Petitioners Reply Brief on Reargument — Yellin v. United States

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| Olico- Supreme Court, U.S.

enperee= COURT. U. & EILED

NOV 28 1962

JON F. DAVIS. CLERS

_ No. 35.

- 1 ~. Epwarp YELLIN, .

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Unrrep States or AMERICA. |

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_ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT

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PETITIONER'S REPLY BRIEF ON REARGUMENT

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Rasinowrrz & Bouin

30 East 42nd Street

New York 17, N. Y.

‘ 7 Weciistzn & Deryrvs

= | 504 Broadway

Gary, Indiana

Counsel for Petitioner

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INDEX

_ SUBJECT INDEX ©

Petitioner's. Reply Brief on Reargument ..........--.---- }

Porxt 1—The Activities of the Committee Constitute

Unlawful Abridgement of the Constitutional Rights

of the Petitioner ags...-.------e:-cc-ceceseeeee ceteris

Point 1I1—On Balance, Petitioner's Right to Refrain

From Disclosing His Political Views and’ Associa-

tions Should Be Protected. in the Circumstances of

i ER ova cnhstnnncsarnrans mages Pistia CN 3b ar de eee TOPE 7

Porxt I1I—The Statute Under W hich Pet itioner Was

Convicted Was Unconstitutionally Vague eadieebimets 15

Poixt IV—Petitioner Was Entitled to Be Heard at

Executive Session ................. Fs saoik sepia oaanoaremnetasaloe . 16

Conclusion sciences Ses Sessattren ee eccaiieds 18

TABLE OF “AUTHORITIES CITED

CASES | |

“A. B. Small Co. v.. American Sugar Refining was .

DT OG, I ainsi encic cna cnsncnnesntagerennssossssnsnnreniese se 15

Adamson v. California, 332 U.S. _— eke ee ee

American Communications Association v. Douds.

Sk oe | eae ener een pms ore 9,13

Barenblatt v. United States, 360 U.S. = oe oe % f

4, 3, 6, 7, 9, 12, 15, 16

Bates v. City ” Little Rock, 361 U.S. ia ea aes 3

Braden v. United Staies, 369.U.S. 431.0... 1.635

Bridges v. California, 314 US. |” SESSION eae

Carlson v. Landon, 342 U.S. 524 —........--- IRE RD .

Child Labor Tax Case, 259 U.S. 200 -...0..e. Se

Communist Party v. S.AC.B., 367 USS. 1. oo ee

De Jonge v. Oregon, 299 ty i ean Ss aaa ES 4,6

Dennis v. United States, 341 U.S. 494 20.2.2... ;

Hearings, House Un- American Activities Com- -

mittee, 88rd Cong. 200... AES tes. RS

ii tree INDEX oo

: é \

\

: \ Page

Hannegan v. Esquire, 327 U.S. 146 ............ SF Le eR a 6

Jones v. Opelika, 316 U.S. 384 hein I tee 6.

. National Association for the Advancement of Col- :

ored People v. Alabama; 357 U.S: 449 20. aco

Olmstead v. United States, 277 US. 438 . so CE . 2

Scull fr irginia, 359 US. B44 occ eee 3

Shelton v. Tucker, 364 U.S. 479 0000... Dakuasaapaed 3

Standard Chemicals Corp. v. Waugh. Chemicals ‘

Og MT hice hcsccics es cance cancapaasetonancsancscact 15,

Stromberg v. California, 283 U. S. 359 ect lecceecage #: a

Sweezy v. New Hampshire, 354 U.S. 234 200000000... 3

United States v. C.1.0., 335 U.S-106 oo. . 6

United States v. Colien Grocery Co., 255 U.S. 81... 15

United States v. Flynn, 216 F. 2d 354 ooo... , &

United States v. Rumely, 345 U.S. 41 oc... 4,15 ~

Watkins v. United States, 354 U.S. 178 oo2002000.-... 3,6

~ Webster v. Fall, 266 U.S. 507 ooo. 16

West Virginia Board of Education 2, Barnette.

a skins 6

Whitney v. California, 274 US. 357 Sat al ban 6 -

Wilkinson v. United States, 365 U.S. 399 1, 6, 15, 16

Yellin v. United States, 287F. I ccdictennitelacas 13 |

CONSTITUTION — . Z |

First Amendment ae anes CD) PO aes 3, 4, 9,10, 43

SI ON Lain ssn cons ascnninnnani sanissaasnallip

Pd ;

STATUTES fe ice a

BUBO. D9 oe nn dee OR

Subversive 4 ctivities Control Act of 19. 00, 64 Stat.»

