# Petitioners Reply Brief on Reargument — Yellin v. United States > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0242%3A8 ## Record - **Collection:** Supreme Court brief - **Document type:** Petitioners Reply Brief on Reargument - **Published:** January 1, 1963 - **Citation:** 374 U.S. 109 ## Text LigkARY. ue - e | Olico- Supreme Court, U.S. enperee= COURT. U. & EILED NOV 28 1962 JON F. DAVIS. CLERS _ No. 35. - 1 ~. Epwarp YELLIN, . , re * v8. 1 Unrrep States or AMERICA. | e ‘ \ _ ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT = \ . : PETITIONER'S REPLY BRIEF ON REARGUMENT : ; . > >) a Rasinowrrz & Bouin 30 East 42nd Street New York 17, N. Y. ‘ 7 Weciistzn & Deryrvs = | 504 Broadway Gary, Indiana Counsel for Petitioner we hy eng wie PAPEETE he ei ty: an , wy) ae : | 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 ; \ . \ . fe? y . / \ 4 tea ° | % 2 88 ‘ a nee \ ; n : Brey ; ° ’ > - Ieee / ne" \ 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 , — ° x OK : 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 » 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 G - * t: i ; Ab R, : . \ ‘ ‘ G i ‘ 9 ‘oo oP ays “err Ms . - \ ¢ . a \ / | ¥ . a Ah s ae i : ‘ * ‘ 7 \ ‘ Pts Fa . 1 : e . a 4 ~ a o oe ‘ $ . , « a ‘ . e : ‘ o hee : i iti Je ae - . ; = \ 3 — e . e & - a ~ . . . c% Ny XN ‘ "sion, | ~ a gressinat’ ae wireurte that the Cominittew Yd Passed 16 me @. , ‘ 4 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 . 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 ‘ . @ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386410_0242%3A8. Public record. Not legal advice.