Brief Amicus Curiae — Yellin v. United States

Supreme Court of the Anited States |

- October: Term—1962

EDWARD YELLIN, 3

‘ : Petitioner,

/ ‘

UNITED: ST. ATES OF AMERIC A.

Re spon dent,

" BRIEF OF THE AMERICAN CIVIL LIBERTIES °

UNION as AMICUS CURIAE ON REARGUMENT

. Osmonn K. FRAeNKEL,

120 Broadway,

New York 5. N. Y. 2

Attorney for American Ciril

Libertiis Unicn, Amicus Curiae.

Interest of Amicus .......... rere. Gh ack ea wee a

Argument ....... Ka Qeakdd tc iiee denn oe kien chirs

-Conelusion ..... ee TE Sig Riemer e de cos 8 ‘

Table of Citations.

Cases:

Barenblatt Vv. United States, 360 U. 8. wee > © e

Bates v. Little Rock, 361 U.S. 516 ..-....:...... 3,

Braden v. United States, i * | 24

Bridges v. California, 314 U.S. 242 .............

Mapp v. Ohio, 367 U.S: 643 ........ SE PUT ORT |

Maryland v. Baltimore Radio Show, 338 U.S. 912 2

Minersville School District v. Gobitis, 310, U..S.

Maks cake wanes PEE OS are Oe oh a eae

National Association for the hii iibinacns of

‘Colored People v. Alabama, 357 U.S. 449 ..:....

National Association for the Advancement of

' Colored People v: Gallion, 368 eS) Seren

Pennekamp v. Florida, 328 U. S. 381 ¢.... ree.

Talley v. California, 362 U.S. 60 ........ . vrere

West Vi irginia State Board of Education. v. Bar-

nette, 319 U.S. 624 ........ Prceecadecie aise

Wilkinson v. United States, ag Oss vans .

. Wolf v. ape 338 i SS | Perey y ee ieteb ks ae

Otrner Av THORITY :

' Frantz, The First Amendment in the Balance, “1

. Yale L. Jour; 1424 ..:...... PEE OE ae eee ae

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Supreme Court of the United States

October Term—1962

No. 35

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, Evwarp Yeu,

Petitioner,

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Unitep States oF AMERICA, !

| Respondent

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BRIEF OF THE ‘AMERICAN CIVIL | BERTIES :

UNION AS AMICUS CURIAE ON REARGUMENT

j Interest of Amicus |

This brief is hei ‘ing submitted with the consent of coun-

sel for both sides filed with the Clerk of this Court.

The American Civil Liberties Union is ei non-

profit organization devoted to the implementation of the

rights guaranteed by the United States Constitution. It is

especially concerned with governmental action which in

any way restricts freedom of expression or association.

; . °

Argument . |

This case presents another instance of a ponviction for

_contempt ‘for refusal to answer questions fut yy a Con-

gressional Committee relating to Communist affiliations.

‘We are concerned only with the issue of thé scope: of the

First Amendment in sich inquiries and wish to press upon

the Court the desirability of overruling its decisions ‘in

Barenblatt v. United States, 360 U. S. 109; Wilkinson v.

“United States, 365 U. S. 399, and Braden v. United States, ©

365 U. S. 431.

- & ¢

& erations mentioned by Mr. Justice. Frankfurter in. Mary- |

- land v. Baltimore Radio Show, 338.U. S.-912, at 919, 920, -

In those cases the majority -of the. Court rejected con-.

. tentions based on the First Amendment on the ground that

there was involved ‘‘a. balancing by the.courts of the eom- .

peting private and public interests at stake in the: partien, i

lar circumstances shown”. (360 U. S: at 126):; that it was.

Pose: “the nature of the Communist activity involved-* * * that .

- establishes. the ov érnment’s ov re interest”? (365

U.S S. at 414).

We respectfully submit that: the: underly} ing peers oy

a ‘‘balance’’ of interests is fallacious, partly because’ there

b J

-* is no room:in the First Amendment for such balancing, -

partly because Kigh if balancing: were appropriate the

ave

-seales are unduly weighted if one considers the i issue > to le: .

one of public versus private, interest. -

me ‘¢ .

re \ We i recognize, « of course, that those | views have been re- -

. > \. Jeeted by the Court though eloquently addréssed by its own .

members in dissent (sée. particularly Mr. Justice Black,

“360 U.S. 142-145). But just as this Court-has, from time .

fo time, ‘overruled earlier decisions upon latér reconsidera- -

_ tion (see, notably, Minersv ville School Dist. v. Gobitis, 310 -

U.S. 586, overruled by West Virginia State Bd. of Educ. v.