GWAR: nies a ei ee ee bakueets Seles ketasaaneeanadondlh 2

CONGRESSIONAL MATERIAL ,

Charter, House Committee on C n-American Ac-

Ekta a SEER A a ee a “4

Hearings, House Cn- Gestis Activi ities (‘om-

mnittee, 82nd -Cong. —.....0......: SRST EREY. A, AEE 8

; \ < i F : INDEX

a. House Un-American Activities Com-

mittde, 84th Cong. ...00020. 2.8 RC ea ae POI wes

Hearings, House U n- American Activities Com-

. mitted, Sih Cong. 0... St. SE BEY cher ae

Standing Rules of ‘the House of Representatives, 7

Rule 3 XI aren canaarn kannadtasans Shgnnsenndsousenea beseseceecessences

%

MISCELLA ae |

Douglas, “The Submet ‘rod Ameriean”, treaties

Magazine, Aug, 1962, p..2 ........ ..:... eae Sen

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a THE SUPREME COURT OF THE UNITED STATES.

OCTOBER TERM, 1962

No; 35° s.:.

Me.

? ~ Epvwarp YELLIN, ,

_f oe fw ae to Petioner;

vs. a

Usitep States or AMERICA.

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ON Ww ‘Rit UF ‘CERTIORARA TO rie bel NITE D STATES cou RT OF AP ™ ALS —

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FOR THE SEV ENTH ciReu IT. Li

" PETITIONER'S REPLY BRIEF ON | REARGUMENT: _

and much ‘more extensive brief. The. new br icf is evidently

prompted by. the: feeling that despite this Court's decisions, _

: i Barenblatt +. & nited States, 360 U.S. 109, Wilkinson v.

United 1. States, 365. US S, 399, and Bradeh v. United States,

* 365 U. S. 431, “the present: controversy: inv olves the most

delicate and dangérous of the Court's: responsibilities”

‘.

a This brief Fohhies the “reply brief : on the merits filed’ by the

petitioner. ;

4

Pc

- The Government has: withdrawn the brief “previously.”

“sibenitted j jn this case and, on reargument, has; filed a new

(Gov't Brief, p. 26) and hence a re-examination of the prin-_

ciples adopted by the Co urt in the cases cited is appropri.

ate. We coneur in and indeed’ welcome this conclusion; we

-? too ‘think that this controversy involves constitutional is-

sues s of such magnitude thet tlie Court may never rest it its Ps

2. a.

examination of them even in the face of “prior decisions ;

made by [this Court] after full argument and. deliberation” _

(Gov't Brief, p. 29). The rule of stare decisis.¢an never

‘be permitted to supersede the commands of the (Constitu.

tion. eh! ore

We differ however as to the nature of this: constitutional

_ igsue, and so dées this Court: The Government sées it as,

the power of the Court to “review the manner in which/

the Congress . . . hag performed ane of its own congres-

sional functions” (Gov't Brief, p."36). In the opening sen-

tence of the Court's opinidn in the Barenblatt case (at p-

~ 111), the issue was described as “the conflicting constitu-

tional claims of congressional pewers and of an individual's

right to resist its exercise”. We think the Court was cor-

‘rect. The principal problem is not.one of the relationship _

between the Court and the Congress, but.rather the, rela-

tioriship between: our Governmeht—in this case, the Con-

gress—and its citizens, andthe extent to which the former

. may cgntrol the political activities of the latter.“ The House —

Committee on Un-American ° Activities (hereinafter - re-

ferred to. as the Committee). has for twenty-five years

been engaged in an inquiry into the political beliefs -and

‘associations of large numbers of Américans with - the .

" avewed purpose of destroying an unpopular political move- sat

‘ment by exposing its adherents in a contéxt which does’ not

. permit, of a free debate and the opén exchange of ideas.

This Court cannot prevent. the Committee from exercising |

this power, unconstitutional though it may: be, except when.

a justiciable controversy is presented to, it. When the ,

Committee resorts to compulsory preéess to call witnesses yf

before -it and when a witness resists that process, thus

bringing on to himself a criminal indictment, such a_jus-

ticiable coritroversy is presented. This is the case now

before the Court.

y

re

—

. + in every one of them.

3

‘This issue no more involves “the dangers of collision” -

(Gov't Brief, p. 26) between Court,and Congress than dots

‘ any other case présenting the issue of the’ constitutionality

of congressional action.» + . a

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vive 0 POINT

m

‘ The “Activities ‘of: the Committee Constitute Unlawful

_Abridgement of the Constitutional Rights of the Petitioner.

