“eolonize’’ the basie steel industry. According to testi-

mony before the Committee, after the Party was -re- |

constituted in 1945, it. reestablished ,its policy of

concentrating. attention upon basic industry and, as

part of the effort to. secure this control, it sent edu-

cated young Party members from eolléges and uni-

versities to’ work as laborers in industrial plants,

including the steel mills, where, concealing their role

_ as-professional revolutionaries, they would expand the

_ Party’s influence and coordinate its avtivities. The

program of colonization, the vein had reason

to believe, was part of _ the major Communist

conspiracy. | } a

The’ investigation was undertaken. against a long

background of Congressional findings concerning the

. direction and purposes of the Communist Party. In

the Subversive Activities Control Act of 1950, Con-

i gress, on the basis of» detailed Anvestig gations, found

that there exists a world Communist movement, for- .

_\elgn controlled, ‘whose purpose is to establish Com-

munist totalitarian dictatorship, by whatever means

"necessary, in. countries throughout ‘the world. See-

tion 2, 50 U.S.C. 781. It further fonnd that in further-

ing these purposes. the foreign government controlling

fk —— a |

the world Conyaunist movement ele Ord ania:

tiois which, dominated from abroad, endeaver the

bring about the overthrow of existing governments

force if need be and to establishin their place t gon

tarjan Aictatorships subservient to that foreign gov-

ernment. In the Communist: Control Act of 1954-

the Congress found and declared -( Section 2, 50 US.c.

841): ; ic bo

that the Communi arty of the United States,

although parportally a “politic! party, Ix In

fact an instrumeptality of~ conspixacy te:

overthrow the Govgrmmnenit of fhe United States. ‘

+ oe. polici¢s and programs of the Com-

-munist Party aregecretly prescribed for it by

the’ foreign ‘leade®}- of the world Communist

movement.

. Also in the background of the C omimitter "s inv esti-

gation at Gary was a gen .

tive tactics of Communi:

of labor unions with ajview to using the resulting

power for conspiratorial ends. The Court summa- _

rized the evidence availalile in 1947 in American Com-

munications Association \. Douis, 339 US: BR. BSS

389 : : !

j .

ral awareness of the disrup-

s in seeking to gain control.

“ 1

Substantial amounts of evidence were presented

to various committees of Congress, including

the committees —— concerned with

labor legislation, that Communist leaders of

labor unions had fn the past and would con-

tinue in the future to subordinate legitimate

trade union objectives to obstrictive strikes

when dictated by Party leaders, often in sup-

- port of the policies of a foreign government.* * *

on %

No unbitad cniiile wol d be es a setting

- out at length the — before ‘Congre 8 Te- .

- lating to the problem of political. strikes, nor

can -we attenipt . to. assess the validity. of each

-“jtem of evidence. It is sufficient to’ say that

: Congress - ‘had: a great mass of material Be ‘ore a

it which terded to show that- Gommunigts-and —- ee

- others eae statute had infiltrated © —

““union- zations not to support: iand fur-

ther trade union objectives, including the ad- «_

. voeacy. of. change . by’ democratic methods, but

~ ‘Yo make them a device by which commerce and _

' . industry might be disrupted when the. dictates

‘ of political policy required such ac ‘tion.

No one can seriously suggest | that Congress. has 1 no. =

peter whatsoever, to enact legislation: designed to—

prevent a. conspiracy dominated by an often hostile.

* foteign power from infiltrating the basic steel indus- -

~~ try as part of a program to overthrow the government —

by force and violence.. The basic steel industry mani- .— tS :

festly affects ‘interstate commerce. National Labor

- Relations Board. v. Jones_and Laughlin Steel Corp., pane

301 U.S, 1. It has been found:on numerous occasions

. that labor disputes in the industry: created an _elmer-— .

gency endangering the national defense. United Steel- +

_ + workers v. United States, 361 U.S. 39. The power of ~ |

Congrees to enact appropriate: legislation dit ected at -

preventing ‘ ‘Communist control of the labor mov ement_

in interstate: industries. was sustained more than a

decade, ago in American Communications uewiagatael

‘v. Douds, supra. See also Osman v. Douds; 339 U. S.

846. It woinld : ‘seem plain, teo, that appropriate:

_ Measures - designed to — a foreign ae

‘

conspiracy from overthrowing the gover nment by -

"force and .vidlence is not only an inherent sovereign

power. but an. exercise of. the Congressional duty to.

____ provide for the ‘common defense. ip hy

There. is’ ng, oceasion to satel here the: correct:

ness,’ or even ‘the: reasonableness, of the cofguusions

~ reach ~yeached by Congress upot the-evidence-available, The

“power of Congress to Anvestigi ite « ‘annot-depend upon

_its ability: to prove in: adv ance: ‘the answer to the very .

(uestion. to be investigated. “It is surely enough that

‘ Congress has cause to helieve that there may be a, condi-

tion calling for appropriate legislation, for the .urposé .

of the’ investigation. is to ascertain whet ther the «condi

_ tion in fact. exists. in the face of history and current

. irfformation, no one ean seriously deny fhat Communist

“activities in the basic ‘steel industhy might be found

* desorsing. of legislative action.

. Indeed, this Court has for a decade and a half con-

-sistently : sustained. Jegislation predicated ypon, the

“view that the activities of the Communist Party are’

not ‘only disruptive of sound labor management ‘Tela-

_ tions but endanger the security of the U nited States.

" Some ‘ of the ‘cases evoked differences: of opinion,

within the Court, but none of the opinions, whether

for the. Court or in. concurrence or dissent, suggest.

that the activities of the Communist Party are im-.

‘* mune from Jegisiation. ee = ;

The initial ease . was - ‘American Communications’

Association -v. Douds, 339 U.S. 382, where the Court

had before it Section 9(h) of the National Labor

Relations Act, w hic ‘h.barred from using the facilities

of the -N National Labor Te lations Board, any union,

whose officers had tiot: filed non-Communist aftiday its.

In sustaining. Section 9(h). thé Court ‘squarely held

that Communist activity in ‘the labor moyement is _

a fit. subject of Congressional concern. Mr. Justice

Jackson’s s concurring opinion succinétly summarized

the 1 reasons -for distinguishing: the Communist Party -

from true political parties. “From information be-

-fore its several Comniittees and from facts of general

_kriowledge, Congress could rationally conclude that,

behind its political . party. facade, the Comnmunist

arty Is a conspiratorial and revolutionary: ‘junta,

‘ organized to ‘reach ends and ‘to use methods which

are incompatible ‘with our. constitutional system.”

339 U.S. at 424. Its goal is'“to seize powers of yov-

_- ernment. by and for @ minority rather than to acquire

power ‘throug the vote of a free electorate” (italies

in the original). Jd. at 425: It “purposes forcibly

to recast our wholes. social and political, structure

? after the Muscovite model of police-state dictator-

fs ship.” ’ Ibid. It is “designed to undo the Deelara-

~ tion of Independence, the Constitution, and ‘our Bill

of Rights, and overturn our system of free, repre-

sentative self-government.” “Ibid. “Violent and un-

| democratic means are the calculated and indispe NSa-

ble methods to attain fits] goal’’ (italics in the

original). Id. at 429, It is“ a secret conclay e. Mem-.

bers are ‘admitted only upon acceptance as reliable.

and after indactirination in its policies, to which ‘the °

-member i is fully. committed.”” | Jd.at 492... Each mem-

ber “pledges unconditional obedience to party author-~

itv. Adherents are known by secret oy, code names.

_ They. constitute ‘cells’ in the factory, the office, the

political suciety, or the labor union. For any devia-

tion from the party line - they / are purged and -

excluded.” Ibid. It, moreover, “alone among Amer-

ican parties past oF present ts dominated and con-

trolled by a foreign government. It is a satrap party. —

which, to the threat ‘of civil disorder, adds the threat |

of betrayal into-alien hands’’ (italies in the original).

Id. at 427. + ar eee

The next case was Dennis yv. United ‘States,- 341

US. “494, where the Court upheld | the constitution-

ality, as apphed to offieers of the Communist Party,

of the provisions of the Smith Act, making it a erime |

for any person knowingly or. willfully to advoeate

the overthow of the government of the U nHed States

by force, o violence or to organize any group which

so adyocates or to conspire so to advocate.

The’ special problems caused by ‘the activities of

Communists have also been the subject of legislation

dealing with aliens.-: In Carlson v. Landon, 342 US.

524, the Court. sustained the coustitutionality of

provision of the ‘Immigration Act. allowing the Attor-

; ney, General in his diseretion. to hold. in custody with-

out hail, pending determination of: their depertability,,

aliens who are membets of .the Communist “Party.

The Court stated that “[w Je have no doubt that the.

doctrines and practices of Communism clearly enough

teach the use pf force to achieve political, control to

. give constitutional basis, aceording to any theory of

peasonablerivss or arbit ‘ariness, for Congress to expel

known alien Comminists *.* *2 Id.-at 535-536.

Harisiadeés v. Shaughne SSYy Be U.S. 580, held that

Ae Uaioe: 42

the provision of the Alien Registration ‘Act of 1940

authorizing deportation of aliens: because of mem-

-befship in the Communist Party was constitutional,

even as applied to aliens whose membership had

ended before passage of the Act. In an opinion by

Mr. Justice Jackson, the Court held that due proc-.

ess was not violated, partly ‘because “Congress — |

received evidence that. the ‘Communist: movement here

' has been heavily laden with aliens and that. Soviet a

control of the American Communist, Party has been

largely through alien Communists”’ _ (emphasis

added). Id. at 590. : e

_ Galvan vy. Press, 347 U.S. 522, heid that the provi-

sion of the Internal Security. Act of 1950 for the

deportation of any alien who has been a member of

the Communist Party after entry is constitutional

even as applied to an,alien who had no knowledge

that the’ Party- advocated overthrow of the govert-

ment. The Court stated that (td. at 529) :

[O}n the .basis of extensive investigation Con-

gress*made many findings, including that in

§ 2(1) of the [Internal Security] Act [of 1950]

that the “Communist movement a ee

‘world-wide rev olutionary mov ement whose

purpose it is, by ‘treachery, deceit, infiltration ,

into other’ groups ‘(governmental and ‘other-.

wise), espionage, sabotage, terrorism, and any

other means deemed necessaty, to: establish a

Communist totalitarian dictatorship,” and made

present or former membership in the Com-_

munist Party, in and of itself, a ground for —

deportation. Certainly, we cannot say ‘that |

this classifigation by Congress is so baseless as

‘to be violative of due process and therefore

beyond the Rewer of Congress.

