Petitioners Brief — Bryson v. United States

Supreme Court brief1969

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Text

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ih ha ald le sos abnand) Sieh Ounce

EES EOE De eee) ol) Pee eee ee

I. Section 9(h) of the Labor Management Relations Act of

1947 Is Unconstitutional As a Bill of Attainder and As

Violative of the First and Fifth Amendments ........

II. Under the Applicable Post-Conviction Statutes, Peti-

tioner Was Entitled to Be Relieved of the Remaining

Disabilities of His Conviction ..............+--++++:

BO, abn oviverscccccnvveccesercorescccsevecccccnce

iL ACLEe. fede kes Db tbdsdbbinasexoeensetne

I. Section 9(h), The Statute On Which Petitioner’s Con-

viction Was Based, Was an Unconstitutional Enact-

ment

(A)

(B)

Pe ee ee ee

On its face and as applied to the petitioner, the

provisions of 9(h) offend the constitutional pro-

hibition against bills of attainder (Article I,

GEE Oe ere ry errr ore

On its face and as applied to the petitioner,

Section 9(h) also abridges rights of speech, as-

sembly and association, in violation of the First

Amendment and deprives of liberties and prop-

erty without due process of law, in violation of

EMS cc cecs oe ccnesrvucecenvce

Petitioner Is Entitled, Under the Post-Conviction Stat-

utes, To Have His Criminal Conviction Set Aside and

to be Relieved of the Remaining Disabilities of that

coe eee eee eee eee se eeeseeFeeeset FF eeeeeeens

Pe ee

(B)

(C)

Inpex

Page

Petitioner also qualifies for the requested relief

under the All-Writs Statute, 28 U.S.C. 1651 ... 7

Petitioner’s right to relief is not subject to hi

guishable from the case at bar ............ 79

(ii) Petitioner has standing in this collateral

proceeding to invoke the unconstitutionality

8 > ar enpalihqen tape etapa

CCH HSOHHSEOHSODOOHOOHEHSOREHLEEOEOEOOCEOES EOE EEOOS

sable of Authorities Cited

Cases Pages

Adler v. Board of Education, 342 U.S. 485 ...............

American Communications Assn. v. Douds, 339 U.S. 382 .. passim

Anderson v. Martin, 375 U.S. 399 ........ccccccsvccccecs

Aptheker v. Secretary of State, 378 U.S. 500 ............

Baggett v. Bullitt, 377 U.S. 360 ........-....ceeeeeeeeeee

Bailey v. Drexel Furniture Co., 259 U.S. 20 .............. 62, 70

Baird v. Arizona State Bar, .... U.S. _., 37 U.S.L.Wk.

See dc Mhks hCG EDS 0 000,040 donbacy sane

Barenblatt v. United States, 360 U.S. 109 .......... 25, 40, 60, 61

Barsky v. Board of Regents, 341 U.S. 442 ............... 25, 41

Baumgartner v. United States, 322 US. 665 .............. 19, 20

Beauharnais v. Illinois, 343 U.S. 250 ....................

Birnbaum v. United States, .... U.S. _.. 37 U.S.L.Wk. 3355

adie bodipivcde Sade cdéss obo debbsdls ees

Bisnov v. United States, 299 F. 2d 711 ..................

Braden v. United States, 365 U.S. 431 ................... 9, 61

Bridges v. California, 314 U.S. 252 ..............2--2e0e-

Bridges v. United States, 346 U.S. 209 ..................

Bridges v. Wixon, 326 U.S. 135 ................ 28, 34, 66, 67, 70

Brown v. United States, 245 F. 2d 548 ..................

Bryson v. United States, 223 F. 2d 775 ...........0+-00::

Bryson v. United States, 238 F. 2d 657 .................-

Bryson v. United States, 243 F. 2d 837 .............+-4+- 2

Bryson v. United States, 265 F. 2d 9 ..........-.....005-

Bryson v. United States, 355 U.S. 817 .......... 2,

Bryson v. United States, 360 U.S. 919 .......... 3

Bryson v. United States, No. 47127, N.D., California ......

Callahan v. United States, 371 F. 2d 658 ................

Cantwell v. Connecticut, 310 U.S. 296 ...............664.

Carafas v. LaValle, 391 U.S. 234 ..............-000-- 16, 75, 76

Carlson v. California, 310 U.S. 106 ................-eee.

Champlin Ref. Co. v. Corporation Com. of Oklahoma, 286

Ee a ok. esi bendiai hel ae dik cele ma olathe < égubch

Communist Party v. Subversive Activities Control Board,

aL tance tead das a eebeenes cheudbrase see

Tasiz or AuTHoritizes Crrep

Communist Party v. Subversive Activities Control Board,

SP MEd DN WNG db cu tees Passe dvs dc dvhccsivc ces 38, 61

Communist Party of the United States v. United States, 384

ae TE er OA ee 2%6

Connally v. General Constr. Co., 269 U.S. 385 ............ 67

Cox v. Louisiana, 379 U.S. 536 ...........0.ccccccccccce 64

Cummings v. Missouri, 4 Wall. 277 .....................

scp ebaaWae leech dtaheceue des dens 14, 30, 33, 34, 36, 37, 47, 48, 55

DeJonge v. Oregon, 299 U.S. 353 .............cceeece 27, 63, 67

Dennis v. United States, 341 U.S. 494 ................... 62

Dennis v. United States, 382 U.S. 915 ................... 13

Dennis v. United States, 384 U.S. 855 ...................

reaeuaneee tdae eo 4, 13, 14, 16, 29, 54, 62, 72, 78, 79, 80, 81, 82, 83, 86

Dennis v. United States, No. 502, OT 1965 ............... 14

Dombrowski v. Pfister, 380 U.S. 479 .................- 15, 65, 68

Elfbrandt v. Russell, 348 U.S. 11 .............. 26, 29, 65, 68, 70

Ex parte Garland, 4 Wall. 333 ............. 14, 33, 36, 37, 47, 55

EE OE, ME 6k in 45 vin o.ccnnke dnnre¥s arc 90

Fiswick v. United States, 329 U.S. 211 ................... 76

Flemming v. Nestor, 363 U.S. 603 ...........csceeeeeeeee 26, 36

Follett v. McCormick, 321 U.S. 573 .........-sccceceeeee 64

Frankel v. Gardner, 263 F. Supp. 218 ..................- 26

Garner v. Board of Public Works of Los Angeles, 341 U.S.

DT cutibessnVinebuarenkhecaskarerede cece end nvis<i 30, 60, 61

Gideon v. Wainwright, 372 U.S. 385 ................0005- 86

Ginsberg v. New York, 390 U.S. 629 .................0.-. 76

Gitlow v. New York, 268 U.S. 652 ............ccccceeeeee 63

Gregory v. City of Chicago, .... U.S. ....... , 37 US.L.Wk.

Se SE Oe I eo acacecséscoverrcceactocien 28, 80, 85

ee Sy DG SO WM GEE cocvabccpecede reer ccdwesccce 64

Hamilton v. Alabama, 368 U.S. 52 ............ccceeeccee 86

Harris v. Nelson, ..... U.S. —... 37 U.S.L.Wk. 4219 (March

hs chinensis theasbebunteesereltconecreees 16, 78, 88

Herndon v. Lowry, 301 U.S. 242 ............20ccceee 27, 63, 67

Holloway v. United States, 393 F. 2d 731 ................ 16, 78

Hoptowit v. United States, 274 F. 2d 936 ................