“

- We do not quarrel with: the Government's contention

(Brief, pp. 26-35) that congressional investigating com-

mitte?s are lawfwl. We will even assume, arguendo, that all

of the Cold War cases cited by the Government.at pages 36

- to 45 of its brief. were correctly decided, though we note |

strong (and to-oun-minde-porsumsive) dissenting opinions — ee caninn

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The specific issue raised by this case, however, is not

whether Congress may impose, in general, some ‘restrictions

on Communists. . It is agreed by all that “the provisions of

the First Amendment . 7. reach and limit congressional

investigations” (Barenblatt, supra, p. 126). The process by

whick. stich investigations may erode’ ‘and even’ destroy

. democratic discussion of political issues is described in.

Watkins vy. United States, 304 U.S. 178 at 197. For-analo-

yous situations, ‘See Sweezy v. New Hampsliire, 304 U:S.

234; National Assacjation for the Advancement of Colored

' People ¥. Aldbdma, 357 U.S. 449: Scull v. "irginia, 399

US. 344; Bates: v. ity, of Little Rock, 361 U.S. 516;

Shelton v. Tucker, 364 US,.479. The issue here is the ¢x-

tent of the limitation which, we all agree, the First Amend-

mrent imposes on congressional inivestigations.

It can liardly be. denied at this late date that the Com-

mittee does interfere with the free exercise of speech and

assembly. and with the correlative right to remain silent

,

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cencerning one’s political views. + literature on the |

subject is so extensive, the public discussion so widespread

andthe judicial analysis so exhaustive that this Court

would be blind if it did not reeognize what “all others can

‘see and understand”.. United States v, Rumely, 345 U. S.

41, 44; Child Labor Tax Case, 259 U.S. 20, 37. For over

two decades this Committee’has been a major repressive

force against the exercise of activities supposed to be pro-

tected by the First Amendment. It preceded and survived

the era of Senator McCarthy. As much as any other in-

stitution in opr-co\atry it has stifled “the dialogue that

has characterize free socicty,” so that even jn these

. days, “no debate takes’ place on crucial issues”’. Douglas,

“The ete get American”,, | F ‘Frontier Magazine, Aug.

“1962, p. -e know that “the security of the Republic,

the very Few forte of constitutional government” lies in

‘the preserv ation of frae speech, press and assembly so that

the opportunity for free political discussion may be ‘main-

‘ tained. De Jonge v. Oregon, 299 US. 353, 365.

The Gogernment, ap in the other cases involving this

Committee, has sought to avoid discussion of the effect of:

. the Conimittee’s activ ‘ities, by close and literal attention to

f _ the limited facts in the case at-bar. Thus this case is

treated as if the Committee were engaged in a single in-

vestigation into “colonization” of the steel industry and as.

if the petitioner were an isolated instance of a recalcitrant

witness. Even if this were so we would argue that the

Committee had exceeded its power and that even the single

recalcitrant witness is entitled to the protection of the

-Constitution. But this is not so. This:inv estigation is but

one of hundreds which the Committee has conducted under

the vague provisions of its char ter, which gave it. jurisdic-

+ tion over “Un-American propaganda, activities” and under

the even more vague and general jurisdiction granted to-

the Committee . this Court in the Barenblatt case. This .

.

5° ay . eo

petitioner is ‘but one. of thousands-of™ Titnesses whom the

Committeé has called. He is not an isolated unwilling wit-

ness; the overwhelming majority. (about ’ 855.) of the wit-

nesses called by the Cofumittee has refused to dnswer ques-

tions. His case is not ‘the excepfion—it is the rule. He is.

here only because, by refraining from use of the protec:

tion provided by the Fifth Amendment, he (like Watkins, .

Barenblatt, Braden, Wilkinson and about thirty others) a

chose to challenge the Committee directly. ae es

Viewed against this background, the ‘enormity of .the

Committee's. offense against the American _ people | becomes

clear, This’ is not only the-case of a single individual vho 22

is held up to public-scorn because he-holds unpopular views.

Such an individual is entitled to protection—against gov-

ernment interference, but it is. true, as the Govern ce

suggests, that persons who espouse. unpopular ‘iews may s.,

“expeet- some unpopularity as a result. This is rather ‘the |

ease of a society which is denied the-vight, to hear thesex-

pression * ‘of dissenting views, which — is. denied ‘teé-opper=——

tunity for free political discussion. onde society,

together with the Yettins;-the-Bradens.and tl eV IIKinsenss_

is a co-petitioner in these cases.; ' s

=

PCOS BET eNO ANE

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The Government responds to all of this by, if effect a Me

plea of confession ald avoidance. We aré.told that all of te

this, even if true, is required by our national security and—

that we resolve the issue in euich case through “ “a balancing—

— ee r4nrne

sige the courts of the oe private “and dF pablic interests —

blatt, supra, at p. 126. ‘We do sak derstand the— —

balancing doctrine; as. we point out in our-originat ref

(at pp. 16- 18) we do not know w ho balances-witit and-how

‘the result is determined.” With the- ercatest deference to

this Court, we doubt whether anyone ‘understands it. But, em

at least in this point ih our argument, our cea oe

et are ——

4

» ae adds Mi Fl 6 . Paes ° fp

> with the application of the balancing doctrine. We think it

wrong in principle. é

It is wrong in principle for the reasons set forth in 1 the.

