Brief Amicus Curiae — United States v. Brown

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ae ett "No. 399. MAR 17 1965

JOHN F. DAVIS, CLERK

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IN THE

Supreme Caurt ot the ited State :

October Term, 1

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Petitioner, ~

ARCHIE BROWN

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BRIEF / AM US ‘CU ‘SUBMITTED BY

NCY CIVIL LIBERTIES |

COMMITTEE.

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Victor Rasrxow!tz,

Lzonarp B. Bounty,

t Attorneys for Amicus Curtae,

Emergency Civil Liberties Committee

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BRIEF AMICUS CURIAE SUBMITTED BY

"EMERGENCY CIVIL LIBERTIES —

~ COMMITTEE |

Statement

The ‘amicus: curiae,’ ‘Emergency Civil Liberties Com-—

- mittee,’is an unincorporated association organized for the

purposé of protecting the civil liberties and civil rights

of the people of the: United States,-with particular reference

to the rights guaranteed by the First; Fifth, Sixth, and.

Fourteenth Amendments to the Constitution of the United

States. Among other things, the amicis assists in the prose- «

- eution and defense of litigation in the courts of the United

States and of the several states where civil liberties issues

‘are at stake. The Committee also files, from time to time,

amicus curiae briefs in eases pending in. this and other

courts in which such issues ss tell to be of substantial

constitutional importance. °

This brief will be confined to the issue of the constitu-

tionality of § 504 of the Labor-Management Reporting and

- Disclosure Act: of 1959 (29 ps S. C. oe .

Unrrep States oF AMERICA, 3 ae

| we Petitioner, X

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“POINT I .

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_. The decision in American Communications -Asso-

_ ciation v. Douds, 339 U. S: 382;, does not — the

legislation i in question. ° |

ern AL?

The'Government's ‘exclusive reliance is on American

Communications Association v. Douds, -339-E:-S. 382. No

othér direct authority i cited by it in its brief to this Court-

and no other signifieant support is claimed.

It cannot be seriously contended that $504 does not. .

represents a signifjeant and far-reaching. extension of the

Douds doctrine. Indeed, the enactment of § 504 -and the

ensuing prosecution of petitioner Brown provide a classic

illustration of the insidious nature of a judicial decision —

which permits the invasion, even with ome apparent jus-

tification, of areas of free speech and association. One en-

croachment on our liberties is inevitably followed by others .

and unless this Court checks the process, large sectors of

eur freedom may: be Jost... We think that’ in Douds. this

Court permitted ‘a substantial gnd, we respectfully submit,

unjustifiable interfergnee with First Amendment rights;

it should not now fompound thé evil by extending the rule

of that case to an even more serious attack on the basic

rights of all of us. ey

When Douds was argued before this Court; the petitioner

“contended that the’statute, in effect, made it impossible for

a Communist to hold union office. Not so, responded the

Government, which sought to justify the statute on the

ground that. it was iimited to the denial of the facilities

of the National Juabor Relations Board to a union which

elected a Communist to office, providing therefore only

_ an indirect restraint on freedom of association and freedom

_ of speech. Thus, in its brief to this Court in the Dowds

, case, the Government said at page 65: |

‘« * * * Because the statute ui e., 4 9(h) of the Act ©

of 1947] does not in law or in fact’ prohibit labor

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organizations whose officers do not comply with the

affidavit provision from functioning, the statute can--

- not be said even indirectly to. deny to anyone the .

“right to act as officer of a labor union, or deny to

union members the right to select any officers of theit

own ‘choosing.”’ -

In answering the contention that §9(h) abridged First

Amendment rights, the Government said:

. ae short answer to this eontention is that even

assumittg that Congress‘may not place any restriction

upon the right of a union officer to be a Communist,

‘ to believe in Communism or to engage in political

aetivity, Congress may,’in creating an agency de-

‘signed to further collective bargaining and ‘eliminate

- industrial -strife, deny resort to that agency to those. -

who, in the reasonable judgment of Congress, would

utilize it to frustrate rather than to atiain the statu-- -

tory objections.”’