Tasiz or AutTHorities Crrep

Inland Steel Co. v. National Labor Relations Board, 170 F.

en Elk Lode cdbbeede Mbceeseths odPiNs odut 66

fe re Anastonlo, $ TIL. 24 471 2.2... c cc ccccscccccccvccee 41

ee eee, GO F.. B8 CTOs on ons cabal cee ec cece 9

In re Summers, 325 U.S. 561 ..... 0. cece ccc ccc cevces

Jones v. Cunningham, 371 U.S. 236 ..............4..-

Bee ee, B00. S: GB6 2 ..6cccccccesvccvecceveces 64

Kaufman v. United States, ..... US. .... 37 US.L.Wk.

I OE, DOOD)... osdiely civkodaboteeonsané 17, 74, 89

Kay v. United States, 303 U.S. 1 ......-....0eeeeeeee 81, 82, 83

Kay v. United States, No. 991, OT 1936 ................. 83, 84

Keyishian v. Board of Regents, 385 U.S. 589 ....... 29, 60, 65, 68

Kloian v. United States, 349 F. 2d 291 .................. 89

Konigsberg v. State Bar of California, 52 Cal. 2d 769 ..... 41

Konigsberg v. State Bar of California, 366 US 36 ........

id anecttes sean Suis ed oben etOlb ss 6% 25, 35, 41, 60, 61

Kuhl v. United States, 370 F. 2d 20 ........ cece ec ee eee 89

Langer v. United States, 76 F. 2d 817 ........-..2eee00e: 84

Lanzetta v. New Jersey, 306 U.S. 451 00.2... eee e ee eeeee 67

Bere, Cee, BOT UB. GOB nwo cece cccccccccccccvcace 86

RG a ee er eee 64

Madden v. United States, 80 F. 2d 672 .................. 84

SE, OU TAI OED Ciiccesccpoeccccccecveccoecs 85, 86

Marbury v. Madison, 1 Cranch 137 ....................-. 71, 85

By ME, DD WIA IO, nc ccc cccccccvccccccecee 64

Mathis v. United ‘States, 369 F. 2d 43 ................... 77

Matysek v. United States, 339 F. 2d 394 ................. 74

Mesarosh v. United States, 352 U.S. 1 ...............04-. 21

Migdal v. United States, 298 F. 2d 513 .................. 77

Murdock v. Pennsylvania, 319 U.S. 105 .................. 64

eee, B Alawamn, S57. OB. 400 nce ccvvccvccvcccccs 60, 65

NA.AC.P. v. Button, 371 US. 415 0... . cece cece cee eees 22, 65

N.L.B.B. v. Jones & Laughlin Steel Corp., 301 U.S. 1..... 22

Noto v. United States, 367 U.S. 290 ..............44.. 60, 68, 69

Olmstead v. United States, 277 U.S. 438 .........-0eseees

TaBLe or Aurnorities Crrep

Pages

Panno v. United States, 203 F. 24 504 .................. 4

Peyton v. Rowe, 391 U.S. 54 ............cccceescceeess,, 15

Pierce v. Carskadon, 16 Wall. 234 ....................... 30

Pierce v. United States, 252 U.S. 239 .................... 63

Prince v. Massachusetts, 321 U.S. 158 ................... 64

Railway Employees’ Dept. AFL-CIO v. Hanson, 351 U.S.

ulehemebrinddntntvdndedeeee kee MELLEL LETT PTT rT eee 22

Re Anastoplo, 366 U.S. 82 .............cccccccccoeees.,. 25, 41

Reed v. Gardner, 261 F ne EEE EPP a 26

Rogers v. Richmond, 365 U.S. 584 ....................... 86

Rowoldt v. Perfetto, 355 U.S. 115 ....................... 66, 68

Sacher v. United States, 356 U.S. 576 ................... 40

Saia v. New York, 334 U.S. 558 ................00....... 64

Sanders v. United States, 373 U.S. 1.................... 90

Seales v. United States, 367 U.S. 208 .................... 60, 69

Schaefer v. United States, 251 U.S. 466 .................. 63

Schneider y. Irvington, 308 U.S. 147 .................... 64

Schneider v. Smith, 390 U.S. 17 ........................ 64

Schneiderman v. United States, 320 U.S. 118 ... +27, 51, 52, 67, 69

Schware v. Board of Bar Examiners, 353 U.S. 232 ........