dissenting opinion in Barénblath. It is contrary to the,

clear mandate of the Constitution. Moreover it proceeds

on the false premise ‘that our national security quires the

suppression of some rights of speech, assembly and asso-

‘ciation. There is nothing: in our history (or in any other

history) which teaches that the suppression of the free

expression of thought, however heretical, contributes to

the preservation of.a democratic society. The contrary is —

true; if we can boast of any great contribution to political

; theory it it is the doctrine of Whitney v. California, 274 US

= eee ___—397, Coneurring opinion 376; of Stromberg v. California, 983

ee U.S. 359; of De Jonge v. Oregon, 299 U.S. 353; of Bridges

— 'v. California, 314 US.-252; of Jones v. Opeltka, 316 U ‘S.

584, 219 US. 103; of West Virginia Board of Education v.

_ Barnette, 319 US. 624; of Hannegan v. Esquire, 327 US. |

146; _of Adamson 'y. California, 332 U.S. 46, dissenting

plea of United States v. CL.0., 335-U.S. 106,

concurr ing opinion at p. 144; of Watkins v. United States,

ent dissenting opinions in Baren-

ins wand Communist — *. SACB.,

_—

mn Finally, the activities of the Committee, it seems, are

a ought to be. justified, on the ground that they are aimed

: “ohiy-atCommunists and Communist activity. The record

of the Committee, of course, shows that its activities are

PS oer -directed vot only against Communists but against Com-

“oT unist dupes, Communist fcllow-travellers, ex-Comm ix

nl ‘

am Communist sv izers, persons

subject to Commuhis ation, organizations which are

— Comnuenist infiltrated, socialists and-a host of other cate-

eases —_gories variously described i in 1 the new vocabulary de —

T

by. the Committee. There is hardly any “aspect of Amert-

can: life from the motion picture industry to the clergy,

“from the preps to the trade unions, from the peace move-

ment to\the universities whieh has not at some time or

‘other be | hoffored: by the issuance of ¢ ‘ommmittee a

nas. Folk-singers, teachers, lawyer's, journalists, doctors

housewives liave all had their chance tov isit with the (om.

mittee. The scope. of its activities ws inte rpreted hy this

Court would permit it to iivestigate literally anything, if

only to discover whether there exists in the subject vider

investigation gome faint aroma of a “subversive” nature,

For almost all of recorded history groups of heretics

shave, been singled out as beyond: the pale of the rights en-

joyed by the orthodox; we do not be ‘Lic Ve sue ‘h — ation

of our Bill of Rights is eT

; POINT I

: On Balance, Petitioner's Right to Refrain From Disclos-

ing His Political Views and Associations cheats Be Pro-

seabed in the ecumannses of This Case. -

Without i, any way waiving our ‘fundame nial objections

to the balancing concept, we consider new the result of, jie

appHecation here. In cits present brief, the Gove srnment ;

makes a serious ‘effort. to. méet the challenge— posed in

Point EP of our original brief, name ‘ly, “the task of defining

‘and exploring the “balanéing COnCE pu ie ohpre ssegedyy this

Court in its most explicit form in the Barenblat cause’ at

<a 126 (| Peto~ Britt, p. 15). So far as we know, thi< is the

first time the Court hax had presented to it, from the Gov

ernment’s point of view, the problem: of tap paving the hatlane

ing t test.

A. The public jnterest at stake is dened (Gow t. Brief,

p. 489 us “the need = concerning putative

—

*s

subversive activities in a critical area of our national life.”

No effort is made at this point and very little elsewhere to

place in the balance the much greater public intefest in the —

right to hear.and participate in open political disgussion

without fear of gov ernmental reprisal.

What weight is to be given this public interest, as ie.

fined by the Government? At the ‘time of petitioner's

hearing the Committee had been collecting information on

alleged’ Communist infiltration in basic industry for many

years (see our Original brief at pp. 18-20). Does there not

- come a time when the public interest in collecting more

inforniation becomes de minimis? How many times does .

the Committee have to listen to the dreary recital of repe.

titious testimony by John Lautner’ and a host of other

professional government witnesses,’ before it has collected

enough information to convince it that legislation is or is

not needed?

