# Brief for the United States on Reargument — Yellin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0242%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Brief for the United States on Reargument - **Published:** January 1, 1963 - **Citation:** 374 U.S. 109 ## 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...-- ” \ ; : —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 ; f > 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 / A 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 / Se ‘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 ss “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. : e =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. ,; a 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. - \ q , \ : 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). *.. We 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 \ a4 ~ —s . AY) G ° 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 \ ye 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 ia see $4 mittee - was of the’ opinion that it might be necessary — to am nd. various acts of Congress to “‘tighten up laws ~~ Qs | 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 ff ~ 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 -° ' . 16 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). © | 17 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 = 18 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 , ue 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 - if 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. — oa sy _ 2 Il 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 , ; 22 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. + IV 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 v 23 / think it deinn-. 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 AS 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) : x 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- x 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. o / 99 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 © Jay Cooke & Co, and the resulting losses to Hinerous. t © 30 . 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. 31 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. 36 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 Sa ° 2 ‘ é ° & + 30 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 40 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. 41 _ 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. 8. 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 44 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- a 8. ¢ f ‘ to ties in ‘the basic ) 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. : — 48 -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 register, open “to police officers, ‘and the only harm, 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.. * *.* a: “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 o a: 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 oe oe - 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 — 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- t 56 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 37 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 : 38 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 é ° 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 61 . 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- e . 62 ‘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. :) ~ 8 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- taining information from petitioner against the in- © dividual interests which he asserts, it is surely rele- vant that petitioner is asserting a right, not to express his beliefs and engage in. open Political activities, © - 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- — / : J 2 . % 65 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 . . e ‘ ‘ ~ 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, 4 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 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, ~ s 0, 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 oe 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 — 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. , oa : 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 t 74 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 considerations, it is my opinion that the inter- © ests of the Government in obtaining ‘answers to the questions put tu this’ defendant as an he _ in —s further — to pro- , eS * 4a $ . 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, f ‘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- ee 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 Committee. to “conduct inv estigations within a- par- AD > ticular. area, Thus, the mules for’ construing’ ‘criminal © 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 ° ~ Y - 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, : ‘in Barenblatt, the Court relied. on the’ opening state-- © _™ment of the chairman and testimony [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0242%3A6. Public record. Not legal advice.