More .recently, in Fle mming v. Nestor, 363 U.S.

603, the’ Court: upheld a provision of the Social |

- Security. Act terminating: old-age benefits. for .

aliens deported for membership in the Conmunist

Party. In Communist Party V. Subversive Activ-

ities Control Board, , 367 U.S. 1, the Court “sustained

the constitutionality of. the registration provisions of

the Internal Security Act. of 1950 concerning 4*om-

mynist action organizations” against attack undcr the

First Amendment and other provisions of the Con-—

stitution. , This holding Was specifically based on

Congressional investigations like that involved here, |

and_.on the findings concerning the Communist Party

which resulted from such inv —— Id. at, 96-:

97, 102. And in Sedles v. Uiwited States, 367 US

203, 228-230, the Court upheld the membership ane.

of the Smith Act... )

This Court has also upheld State power in relation

to Communist activities in the United States. In

Gerende v. Board of Supervisors, 341 U.S. 956, the

Court held unanimously that Maryland could require

every candidate on the ballot to swear in an affidavit,

that he was not engaged in any attempt to ov erthrow

the government by force and violence. © In Garner vy.

Board of Public Works, 341 U.S. 716, the Court held

that a city has power to require its’ employees to

execute aftidavits disclosing whether they were or

had ever been members of the Communist Party.

: Adler v. Board of Education, 342 U.S. 485, similarly

determined that a New York statute which makes

662429--62——-4

any member of an organization advocating the over-

throw of the government by force or violence ineligible

for employment: in the public schools was constitu-

tional. Th Beilan vy. Board of. PRblic Education,

307 US. 399, and ‘Lerner. v. Casey, 357 US. 468, the

Court found that State officials could question em-

-ployees about their Communist affiliations and ‘dis-.

-._¢hargethenr if) they refused to answer. And in Ko-

nigsberg v. State Bar, 366 U S. 56, and In re Anasta-

plo, 366, U.S, 82, this Court held that a State could

constitutionally deny admission to the Bar te appliz

cants who refused ty answer questions pertaining to

~ membership in the Communist Party. Mr. Justice |.

Harlan said that *[t ]hiis Court has long. since recog: |

nized the legitimacy of a statutory finding that mem-

— bershipi in the Communist Party is not unrelated to.

the danger of use for stich ° illegal ends of powers’

| giv en for limited, purposes. ” 366 U.S. at 52. .

“Phe foregoing cases: involved constitutionality. of

. enacted legislation aimed at. the subversive activities

_of Communists and the Communist: Party. In ‘most

instances the decisions were by a divided Court, but

We are not here concerned with the merits. In almost

every instance, the legislative e action was based upon .

a finding that the relevant activities of the Communist

Party presented threats to. the national welfare or.

security, and this Court's decision was based upon the

view. that that Congressional. finding was not im-

permissible, The ‘investigation, that gave rise to ¢i-

tation of petitioner for contempt can be deemed out-

side the power of Congress only if it is held that

no legislation upon’ the’ subject of Communist aetivi-

‘ to

ties in ‘the basic <teel. industry could: be. devised that.

Congress had power to enact. Such a holding would

overtirn the fundamental predicate of a decade of

decisions by this Court. irae Oe

A fortiori the earlier legislation and judicial opin-

ions demonstrate that there Was at least a reasonable

foundation for believing that the activities the Com-

liittee was investigating might he found disruptive:

of labor conditions in: the steel industry. and danger-,

ous to the ni ational security. "The point bears directly

not onfy / upon whether. Congress had a_ legislative

nut jose but also, as we now show, upon the justitica-

fr.

tion for any interference that. the investigation might

cause with freedom of politic: Ul activity and expre ession.

For it necessarily follows that, i” Cougress ean le visl: ite

concerning ‘Communist activities generally, and in the -

steel industry in particular, it can conduct investiza-

tions upon which to base te gislation.

THE Use OF COMPULSORY PROCESS ‘To SECURE TESTIMONY CONCERN =

ING ACTIVITIES OF THE COMMUENIST PARTY BELIEVED TO ENDANGER

THE NATIONAL SECURITY BY “COLONIZATION OF THe BASIC SThRAL

INDU STRY DID Nov VIeh VEE JTHE wie yee sescuittana pease

Tn exercising tts broad powers of investigation Con-

gress is subject to the restrictions, Impose “d by the: Bill -

of Rights upon all federal governme mtal activity. The

Fifth Athe ndiment privilege against self- inerimination

has-been freque ntly invoked ae r coniaed. hug.

Quinn v; United States, 349 US. 155,- In addition, “tn.

investigation is subject to the icanee that the Con-

LTeSS shall make no law abridging freedom of speec ‘+h or

“press or assembly, * * * The First Amendment may

- be invoked against infringement of the protected tane-

doms by law or by lawmaking.” Watkins v. U nited

_ States, 354 U.S. 178, 197. But here, as in Barenblatt

v. United State s, 360 US. 109, Uphaus v. W yman,

360 U.S. 72, Wilkinson v. I 'nited States, 365 U.S.

399, and Braden v. United States, 365 U.S. 431, the

Committee violated no Tights guaranteed by the Lie

. Amendment.

. Initially, we point out that a eatipiciely literal read-

‘ing of the First Amendment would utterly destroy pe-

titioner’s argument. Petitioner is not complaining of

a “law’* but of compulsion to answer’ questions. He.

is not complaining that Congress has directly abridged

his right to speak or punished him for its exercise,’

_ Petitioner, if he had testified, would have rémained

as free as ever from any form of legal restriction

upon political activities or other forms of expres-

_ Sion. His complaint is that the disclosure of views

and activities that are unorthodox, unpopular, or even

hateful .to the general public, may subject him and

others whom he names to public stigma, scorn, and

obloquy, thus discouraging them and others from ad-

hering to unpopular views lest they suffer such a fate

‘in the future. Although, as held in Watkins ‘v.

United States, supra, these eonsequences are ce

to raise questions under the First Amendment, it

plainly requires something more than a literal read-

‘ing of the words to hold that the amendment gives |

_ protection against indirect and collateral consequences

resulting from the non-governmental activ ity of pri-

vate persons. Furthermore, whatever may be the

merits as an original matter of the * balancing test*’

My ee oan ae

when ‘dealing with a law which itself directly abrilges -

freedom of speech or the press, questions of judg-

ment and degree have to be faced in dealing with

_ governmental activity which affects freedom of ex-

pression only beeause of indirect and collateral con-

sequences.” It would hamstring government to hold

that neither Congress nor the Executive may take any.

action, regardless of the need, which elicits any pri-

vate response putting any pressure. upon any per-

~ son in his views or expressions. As the Chief Justice

said in Watkins, 354 U.S. at 1°8: . -

: It is manifest that despite the adverse effects

which follow upon compelled disclosure. of “pri-

a matters, not all such inquiries are barred.

** * The critical element is the existence of,

and the weight to be ascribed to, the interest

of the Congress in demanding disclosures from

any unwilling, witness. : Pe

And in Barenblatt v. United States, 360 U.S. 109,

126-127, the Court held: |

Where First Amendment rights are asserted

‘to bar governmental interrogation resolution of

the issue always involves a balancing by the

eourts of the edmpeting private and public in-

With deference to the dissenting opinion of Mr. Justice °

Blaek in: Barenblatt v. United States, 360 Us. 109, V4, Hil-

142. we submit that questioning a witness, not in reprisal for .

anything he has said, is an exact parallel of the “cases sug-

vesting that a law which p¢.>) ly regulates conduct but which

might. also indirectly affee: ser h can be upheld if the effect on

speech is minor in relation to the need for contro] of the con-

duct.” Id. at.141. Such cases include A’orues v. Cooper, 336 ELS.

Ti, 85-89 = Nch neider v. State, 308 U.S. 147; Cantivell v. Con necti-

ecut, B10 U.S. 296: Lovell v. Griffin, 303 U.S, 444, 4015 Thornhill.

Alabama, 310 U.S. 88, 104, 106. :

—

-terests at stake in the particular circumstances

shown. , Ps

1. The public interest: to he served by petitioner >

testimony: was the need ‘Yor information concerning

putative subversive: activities if a Vital area in our |

national life—information that would be helpful net

only in reviewing the effectiveness of existing legisla-

tion but also in determining what new legislatiet

might be needed to mect existing or threatened -evils®

The hearing at which petitioner was questioned Was

conducted for the explicit “purpose of securing infor-

mation about the ‘extent, character, and objects of

Communist infiltration and. Communist Party propa-

ganda activities in the Gary, Indiana, area” for the

‘Jegislative. purposes, among others, of, considering a@&

- proposed amendment to Section 4 of the Communist

Control Act, 50 U.S.C. 843, and possible amendments

to the provisions of that Act relating to the use of the

National . Labor Relations Board by Communist-

infiltrated labor organizations (for the.text of the reso-

lution authorizing the hearings, see su pra, pp. 3-4).

- The principal basic industry in Gary, Indiana, ‘is

the production of steel. The basic steel industry is

vital to the health of the economy and the national

defense. It has been the eubject of numerous Con-

gressional investigations.” -Its industrial relations are

————— |

11 Temporary National Economic Committee, » Investigation

of Economic$ Power.’ Price Discrimination in Steel, Monograph

No, 412 76th Cong.. 8d Sess.: Hearings on Administéred Prices,

Subcommittee on Antitrust-and Monopoly of the Senate Com-

mittee on the Judiciary. Oct.-Nov. 197. Roth Cong., Ist Sess.:

Hearings, Stibcommittee on the Study of Monopoly Power, House-

Committee on thé Judiciary, Sist Cong., 2d Sess., Serial No. 14.

Pt. 4A. Ntee/. ws ,

&. Gs *

4i)

not only regulated by the National “Labor Relations

Act but have been Tepe atedly conside red by Mational

boards and commissions. * On several oc ‘axions labor

disputes in the hasic steel industry have been found

-to-ereate emergence jes affecting the ational de fetise.

The establishment of Communist Party cells among

steel workers, the capture or disruption of bona fide

Jabor unions, the. use .of professional revolitionaries

to secure positions of leadership by treachery and

deception in aid of a foreign power were obviously

matters of grave national concern. ;

The reality of these dangers and the disruptive

effects of Communist influence in. labor unions is -

shown by industrial history. We have already, ad-

¥erted to the mass of materia!’ available in 1947"

showing Yommunist infiltration” of labor organiza-

tions not to.support and further trade union objec-

tives but to make them a‘ device for disrupting

‘commerce and industry whenever the dictates of

. “political policy” should so require (see supra, pp. 37-

38). For example, the Amalgamate d Clothing Work-

ers Union had been torn by its successful fight age inst

Communist infiltration. And later, in 1949 and .1950,

the Congress of Industrial Or eanizations found it neces-

sary to expel eleven inte ‘national unions because of

' I.