How many times does it have to use its compulsory

process to call witnesses who, it knows in advance, will

refuxe to testify before it can draft the laws necessary to

protect our society from the menace which seems to lurk —

‘

. 84th Congress; his testimony agpears at pp. 6178, 6233 and 6338

~ -in the Committee's printed hearikgs for that Congress. He testified

during the 85th Congress in New York (at pp. 275, 650, 800 and

2493) and in Chicago (at p. 485) in addition to his testimony at

2 Lautner testified in New shoe at hearings held during the.

Gary. He was, of course, an important witness in United States ° .

v. Flynn, 216 F..2d 354, 362. Indeed, he testified in botheNew York

Smith Act cases and in Smith Act cases in Detroit, St. Louis,

Colorado, Baltifmore. Hawaii, Seattle, California, New Haven,

Pittsburgh and perhaps others. During the ¢niire period of t time

in question he was on the government payroll.

" 3Most of the witnesses such as Philbrick (82nd Congress at

P. 1257 and 83rd Congress at p. 2007) Youriglove (84th Corgress

p. 4834). Peoples (84th Congress at pp. 4949; 4979) also testi-

tod at Smith Act cases ee, alleged infiltration.

in every factory, mill and mine? The Government itself

refers (Brief, p. 49) to the “mass of material available”

jas early as 1947. Indeed, this material has been before

this Court on, many previous occasions. See, for example,

the concurr ing opinion of Mr. Justice Jackson in American

i Association’v. Donds,. 339 TLS. 382, 422,

24. The files of the C ommittee since that date have been

implemented by thousands of pages of testimony taken in

half a dozen different cities on this very subject. of Com-

-munist ‘infiltration in basic industry. See footnote (1) at |

_-page 11 of our original brief. Is there never a time w hen

the task is completed—or. at least when more inquiries

weigh very little against the right of petitioner and the

right of a free society to enjoy without governmentalin-

terference the privileges granted by the First Amendment?

We argued in our original brief that the information

sought by the questions put to petitioner were at best. cum.

lative and that the Committee concededly knew the answers .

to the questions it asked. To this the Government responds

(at p. 09) :

ff ... We most earnestly submit that the power of a_

Congressional committee to ask material questions in

‘the course of an inquiry into a ‘proper subject of legis-¢

dative investigation cannot be made to.depend upon a

judicial determination of how helpful the Court would

find the information.” / -

But the issue we are dise using jat“thid’ point is not the

relevance of the information, or its. materiality, or even

the “power” of a congressional committee to ask such

questions. We are discussing how heavily it weighs in the

Barenblatt Dbalanée, “in- the -particular circumstances

shown.”=In this counection it is certainly appropriate to

- consider the fact that the information was éither Cumula-

tive of testimony already given to the Committee ad nau-

e “

10

, seum in other-hearings (Counts 2 and 4) or corroborative

of information the Committee already .had in ‘its files

(Counts 1 and 3; Gov't. Brief, p. 63). We a:e concerned

here with weight in a coustitutional balance, not with the

narrow and technical probfem of perv nence. If the Court

Is not to consider weight, how can it balance f

B.° So much for one side of the séale. On the pre side

are the personal rights of petitioner as granted by the |

First Amendment and the fundamental rights of a demo-

cratic society te govern itself after full discussion of politi-

cal issues, free from government investigation, exposure —

or other forms of interference. There: ‘is little mention of

the latter point. in the Government's brief, though we

should have thought it one of the most critical of the prob-

lems raised in this record. How can a democratic society

hope to succeed in an atmosphere i in.Which its eltizens are |

afraid to a se in free and open discussion of potitical

_ issues—an atmosphere engendered by the activities of the

very Committee here under discussion? *

The Government seeks to minimize\ petitioner's personal

rights under the First Amendment by noting he was main-

taining only his right to be silent and not‘to speak ; that

he was motivated by the preservation of his right of pri-

vacy, net his right of free speech (Brief, pp. 64-66). Ad-

. vitidinn a constitutional. right against undue governmental

prying and conceding that it is essential to freedom of be-

lief and, “in the beginning”, esséntial to effective political

action, the Government nevertheless comes to the conclu--

sion (Brief, p. 64) that such a constitutional right does not

_ have much weight. ;

‘* The Government applies a duubte standard in determining how .

weight in the balance is to be determined. In weighing the public

interest in collecting information, the Government deals in very

broad terms—it Says that so long as there is a public interest we

oo

11

This is a nrost disingenuous argument. Aside from our

disagreement as to the weight to be given the right of pri-

vacy (considered ‘by some to be the most important of all

rights),* there is a more ‘important point to be made. In-. -

deed, it was well‘made by the petitioner himself, when at

~ the hearing he was taunted by the ¢ ‘hairman of the, Investi-

gating Committee, who said:

a “Isn't this the best place to clarify the atmosphere

_ is this not a great opportunity to eliminate what-

ever question might be in anybody's, mind, particularly

mine, about your activities!