Barnette, 319 U. S. 624; and Wolf v. Colorado, 338 U. S. 25,

: overruled by Mapp v. Ohio, 367 U. S. 643), So we submit

that it should now reconsider Barenblatt and ¢ cases resting:

rs on it and overrule them..

atl ee At the. outset we. Wish: ti make it ee that the | nosi- ‘

tion we are urging. upon the Court involves no-dogmatic are oe

assertion of absolutes. Situations can be envisioned. in "|

' which unrestricted: freedém of expression might result in.

: the denial‘of another basic right guaranteed by: the: Consti-

tution; such as the right té a fair trial. (See e.y.:the consid-

-and.cf, Bridyes v. California, 314 U. 8; 282; Pennekamp v.

# ssa 328 = S. si and ‘Craig v. — 331 U. S. ver

er

2. While ‘the distinction may appear a ooniansie one, -

the proper approach,. as developed at length by Fr in

The First Amendment in the Balance, 71 Yale Law Journal |

1424-50, is not one of ‘‘balancing,’? but one of definition. In

other words, the basic question posed in the context of the

- case at bar is ‘whether the First Amendment protects a. per-

‘son’s right to be silent with regard to certain kinds of |

~ affiliations and,-if ‘so, then to what extent. In defining the |

extefit of such protection ‘the courts ‘must, of course, ¢on-

sider. the! consequences of any rule. And, as Mr. Frantz.

. / Is the right t emain silent about affiliations, politi-

; fe wk religions, or other e, protected by the First. Amend--

- points out’ in briefly mentioning this problem (op. cit: ‘at

_ 1434), that process can be described as. ‘‘balancing.’’ But

_ he persuasively demonstrates the dangers that lie in- such

approach. n =D < .

3. In any case, regardless of the language used to de-

scribe the. judicial process invdlved, it is a fundamental |

_ error to suppose that what is inyolved isa consideration of

‘priv ate'versus public interests. ‘Merely posing: the problem

‘in-sueh terms almost produces the answer. The First

Amendment does not exist to’ protect private interests, -but .

to enshrine the most basic element of a democracy, namély,

the importance to the community of the fullest and freest

discussion of publie i issues, discussion which, of course, is ‘

Ps impossible without free association, even, _as'this Court ree-_

ognized in Talley v. California, 362 U: 8: 60, without a.

- measure of. anonythity. Indeed, the majority of the Court.

a there i in effect rejected the ‘‘ private v. publie’’ interest con-

sideration’ which was 3 relied on by the. dissenting justices.

2 (362 U: S. — Gat tr textee ent Sasa 4 ..

a e:: * J :

= the light of the foregoing, there are various ques-

tions which should be considered by the Court.: -

»

«ment at- “That the-‘answer must: be ‘affirmative cannot

‘be “doubted in -the light of this Court’s various decisions.

(See- particularly Rates v. Little Rock, ‘361. U. 8. 516, at ~

~7523. wi .

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been

9: Is that right protected against inquiry i all gov-

s ernmental agents, and if not,. against which? Here there

‘is, we submit, reason for consideration of the objectives of

_ such agencies.. For instance, an answer can be compelled

'- in a law suit where it is deemed. relevant to an issue which

‘must be decided to the detriment of one of the parties. For

there the public interest in the fair administration of jus-

‘tice is superior/ to the public interest in free association

anying right not. to disclose, leaving the wit-

_ mess’ te such protection as the privilege. against self-incrim-

sf ination “might give in an appropriate case. =

Can; however, it be said that. the public interest in all °

inquiries by: legislative . committees is so great as to out-

. weigh. its interest in free ass@Miation? . Surely not, as this.

_ Court’s decisions in-National Association for the Advance-

ment of Colored People v. Alabama; 357 US. 449; Bates \

_ Little Rock;361 U, S. 516; Louisiana wv. NAACP, .366.U.S

293, and NAACP v. Gallion, 368 U. S. 16; make clear.