2 Bg. US. Steel Industry Board, Aaa to the President

on the Labor Dispute, in the Basic Steel Industry C1945:

‘National Labor Relations Board, Directive Orders and: Opinions

in the [Little Steel Case (1942). :

WE aed Nteelworkers Vv: lnited States, 361 tS... 42;

* Youngstown Con, Sayers $45.07 8... 599.

0 \

Communist domination under which purported trade ©

unionism was subverted-to the. aims of an international

conspiracy.’ For example, the committee which recom-

mended expulsion of the United Mine, Mill and Smelter

Workers Union stated (Official Reports on the Expul-

sion of Communist Dominated Organizations from the .

CIO, ¢ onfpiled by the Publicity Department, C10

(Sept. 1954), p. 13): -

. ‘The Communist Party is precisely this type

of organization which the CIO is under a.

_ constitutional: mandate to’ oppose—one which

/ would use power to exploit the people for the

benefit of an alien. loyalty. The Communist

Party speaks in. the words of unionism and°

’ Americanism. But actually it matters not to

the Communist Party whether a_ particular

policy will advance or hinder the best interests

of American labor. The. sole test is whether -

the. policy is-required by the need of the Soviet

~ Union. .-Only to the extent that the Soviet line.

permits*will the pri paganda ‘mill of the Com-

munist Party grind 0 out platforms which are in -

consonance withthe ideals of American: lab¢r,

In event of corflict however, between: the needs

_ of the Soviet Union and the best interests of

American labor, the former _ must always

prevail. (

The labor siiitiaal? s alertness. to its responsibilities

strongly ‘suggests that such problems mn often: he

. ™United. Electrical, hie & Mechanical Workers: Farm e

. Equipment | ‘Workers: American. Communications Association: ~

Food. Tobacco, Agricultural & Allied Workers Union of Amer-

ica; International Fishermen & Allied Workers of America; In-

ternational! Fir & Leather Workers Union; International Long-

’ shoremen's & Warehousemen’s Union; International Union of

Mine, Mill & Smelter Workers; National Union of Marine Cooks

& Stewards; United Office & Professional Workers of America ;

“United Public Workers of America,

‘\ | - Ol

better solved without legal intervention, but the possi-

bility of a\legislator’s reaching that conclusion falls

far short of demonstrating that the evil does not:

merit Jegislative consideration. Indeed. Congress

chose to enact legistation in 1947“ and 1954" aimed

at reducing Communist influence in labor unions, and

in 1959 it revised the 1947 legislation after 12 years:

-of experience.” .

The/special problems posed by Communist activity

among employves in basic. industry make the public

interest in‘this\ investigation particularly strong: for

upholding the exercise of Congressional: power. In-ad-

dition to the potential impact upon the critical stee! ine

dustry, the same general public interest prese nt in the

Barenblaf Wilkinson, and Braden cases the right of

self-preservation—is present here. Thus, in? Barei-

blatt v. United States, supra, the Court sustained against

attack under the First Amendment: the intyAronmation

of a witness concerning Communist activities ‘in the

field of education, saying. ( 360 U. S. at 12 (12 IR):

That Congress has Wide power ho lerislate,

in the field of Communist activity im this Coun-

try, and to conduct appropriate investigations

in aid thereof, is hardly debatable. The exist-

~ ence of such power has never heen questioned

by this Court. * *°* In the list analysis this

. power rests on the right of self- “prese rvation,

“the ultimate valuesof any’ society.” Dennis: v.

United States, 341 U.S, $94, 509, Jastification .

for its. exercise in turn rests on the long and

widely accepted view that the tenets of the Coin-

*® Act of June- 23, 1947, GTStat. 143. 26 U.S.C) 0h.

as Communist Control Ary of 1054. H888tat. TTS 50 Ae.

ore . : o . . .

" t Act of Septenber 14, 1959, 73 Stat. 536. wy Us.c, Ot.

“expression by: the Congress. - Nera oi

‘The yom to be amiiened this apie interest in,

“nist-éonspiraey ¥ was em haa in eghies ¥, Ww ‘yinan,

360" U.S. 72, a_case Anvolving. a witness : before the.

Attorney General. of New Hampshire, ‘who was: con-

— an investigation on behalf of thre State legis-

' lature, The witness was executive diree tor of. World

Fellowship, ‘an organization which “ran a. summer

-¢amp in New “Hampshire. The. witness refused to

- provide; a: list of guests of the. camp, ;and was COon- ,.-

victed of contempt. - ‘In upholding, the conviction, the

Court stated that the interest of the State was. in the -

presence of: subyersives. in New Hampshire; that the

poe sient Party ‘include the ultimate overthrow of .

Reve Government of the United States by force

and violbtice, a view which has been IV en formal —

~~ —ftorner | ienéral “had valid reason fo! \believe™ that

there Sas a *nexus between, World. Fe Mowship and

subversive activities” and” that ‘the speakers and.

guests mighthe subversive pe rsons; and that this nexus

was adequate to justify the ‘investigation: since. the

-itivestig: gation was undertaken ‘*in- the interest. of self-

presery vation, ‘the ultimate value. of any : soel ety.’

360 U.S. at 79-80. In contr: st. to the strong gov ern-

‘aa ‘interest, the: ‘Court found that the interest in

a a

associational privacy \ was “tenuous. at “best” bee ause-

* the’ ‘camp Was _ publit, - ‘it was required to maintain a

public’ exposure, was “an inescapable incident of: aur

investi igation .i into the presence of. suby ersive persons

within a State.” Td, at 80-81: _In- conclusion, the

“> 2 ; The ‘hasie Tsstles

; =

y . ‘ ;

\ oe . vl xa ‘ ye

nut stated, if upholding the’ ‘conten, that “the |

governmental int rest in .self- -preservation in sutfiZ

ciently compelling to subordinate the interest iv iis-

sociational privaey * * 2 Td: at Sl

Subsequently, inv *ilkinson vo U nited Statés, 360

LS, 399, the Court sustained like questions ine the

course of a Congressional inquiry inte Communist.

propaganda. Rejecting the Witriess” contention under

the First Amendine nt, ‘the Court heRL (id. at 415-414):

** * Wore. thorough tly ean

~-vassed bycus in Baréublatt. Substantially all

_ “that was said there is equally ‘applicable here,

‘and it would serve-no purpose to ‘enlarge this

opinion with a paraphrase dd “repetifion of what |

@was in that. opinion = thoughtfully: consid red |

. and carefully

ae A, a * *

‘ ee i

ry ‘ ark 3

is ;

. The suibcomimittee’s ste gitimate legislative in-

terest: was not. the activity ift which the = peti-

_tioner might have. hi ippe ned. at the time to be.

engaged, but in. the manipulation and infiltra-,

tion of: activities and organization by persons

a advoc ating overthrow of the Cove ‘rmment.. * *.*

“The same prine iple was restatedéin Hrade Wve dl ited

State S, 369 i. =. at 4: a, : i : , . ’

But Barenblatt did not. confine congressional |

committee investigation to overt criminal actiy-

. ity, nor did that case. determine that Congress

‘can only investigate the Communist Partx: it-

‘self. Rather, the decision upheld’ an -investi- |

4 gation of Communist activity, amt education.

| Education’ ‘too, is: legitimate . ae proteeted

ae é .

54 ee

| activ ity. “ Comninsintat infiltration and propa-

‘ganda in a given area of the country * * * are’

surely as ‘much - within [the subcommittee ’s}

pervasive authority as ©o

~ educational institutions. * * * Information as

to, the extent ‘to which the Communist Party

—_ pes

was utilizing —— -erganizations and .

“The lower courts Sab likewise repeatedly held that

a First Amendment does not prohibit Congress from

vestigating Communist activities in search of infor- ean

‘mation necessary in order to ‘legislate. _E-g,Bar

one United States, 167-F. 24241, 246 (CA. D. C. ), certiorari —

denied, 334 U: S. 843; Lawson v. United States, 176 F.2a°

_ 49, 52-53 {C. A. D.C.), certiorari denied,’ 339° US’

_ 934; United States y. Josephson, 165 F. 2d 82, 90-92.

(C.A.

2), certioraxi. denied, -333° ‘U.S. 838; Eisler v.

. United States, 170 F. 2d 273 (C.A. D.C.), certiorari

("+ dismissed, 338 U.S. 883; United States v. Orman, 207°

F.2d 148, 157 (€.A.:3); Marshall v. United States,

196 F. od 473 (C.A. D.C. ); certiorari denied, 339 U. Ss. °

. 933; Dennis v. U nited States, 171 F, 2d:986 (C.A.

D.C.), affirmed on other- grounds, 339 U.S. 162:''

Sacher v. ‘United States, 252 F. 2d 828 (C. A. D.C.),

reversed .on other grounds, 356: U.S. 576; Townsend -.

'y. United States, 95 F. 2d 352, 361 (C.A. D.C.), cer-

- tiorari denied, 303 UB: 664; United States v. Latti-

‘mores, 215 F. 2d 847, 851 ats eg Morford v.

ys, ae a ~ , i

- OO:

U nite States, “176 F.2d 34, 57. (C, A. D.C) ), reversed

on .other grounds, 339 U.S. 258; United ‘States v.

Kamin, 136 F. Supp. 791, 803. (D. Mass.) ; United

—<§States v. Bryan, 72 F. Supp. 58, 62 (D. D.C.), re-

versed on other. grounds, 174 F. 2d 525°(CVAL D.C.);

reversed, 339 U.S. 323. No lower ‘court, as far as we -

~haveheen—able ~ ascertain, has ever held. to hace

contrary. . R

- -° The Dubie interest in Congressioti: Prete of

Communist activities is underscore ‘dd: bythe numerous

decisions of this Court based upon-the- premise that

the dangers of Communist subversién i in the e particular

areas. inyolved, as found by Congress, furnished an

adequate © constitutional , foundation for substantive

| legislation. ‘American Communications Association. ae

-____Douds; 339 U.S. 382; Osman v. Douds, 339 U.S. 846;

Carlson -y. Landon, 362 US. 524; Harisiades v.:

> Rikaughnetsy, 342 U.S. 580: Galvan 'v. Press, 347 i

U.S. 522; Flemming v. Nestor, 363. US. 603; Com-_-

—munist Pact v. Subversive. Activ ities Control Board, -

_ 367 U. S..1; Scales v.: United States, 367 US. 503.