SevUVS Mec bbaUUecéh ets sbibesbseise te ttekieks 52, 60, 67, 68, 69

Sehwarzenbach-Huber Co. v. National Labor Relations

Board, .... F. 2d ...... 37 U.S.L.Wk. (March 5, 1969).... 68

Shelton v. Tucker, 364 U.S. 479 ...................-....., 15, 64

Shuttlesworth v. City of Birming a) ee Be

L.Wk. 4203 (March 10, 1969)......................... 28, 80

Sinclair v. United States, 279 U.S. 263 .................. 9

Sinclair Refining Co. v. Atkinson, 370 U.S. 195 ............ 22

Spector v. United States, 193 F. 24 1002 ................ 43

oe i i Me ME Ee on iiee vat cetrenaneséocso..,.... 43

Stack v. United States, 193 F. 2d 875 .................... 43

Stanley v. Georgia, .... U.S. ......, 37 U.S.L.Wk. 4315 (April

MAINO): nevnatahes divs JiR Reds Toe aiéscubi. co <'bc), 71

Stirone v. United States, 341 F. 2d 253 .................. 89

Stromberg v. California, 283 U.S. 359 ................... 28

Sunal v. Large, 332 U.S. 174 ..........................,

COPCHCC CC OO LOLOL ELE EEEEEOS

Taste or AvTHorities Crrep vii

Pages

Thornton v. United States, 368 F. 2d 822 ................ 90

Townsend v. Sain, 372 U.S. 298 .........ccccccccccccees 88

Ullmann v. United States, 250 U.S. 422 .................. 41

United States v. Baird, 241 F. 24 170 ..............0000. 74

United States v. Bridges, 133 F.S. 638, N.D. Calif. ....... 34

United States v. Brown, 334 F. 2d 488 .................. 29

United States v. Brown, 381 U.S. 437 .................. passim

United States v. Bryson, No. 34105, N.D. Calif. June 14,

DELL SCGhbts adc asaddwtba checauwbeessvanedcaece 2,3

United States v. Bryson, No. 47080, N.D. Calif. .......... 3

United States v. Bryson, 403 F. 2d 340 ................ 1, 78, 82

United States v. Cardiff, 344 U.S. 174 ................00- 67

United States v. Carolene Products Co., 304 U.S. 144 ..... 64

United States v. DeMario, 246 F.Supp. 786 .............. 75

United States v. Gottfried, 197 F. 2d 239 ................ 73

United States v. Harding, 81 F. 2d 563 ................. 84

United States v. Hayman, 342 US. 205 .................. 16, 74

United States v. Iecardi, 140 F.Supp. 383 ............... 85

United States v. Knapp, 302 U.S. 214 ............. 81, 82, 83, 84

United States v. Lovett, 328 U.S. 303. .12, 30, 31, 35, 37, 47, 53, 55

United States v. MacDonald, 10 F.Supp. 948 ............. 84

United States v. Morgan, 346 U.S. 502 ............... 16, 76, 77

United States v. Myers, 394 F. 2d 619 .................5. 15

United States v. Remington, 208 F. 2d 567 .............. 81

United States v. Remington, 347 U.S. 913 ................ 81

United States v. Robel, 389 U.S. 258 ................005- 60

United States v. Schneiderman, 102 F.Supp. 52 .......... 43

United States v. Sobell, 314 F. 2d 314 ................... 89

United States v. Williams, 341 U.S. 58 .................. 81

United States v. Winter, 348 F. 2d 204 .................. 81

United States v. Winter, 382 U.S. 955 ................... 81

United States ex Rel Kettunen v. Reimer, 79 F. 24 315 ... 67

Uphaus v. Wyman, 364 U.S. 388 ...................00.5- 26

Wapnick v. United States, 406 F. 2d 741 ................ 75, 77

Watkins v. United States, 354 U.S. 178 ............ 40, 43, 60, 86

Watts v. Indiana, 338 U.S. 49 ............. cc cece eee e eee 20

Weiss v. Gardner, 263 F. Supp. 184 ..................... 26

Weles v. Gardner, 386 U.S. 9 ............ cece cccccccceee 26

Whitney v. California, 274 U.S. 357 .......... cece ceeceee 63

SES NEES:

viii Taser or AutHonitizs Crrep

Wilkinson v. United States, 365 U.S. 390 ................

Winters v. New York, 333 U.S. 507 ...........c0cccc0ee,

West Virginia State Board of Education v. Barnette, 319

ti RE Le ETRE EA Eee 63

Yates v. United States, 227 F. 2d 851 ............0...... 42, 43

Yates v. United States, 354 U.S. 298 ................. 67, 68, 69

Yates v. United States, 355 U.S. 66 60.00... ... cece cece, 42, 43

Constitutions

United States Constitution:

epee ET TT ey ee 32

Article I, Section 9, Clause 3 ...4, 14, 29, 30, 32, 53, 62, 88, 90

OE ice te eee le 32

etbinverak g 8 Se a ae ee 32

ME LD ois hk decadkiiteescciicint. 2... 32, 62

eT MII dss Sede hbk a oi boc ko chee coe passim

SL I CES cot ees) SAE F 88

NE ES ie la a a ae ae passim

Statutes

7 en, CN i eae ra hk 2 ea hE 82

oe Ny SUE Ain nc nadsind WES cekk cxndeneeuth viata 2, 5, 79, 88

et MEY Width diet Md cccicececak. 3, 19, 34

“pile tic rstg Bec n, yd CONTE 21 OOIR: (LT 41

PMR Mc sy iudas se taslecidebe ts cecuc he 14

Oe WORN MOE oc kcaccnusdetes 4, 6, 10, 16, 71, 72, 76, 77, 78, 86, 87

PN SE Gas veda butacaccaktelstensidecilie ak 4

hs gS 4, 6, 10-11, 16, 71, 72, 74, 76, 86, 87, 88

29 U.S.C. 158:

SED ei Rai SR Wikinrcis kd oh SK ble eet rr 49, 56

SNE en Ainhe GkRRTE erRDE Fe kas «bene. 49

GENE, «ay shaun bb hades scteahCk With ceded 49, 56

Oe De DMD. bds dincGads acest ood ee YOR passim

TasLe or AuTHORITIES CrreD ix

Pages

ED keke tad cerwn tl dive ss ve H Ub ee THREE en's 56

IE MIIED oic-o:a:0:c-vr a bddalcg’d 8% 8d vs obide ee wEUES Sante 2,5

OE EID 6, BCG 6 da Ta ig Cen NTO seks CHEWREDTL OSES passim

cade iikaias 6enns oa teredibee eee tae 36

DE Pele OP OU cece nb ecetvecsiccesses 24, 26, 36, 37, 39, 40

eee ie OP GUM, cn cnccccnccecssress 23, 24, 39, 40, 41, 43, 52

Codes

Business and Professions Code, §§10151 and 10152 ........ &

Rules

Federal Rules of Civil Procedure:

Retin cass Este ae OkNehOSeREsth *reenes 71, 73, 80

Supreme Court of the United States:

el uen ake e tein ees Scbee NeGKeDbebss aueee'’s 1

Texts

Blackstone, Tucker Ed., Vol. I, 292 ................0005- 33

Chafee, Free Speech In The United States, 1941 ......... 19, 20

Emerson, Political and Civil Rights in the United States,

WU By MOU bic acarde sec Use 19, 20, 34, 36, 37, 39, 40, 44

Goodman, The Committee, 1968 ........... cc cece eee eee 31

Lattimore, Ordeal by Slander, 1950 ..............00eeeee 21

IE, TH MD ao os OU a Uae vvceccoesevensen 39

EE BAe GE, BOOT on cscnvsdeccscevccciaecvens 77, 78

Post, The Deportations Delirium of Nineteen-Twenty, 1923 20

Smith, Freedom’s Fetters, 1956 ..............ceeeeeeeeee 20

x Tasie or AutHorities Crrep

CRCSHHC ETT O HRC OH eee Eee

Ziskind, One Thousand Strikes of Government Employees,

Columbia University Press, 1940

eeeeeeeeteoeeeeseeesene

Nt Meet ed ee eee eee. 2 2 © 2 oe 2

@eeeeeeeeeseeeeeeseeeeeece

STRSSCSTCOBRSSCSCSEHSCOHPEH eee E DEERE

eeeeeeeeeeeeeeeees

In the Supreme Court

OF THE

United States

OctToBER TERM, 1968

No. 934

Hue Bryson, |

Petitioner,

Unttep STATES OF AMERICA,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

BRIEF FOR HUGH BRYSON

OPINIONS BELOW

The opinion of the Court below (App. 44)’ is re-

ported at 403 F. 2d 340; the opinion of the District

Court (App. 26) is unreported.

“App.” refers to the Appendix printed and filed, pursuant to

this Court’s Rule 36; “Br. in Op.” refers to the Government’s Brief

in Opposition to the Petition for Writ of Certiorari.

JURISDICTION

The judgment of the Court of Appeals (App. 46) |

was entered on November 5, 1968. The petition for |

certiorari was filed on January 13, 1969 and was

granted on February 24, 1969. The jurisdiction of

this Court is invoked under 28 U.S.C. 1254(1).

QUESTIONS PRESENTED?

In 1955 petitioner was convicted of having violated

the “False Statement” Statute, 18 U.S.C. 1001, by

stating in 1951 in an affidavit, filed pursuant to Sec.

tion 9(h) of the Labor Managament Relations Act of

1947 (the Taft-Hartley Act), 29 U.S.C. 159(h),* that

he was not then ‘‘affiliated” with the Communist Party.