- And, “finally, the Government, in considering sitaalives 4

°* / to $9(h), said:

?** Another alternative would be flatly to forbid .

Gommunists and persons believing in the overthrow -

_ of the Govergyment to be officers of labor -organiza-

tions. This Would have been much more drastic than

the affidavit requirement, and might have raised

‘more difficult legal problems.”’

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. This Court, while recognizing that the sanctions of

§ 9(h) were more-signiticant than the Government argued,

_ rejected: the petitioner’s view of, the effect of the statute

as an extreme position.- It:could not: consider §9(h) ‘‘a

licensing statute’prohibiting those persons who do not sign

the affidavit from: holding union office’? (American Cone

munications Association vy. Douds, supra, p. 390). The

Court further noted at p. 402 that:

“The statute does not — or punish by

_ erimiial sanctions the making of a speech, the affilia-

— o any organization, or the holding of ‘any

elief.’

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—,

We are now confronted with the ‘‘more drastic’”’ legis-

lation and the ‘‘more difficult legal problems”’ of which

the Solicitor General warned in his Douds argument and

with the extreme which the Court said was not faced-in

the Douds case.* It is erroneous, therefore, to argue that

the Douds decision, even if read in a vacuum, can support

the Government in this case. :

But the decision cannot be read in a vacuum. It must

be read in the light'of more recent decisions of this Court.

One line of authority consists of Dennis v. United States,

341 U.S. 494; Wien v. Updegraff, 344 U. S. 183; Yates

-y. United States, 354 U. S. 298; Scales v. United ‘States,

367 U. S. 203 and Noto v. United States, 367 TU. S. 290.

These cases holt! that mere membership in the Communist ~

Party is not, iflegal and that even public employment may --

not be denied to a person because of his party membership,

without more. Membership: must be combined with other.

elements if it is to be punished: through penal or ctvil sanc-

tions. The Yates, Scales and Noto cases found that mem- ©

bership must be combined with activity which is not con-

stitutionally protected before it can ke punished criminally.

The Iieman case held that membership must be combined

with scienter before it can operate to bar the civil sanction

of the denial of public.employment. Neither scienter nor

unlawful Communist activity are required by this statute,

or shown by this record.

The other line of cases decided since Douds relates to

the*meaning of the freedom of association guaranteed by

the First Amendment. ‘Cases such as Bates v. Little Rock,

361 U. S. 516, National Association for the -Advancement

of Colored People v. Alabama, 357 U. S. 449 and National

Association for the Advancement of Colored People v. |

Button, 371 U. S. 415, all stand for the proposition that

the right of persons to baad together to secure their poli-

‘tical, social or economic rights is an essential element of -

* And see footnote 11 in Aptheker v. Secretary of S tate, — U.S.

—, 32 Law Week 4611, 4615.

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our siaatilees and that government Sanerbenetes with such

right will not be permitted, absent a showing of some

activ ity which i is not constitutionally protected.

Read in the light of these cases, the Douds case offers

but frail support for the legislation under consideration

here. ge ahs “

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‘The Douds decision itself stands on somewhat unsure

footing. It was decided by a truncated Court of six mem-

bers, four of whom wrote opinions. Only three of the

‘justices approved the legislation in Tull.

Section 9(h) was based on a congressional finding that

»>Communists instigate political strikes and that hénce the -

Government had an interest im discouraging unions from

electing Communists to office—an interest weighty enough

to justify an invasion into preferred Firsf Amendment

- rights. This in itself is a. doctrine of questionable validity

as the dissenting opinion of Mr. Justice Black . forcefully

points out. The only direct evidence then before Congress

that Communists do instigate political. strikes was the

testimony of a single man, Louis Budenz. He asserted that

two strikes in 1940 and 1941, at the plants of Allis-

* (Chalmers Company and the North American Aviation

“Company, had been léd by Communists and that the motiva-

tion was political rather than economic. We know of no

- other evidence presented to any committee of Congress at

the time of the passage of § 9(h) and we khow of none since,

It seems absurd that-the testimony of a single witness

_ who, at the time, was earning his living as an informer for

the Government, should be permitted to justify not only

-§9¢h) but successive statutes such as § 504 without any

evidence at all-of the current policies or views of the Com-

‘munist Party with respect to political strikes and without

any requirement of activity on -behalf of. the individual

officer involved to establish that he holds, or acted on, the

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views which were allegedly those of the Communist Party

a quarter of a century ago.