“Upon the same premise the Court has upheld, against

attack under the Fourteenth Ame ndment, State legisla-

“tion, aimed at membership in the Communist Party, re-

quiring those occupying or seeking public office to dis- ts

claim knowing membership in any organization advo- “ .

eating. the overthrow of the government by force and.

violenes. Gerende vy. Board of Sup¢: rvisors, 341 U.S.

56: Garner v, Board of Public Works, 341 U.S.716. See

also Betlan'y. Board: of Education, 357 U.S. 399; , Lerner.

v. Casey, 357 U.S. 468; Adler ¥. Board of Education, 342

id S, 485. The gi apuaames: that there is sufficient pub-

lie danger in the: activities of the Communist Party,

as now constituted and directed, to justify legislative

investigation and appropria legislation is “thys

deeply. embedded in our consti tional law. To hold

that the First Amendment prev ‘ents mere Congressional ;

inquiry into Communist membership or activities

would not only overrule. Barenblatt, Braden, and Wil-

kinson but reject a basic premise of the consistent

line of decisions begmning with American Communi-

cations Association v. Douds, supra.

Of course, each case rests in a measure upon its

own facts. We do not suggest that just because

there is suffic ient. interest in legislative knowledge

concerning Communist activities to justify an ap- .

propriate use of compulsory process, therefore it was _

automatically constitutional” to question petitioner.

One must also evaluate, we assume, the reasons for

ealling the particular witness, the relevancy of the

information he could be expected to fairnish, and the

potential harm to protected freedoms. We turn ina

moment to those factors -in_the equation. But in

terms bf the ultimate legislative objective to be

served, the present case is manifestly stronger even

than Barenblatt, Wilkinson, and Braden. In those

" cases the House Committee was looking into educa-

tion fird propaganda, and, the interest to he served

was greater knowledge of the general nature of the

Communist. conspiracy, Here, as we pointed out.

above, the investigation _ was foeused upon,,.the vital

steel industry. in w hich. political strikes or sabotage

could seriously endangér: the national security ; it was

focused, too, upon the kind-of activity among workérs

which had raised grave problems in the labor amove-

ment.” ges se : Ra es

2. There was eve ry reason to be ewe that: petitioner

could furnish pertinent’ and valuable information.

Petitioner was not subpoenae ‘dasa result of “indis-

eriminate dragnet “pracedyres, lacking” in’ probable

cause for. bélief that he possessed information. which |

might be helpful to. the ‘Subcommittee: " Barénblatt |

v. United Stutes,: supra, 360 U.S. at 134. The Com-— = es

mittee hi id information. that petitioner was a-long-time

Party mieembe ‘rY who had ‘actively participated in ‘the

-arty’s organization of the ste 0] industry 1 in the Gary,

Indiana, area (see supra, pp. 10, 11, 13, 4), which was.a

| vital part-of the subcommittee’s investigation of Com-

munist ac tivities in basic industry in Gary. (see supra,

pp. 3, 5, 7, 10, 12)... He was apparently one of the “pro- .

fessional revolutionaries” with high (ducation whot

the Party had recruited: to conceal their pasts, pose

as laborers, and thus gain, for Communist purposes,

key positions among the workers’ in basic ‘industries | #2 .

(R. 165-166). His education and experience put >

him in a position where, if he were willing, he could

apparently give invaluable information oon the di-

rection, techniques, and purposes of the¥program of

colonization, . Man ak ee

3. It:is beyond dispute that thi information, which -

the Committee had: reason to believe pettigner could aaa

furnish, was highly a relevant.to its legislate purse

The Committee, was’ investigating reports of. Com-_ :

munist infiltration’ of basic industry mm the Garv. area: ee

by highly ‘edticated ** professional revBlutionaries.\pos- |

ing as ordinary workers. Reportedly, petitioner Was

ee 7 :

such a man. If this were true, it would be evidence

~ ofthe truth of the reports, and of at least the par-

tial success of the program. Affirmative answers, ~

whith the Committee had’ reason to expect, would also

_ open the door to. further inquiries eliciting more de- .

tailed informaiton. : The direction of the questioning

Was fully explained to petitioner (see supra, pp. 45, 7,.-

9-10) ; itis also apparent upon the face of the que stions.

The answer to the introductory question concerning

his residence prior to September 1957 (Count 1)

would show whether he had been in Gary and therefore.

would, as an allegéd member of the Communist Party,

have a. knowledge of Communist activities there.- In

addition, if the subject of his residence was carried

ba¢k, it would indicate the truth or falsity of his ap-

plication for employment, a fact tending to prove or

—— the reports concerning methods of “coloniza-

_tion.”” “The relevance of the direct questions coneern-

ing ‘‘eolonization”? - (Counts 2 and 4) is too plain for

argument. |

Whether petitioner \ was a member of the Commu-

nist Party in June 1949 when he sought employment i in

a Gary steel mill (Count 3) went to the heart of the

question: an affirmative answer would help to con-

firm the reports of “colonization” and show that pe-

titioner could give further information; a negative

response would tend. to show that thé reports were

exaggerated or inaccurate. In this respect, as in

‘others, the present case is well- within prior decisions.

In Barenblatt, su pra three of the five. questions which

the witness had refused to answer concerned his mem-

bership in the Communist Party (id. at 114) : ‘Are you

now a member of the Communist Party ?”; “Have you

ever been a member of the Communist Party’ ”; “Were

59 :

you ever a member of thie Haldane Club of the Commu-

nist Party ‘while at the University of Michigan ?”

This Court ‘specifically affirmed the conviction on the

ground that these three questions were valid. Td. at

115. In Wilkinson, the sole question on which the

. witness was convicted, and therefore the question on

_whfeh-tifis Court affirmed, was “Are you now a mem-.

ber of the Communist Party ?’" 365 U.S. at 407. And

in Braden, of the six questions.on which. petitioner was

convicted, the question on which this Court affirmed

was “Were you,a member of the Communist Party the

instant you affixed your signature to that letter?" 365

+d ‘ ot : . .

U.S- at 433, note 2. The question involved in Count

3 here—“Were you a member of the Communist Party

‘on the 23rd day of June, 1949, which is the date of ap-

plication filed in your name for eniployment in Gary ¢,”

-4.e., whether petitioner Was a Party member at.a par-

. tieular time—is virtually identical to the. questions in

the Barenblatt, Wilkinson, and Braden cases and ds

in itself, as we have neted (p. 24) sufficient to sustain

the conviction.” | ; :

Petitioner argues that there was no governmental in-

terest ir questioning him because the Committee already

had all the information concerning Communist activi-

‘ties that petitioner could have «supplied. Although

there are other answers to petitioner's argument inthis ,

ease (see infra, pp. 61-63). we most caruestly submit

The pertinency of the questions to the subject under in-

quiry was’ not only clear on the face of the questions, but, was

explained to petitioner at the hearing (see «upra, pp. 4, 5, 7, 9-10),

even though. he did not explicitly claim any lack of pertinency

to the subject under inquiry then or at any time during the.

judicial proceedings. ‘ - a

that the power of.a Congressional ciate to ask

material questions in the:course of an inquiry into a

proper subject of legislative inv estigation | cannot be

made to depend upon a judicial determination of how

helpful the Court would find the information. The

-pertinency of the questions to a duly authorized sub- - :

ject of inv estigation must be clearly established. The ~

objective must be legislation, not prosecution, ad jiidi-

cation, or exposure (See i” fra, pp. 67-70). We also as-

sume arguendo that there must be reason to believe -

that the Witness has pertinent information. The pub-

- lie importance of Congress’ acquiring pertinent. in-

formation upon the subject under inv estigation must

be weighed against any potential damage to liberties

protected by the Bills of Rights. But once these

points ‘are covered, the judicial. function is exhausted.

The Court. would be assuming to exercise the legisla-

tive function if it undertook to decide just how neces-

sary—or how helpful—particular information would be,

Choosing among relevant lines of inquiry, deciding

when the ground has been adequately covered, relying

upon testimony already received, or seeking further

disproof or corroboration. all are parts of the process

of legislative | investigation. For the court to -under-

take them would be inconsistent with the presump-

tion of validity due to a coordinate branch of the gov-

ernment and violative of the separation of powers. |

See Watkins v. United States, 354 U.S. 178, 215.

This precept is as necessary in practice as it is sound

in principle. No one ean tell how helpful a logically a

material bit of ev idence may be in the legislative

process. withont studying and drawing inferences

from the evidence: already introduced, ascertaining’

and appraising the other sources of. information,

weighing the kinds of legislation that might be

drafted, and anticipating the probable response of the

Senate and the House to partietlar evidence. A

printed re¢ord supplies no basis for undertaking such

‘a task; it can. he per formied only by lawmakers as

part of the process of legislation.

In the present case, moreover, it is clear that the

information ‘sought to be elicited from petitioner

would have. been extremely helpful to the Congress.

Petitioner argues that the Committee had conducted

hearings in other localities upon the same or similar,

subject matter; that other witnesses at the Garv hear-

ing testified concerning all the information known to

petitioner; and that therefore. the Committee sought

only corroboration from petitioner. But even if peti-

tioner’s conclusion were ‘correct and the Committee

had: expected to receive only corroborating testimony

from him, there is an important governmental inter-

est in having.a well- informed witness confirm previous

testimony—particularly when the existing evidence is

in a-controversial area and: is therefore likely to be

challenged. Especially .in, the area of ‘subyersive ac-

tivities, the néed for legislation may be a function of

numbers: Communist contrdl legislation touches upon

civil liberties. If the ‘professional revolutionaries”

seeking “ty colonize’. the basic steeh industry. were

few or upsnccessful, a legislator ‘might well conelude

that the dangers might not justify the costs of legisla-

‘ticn. If the infiltration were on a larger scale and ,

more successful, he might reach ~ the opposite

conclusion. = | | |

Furthermore, it is not true that the Committee was :

seeking only cumulative evidence from petitioner. The

Committee “knew nothing about the actual activities: of

the Communist Party * * * in Indiana as of the

time of this hearing or shortly'before’’ (R. 55). And

there was every reason to believe that petitioner could.

give data about his training, activities, supervision, —

and contacts with other Communist infiltrators in a

~ degree of detail supplied by no other witnesses. Cer-

tainly, the Court is not bound by the bare arguments

of petitioner’s counsel. Petitioner offered no proof

‘that he could not have contributed new information

to the investigation. He did not prove at his trial

what information he had at the time the Committee

questioned ie He cannot unilaterally determine—

by comparing his own knowledge which he has not

disclosed with the information he now claims was

_ possessed by the Committee—that he could supply the

‘ommittee with no new information.”