His conviction was affirmed (Bryson v. United States,

238 F. 2d 657 [9 Cir., 1956]; rehearing denied, Bry-

son v. United States, 243 F. 2d 837 [9 Cir., 1957];

cert. den., 355 U.S. 817 [1957]), and he commenced

the service of his sentence in January, 1958.‘ Twenty-

2Petitioner first raised, by motion to dismiss, all the constitv-

tional arguments herein presented, including specifically that the

statute “on its face and as applied to him,” violated Article I,

Section 9, the First Amendment and the Fifth Amendment (Bryson

v. United States, No. 171, O.T., 1957, 355 U.S. 817, Clerk’s Tran-

script on Appeal, Motion to Dismiss, p. 3, ll. 10-11) ; ‘he raised them

thereafter during the trial, in post-trial motions, on appeal, in his

petition for rehearing, and on certiorari (App. 26-27; Br. in Op. 2).

8Since repealed by Section 201(d) of the Labor Management

Reporting and Disclosure Act of 1959, 73 Stat. 519, 525, and “r-

placed” by Section 504 thereof (29 U. 8.C. 504). See United States

v. Brown, 381 U.S. 437, 439 (1965).

‘District Judge William C. Mathes imposed a maximum sentence

of 5 years imprisonment and “a fine of $10,000, and be further

imprisoned until said fine is paid or you are otherwise discharged

as provided by law.” (United States v. Bryson, No. 34105, N.D.,

three months later he was released on parole, but he

is still subject to the supervision of the Probation

Officer. Petitioner has paid $2,000 of his fine. The

Government has brought an action to collect the re-

maining balance of $8,000 (United States v. Bryson,

N.D., California, Civil No. 47,080).

On May 24, 1967, petitioner filed a motion in the

Northern District of California, seeking relief from

the judgment of conviction and its attendant dis-

qualifications, on the ground that this Court’s deci-

Calif., June 14, 1955, Proceedings Upon Sentence and Fixing of

Bail on Appeal, pp. 16-17.) The case had been submitted to the jury

on a two-count indictment; the jury acquitted petitioner on the

count charging him with false swearing as to membership in the

Communist Party, and convicted for false swearing as to affiliation

with that Party. A third count, charging petitioner with falsely

denying “support” of an organization advocating doctrines pro-

scribed by the statute, was dismissed by the Government prior to

trial.

Neither in the dismissed count, nor in the counts on which peti-

tioner was tried, was there any allegation that petitioner himself

believed in the overthrow of the Government by force or illegal

means, or that his oath in that regard was in any way false; and

no evidence was offered to show that his beliefs, or his associations

with members of the Communist Party or the Party itself, involved

activities or discussions relating to forbidden doctrine or illegal

conduct. Neither was evidence offered concerning the teachings of

the Communist Party with respect to the forcible overthrow

of the Government, or the instigation of political strikes. Never-

theless, at the time of pronouncing sentence, the trial judge said,

“The statute under which he is prosecuted is a general statute, and

for punishment I look to the analogy of the Smith Act. As I view

it, what he is convicted of—the substance of what he is convicted

of, for the purposes of punishment is the same as if he had been

convicted of a violation of the Smith Act.” (ibid., 16). Ironically,

the Court of Appeals, although it professed to take a different view

of the offense of which petitioner had been convicted (Bryson v.

United States, 243 F. 2d 837, 839 [9 Cir., 1957]; cert. den. 355

U.S. 817 [1957]), refused to reduce or otherwise interfere with the

sentence. (Bryson v. United States, 265 F. 2d 9 [9 Cir., 1959];

eert. den. 360 U.S. 919 [1959]). Cf. the dissenting opinion of The

Chief Justice and Mr. Justice Douglas in Birnbaum v. United

States, U.S. ......., 37 U.S.L.Wk. 3355 (March 24, 1969).

sion in United States v. Brown, 381 U.S. 437 (1965),

supported the conclusion that Section 9(h) was a

bill of attainder in violation of Article I, Section 9,

Clause 3 of the Constitution of the United States,

The motion also alleged that Section 9(h) was repug-

nant to the First and Fifth Amendments to the Con.

stitution. District Judge A. J. Zirpoli granted the

relief prayed for’; however, the Court of Appeals re-

versed, holding that this Court’s decision in Dennis v.

United States, 384 U.S. 855 (1966) deprived peti-

tioner of standing to challenge the constitutionality

of Section 9(h).

The questions, as stated in the petition for cer.

tiorari, which was granted without any qualifications,

are:

(1) Whether petitioner is precluded, by reason of

this Court’s decision in Dennis v. United States, 384

U.S. 855, from attacking the constitutionality of See-

tion 9(h) of the Taft-Hartley Act.

(2) Whether, in the comparative light of Ameri-

can Communications Assn. v. Douds, 339 U.S. 382,

and United States v. Brown, 381 U.S. 437, Section

9(h) is constitutional.

(3) Whether the petitioner qualifies, under either

28 U.S.C. 1651 (the All Writs Statute) or 28 U.S.C.

2255, for post-conviction relief,

SExcept the request that the Government be ordered to refund

the $2,000 theretofore paid on the fine. This relief was denied, and

petitioner does not seek such relief by his petition here.

_—

STATUTES INVOLVED

18 U.S.C. 1001 provides:

Whoever, in any matter within the jurisdic-

tion of any department or agency of the United

States knowingly and willfully falsifies, conceals

or covers up by any trick, scheme, or device a

material fact, or makes any false, fictitious or

fraudulent statements or representations, or

makes or uses any false writing or document

knowing the same to contain any false, fictitious

or fraudulent statement or entry, shall be fined

not more than $10,000 or imprisoned not more

than five years, or both.

Section 9(h) of the National Labor Relations Act,

as amended by the Labor Management Relations Act

of 1947 (formerly 29 U.S.C. [1958 ed.] 159(h)),

which was repealed by Section 201(d) of the Labor

Management Reporting and Disclosure Act of 1959,

73 Stat. 519, 525, provided:

No investigation shall be made by the Board

of any question affecting commerce converning

the representation of employees, raised by a lal or

organization under subsection (c) of this section,

and no complaint shall be issued pursuant to a

charge made by a labor organization under sub-

section (b) of section 160 of this title, unless

there is on file with the Board an affidavit ex-

ecuted contemporaneously or within the preced-

ing twelve-month period by each officer of such

labor organization and the officers of any national

or international labor organization of which it

is an affiliate or constituent unit that he is not

a member of the Communist Party or affiliated

with such party, and that he does not believe in,

and is not a member of or supports any organ-

ization that believes in or teaches, the overthrow —

of the United States Government by force or by _

any illegal or unconstitutional methods. The pro-

visions of [sections 286, 287, 1001, 1022 and 1023 |

of Title 18] shall be applicable in respect to such

affidavits.

Section 504 of 29 U.S.C., as amended in 1959, pro-

vided in pertinent part:

(a) No person who is or has been a mem-

ber of the Communist Party ... shall serve

(1) as an officer, director, trustee, member

of any executive board or similar governing

body, business agent, manager, organizer or other

employee (other than as an employee perform-

ing exclusively clerical or custodial duties) of

any labor organization . . . during or for five

years after the termination of his membership in

the Communist Party...

(b) Any person who willfully violates this

section shall be fined not more than $10,000 or

imprisoned for not more than one year, or both.