To draw the dine the Court has attempted various for-

“mulations, no Ofte - yhich appears to. have secured ‘the

approval of all its memt ers, Perhaps. that made by Mr.

. Justice Stewart in the Bates case, supra, at page 524, has

», met with the widest approve al. It certdinly has the advan.

a tage over the fornitilation in Barenblatt, which weighed

private against. public. interests. Paraphrasing what Mr,

Justice Stewart said there; the -problém here is whether the

Committee . on ‘Un- American Activities: of: the House of:

Representativ es has “‘demonstrated' so gogent an-interest??

in obtaining answers to the questions put ‘fas to justify

the _substantial abridgement - of associational freedom:

which such disclosures will effeet.’" -- eee

' To such 4 question it is not a sufficient answer to point.

to the: dangers of the Communist conspiracy as was done in

Barenblatt (360 U. S. at 127-128). To recognize -that these .

dangers justify the creation of a committee to gather facts -

‘to assist the Congress in’ legislating i is a far ery from ac-

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cepting them: as sufficient to require disclosure of affilia-

tions from unwilling witnesses. For it should ever be borne

in mind that the only proper objective of such a committee ©

— Is to’ recommend legislation, not to establish the facts with

regard to a particular individual or occurrence. Of course

‘some facts must be established before legislation can ra-

tionally be proposed. But, unlike a law suit, not all the

relev ant facts need be developed. . ww 2%

We suggest, therefore, that the courts, in | considering

the right of any ‘investigating committee substantially to

abridge associational freedom, should consider the cogency

of the need for the particular answers requested, ‘not the .-—

importance of the general subject under. investigation.

This, perhaps, -is another way of putting the objections

- Voiced to the insistence on answ ers in particular instances

as being motiv ated by. the desire for exposure. (See, ¢.g.,

Mr. Justice Brennan, dissenting in Barenblatt, 360 U.S. at

166, anil in Wilkinson, 365 U.S. at 429.) Our suggestion

avoids the aseription of ‘‘motives’’ Which the ‘majority in

Barenblatt ruled to be bey ond: cam scrutiny (360 U.S.

at 132, 133). ..

For what a court will do if our suggestion is deemed

acceptable would be-to study the record, not only with re--

> gard to the particular witness, but the. entire record relat-

-ing to the background, to see what -infotmation thé Com-

mittee had obtained and was generally available. Ordinar-

ily enough information for legislative purposes is gathered

from willing witnesses. That certainly has been the case

“with the: House Un- American Activities Committee. Only .

if a study of the whole record shows a ‘‘cogent interest’? in

. Obtaining answers to the particular questions put to the

recalcitrant witness should answer be compelled—or pun-

ishment inflicted. ;

* o- +

. So we eonie to the record here. Counsel for petitioner

attempted, at his trial, to establish that the Committee,

when it questioned him, already had so much relevant in-

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formation that its interest in answers Ao. the questions put —

was trivial. The Court of Appeals appeared not to recog-

nize the issue which had been hace aie (See 287 F. 2d

292, at 298.) ..

- The government, while Whining. that the judicial fune-

. tion is ‘‘exhausted’’°when it has assessed the importance

of the subject matter (Brief of the United States on Rear-

gument, p. 60), in effect admitted that the Committee had

full information (id. p. 61); but urged the importance of

corroboratiof—as though the inquiry were a trial at’ which -

conclusions of fact had. to be. drawn! ‘

The government’ 8 fprther contention (ia. ‘p. 62) that

_ the inquiry was necessary because the Committee knew

nothing about. the activities of the Communist Party in.

Indiana is also beside the point. Indeed, the claim is disin-

genuous in the light of the many pronouncements about the

Communist . Party which have emanated from Congress.

For the issue is not, as the government would have it,

whether petitioner could offer material for “new investi-

gation,’’ but whether there, was ‘‘eogent’”” ‘need for it in

view of what was already known. And of that there was

no evidence whatever.

oF. -- CONCLUSION” ee

_ . Weurge that Barenblatt, Wilkinson, and Braden be —-

overruled and petitioner’ 8 conviction reversed. . ‘

Respectfully submitted,

Osmonp K. Wiis:

» 120 Broadway,

“New York 5, N. Y.,

Attotney for American ‘Civil

_Liberkes Union, Amicus Curiae.

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