The hearings which investigated Party ceinalion

activities in other parts of the country (see Pet. Br.

“9 Even if petitioner had testified at his trial concerning ‘the

information he possessed at the time of the hearing, we do not

think a defense would have been established merely because the

Committee already had the information. At the least, petitioner

would have had to give this reason for his refusal to answer at.

the time he appeared before the Committee. .Even then, as we

have stated above (pp. 59-61), we think that the value of peti-

tioner’s information—whether it was merely cumulative or not—

" was for the Committee to determine.

19) were, on their fave, principally coneerned with

different, although related subjects. Although the

Committee had information concerning two of the.

questions ‘petitioner's residence in 1957 and whether

he was a ‘Party member in 1949), these were only

preliminary questions to establish that petitioner had

knowledge of Party activities in the steel industry

in the Gary, Indiana, area. Petitioner's. answers to

the other. two questions concerning his own knowl- ;

edge of Party activities in the steel industry in ‘Gary

(whether he knew of Party colonization in the steel .

unions in Gary before 1957 and. whether there were |

Party colonies in the steel unions in Gary in 1957) ,

might merely repeat previous testimony before the

. Committee. On the other hand, as the. Committee,

hoped and expected (see supra, pp. 14-15), petitioner’ S

answer might well provide new information in view of

his active participation in these Party activities. In»

short, the Committee had reasonable ground to believe

that petitioner had highly useful information on Com- -

munist infiltration in the: steel industry.

4. In weighing the governmental interests in - ob-

dividual interests which he asserts, it is surely rele-

vant that petitioner is asserting a right, not to express

- but to keep them secret; and he is complaining, not

of any governmental abridgment of freedom of ex- -

pression and association, but of fear of ‘the law-

- ful reactions of those who do not share his opinions,

once the truth is known. In pointing this out we -

do not mean to suggest that there is no constitu- |

tional issue. The Constitution ‘implicitly recognizes

a fundamental right of privacy against undue gov-

- ernnental prying, and a measure. of privacy may~ be:

~ assential to freedom of belief and also, in the be-

‘ginning, to effective political organization. That a,

constitutional question is raised, .moreover, was ad- .

judicated in Watkins v. United States, 354 U.S. 178,

196-198. |

Nevertheless, the exact nature of the conativationn!

right asserted must be taken into account in weighing

the governmental against the private interest. This

is not a case of governmental interference ‘with the

political processes essential to the conduct of demo--

cratic. government. Cf. United States v. Carolené

Products @o., 304 U.S. 144, 152, note 4. Nor can peti-

tioner invoke the ultimate purpose of constitutienal

protection of speech. “to foster peaceful interchange

of all manner of. thoughts, information and ideas.”

See the dissenting opinion of’ Mr. Justice J ackson, in

‘Kunz v. New York, 340 U.S. 290, 295, 302. The guar-

~ antee ‘of freedom of expression rests in the. final =

analysis upon belief. i in thé value.of free competition

. in ideas when openly and publicly debated.” “In Whitney

v. California, 274 U.S. 357, 372, 375, 377, J ustices Bran-

deis and. Holmes, concurring, stated : lle og

_ Those who won our iiieniieis believed

* * * that freedom:to think as you will and to

speak: as you think are means. indispensable

to the discovery and spread of political truth:

that without free speech and assembly discus-

_ sion wee be futile: that with them, discus- —

/ :

2 .

e@ : \ , -_—s

sion affords ordinarily adequate protection

against: the dissemination of noxious doctrine ;

that-the greatest menace to freedom is an ‘inert

people; that public discussion is a political duty:

"and that this should be a fundamental princ iple

a oe the American gov ornepemt/

‘ * za Ss

If there be time to al through: discussion /

the falsehood and fallacics,. to avert the evil by

the processes of education, the re ‘medy to be

applied is more speech, ngt enforced silence?” —

Petitioner is unwilling to/ stake his beliefs upon

such a test. He-was not called in reprisal for any

e -. . eae

7° The same basic idea was expressed by Mr. Justice Black:

with whom Yr. Justice Douglas concurred, dissenting “in Ve.

recks y. United. States, 318 US. 236, 251:

“Resting on the fundamental constitutional prine iple that our

people, adequately informed, may bel trusted to Uistinguish be

tween the true and the false, the bill is intended to label infor.

mation of foreign origin so that hearers and’ readers may HOt »

be deceived by the belief that the information comes from a

disinterested source. Such iegislation implements rather than .

detracts from the prized freedoms guaranteed by the First

Amendment.” * * * : Sf

The case involved a cany iction for wilful vInission of Mitte

rial facts on registration statements filed’ under tie Foreign

Agents Registration Act The omissions concerned the activ-

ities of the defendant other than those in which he engaged

an agent of a foreigti principal. - ‘The Court reversed the cot

eviction on the ground that the Act did hot authorize the See-

retary of State_to-require that such information be furni- hed. ‘

Thus, the Court’s reversal of the conviction in Viereed was

based on grounds not material here. The quotation fron the

dissenting opinion was part of Mr. Justice Black's contention that

“[n Jo strained gnterpret: at ion [of the Act} should frustrate its wf

pers purpose.” 318 U.S. at 251. .

. See also United States v. Harriss, 347 US) G12, t25-626:

United States v. Peace Information Center, 97 F. Supp. 255

(D. D.C.).

e = ° °

J . .

‘ ‘

~ f. ~—

: and that. hie: ‘tad said.. ‘His are is, pt vail sinenal:

-edge and discussion of ‘thi.’ ‘information the Committee

’ sought to ‘elicit.

eee: against petitioner seeks to. justify the slightest curtail.

Nothing in the gov errynent’ 5 ease

ment of true. freedom of expression:

There is much less foundation for

jane © claim

_! of prejudice to fundamental freedoms than ih Baren-_—

ore

eee

a 4 Janta, Georzin “for. the purpose of, dev eloping i \:

‘bdiatt, Wilkinson, and Braden.’

_ at’ ‘Teast partly as-2

, ically important steel mills" “annot be- likehed to. po

Barenblat was 4 col-

_ lege. teacher: by. ‘profession andthe inv estigation was .

- into’ ‘Communist infiltration tn the field of Jeducation.

The area is one of special. ‘and. serait concern’ for

-full- freedom of inquiry. (cf, Sw bezy-Vv. \New | Hamp _

shire, 354 U8 234, 290, 257, 260-264), an t the inquiry s

“was necessarily eonee th\i

~ propaganda. ‘Sinfilarly; 1 in W 'ilicinseis pies

_ Congressional inquiry was focused. on Gena

tivities in spreading’ pr opaganda.:. Wilkins

taxed at the hearings with having ‘been sent. -

-the U vital States Congress ti et these partie .

jar hearings.”’ 365 U.S. at 416 (dissenting opinion. of

Mr. Justice Black). Braden. apparently, was ‘called

retult of public letters urging oppo-:

sition, to ‘measures there pe nding i in Congress and crit- :

icizing the House. Un\American Activities Committee.

365 U.S: at 451-454. There is no ‘suggestion that the

~ reason petitioner was subpoenaed had-any connection . ~

with political opposition, amd, surely, infiltration of crit- ee,

-Titival propaganda or college ediication, h :

. mD ' ee.

tg ; | : Ene ee aoe

ees ‘ Ea aa eat Oe a

|.“

‘The admonition bas been en ated Jn later cases,

ry sum, we aubmett thiat Ee ‘ ~ more dlentty’ than —

‘in Barenblatt, Bix a and Braden, t blie in-..

-terests served by. the: Congress’ s nequisition of pertiz—_

fient informatian. from, pétitioner corice ting the

threat of Communist infiltration, of the vital steel] in-

| dustky—knowledge to be used in consider ing. whether

to enact remedial legislation—plainly outweighed peti-

tioner’ re, interest in’ H muaintaining: SECTCE “y*

—

D. PETITIONER HAS MADE NO CASE

exrpet@n -° - +g -

“The power of Congr ess to USE. conipialgosy process i

in eliciting testimony depends | upon the existence ofa

- legislative_purpose. Ip Kilbourn, v Phom psoy,. 103

U.S. 168, this Court held the process and subsequent.

_citation for contempt inyalid bevause the inve<tigation

ras. judicial in nature ‘and conld result in ne valid

legislation on the subject ty w hic h the i inquiry. referred.”

Td at.195. And-in Watkins vo U ‘nited State s, kupra, the

- Court said (354 U.S. .at 200): gd ”

ee. have.pe- doubt. that ae is. ny congres:. |

4 ional power to expose for. the sake ‘of? ex-

posure. The public 3 ix, of course, entitled to be

informed- concerning the workings of Its gove

_ ernment. “That. Ci andot be inflated : ‘nto a gen- *

eral power ‘to ‘expose. where hel caccunae

result. can * only be a invasion « 1 private

rights of individuals. | |

Gs, Hutcheson v. United 8 ates, 39) U.S. 199, 14.

We have’ shown above (pp. BOS, ye! ay (hat eondi-

ions in basic industry: eae well wittiite the Hower ul!

csp4 202 nll Bias eer re 7 “eo

-” ~ / r . , Pd

~ ‘

OF “EXTUSU RE FOR TALE SAKE or’ %

° |

« ‘ , .

’ :

68 ~..

’

Congre: ess to regulate, expe cially in the area of political

strikes and national security. That this Was the sub-

+ jeet ‘of the inquiry is apparent from the authorizing

_ resolution ; it was also explained to pian ah both at the

“start of and during the héeari ing (see supra, pp. 3-4, 4-5,

9-40). And the relevance and. usefulness. of the infor-

mation that petitioner peeping could furnish ji is clear

_ bey ond dispute (see supra, pp. 58-59, 61-63),

Furthermore, there can be no doubt -that Congress 7

and>the-Commiittee as its delegate were ae tually, con

ourned with sible Jegislatron in this very area.

Congress had. already _with the subject in sev--

‘eral enactments. Ir 1947 ‘the ‘TLabor-Manage ment Re-

lations Act. inse rted Section 9(h)- into. the “National!

Labor Relations Act, closing the facilities of: the Na-

tional Labor Re lations Board to unions w rage officers |

had not filed non-Communist affidavits. See American:

Communications Association v. Douds, supra, 339 U.S:

*. 382. After 12 years experience Congress deletéd this -

“provision and,.in See tion 504 of the Labor Management

Reporting : and Disclosure Act, eit a crime for a’.

member of the Ley aayernd ce ty hold. inion office.