Section 1651 of 28 U.S.C. provides in pertinent

part:

The Supreme Court and all Courts established

by Act of Congress may issue all writs necessary

or appropriate in aid of their respective jurisdic-

tions and agreeable to the usages and principles

of law.

Section 2255 of 28 U.S.C. provides:

A prisoner in custody under sentence of 4

Court established by Act of Congress claiming

—

the right to be released upon the ground that

the sentence was imposed in violation of the Con-

stitution or laws of the United States, or that

the Court was without jurisdiction to impose such

sentence, or that the sentence was in excess of

the maximum authorized by law, or is otherwise

subject to collateral attack, may move the Court

which imposed the sentence to vacate, set aside

or correct the sentence.

A motion for such relief may be made at any

time.

Unless the motion and the files and records of

the case conclusively show that the prisoner is

entitled to no relief, the Court shall cause notice

thereof to be served upon the United States at-

torney, grant a prompt hearing thereon, deter-

mine the issues and make findings of fact and

conclusions of law with respect thereto. If the

Court finds that the judgment was rendered with-

out jurisdiction, or that the sentence imposed

was not authorized by law or otherwise open

to collateral attack, or that there has been such

a denial or infringement of the constitutional

rights of the prisoner as to render the judgment

vulnerable to collateral attack, the Court shall

vacate and set the judgment aside and shall dis-

charge the prisoner or resentence him or grant

a new trial or correct the sentence as may appear

appropriate.

An appeal may be taken to the Court of Ap-

peals from the order entered on the motion as

from a final judgment on application for a writ

of habeas corpus.

STATEMENT OF THE CASE

Petitioner was born in Logan County, Illinois, in

1914, the son of a tenant farmer.’ After graduating

from high school in 1932, he obtained such occasional

employment as was available to young men during

the depression years. In 1936 he joined the Marine

Cooks and Stewards Association (later National

Union of Marine Cooks and Stewards) and began

going to sea regularly in the Stewards Department

on West Coast merchant ships. In time he became

active in affairs of the union, served on its various

committees, rose through the ranks, and in 1947 be

came its president—a position he retained until the

union’s dissolution in 1954.

Thereafter he became a licensed real estate broker,

a vocation he was following at the time of his trial,

which he resumed upon his release from prison, and

which he now follows to support his wife and five

minor children.’

It appears that, at the beginning of 1938, petitioner

attended some Communist meetings on shipboard

where the general subject of discussion had to do

with working for a better union and improving con-

ditions of the men on the vessels. Such contacts as

he had with the Communist Party ended no later

than the early part of 1947.

ose aa eaenine ok macet ee a ee States, No.

171, O.T. 1957, 355 U.S. 817, and in Bryson v. United States, No.

929, O.T. 1958, 360 U.S. 919.

"California requires a licensee to establish his “honesty, truthful-

ness, and good reputation.” (Business and Professions Code,

§§ 10151, 10152.)

—7~"”" :

By 1951 the union was involved in a jurisdictional

dispute and in self-protection had to invoke the facili-

ties of the National Labor Relations Board. Before

signing the 9(h) affidavit, petitioner “discussed its

effect fully and completely with my attorneys. I toid

them I had ceased associating in any way with Com-

munists in early 1947, and that four years later I

felt was ample time to have disassociated” (Bryson

v. United States, No. 929, O.T. 1958, Transcript of

Record, p. 14). He was advised that, under those

circumstances, “there would be no difficulty” if he

signed the affidavit* and he did so. Now, nearly 20

years later, he is still seeking to vindicate himself.’

®The fact that petitioner received and relied on legal advice could

not be proved at petitioner’s trial, for the rule of the Ninth Cireuit

excluded evidence that a defendant in a criminal trial had acted

on the advice of counsel (In re Merritt, 28 F. 2d 679, 680 [9 Cir.,

[1928]; see also Sinclair v. United States, 279 U.S. 263, 299

[1929]). The rule of In re Merritt and Sinclair, supra, has been

reaffirmed in the Ninth Circuit since the date of petitioner’s trial

(Bisnov v. United States, 299 F. 2d 711, 719-720 [9 Cir., 1961]).

This Court has also reaffirmed the rule of Sinclair (Braden v.

United States, 365 U.S. 431 [1961]).

It was the prosecution’s theory, which the trial court accepted,

that the only relevant issue of intent was whether petitioner in-

tended to file the affidavit, not the intent with which it was filed

(Bryson v. United States, supra, n. 2, Reporter’s Transcript on

Appeal, pp. 1090, 1138L), hence evidence of reliance on legal

cilien, aS ing on the issue of specific intent, would be irrele-

vant. Such evidence is not, however, irrelevant in these collateral

*The Court of Appeals had occasion to pass upon petitioner’s

character at the time of an application for bail on appeal. It found

from the record that:

“It appears that Bryson has no prior record of convictions

of any offenses, felony or misdemeanor. For many years of

his life he was an American merchant seaman, subject to the

jurisdiction of the United States Coast Guard; at no time was

he ever charged or convicted of any violation of the rules or

regulations of the United States Coast Guard. In all respects

whatsoever, save and except for the conviction hereinabove

——

At the criminal trial, where petitioner was con.

victed of having falsely denied that he was “affiliated”

with the Communist Party in April of 1951, the Gov.

ernment produced no evidence of any association with

the Party at any date later than 1947. His appeal

from the conviction, and a later effort to obtain a _

reduction of the sentence, were unavailing (see supra,

n, 4). Petitioner served nearly two years in Federal

prison (before he was released on parole) and paid

$2,000 of the $10,000 fine, being unable to pay the

balance. He continues to be under parole supervision,

and remains subject to the provision in his sentence,

that he “be further imprisoned until said fine is paid

or you are otherwise discharged as provided by law.”

After the decision in United States v. Brown, 381

U.S. 437 (1965), the present action was instituted by

petitioner when he filed, in the District Court, a

“Motion for Writ of Error Coram Nobis to Vacate,

Set Aside and Correct Judgment of Conviction and

Sentence of Imprisonment and Fine, and for Other

Requested Relief” (Bryson v. United States, N.D.,

California, Civil No. 47,127). He alleged that the Dis-

trict Court had jurisdiction under 28 U.S.C. 1651

(the ‘“‘All Writs Statute”) as well as under 28 U.S.C.

mentioned, Bryson’s record of conduct has been and is with-

out blemish.

Coupled with this there are of record in the files of this

action statements of a large number of responsible citizens of

California to the effect that Bryson was a reliable and depend-

able person, such elements in his character being required to

be considered by the last phrase of 46(c), ‘the character of the

defendant.’” (Bryson v. United States, 223 F. 2d 775, 777

{9 Cir., 1955) ).

9255. Petitioner asserted that his sentence violated

the Constitution of the United States (and therefore

that the Court was without jurisdiction to impose it)

because his conviction rested upon a statute (9[h])

which was unconstitutional as a bill of attainder and

which was violative of the First and Fifth Amend-

ments.

After a hearing on the merits, the District Court

ordered that petitioner’s conviction and sentence be

set aside, that he be released from parole, and that

he be relieved of the obligation to pay the remaining

portion ($8,000) of his fine (App. 43). On the

Government’s appeal, the Court of Appeals reversed,

holding that petitioner had no standing to attack the

constitutionality of Section 9(h) (App. 45).