‘This Court has recognized from time to time that emer-

gency legislation: will not be permitted to stand after the

emergency has ceased to exist. Chastleton Corp. v. Sir-

. clair, 264 U. S. 543;-East New York Savings Bank v. Hahn,

- 326 U. S. 230; Bauer v. United States, 244 F. 2d 794 (C. A.

9, 1957). Jt is equally unreasonable to’ permit, a congres-

_ sional finding to justify restrictions upon freedom of

speech and association for an indefinite time on the basis -

of testimony that is not only stale but uncorroborated at

the time it was given. © ea

We recognize, of course, that this Court cannot, as an

~ initial proposition, weigh the evidence cited in support of

Congressional findings. However, in view of the fact that

the rights involved here are rights essential to the continued

. existence of a democratic government, this ‘Court should

not permit the extension of a doubtful doctrine whickt was

. in the first place founded upon highly questionable findings. .

POINT II _

Section 504 of the Act of 1959 is unconstitutional.

Membership in the Communist Party, without more, is

lawful under the Smith Act; it seems clear from the deci-

sions in Yates, Scales and Noto, supra, that mere member-

ship is constitutionally protected. Certainly respondent’s

conduct in becoming a member and officer of a union is

likewise constitutionally protected. It is difficult to see -

a theory upon which this combination of two constitution-—

ally-protected activities can be made. subject to criminal

penalties. :

This Court, in the Noto decision, said:

‘¢ * * * the mere abstract teaching of Communist

theory, including the teaching of the moral pro-

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priety or event moral secessity for a resort to force

and violence, is not the same as preparing a group

for violent action and steeling it to such action.

There. must be some substantial direct or cireum-

stantial evidence of a call to violence now or in the

future which ‘is both sufficiently strong and _ suffi-

ciently pervasive to lend color to the otherwise am-

biguous theoretical. material regarding Communist

‘Party teaching, and to justify the inference that

_ such a,ecall to violence may fairly be imputed to the

Party as a whole, and not merely to some narrow

segment of it.” © ,

“Surely the offhand remarks ‘that certin indi-

viduals hostile to the Party would one day ‘be shot

cannot demonstrate more than the venomous or

spiteful attitude of the Party towards its enemies,

and might indicate what could be expected from the

Party.if it should ever succeed to power, The ‘indus-

trial Concentration’ program, as to which the witness:

Regan testified in some’ detail, does indeed come

closer to the kind of conerete and particular program

on which a criminal conviction in this sort of case

must be based. But in ‘examining that evidence it

- appears to us that, in the context of this reeord, this.

. . too fails.to establish that the Communist Party wase

an organization which presently advocated ‘violent~

overthrow of the Government now or in the future,

for that is what must.be proven. * * * *’ (p. 298 )

‘Noto spoke at Communist ‘Party meetings, distributed

Communist Party literature, openly advocated the doe-

trines of Marxism-Leninism and spoke in terms of shooting

class enemies of the Communist Party. His activities were

held to be constitutionally protected. Brown, on this ree-

ord. did nothing but become an officer of his union. How

ean that activity be punished? :

We have no.,desire to duplicate the argument made. by

the prevailing opinions. in the Court of Appeals or the

argument presented to this Court by the respondent. The

unconstitutionality of tge legislation seems so clear that

not much more ‘is required than a statement of the nature -

of the legislation and its application to this case. .

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‘CONCLUSION

The decision of the Court of Appeals should be af-

fi re ° : |

February 23, 1965. 5,

“Respectfully submitted,

~, © *Vicror RaBrnowiTz, -

Lzonarp B. Bovunrn,

Attorneys for Amicus Curiae,

Emergency Civil Liberties Committee.

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