_ 73 Stat. 536, 29 TS 504; . The. Subye sive Activities |

Control Act of 1950, as amended by the Communist

Control Act of 1954, deals extensively with unions

found. to; ‘be Communist fronts or ~ Communist-

infiltrated. Act of Septe amber 23, 190, 64 Stat. O87, 998,

as amended by Act of August 24, 1954, £10, 68 Stat..

771%, 0 U.S.C. 792a. The resolution authorizing the os

hearings in this ease, and the offening statement of the

' chairman iit thi he arings clk i od referred to the

a try

Committee's interest in appraising the effectiveness

of the Communist Control Act-and conside ‘ring amend- —

merits thereto. sesides the. pn dese ribed in the —

<Tation regard-

| ing C ‘ohimunistn at the time petitrone ft Was-subpoe hae “d

resoliition,. the ¢ mansiadle

(e¢ supra, pp. W213). At least two! INeasures Were

directly re lated to subversive activity at critical de-

fense facilities sue ‘h as hasie steel mills: a proposed

De fense~Facilities Protection Act of 1959 and H.R.

8121, which would have authorized the $ Secretary of ~

Defense to establish a security program covering de-

fense contractors and thermemplovees.

With this legislation pending and the witness in a,

. position. to give, highly relevant information, one

could ¢ cone ‘Inde that. the Committee —awas al sing its.

powers “only by challe ging the snitiven ok it mem-

bers. “The Court jhas consistently refused to enibark

upon such an inquity. It is “not onr frinetion.” the

+ Chie t Justice said in Watkins, to engage “in te sting

-* the motives af committer inembe as. * *)* Their mo-

tives alone. would not citiate «an investigation which

had been ‘instituted rea Hous Of Congress if that

assembly's legislative ‘purpose is being served,” 354

US. at 2). ‘Accord, Burenblatt v. United States,

360, U.S. 109, 132; I iIkinson v. United. States, 365-

U.S. 399, 412. -The rule ‘is hof new? ner ix it con-

_ fined to Congresitial investigations: As long ago:

Ae ee McC rag . United: ‘States, 195 U.S. 27. Do, It Was

he d-that- there is no authority in the judiciary to

Festrain’ : lawful exercise of power by another ne ha

ai: ment of the government because “a wrong -motiy

_ \ ° ; . Ya ey v / Sas ;

“ *

« -

/ e -_

‘

Cer: eee

purpose has inipd led the exercise of the power. See

also Arizona v. California, 283 U.S. 423, 455.

The record con ‘sins not the slightest indication that

the purpose of he Committee was to expose peti-

tioner. iPetitioner has not made that contention. “In,

this. respect the present case again’.is stronger than —

Barenblatt, Wilkinson, Braden,. and U phaus,. and i

affirmance here would be consistent with: an important

ground of dissent in those cases. Thus, in Baren-

blatt, the sole reason stated by Mr. J ustice Brennan for

reversing the conviction was that “no purpose for the

_ investigation | of Barenblatt is vevealed by the record

-_- except exposure merely for the sake of exposure.

This is nota purpose to oe Barenblatt’ s rights .

‘under the First’ Amendmert can validly be subordi-

~ nated.” - 360 U.S. at 166. Here the record demon-

strates -conclusively that the Committee had a

legislative purpose and was not intending to expose

witnesses or anyone else. Mr. J ustice Brennan’ s,dis-

senting opinions in Uphaus and Wilkinson are dis-

tinguisbable upon the ‘same’ ground, as are large

' portions of the opinions of Mr. Justice Black and Mr. |

J ustice Douglas.”

*In Braden, , Mr. Justice Douglas’ dissenit ing opinion, in ——-——.

which ‘Mr. Justice Brennan joined, « ..as based entirely on the | ;

ground that the witness’ conviction was -invalid because his

refusal to answer the.Committee’s questions was based‘ on_ his

reliance in good faith on the Watkins decision. 365 U.S. at

456-457: The majority of the.C ourt, relying on Sinclair v. United

. States, 279 U.S. 263, 299, held that such a ‘mistake. of law is)

no defense. 365 U%S. at 437-438. Petitioner here makes no . ,

contention that ‘he relied in good faith on earlier decisions *e

and therefore this issue is not before the Court. . | = ae

fo ; ; .

- . : al

fe ? - “

7 - ‘ ° i :

THE TRIAL COURT PROPERLY EXCL UDED EXPERT TESTIMONY

Nereis CONCERNING THE FIRST AMENDMENT ISSUE

Petitioner also argues (Pet. Br. 21-25). that the

trial court erred in refusing to consider the proffered

a testimony of Professor Emerson in weighing

the private and public interests in order to determine

-petitioner’s First Amendment rights. This contention -

is likewise erroneous.

“A. Professor Emerson's qualifications as an expert

"> weye that he was a professor of law at’ Yale Univer-

sity and had ‘made extensive studies in the field of

civil liberties (R. 93-97y. He ‘testified that he had

“concerned Lhimself] a/good deal with the Committee —

on Un-American Activities” (R. 97). His attention

“was then directed to this Court’ s decision in Baren-

blatt v. United. States, supra, with which he stated he

was familiar, and he was asked,(R. 97) :

Have you an opinion as to the various conshYtr-

ations which have to be taken into account in “

-halanecing the competing public and. private

ft ititerests at: stake:in the circumstances here

presented? : :

The government’ objected on the ground that the ques, |

tion: sought ‘testimony, from the wi i{ness on a matter

of law, not of fact: ‘The question invades the prov-

ince df the Court. It is asking for an interpretation

‘of existing eases, which it is for this Court to decide,

not for the witness to decide, whether or not he is an

expert”? (Tr. 228). a |

a rs

ad “ae,” refers to the reporter ’s typewritten iranseript of the

e lhe

trial proceedings. a. ,

: re. / ; / . if ‘ : Pos ‘

79° 4.

The trial court held that the question! sought in ef-

fect an involved legal opinion, (R. 98) and sustained

“® the government’s objection to its admission (R._ 99).

The court, however, permitted petitioner to put the

testimony into the record as an “offer of proof” for

. purposes of appeal. - Petitioner’s counsel rephrased

‘the ‘question: to insert the word “factual”? beforé the

word ‘‘considerations’’. (R. 99). The government

again objected and the objeetion Was sustained

(R: 100), | i

Professor Emerson testified that the government's

interest in seeking fnformation ‘from ‘petitioner was

to pass legislation, protecting against overthrow of

the government by force and violence (R. 106). He:

stated that in weighing this interest the court should

consider six factors. First, present statutes (which

he described) already performed this purpose... Sec- .

ond, the country.was strong economically, politically,

and socially. Prosperity, according to “Professor

Emerson,’ made-an ecdpomic collapse unlikely; no

strong radical groups existed which constituted a dan-

ger to internal secutity, particularly since there was

no indication that|the. police or military were sym-.

pathetic to attempts to overthrow the government; and

there was no serious social unrest (R. 103). Third,

Professor Emerson testified, the Communist Party

was extremely weak in 1958 both im numbers afid posi-

tions of importance; security pregrams prevented:

the infiltration of gdvernment and industry; and

Communist power in labor unions, religious and edu--

cational institutions, and the Negro’ community was

extremely small (Ru 1034106). The fourth factor in

/ ef >

’ | e ’ . Pd > P ra

bapa 73

determining the government's interest was the activity

of the A.F.L.-C.LO. and other unions in preventing

Communist infiltration of labor (R. 106-107). Fifth,

Professor emerson stated that the House Unt Amer-

ican. Activities: Committee, as shown by its reports,

already ‘thad taken substantial testimony on the ques-

tions that they addressed. themselves to in the Gary.

proceedings” (R. MOT). And,: finally the Conynittee

could obtain’ substantial information from Wdluntary

Witnesses (R. 108). | = .

Professor Emerson then expressed bis opinion con-

cerning the factors which the distriet court) should

consider in determining the individuals’ interest in

refusing to testify. First, citing Milton, Jefferson,

/Mill, Chaffee, Holmes, Brandeis, and recent) psycho-

logic: il studies, -he: testified that. the “freedom of

expression is essential to individual integrity and

- : eon A BS ‘ ds

cignity’’ and to the right to develop and realize the _

individual's potentialities (R. 108). Second, the wit-

ness said, the right of silence “recognized i in the classic

flag salute case” tis particularly important in mod- —

ern society: when so many pressures tend toward

conformity’? (R. 109). And, third, the individual,

has the right of association which “is based on the -

weaknesk- of” the individual as a single person. to

accomplish political or social change” (R. 109). Pro--

fessor Emerson emphasized that society, as well

the individual, has an important interest in freedom

of expressien since it “is a basie and absolutely fun-

daniental principle of the democratic process’” (i.

109). He described the sérious effect -on the individ-

ual’s interest from Congressional investigation of

beliefs and associations: the mere questioning of the

witness inhibits him from freely expressing himself; _

economic harm often results such as the loss of em-

ployment ; and the witness is often socially ostraeized -

(R, 110-111). In addition, other people besides the -

witness become afraid to engage in similar political

activity and associations. (R. 111). These effects are

not confined, according to Professor Emerson, to the

Communist Party since it is impossible to draw any

clear. line; the “whole* area left of center & * *

becomes sineared *.* * with the° Same. color” (R. :

111-112). : a

Finally, Professor Emerson stated that he thought

that the forces in this country tending toward a

closed society restricting independent thinking and

activity were now stronger than those supporting an

open society (R. 113). -In support of this judgment, .

he noted the great number of government employees |

subject to loyalty - tests, the lar units which domi-

- naté the econemy, and the ‘un nimity ‘of opinion ex-

pressed by mass media and educational institutions

(R. 113-114). He therefore stated that “as of this

time what is needed, in terms of freedom of expres-

sion, is that society encourage independence, un-

orthodoxy and differences * * *’”: CR. 114).

_ Professor Emerson. concluded (R. 115):

My. answer is, on the basis 6f the foregoing

ests of the Government in obtaining ‘answers

to the questions put tu this’ defendant as an

he _ in —s further — to pro- ,

$ . s

tect internal security are substantially out-

weighed by the interest of’ the individual in’

freedom of speech or silence, as-he may prefer,

and by-the interest of the community in main-

taining freedom of . political expression and

‘other conditions essential to maintaining an

open society. ia

After hearing Professor Ratton’ S testimony, the

government renewed the objection to its admission,

‘on the’same grounds as previously stated (R. 115).