To facilitate understanding of the issues presented

here, it is necessary to turn briefly to the history of

the statute on which petitioner’s conviction was based:

(1) In 1950, Section 9(h) withstood an attack that

it was unconstitutional as a bill of attainder and for

infringing First and Fifth Amendment rights (Amer-

ican Communications Assn. v. Douds, 339 U.S. 382

[1950]). Three members of the Court did not par-

ticipate in the decision. The provision of the law

relating to ‘‘affiliation” was upheld by four Justices,

with Mr. Justice Black and Mr. Justice Frankfurter

separately dissenting.’®

1Mr. Justice Black deemed the statute to be a bill of attainder in

its entirety. In reference to “affiliation,” he wrote:

“Guilt should not be imputed solely from association or affilia-

tion with political parties or any other organization, however

(2) In 1959, Section 9(h) was repealed; contempo- |

raneously, Section 504 of the Labor Management |

Reporting and Disclosure Act of 1959 (29 U.S.C.A.

504) ‘“‘was enacted to replace” it. (United States v,

Brown, 381 U.S. 487, 439 [1965]).

(3) In June of 1965, Section 504 was held unconsti-

tutional as a bill of attainder in an opinion written by

The Chief Justice expressing the views of five mem-

bers of this Court (United States v. Brown, supra.)

The opinion suggested (381 U.S. at 447) that Douds

had departed from the ‘‘spirit” in which the bill of

attainder clause had been ‘‘consistently interpreted,”

and said (381 U.S. at 460) that the Court in Douds

had ‘‘misread” an earlier bill of attainder case:

Umited States v. Lovett, 328 U.S. 303 (i945). The

four dissenting Justices in Brown wrote of that deci-

sion’s impact on Douds and Section 9(h) in these

words:

“It is not difficult to find some of the cases and

statutes which the necessary implications of the

Court’s approach will overrule or invalidate.

American Communications Assn. v. Douds, 339

U.S. 382, which upheld the predecessor statute

much we abhor the ideas which they advocate.” (Douds, supra,

452.)

Mr. Justice Frankfurter, taking note of “the dubious scope of the

term ‘affiliated’ in the statute” (Douds, supra, 420, n. 2), wrote

as follows:

“If I possibly could, to avoid questions of unconstitutionality

I would construe the requirements of §9(h) to be restricted

to disavowal of actual membership in the Communist Party,

or in an organization that is in fact a controlled cover for

that Party, or of active belief, as a matter of present policy,

in the overthrow of the Government of the United States by

force. But what Congress has written does not — such 8

gloss nor deletion of what it has written.” (Douds, supra,

421-422.)

to §504 is obviously overruled... . Like §504, the

statute there under consideration did not cover

all persons who might be likely to call political

strikes. ... The Bill of Attainder Clause now

forbids Congress to do precisely what was vali-

dated in Douds”. (United States v. Brown, supra,

at 464-465.)

(4) In November 1965, this Court granted cer-

tiorari to review a decision of the Court of Appeals

for the Tenth Circuit, which had affirmed a criminal

conviction involving section 9(h). The writ limited

review to three questions, one of which read:

‘‘Whether, in the comparative light of Ameri-

can Communications Ass’n. v. Douds, 339 U.S.

382, and United States v. Archie Brown, 381

U.S. 437, Section 9(h) of the Taft-Hartley Act

is constitutional.” (Dennis v. United States, 382

U.S. 915 [1965].)

(5) In June of 1966, this Court reversed the crimi-

nal conviction in Dennis, but laid decision on the

trial Court’s denial of a motion to make certain grand

jury testimony available for pretrial examination

(Dennis v. United States, 384 U.S. 856 [1966]). This

Court expressly declined to entertain the constitutional

attack on Section 9(h) for the reason that the Dennis

petitioners were held to lack standing to assert the

challenge (Dennis, supra, 865-867). Whiie joining in

the reversal, Justices Black and Douglas dissented

from the Court’s refusal to pass on the constitution-

ality of Section 9(h) (Dennis, supra, 875-881).

(6) On January 13, 1969, the petition for cer-

tiorari herein was filed and on February 24, 1969,

it was granted, without qualification, so that the con.

stitutional issue which the Court declined to consider _

in Dennis—i.e., tho validity of Section 9(h) in the |

light of Article I, Section 9, Clanse 3 and of the First

and Fifth Amendments (see Dennis v. United States,

No. 502, O.T. 1965, Brief for Fetitioner, 20-35)—is

now here for decision.

SUMMARY OF ARGUMENT

Section 9(h) of the Labor Management Relations Act of 1947 Is

Unconstitutional As a Bill of Attainder and As Violative of

the First and Fifth Amendments.

A. A bill of attainder is a legislative act which

inflicts punishment without a judicial trial ( Cummings

v. Missouri, 4 Wall. 323 [1867]). A statute which re-

quires, as 9(h) does, a test oath as a condition of un-

restrictedly pursuing a lawful calling is a bill of

attainder (Cummings v. Missouri, supra; Ex parte

Garland, 4 Wall. 333 [1867]).

Section 504 of the Labor Management Reporting and

Disclosure Act of 1959, enacted to “‘replace” 9(h),

was held unconstitutional as a bill of attainder in

United States v. Brown, 381 U.S. 437 (1965). We

show that Section 9(h) presents no distinct or differ-

ent problems from Section 504. The Brown case spe-

cifically states that American Communications Assn.

v. Douds, 339 U.S. 382 (1950), which is relied upon

to sustain the validity of 9(h), departed from the

“‘spirit” in which the bill of attainder clause had been

“eonsistently interpreted” and that Douds had ‘‘mis-

read” this Court’s earlier bill of attainder decisions.

The dissenters in Brown were clear that the decision

overruled Douds and necessarily invalidated 9(h).

Accordingly, petitioner’s conviction and sentence

were illegal.

B. Douds itself recognized that 9(h) effected an

invasion of First Amendment rights, but sought to

‘‘halance” that invasion against the Government’s

claimed interest in preventing political strikes. The

command of the First Amendment does not permit of

such a balancing. In any event, Aptheker v. Secre-

tary of State, 378 U.S. 500 (1964) establishes that the

exercise of First Amendment rights is not subject to

even non-criminal sanctions on the basis of mere mem-

bership in (much less being ‘‘affiliated” with) the

Communist Party. There was no proof here that peti-

tioner’s ‘‘affiliation” involved any unlawful knowledge,

intent, beliefs, or activity. His conviction therefore

cannot stand under the First Amendment.

Furthermore, the sweeping character of 9(h) (Shel-

ton v. Tucker, 364 U.S. 479 [1960]), the vagueness of

the term ‘“‘affiliation”, and the Section’s obviously

chilling effect upon the exercise of First Amendment

rights (Dombrowski v. Pfister, 380 U.S. 479, 487

[1965]) make it unconstitutional under the Fifth

Amendment, on its face and as applied to petitioner.

Under the Applicable Post-Conviction Statutes, Petitioner Wa ;

Entitled to Be Relieved of the Remaining Disabilities of His

Conviction.