The wit .ess < replied :

“Mr. Waiter I do not ‘hel ‘that this ix the place for

myself, as an individual and as a citizen, to discuss my

beliefs, my associations or whatever expressions - of

opinion I have ever made. I feel that ideas in the ,

democratic process should’ be settled, should) reach

some kind of an understanding, in the market place

of ideas and not at a congressional investigation ax

I believe the entire democratic process rev olves around

se‘tling things in a free and open market and this is’

not the place for it. This is a hearing. It is not an

expression of publie opinion” (R. 173).

The right of self-expression certainly includes the right

to choose for one’s own’ self the occasion for such expres-

2

need nét inquire too closely into the extent of the need. But in

weighing the individual's interest apd privacy “the exact nature

of the constitutional issue must be teken into account in weighing <

the governmental against the private interest” (Brief, p. 64). *

5“ |. The makers of our Constitution undertook to secure con-

ditions favorable to the pursuit of happiness. They recognized the .

significance of man’s spiritual nature, of his feelings and of: his

intellect. They, knew that only a part of the pain, pleasure and

satisfactions of life are to be found in material things. They sought

-to protect Americans in their beliefs, their thouglits, their emo-

y

a

12 .

sion. A witness at a hearing of this Committee may well

reject such an occasion for a publie debate. The record, |

of course, is silent on the atmosphere at the Gary hearings -

but no one who was there could possibly confuse it w ith the |

marketplace of ideas sought by the witness. Certainly —

neither the existence of nor the weight to be afforded to

constitutional rights can depend on the Government's (or —

this Court's) judgment as to when, where and low those

‘rights are to be exercised.

C. We conclude, on the basis of the foregoing, that the

ublic interest in further disclosure of information weighed

very little in the Barenblatt, balance as against the very

7 substantial public ‘and private interest in the preservation

of free speech and association, on this record. But there

are issues remaining: which add to the reasons for a re-

versal ‘of petitioner’s conviction. A reading of the Baren-

blatt formulation of’ the balancing t test. would lead to the

assumption that whether X- outbalances Y is a question of ©

fact. If so, testimony should be adduced in support of the ”

opposing factual contertions. The failure to adduce such’

evidence can hardly be met by any doctrine of judicial no-

tice—clearly the weight to be given to the various eléments

in the seale are in sharp dispute. The Governnient having

failed to offer any evidence ‘in support of its contentions,

petitioner’s motion to dismiss at the close of the Govern-

ment’s case should have been granted. Petitioner himself

did his best in offering: the ‘testimony of Professor Emer-

son, but the testimony was rejected.

The Government avoids this problem with the statement -

(Brief, p. 76) that “the issue — a witness’ rights ©

‘tions aud their sensations. They conferred, as against the govern-

"ment, the right to be let alone—the most comprehensive of rights

and the right most valued by civilized- men... .” Brandeis, J., |

dissenting in Olmstead v. United States, 277 U. S. 438, 478.

a

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¢

. i °.,. . . e \ . . ‘

‘under the First Amendment has been violated by a con- .

gressional committee is ..°) a question of law.” This. posi-

tiom is not responsive to the question, The issue whether ~

X outbalances Y can hardly be called a question of law.’

~~ -It is in this connection that we offered the testimony of

Proféssor Emerson. The Government argues Ait page 76

of its brief that his testimony “gave no new leyal or-factual

considerations which were ‘not considered by, this Court’ in

Barenblatt.” It may be true as the Government points out

at that place that Professor Emerson's testimony Was con-

trary to the conclusions relied upon by — in slmeri- |

can Communications Association vy. Douds, 339 U.S. 382;

Dennis. vy. United States, 341 U.S. 494; and. Carlson v.

Landon, 342 U.S. 524. It may also be d4rue that his testi-

mony Was contrary to the findings of Congress as set forth

in the Subversive A@tivities Control Act of 1950, 64 Stat.

987. However, it is our understanding that the purpose of -

. a trial is to determine disputed issues of favt. Indeed,

Professor Emerson’s testimony is admissible precisely be-

‘eause it challenges the facts which this Court accepted in

‘other cases, especially because in, none of those Cases, as’

far as we know, was evidence presented to support. the

findings of fact on which the Court relied, In those Cases,

this Court took judicial notice - certain faets, based on

purported congressional findings and on the general kuew!l-

edge df the Justices of this Coust. Certainly, it lies in the

power of a defendant in a criminal case to prove that the

»

.