In finally excluding the rt testimony, the trial

court said (R. 116):

[I]t seems to me that expert. testimony of this,

kind is not. material in that it is‘ not a ques- ,

tion of fact-as to what elements go to make up

. the balance of interests, public and private, but.

a legal matter, which is within the province of |

the Court to decide; and it’ is not a subject of

expert testimony. ;

Petitioner's contention” that. the trial court’s re-

fusal to allow the introdugtion | of Professor Emer-

son’s testimony was reversible errer 1s without merit |

for at least two reasons. First, we submit that, as

the two courts below held, the testimony was not.

properly admissible. It consisted principally .of ar-

guments’ concerning what legal factors ‘the ‘court

should consider and what. weight should be given, to.

each of these factors, not w ith factual evidence relat-

ing to the factors which the court might consider.

Thus, Professor Emerson’s statement, coming at the

close of petitioner's case, reads like the closing argu-

mt 16 : “6 ice or wa

ment of able ‘counsel summarizing his client's’ legal

position under the First Amendment. While such a

statement. could be preperly presented by petitioner's s

‘ eounsel as legal argument, the trial court correctly

held that it was not evidence: oS i

_ Second, even if Pr ‘ofessor Efmerson’s a

“were properly admissible, we submit that pétitioner’s ‘s

conviction should nevertheless be ststaineds This —

testimony was offered solely. in. re lation to petitioner's s

claims under the First Amendmenf. The issue -

whether a witness’ rights under the First Amendment ~~ a

have been violated. br a Congressional committee is,

ee as the Barenblatt, Wilkinson,’ and Braden cases

| plainly show, .a question Of law. Therefore; this

\ Court @an consider Professor Emerson's testinfony

vhich ‘4s fully Set forth in the record—in determining

po First Amendment claims | (assuming, con-

trary to our ‘contentions above, that the t testimony is

admissible for this purpose). a —*

-There is no need for the district court to ‘nake. the :

. . Initial determination of the issue whether petitioner's

First Amendment rights. have been violated on the

-hasis of the record including Professor Emerson's tes-

timony. Not only i is the issue, as stated above, a ques-

tion of law,- but we think its resolution is perfectly

clear. | Professor Emerson's testimony gave no new

legal or factual considerations Which were not consid-

ered by this Court in Barenbiatt. There the. Court

relied heavily on numerous earlier. decisions which —

7 described the serious danger to the country* arising

f ; /

f <n ee ; /

; aes, : . a : ~ VA . . /

. é ‘ rie | - / .

. i - . *

from Conmunist activities (360 U.S. at. 127-129).

E.g., Amertean. Comaninications, Ass'n Vv. hs 3330

U.S. 382, 388-3 80: Dennis'v. v sited ree, 410 SS.

494, 498; Carlson Vv. Landon, 342 U.S: 524, 5-56:

see Subversive: Activities Coritrol Act. of 195 1, TP itle 4

¢ 2, 64 Stat. 987- 989, °On the other hands Macc J ustic 7

Black, in disse ating in Barciiblatt, emphasized the in-

terest ‘in being able to join organizations, advocate

' ggitises and make political tmistakes’ * and contended:

that: - interest of the government int self-preservi-

tion” Was “vastly overstated. 360 TUS. at TH

Professor Emerson's testimony added liftle: to. these

basig contentions except to spell out the? competing

considerations in greaterdetail. Thus, he presented

no evidence which could chattee the: Court's determi-

~~ ation in " Barenblatt, Wilkinson and. Brad n " that,

Congressional committees can conipel -Wwithe 3 to

testify concerning their: Communist activities . ithout

smuaaey Ase First Ame ndment.. Ands as we have

shown earlier (pp. 56-57, 66, 7X, the partienlar cireum-

stances of this fase are Even st ronger itt faver of the

governmental as opposed te the private interests thane

in those “hreeve CASES,

—

oa "yy +. ° ® ° ’ *. . .

°** The Court also noted, in weighing the government's iuteresé,

the valid legislative purpose of the committee. the relevanes of -

the- questions asked the witness, and the lick of any indict? ign

that the committee was trying to. “geal ~~ Witness Or Wits :

using. dragnet - procedures (560) . s “tut on eon 2 ee pr,

Pp ave 59. ti-69),

ons

‘

mi an eve

THE STATUTE UNDER 1 w HICH, PETITIONER W “a8 CONVICTED 18 eer

‘NOT UN CONSTITUTIONALLY VAGUE

— — *

: constitutionally vague. In fact, however, ‘the. peti-

-tioner® was: ‘convicted. of violating 2-U.S.C. 192 (see.

- Pet. Br. 3), the: vontempt-of-Congress _ statute, which. -

.is perfectly--clear. Convictions under this ‘statute -

fg have been repeatedly upheld by. this Court, as in the.

Baregblatt, Wilkinson, and Braden ° eases.

Petitioner’s argument, is. therefore not sisacd at 2

the statute under which he’ was. convicted, but rather

at the. resolution of. the House of. ‘Representatives... :

: authorizing the Committee to conduct investigations

is “Thb Scher ¢ cage detually 7 inv volved ther hiciate Titiersat Sine ee

House 6f Representatives, 60 ‘Stat. . 823; 828. (see %

‘Pet. Br. 3). Rule XI, however, is nigt a eriminal | Ser

+ statute; it , dogs not prohibit or punish any con- ite

+ duet. Instead, . it merely‘seonfers autliority ’ on the: *

> Committee. to “conduct inv estigations within a- par- AD

ie eparanes ‘do not: apply to the construétion of Rule XJ.

: Petitioner, however, claims (Pet. Br. 30). that this

ie Court held in Watkins v. United States, 354 U.S. 178,

208, and Sacker v., United. Stafes,:356 U'S. 576, 577,

: that Rule XI must he treated ‘as a ) criminal statute, ue

rity Subcommittee, v which, of course, has a ‘different authérizing

resolution.

Of --.

Petitioner -cotanis: ( Pet. Br 30-32). ‘that the

statute under which’ ‘he was convicted, 1.€. , House Rule. |

.” XI, ‘the: Committee’s authorizing resolution, was unD- -

‘A °

- Those cases, state ‘only the proposition, to, which we

Of course agree, that “the courts must -accord to the

.- defendants’ ‘[under 2.U.S.C.. 192] every right which is

~ guaranteed. to defehdants i invall other criminal cases.’? ~~ °

| 854 US. at 208. “The Court then went on in Wathiis

* . cand Sacher to require that. the Congressional commit- ‘

_ tee explain to. the. witness, upon proper objection,

| the pertinency of its questions to the subject under |

inquiry. But, as, the” Court: expressly said in ‘Wat-

, kins, the subject. under inquiry could be made clear’

- to the witness not merely by the House | ar Senate reselu- -

| tion establishing the Committee: but. also-:by the resolu- °

~ tion of the. committee authorizing the ‘particular hear-:.

ings, the opening statement of thé committee chairman, -

2 the testimony of other witnesses who appear at the hear- -

ings and ‘statements imade by-the committee to. them,

‘and. statements made by the committee to the par--

; ticular, witness: himself, - 354 U. S. at 209-214. Thus, :

_™ment of the chairman and testimony by othier wit-

“messes to show the’ subject under inquiry. 366 KS.

2 124-125. Rule XI_ was considered. in. Barenplatt :

only i in order to determine whether the committee was

. authorized by the House of Representatix es to conduct

the investigation. . In no. contempt-of-Congress case .

has the Court\ considered Rule Xf as part.of a. crim-

“inal statute undér which the witness was convicted: >

—Itis therefore clear that the gove ernment is-required _

to rely on Rule XI only: to show: that the Committee

was authorized: by. Congress to investigate Communist . _

activity in basic industry. ‘This Court has ‘specifically

acaeeur

a®

7 “vagueness.”

Braden, this Cour

tion that Rule X¥ was “fatally vague” by holding’

.. ,

‘ . ‘held that Rule X1i is sinficiently clear: to give the Cob n- :

a mittee authority te inv estigate Communist activities.

Barenblatt, the Court stated — U, S. at 117):

‘ ‘vagueness of Rule XI deprived the Subcommnit-

. +: tee-of the right to compel testimony in this in-|

yestigation \into Communist activity.. We can-

‘not agree with this contention, | which in its

in any roan.

rejected the petitioner’ s. conten-

that Rule XI properly authorized: the investigation,

365 U.S. at 433 ; see also Wilkinson v. United States,

365 U.S: 399, 409.

In all three of tltese cases, this Court aad con-

--viction: under '2 U.S.C. 192 for refusal to.answer

*. questions asked by this very same Committee pur-.

suant to the authority given it by the’ House of Rep-

: resentatives in Rule XI. Rule XI was sufficiently

. '

elear |to sustain a conviction in those CASES ; it is -

-. equally’ ‘sufficient, ‘under essentially the. same circum.

stances, to sustain: petitioner’ S conviction here...

| See the petitioner's brief in No. D4, Oct. Term. 1960, pp.

a ; eee

vw . "ae

” * * «*

Petitioner also contends -- ** * that . the |

furthest-rea h would mean that the House, Un- -

, American Activities: Committee under its exist- -

\ ing authority has no right. to compel testimony

US. at. 122-123. Sinailarly, a

a aie) eae her

‘ ; ‘. . , LV eS : is

rs ; é aay + . iy °

ea 4 fe ‘ ¢ a: Ber >.

THE COMMITTEE’ S RULES pip NOT: REQUIRE THE COMMIT- ,

TEE TO‘GRANT PETITIONER'S S REQUEST TO APPEAR AT AN

- EXEC UTIVE SESSION :

Petitioner argues” (Pet. Br. 26-29) that the Com-

mittee’s failure ‘to allow him to appear at an. exeeii-

~ tive session, instead of at the public’ hearings, violated

-its rules, and so excused | his refusal to answer ques-

- tions in the. public. esession. This areetent, “tow,, 1s.

—ATthough petitioner was Served with the Cousinatt-

_ tee’s stibpocria on January 23, 1958 (Gov. Ex: 2, pp. 2),

“he did not’ ask the Committee to. appear at an execu,

tive session until Febriiary 6, 19: 58, the Thursday pre-

ceding the Monday on which he appéared as a witness.

_ On that date, his counsel sent-a telegram which was ad-

dressed to the Committee counsel, not to the Commit Lee

or its chairman (R: : 284a), whic) stated (Def. Ex. 1)?