A. 28 U.S.C. 2255 authorizes a federal parolee to

maintain an action for relief from a sentence imposed

in violation of the Constitution (Carafas v. LaValle,

391 U.S. 234 [1968]; cf., Jones v. Cunningham, 371

U.S. 236 [1963]; United States v. Hayman, 342 US,

205 [1952]).

B. Alternatively, the All Writs Statute, 28 U.S.0.

1651, authorizes petitioner to maintain, on the same

grounds, an action for relief by way of a writ of error

coram nobis (United States v. Morgan, 346 U.S. 502

[1954]; Holloway v. United States, 393 F.2d 731 [9

Cir., 1968]; cf., Harris v. Nelson, ........ 5. Sea , al

U.S.L.Wk. 4219 [March 24, 1969]).

C. Nothing in Dennis v. United States, 384 US.

855 (1966) deprives petitioner of the rights granted

to him by the foregoing sections of Title 28 of the

United States Code. Dennis denied standing to per-

sons who knowingly conspired to deceive the Govern-

ment into believing that they had resigned from the

Communist Party when in fact they had not. The

‘conspiracy, cynical and fraudulent,” was at the heart

of the holding (Dennis, supra, 865). Here the petition-

er’s good faith belief, supported by the advice of coun-

sel, that he was not “‘affiliated” with the Party after

four years of actual disassociation, presents an entirely

different record against which the non-rigid concept of

standing is to be measured.

Furthermore, unlike Dennis, this case presents the

issue in the context of a post-conviction attack. (Cf.,

Kaufman v. United States, ......... Lif es , 37 U.S.L.

Wk. 4238 [March 24, 1969]). To hold that petitioner

may not utilize the post-conviction statutes is judicially

to repeal them, at least as to some types of crimes.

ARGUMENT

INTRODUCTORY

This case comes here in the appearance of a pro-

ceeding to set aside petitioner’s conviction for falsely

swearing that he was not affiliated with the Commu-

nist Party. But its appearance covers over many

troubling facets of recent American life. These facets

have place here because the 1955 case against peti-

tioner was born of the emergence, some two decades

ago, of a legislative policy that is essentially alien to

our democratic tradition. Expressing itself in enact-

ments of unprecedented nature, this policy has ex-

erted wide-ranging power over the destiny of untold

numbers of the American people. In the process, it

has raised questions that reach deeply into the heart

of our system of justice, and has posed crucial issues

of constitutional law. The statute whose impact fell

on petitioner was an intrinsic part of that policy.

Hence, to do justice here, the enveloping circum-

stances must be taken into account. The case against

petitioner, its 15-year history in the courts, and the

somber background of governmental actions which

encompass that period, must be viewed together and

in context.

The 1947 law (Section 9[h]) of which this Cour

said three years later that by it “Congress has un.

deniably discouraged the lawful exercise of political

freedoms,” and that it had the “necessary effect of

discouraging the exercise of political rights protected

by the First Amendment” (American Communications

Assn. v. Douds, 339 U.S. 382, 393) should have been

voided then. It was said, in its justification, that Con-

gress had received evidence that Communists “subor-

dinate[d] legitimate trade union objectives to ob-

structive strikes when dictated by Party leaders,

often in support of policies of a foreign government.”

(tbid, 388-389) ; and that from “a great mass of mate-

rial before it which tended to show that Communists

and others . . . had infiltrated union organizations

. .. to make them a device” to disrupt commerce for

political reasons (ibid, 389), Congress could “ration-

ally find” that Party members would be “likely to

resort” to political strikes (ibid, 391), and “might

reasonably find” that Communists “represent a con-

tinuing danger of disruptive political strikes when

they hold positions of union leadership” (ibid, 393).

But even at the moment of decision, it was acknowl-

edged that the “material” on which Congress had re-

lied consisted of “conflicting evidence” (tbid, 400);

and in the separate opinion of Mr. Justice Jackson

(coneurring and dissentipg), it was said of the same

“material” that,

“Most of this information would be of doubtful

admissibility or credibility in a judicial proceed-

ing” (tbid, 424, n. 2).

Nevertheless, in deference to the supposed legislative

“findings,” this Court upheld the law, declining to

“assess the validity” of the evidence (ibid, 400).

But “facts do not assess themselves . . . [T]he de-

cisive element is the attitude appropriate for judg-

ment.” (Baumgartner v. Umted States, 322 U.S. 665,

666-667 [1944]). To suppose that the several Con-

gressional committees before whom was placed this

mass of conflicting and contradictory materials, ap-

proached the task of “assess[ing] [its] validity” with

an “attitude appropriate for judgment,” is to belie the

simplest facts of life. Whatever legislative assessment

occurred, it could scarcely have escaped the dominat-

ing influence of the political passions (and doubtless,

in some instances, the private ambitions) that engen-

dered the new Congressional policy.’ It cannot be

denied that history affords sobering examples of the

extremes to which men in public office are sometimes

“The political climate existing in 1947 calls to mind the ob-

servation of Mr. Justice Story that bills of attainder were usually

A detinguithed la of “great political excitements” (infra, 33, n. 21).

A legal scholar, reviewing a period of similar “excite-

ments” that gave rise to the Smith Act of 1940 (18 USC 2385),

“Onee Cons had lashed itself into such anger against

ive aliens, it is small wonder that it made

(Fagen ga teen ch one Repre-

sentative T . Ford of California remarked during the

fb ites at the. House to'cnds that f you bevndit in

the Ten ee eae oan Sib Seay enpeel

and attached to ea tag ay md a ye ”

(Chafee, Free Speech In The United States [1941], 446).

Reet |

propelled under the whip of inflammatory circum-

stances.* Was it not rightly said (in a different set-

ting, but with regard to an important issue of con-

stitutional law) that “there comes a point where this

Court should not be ignorant as judges of what we

know as men”? (Watts v. Indiana, 338 U.S. 49, 52

[1949]).

In all truth, the “findings” which were held in

Douds to justify an impairment of First Amendment

rights were but expressions of ultimate judgments.

Properly to reach these, a careful “assessment of

the trustworthiness of witnesses” was indispensable

(Baumgartner v. United States, 322 U.S. 665, 670

[1944]). For “[t]he conclusiveness of a ‘finding of

fact’ depends on the nature of the materials on which

the finding is based” (ibid, 671). Some one, therefore,

ought to have examined with a critical eye the con-

tributions made to the ultimate “findings” by any

ex-Communist who, as a witness, may have “found

rewards far more tempting than truth” (infra, 37,

n. 26).’* We have learned from subsequent experience

12E.g., the use of the Sedition Act against the party of Thomas

Jefferson (see Smith, Freedom’s Fetters [1956]); the outburst

against aliens following World War I (see Post, The Deportations

Delirium Of Nineteen-Twenty [1923]); and the expulsion from

the New York Legislature of five members who had been duly

elected on the Socialist Party ticket (see Chafee, Free Speech In

The United States [1941]).

i ra gt in 1941 (American Com

munications Assn. v. Douds, 339 U.S. 382, 388 [1950]). “Congress

heard testimony that the strike had called solely in obedience

to Party orders for the ing the ‘snowballing of

purpose of starting

strikes’ in defense plants” (ibid). This testimony (ibid, n. 4) came

from Louis Budenz, a former employee of The Daily Worker, the

—

how “trustworthy” were some of the witnesses on

whom reliance was placed, first to inform the legis-

lative mind as preface and prelude to enacting leg-

islation, and later to assist prosecutors, courts, juries

and administrative agencies to dispense justice. Of

the evidence given at trials by their kind, this Court

has been moved to say,

“The dignity of the United States Government

will not permit the conviction of any person on

tainted evidence. ... The government of a strong

and free nation does not need convictions based

upon such testimony. It cannot afford to abide

with them.” (Mesarosh v. United States, 352 U.S.