- © We note that the Court of Appeals did hold that “It is not

a question of fact as to what elements go to make up the balance

_ of interests, public and private, but a legal matter ... .” Court

“of Appeals decision, 287 F. 2d 292 at 298. The quest ion, however,

isnot what elements gu to make up the balance of interests—of

that there is probably npt much dispute—but rather what weight

is to be ascribed. to these elements. See our discussion at p. 15 of

our original brief.

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factual assumptions upon, — -~ Court’ and_Congress. . ). ae

—— in fact ag sel es ie ts a ; ape

i p ja

D.- Despite. the foregoitig, we poe conféss that we fi find.

- outuelves attempting to: weigh the imponderable and ‘to a

améausure_the’ limitless The task of balancing. or even ma (ot

‘paring rights: and interests, such ds ‘those discussed ‘above-

is forthe metaphys sician, not the lawyer. How much weight |

_ina balance can be given tothe public interest invelv cd i ee

the tenth hearing into Communist, infiltration, info. basic en: * a Fae

__dustry!_How much ade we. give’ ‘to the indiv idual's te

_Tight, to remain. silent ‘when questie s oh .

~ tical ‘beliefs hy a ‘eongressiondal “committee ina. ‘a_courtroon

- full of: hostile angry faces !'-These questions are ‘reminiscent :

of the futile debates of medieval | scholastics. ‘They do not

mappa for the. “determination of rights. on euch

Pag of our liberty depends: A \

——__

And yht, we ean’ see. 10 way “of av oiding. sich disputes if;

; this Court is to continue to apply. the balancing test. In-

eed; ‘the questions raised above are not the whole of ‘the

"+ problem—many others will arise in -other cases © Thére will °

_ be questions of burden of. proof, issues: of the ‘adniissibility |

-of evidence (only” suggested by the issue raised here with ~~ mae % al

: respeet to thy Emerson testfmony) and endless dispute m pe ne Nat

os “areas hav a eer o do with ‘ ‘subv ersive” activity but.

rejating instead’ to the 2 by the Negro. people in the:

South for equal rights See cases cited in’.our i original

briefat pp. 16 and 2

ae

aR ‘This Court does not av ai issues. because imi are difficult

"but it ‘qught not to” adopt the: ‘rule-b, —which the ‘constitp:

. tional rights: will ‘depend on standards impossible to apply: -

ta with some degree Lak obeetiviyy bt aind exactness, Tt ae a Re arise

wilt \ ——

15 nage

os Ae a ek oa é OW sake Ro ee :

bo aes " POINT __ tS ene reo Sa

‘The Statute Meter Which Petitioner. Was Convicted

Was Unconst tionally vaews.

>»

Phi: Government. argl ues’ that ‘Rule XI of the Rules of | 3

the House is not a er iminal statute, and hence that “the

ae ay rules for. construing etiminal statutes donot adi to the \.°

construction of Rule XI”. (Goy't. Brief, p. 78), a" i ay :

| ‘The short answer to this contention is‘ found in. Unite a ae ae

¢ States vy. Rumely, 345 U.S. 41. In thar ease a convict xX

_-der Section 192 of Title 2 was upset on the strength of

a the Court's interpretation of the" resolution creating the 4

committee. That case holds that See. 192 makex i ita crime | :

for a Witness to refuse to give. testimony to. a C ongressional “2

committee upon any matter ander inquiry! w hich is within’ ty

the jurisdiction of said committe ex The statute 30 read -, el ae

: vague and uncertain. ~ oe, a tt

bnatee . This Court has held it improper to requirg;* the: exaction

ot obedience t a rule ér-stanedard which was so vague and

indefinite as. “really to, be no rule gr standard ‘at all.” A. : Aor .

Small Cov. American Sugar Refining (0.3. 267 U SB. 2.7

cee To the same effect see United States vy. Coleen Grocery c 0.4

ag Ane 255 U.S. 8ls Indeed; this rule, has been applied fot puly to.

~ eriminal casesbut, even to civil cases where the standard Reet eat

a | is much Att rigorous. Standard Che nical Corp. v. He aug - ge oe lon

\ ie | Chemical C orp,. 231 N. Y. 51.: re i Zs ee

; It is true that. conv ictidns re -bebn' had walle “192 in

\ ‘Barei blatt» Braden and JVilkinson. But for the reasons

Set forth above at <page 1 and xuggested by the Aiovern-

Na | ment at page 26 of its brief, the issue ought riot to beval- y

./ NY: lowed t to rest ft that fae nlone, .As in the ease of Point Fo. ee

Se, above,’ ‘constit utional. aights” are at stake, this ;fime. under .