>. ndersigned represents Edward ¥ellin and

7 Nicholas . Busic. \ On their behalf I request

executive session. in lieu of open session, * Tes-

‘timony needed for legislative purposes can. be

“sectired. in executive session without eee:

witnesses to publicity.

Since the telegram arriyed in w ashington after the

- Counittee chairman, and counsel had left for Gary;

Indiana, to conduct the hearings (R. 37, 39), it was

_ answeréd by the Committee staff director, who denied

the kequest (Def. Ex. 2). The record shows that the »

_ staff director had no authority to act on petitioner's

request (R. 286a).. wea

Petitioner siliek on “Rule Iv-A of the Rules of —

Procedure of the House Committee on Un-American —

_ Activities as requiring. the Committee to grant his

_Tequest for an executive session. Rule IV-A states:

If a majority of the Committee or Subcommit-

tee, duly appointed as provided by the rules _

of the House of Representatives, believes that

the interrogation of a witness in a public. hear-

_ ing might endanger national security or un-°'

- justly injury his’ reputation, or the reputation

-of other individuals, the committee shall in-

terrogate such witness in an executive session _

for the purpose of determining the necessity

- @& advisability of conducting such interrogation

thereafter i in a public hearing. S

Rule IV-A does. not: give a witness a right upon

request to an éxecufive session whenever ‘specified '

cireumstarices are. present: so that the Committee’s .

_’ refusal to provide this right is reviewable in the

courts. - Instead, the rule leaves it to a majority of

the Committee; or appr priate subcommittee, to de-

cide whether to interrogate the witness in. executive

session. Thus, the rule phovides that a ‘witness: be

questioned in executive “ate whenever “a majority

of the Committee or ‘subcommittee * * * ‘believes -

that the interrogation of a witness in a public’ hearing

might * * * unjustly | injure his reputation + Be ake

(emphasis added). This language gives the Cam-

mittee sole diseretion, er to —_ - witness 1 in me

lic or executive session.» :

The Committee in: ‘fact decided not to. have pati:

tioner testify at an exectitive session éven though af

> «

} a

it did not know that petitioner had request such. |

an appearance. Congressman Walter testified that

“the. Committee * *. * passed on the ‘question of

whether or not we would hear Mr. Yellin lat a session

when the purpose of calling him. was: “discussed, and

it. Was decided then that the rule with respect to an. .

executive session was not applicable #9" (BR. 7).

We have emphasized that Rule IV-A confers: no

“right: on* petitioner to-have this determination re-’

~ viewed by the courts. Even if. Rule IV-A did im-

-plicitl ; provide for a right of review, it is clear than -

‘2 Congressional committee has: broad-discretion jn

determining its own procedure upon such questioris as

whether’ ‘to hear a witness in an executive or public

‘session: There is nothing in this record to suggest

that the Committee abused its discretion in this case.”

THE QUESTIONS WHICH WERE THE BASES FOR COUNTS 2

AND 4°WERE NOT TOO VAGUE TO SUPPORT THE INDICT-

MENT | | ac

Petitidner claims (Pet. Br. | 2-34) that the ques. .

tions contained in ‘Counts 2 and 4 are tou vague to

% Petitionér also suggests (Pet. Br. 27, footnote) that Rule

XI(m) of the House Rules’ gave him the right to appear in

executive . session. The languag e of this ‘provision indicates

that it was intended to protect persons other than the witness .

himself from being injured since it allows the injured person

“an opportunity voluntarily to appear.as a witness * * *” As

the Committee counsel testified at) the petitioner's trial’ (R. 88+

90), this was the Committee's interpret ation of the Rule. More-

Bs over, Rule. XI(m): like Rule IV-A of ‘the Committee’s own

rules, confers no right on anyone to appear ™ executive -

session unless the Congressional committee so determines—a

determination which was not made in this case.

662429627

\ ‘? :

« ‘84.

\* @

satiety the Sixth Auiendment ani Rule. 7(c) of the

Federal’ Rules of Criminal Procedtire, which require

-— -that in all criminal prosecutions the acctised shall be

informed of the nature and cause of the accusation.”’

‘The question involved in Count 2 was: “Will you tell ;

_ the Committee, please, whether or not incidents came -

to your attention of the colonization of the steel

‘unions in-Gary by the Communist Party at any time

prior to September 1957?’’ The question involved in

Count 4 was: “Will you tell the Committee whether

or not in 19 57 theré were present in any of the steel

“unions at Gary, Indiana, persons who were known

to you to have been colonizers of the: Communist

Party?’".

Petitioner specifically does not question the. fact

that he understood the: meaning of these questions.

Rather, he states that “(t]he issue was not whether

he- understood the question, but whether the indict-

and of Rule 7(c) of he Rules of Criminal. Proce-.._

dure”’ (Pet. Br. 33). | .

i First, even, if, contrary to our sasha below,

Counts 2 and 4 are invalid because of the vagueness

of the questions, petitioner’s convictions still must

be affirmed. He received concurrent sentences on all

. four. courfts and therefore his conviction must, be

sustained if any one count. is valid. E. g., Barénblatt.

v. baba States, 360 U.S. 109, 115. Thus,. petition-

er’s attaek on these two: counts need not even be

v considered by the Court.

B. Second, petitioner Lis precluded from raising ‘5

this issue bec ‘ause ‘it was not presented—or even Sug,

gested—in his petition for a writ) of certiorari. _

Therefore, under Rule 40(1) (d) (2) of the’ Rules of

‘this Court, he cannot raise’ it in his br ict on the

merits unless there was.“plain error.” aa

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

_ .C. In any -event, petitioner's contention is élearly ie

without merit. The Sixth Amendment and Rule 7

require that “[t]he indi ‘tment * *.* be a plain,

cise and definite written statement of the essé

facts constituting the offense char ged” (Rrile

so that’ the accused -can adequately defend himself

and can plead a conviction‘ or acquittal inv bar of a

subsequent prosecution for the same off(nse. Ey.

Russell y. United States, 369 U.S. 749, 762-764:

United State. ¥ . Debrow, 346 US. (374, 376-378. Tlie

\ indictment set out clearly ‘the Commnittee’s investiga-

tive authority, the subject under inquiry, the. facts:

coneerning the hearing, the subpoenaing of -petitioner,.

his appearance, and his wilful refusal to answer five

pertinent: questions, each of which was quoted (R.

1-3). Thus, ‘whether or not the questions themselves.

“were vague, these allegations clearly and ‘sufficiently

allege that petitioner violated 2 U.S.C. 192 by wil-

fully refusing to answer pertinent questions asked

by a Congressional committee... “The fact that the in-

dictment did not spell out the: meaning -of the ques-

tions did not prejudice petitioner either in preparing

his defense. or by allowing the, possibility of a new

prosecution for the same offense. ae |

As to’ preparing his defense, it) would not have

helped petitioner to have the indictment specify the

meaning of the questions. The charze was that he

E.g., Kessler

-had refused to answer the questions. The only posai-

ble defense which could turn-upon their meaning is.

that pétitioner refused.to answer the questions be-

cause he did not understand them. But. that defense

depends on whether petitioner understood their mean-

ing when he appeared before the Committee; if he

did not understand the questions at that time, it would

. do no good to acquaint him of their meaning in the

indictment.” -As to a second prosecution, the indict- —

ment specified the Committee holding the hearing, the

time of. the hearing, and the questions petitioner re-

fused to answer. There was no’ possibility of a

' . second prosecution for — refusal to answer .

these Same questions.

The indictment was not required to detail the mean-

ing of the questions . which petitioner. refused to an--

’ gwer either by describing their-context in the hearing

or: by: defining the various words which were uséd.

Frequently, questions standing alone are, vague and

. ambiguous. For example, in the Barenblatt case, this

Court upheld the conviction of a witness for refusing |

_ to answer the question, “Were you ever a member of

the Haldane Club of the Communist Party while at /

_ the University of Michigan?” 360 U.S. at 114. The

indictment never described the Haldane Club or i

exact connection with the Communist Party. A

quirement that such questions be explained in tne

. . ‘indictment would be contrary to the language and

We. show below (pp. 87-90) that patitionar did understand , - /\ ~

the questions at the time he refused to answer them and that, -

in any event, this defense is not open to him since he did not

claim that the questions were vague at that time.

MS iets ial fe

' purpose of Rule 7(c) that the indictment he a i

- cise statement of the essential facts. The meaning of

the question is not-an essential element-of the crime of |

- contempt; it is the wilful refusal to answer which

constitutes the crime. )

D. It appears, despite the denial in this brief,

- that petitioner’ s ‘real contention is that the questions

did not adequately apprise him of the information.

sought by the Committee and -that therefore he ean-

not be convicted of contempt. We agree that a wit-

ness before a Congressional committee cannot be con-

victed of wilfully refusing to_answer questions asked

by a Congressional committee if the witness informs

the Committee that he cannot understand what infor- -

mation the Committee is seeking and the Committee

nevertheless fails to state or explain the questions.

with reasonable clarity. We emphasize, however, that -

the witness is required to object on the ground of

vagueness at the time the questions are asked by the

committee.” Just as with regard to the pertinency

of the questions to the ‘subject under inquiry, the com-

_ mittee can easily explain the meaning of its questions’

if the witness is in doubt. Therefore, the issue of

vagueness, like the issue whetherthe committee suffi-

ciently apprises the witness of the pertinency of the

questions (Barenblatt v. United States, supra, 360.

U.S. at 123-124; Deutch v. United States, 367 U.S.

456, 469), cannot be raised for the first time at trial.

~ Here, petitioner, although he made several-objections |

to the questions he refused to answer, did not even —

indicate that he failed to understand them.

e“other hand, unlike the situation with regard

issue’ of pertinence y, we do not think that the

éverkment is required to prove the meaning of the

questions at the witness’ trial for contempt when he —

fails to raise the issue before the committee. In

Deutch, this Court held, even though the pertin

_ of the questions Was not. questioned _ i learing,

that the government is ‘Tequired to prove pertineney

vat the trial. 367 U.S. 468. This holding: was. based.

. entirely on the explicit requirement of 2 U. S.C. 192 par

- ‘that the? — be “pertinent to the question under_

inquiry.”’ Since 2 U.S.C. .192 does not make*the a5

clarity of the question an element of the offense, we

do not think that: the government is required to prove

it, unless it was timely raised before the comniittee

itself. rea : oe

In any event, in this case, the meaning of the ques-

tions in Counts 2 and: 4 was made clear to petitioner

at the hearing and the introduction -of the transeript

of the hearing satisfied any burden the government

may have had to show thei

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