\

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a gressinat’ ae wireurte that the Cominittew Yd Passed

16 me

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too late to reexamine such constitutional qssues, er goed

when, fs here, the matter was not discussed by thp Court,

in any: of the: decisions upon which. the od in Boren relies

“and does not even seem to have been raised in Barenblatt .

and Ww ilkinson.

ie

~ "Questions: which merely lurk in the receuil neither

- brought—to the attention of the court nor ryjed upon,

are not to be Considered as having been so decided as

to constitute precedents Webster v. Fall, : 266 U.S.

mG 11. Tg

This j is a classic case of a vague and hence anenfesosalite ae

statute. We regret the failure of the Government to dis-_. i

cuss this issue on its merits. While: ‘this Court sought to

' give meaning to the law by’ reference to its history. in the

Barenblatt decision, we know of. no case, prior to Baren-

bli tt, in which a court relied on legislativ e history in order.

- to ‘uphold a criminal conviction. : The Government does not.

‘cite any Such fiase and we suspect that there. is none. We

think. such. procedure improper. ‘See our Peeinal brief?

p- 31. ca care eae ae ye ae

“Petitioner Was Entitled to Be Heard at Executive Ses-

ar

In Point IT of potityoner's brief, we olin “that the

' Committee Violated its. own rules in failing to eonsider

petitioner’ s request for an executive went For the most |

*s part, we think ‘that/the issue is suffyient drawn so’ as to

* make it“unnecessary to reply except for pne slight’ respect

in which we think the Government has mistaken, the reeord-:

At page 38.of its brief, the Government notes that Con-

Mg

“IT.

7

in executive session. As often happens, pititions regu. the

Government have each quoted a different portion of a ‘wit-

hess’ answer, with the result that the context, in which. the

answer is given hecomes clouded. So that the @yurt: may

more clearly ‘see this context, we quote at some length:

“Qo... Wasn't it possible for the Committee to hear

Mr. Yellin Texecytive session pt that time! iM. Well,

the Committee Already passed on the question of

whether or not we would hear Mr. Yellin at a session

When the purpose ‘of calling hum Wils discusse “dl, ane it

was decided then that the. rule with respect to an eXec-

: uti.e session was hot applicable because the inv estiga-

ne tor—and [T-might sity it. was Mr. Collins, a former

ee agent, who ‘ho developed this entire matter, . and

we were willing t accept his story: with ar to the

proposed testimony.

.@e

Q. And what. was his story? OAL Well, his story’

~was that. the’ mitt Wis <a known Comriunist; that he -

had been active in. the international ‘conspiracy, and

that he” had deceived his employer ; ; tnd, furthermore,

an a came svithin the ule gory at-those pacople that we

were expdriencing a great deal of « difficulty 4 in findings

out about with Tespect to the colonization. °

Q: bid you assume, from Mr. Collins’ report, that

Mr. Yellin would bea witness who would refuse to.

give information to the Committee ® A. We had? he

wiy of knowing. - ;

Fig » >. Q. Well, what) conclusions did yeu dvée ‘frone the

: | report of Mr. Collins, which you jhave just: related!

7 AL We concluded that this would be a fine witness for

the ¢ ‘ommittee in support of proposed legislation hav-

ing to do w ith colonization, and, two, havi Inge tw de with

worth a chance that;sdimebody ¥ I testi ty.

bey ea a ae Ps

* | 4Q. But it wasn't worth the chance of calling him in /

J

9 ° eae ; 4°.

~ © e

dst cemieni' see what his position would have

1 @)

been? A.d am sure that had ‘you communicated this

whole matter to the Committee before we left Wash- |

ington so that we could have given it due considera-

tion—we would av e,,an always do—we might have

a different an today 7 (RL70).:

* ( iclinaneel Walter heré riakes it perfectly clear that

the Committee, in deciding not to hold an executive session,

was violating its. own rules. The. rules provide that an

“—_ = executive session js to be: granted: when “the interrogation

_ Of a-witness in a public hearing might . Bi 0h injure

his reputation.” The Committee. gaged u completely dif-

«ferent test ax the testimony quoted shows. - °

« ‘ Conclusio n

The -conv iction of petitionér should he rev ersed — the .

~ ee indictment a Pte: =

Respectfll submitied,

’ %

: er ‘Riiaxow 1z & Boupis

ees ee ee -30 East 42nq Street

; . New ‘York 17, N, Y.

WECHSLER & Drerrus

~~ “oy re, 504 Broadway

ee eee Gary, Indiana

i ° 3 + 2. et Cae

sien . Attorneys for Petitioner;

“Victor Raprvowitz ° | ,

_ eoxarp B. Bovuprx— ,

ieee 4 - Of Counsel.

November, 19962./.,-° 7 | ae _

i Be ‘ .

@