1, 9, 14 [1956]).

See also, Communist Party v. Subversive Activities

Control Board, 351 U.S. 115 [1956]).

Communist Party’s New York newspaper. A reading of the testi-

mony discloses that it is essentially hearsay in character, and not

pone br of verification or corroboration. The same strategem was

employed in the testimony given by Budenz when he lent himself

to the effort of Senator Joseph McCarthy of Wisconsin to destroy

the reputation of Professor Owen Lattimore, at hearings before a

Sub-Committee of the Senate Fo: oie (1950)). Far this oad

1950 (see Lattimore, Ordeal B lander [1950]). For this and

other instances where orm wen the role “of America’s No. 1

pared

Titus Oates (96 Cong. Rec. 6969-6975 {May 12, 1950}).

Sy entanglement engl fe ware ge gy, Fang

the Allis-Chalmers strike. None of

eiauiee —

There is a further, and in itself sufficient, reason

to be skeptical of the legislative “findings” that were

held to justify the decision in Douds.* Though they

purport to deal with problems of a purely economic

nature, the pivotal issue (insofar as 9[h] is con-

cerned) relates to political beliefs and associations,

clearly subjects embraced within the protection of

the First Amendment. Whenever this Court has ac-

quiesced in the view that it should not oppose its

judgment to that which Congress has expressed in

findings of its own, this has occurred in cases where

Congress may be said to possess a greater competence

to deal with the subject at issue, or to have more

complete information in matters of a technical nature

with which the legislation dealt, or to have had the

benefit of authoritative testimony from those who

possess special expertise to commend them (see e.g.,

Sinclair Ref. Co. v, Atkinson, 370 U.S. 195 [1962];

Railway Employes’ Dept. A.F.L. v. Hanson, 351 US.

225 [1956]; N.L.R.B. v. Jones & Laughlin Steel Corp.,

301 U.S. 1 [1937]). The very recital of these in-

stances where it is appropriate to apply the rule of

deference, should have compelled a different conclu-

sion here. For not Congress, but this Court, is the

expert in assessing the value of evidence which relates

to First Amendment freedoms. When “prophylactic”

measures fashioned by Congress intrude into areas

protected by the Bill of Rights, they are “suspect”

(N.A.A.C.P. v. Button, 371 U.S. 415, 438 [1963]).

And since this Court is not an instrument of Con-

14T hese “findings” did however, President Truman,

who vetoed the 1 7 Taft Hartley Bi of which 9(h) was a part

(Truman, Memoirs [1956], Vol. II, 479).

gressional policy, but the expositor of the Constitu-

tion, the so-called “findings” should have been ignored.

This carries no implication that Congress’ motives

are thereby impugned; it means only that the integ-

rity of the judicial process will not be staked on

questionable assumptions concerning the legislative

capacity to exercise considered judgment in the

sphere of political freedom during periods of great

political tensions.”*

It was inevitable from the outset that the mere

passage of time must demonstrate how fragile were

the foundations on which 9(h) rested. Since it bore

no truly rational relationship to the known and easily

ascertainable facts, it was bound to expose itself as

a contrivance. Throughout the whole of its existence,

9(h) was ineffective to achieve its purpose—so the

Government has since told this Court (United States

v. Brown, No. 399, O.T. 1964, Government Brief,

30-37). The statute (504) that replaced 9(h) when

15Consider, for instance, the unrestrained intemperance of the

“findings” recited in the Communist Control Act of 1954 (50 USC

us; and (2) that the justification for all of our legislation against

American Communists is that they act as the agents of Moscow.

The fact, however, is that there are no fewer than four such “cen-

ters”: the Soviet Union, Tito’s Yugoslavia, Mao’s China, and Cas-

of these foreign movements has some admirers in this country.

It is not easy to reconcile either the international situation or the

domestic picture with the fictitious “findings” and the equally

fictitious theory of “agency” that are contained in the 1954 Act.

the latter was repealed in 1959, was employed exactly

once in the six years that elapsed before it was de

clared unconstitutional (United States v. Brown, 381

U.S. 437 [1965]). Thus, over a span of two full dee-

ades, we had for a time an ineffective law, and for

the remainder a virtually unused one—to all intents

and purposes, no law at all to deter the political

strikes with which the country was supposedly men-

aced. It is strange that no political strikes have oe-

curred anywhere in the United States during all of

those years, despite the absence of effective protection

against them.

But if there has been no harm inflicted on the Gov-

ernment by the allegedly disloyal Americans against

whom so much special legislation has been directed,"

it cannot be said that the national policy has been

sparing in its treatment of the people on whom the

oppressive burdens of that legislation have fallen.

Under the aegis of a variety of Congressional anti-

Communist enactments,’ which in turn stimulated

like measures to be taken by the states and local gov-

ernments, we have managed to assemble an impressive

array of decisions establishing the lengths to which

167t is instructive to note that in the cases that have come before

convicted, or discharged from employment, or excluded from

17For ~~ Internal Security Act of 1950, 64 Stat. 987

(1950), 50 USC §§781-794, 811-826; Communist Control Act of

1954, 68 Stat. 775 (1954), 50 USC §§841-844.

the policy of repression has impelled us. We have,

for example, sanctioned the imprisonment of men for

no other offense than that they possessed the courage

to stand up to inquisitorial committees, placing their

resistance to improper inquiries concerning their po-

litical associations on the Constitutional guarantees

which occupy a “preferred position” in our scheme

of government. (Wilkinson v. United States, 365 U.S.

390 [1961]; Barenblatt v. United States, 360 U.S. 109

[1959]). We have approved the exclusion from the

practice of law of men whose endowments would have

enriched the legal profession, holding against them

the fact that they were staunch defenders of the prin-

ciples of personal freedom that are “enshrined in the

First Amendment of the Bill of Rights” (Jn re Ana-

staplo, 366 U.S. 82 [1961]; Konigsberg v. State Bar

of California, 366 U.S. 36 [1961]).** We have per-

mitted an eminently qualified physician to be sus-

pended from medical practice because he was con-

victed of contempt of a Congressional committee, re-

sulting from his refusal, on legal advice, to answer

questions of a political nature, for which he had al-

ready paid the price of serving a term in prison

(Barsky v. Board of Regents, 341 U.S. 442 [1954]).

We have countenanced the jailing of an aged man

for opposing the demand of a State Attorney General

that he become an informer, by supplying the names

of “subversive” friends and associates, against whom

the State proposed to take punitive action because

These decisions may soon be reviewed as a result of this Court’s

grant of certiorari in Baird v. Arizona State Bar, No. 1079, OT,

1968, ...... US. —... 37 U.S.L.Wk. 3377, 3379 (April 7, 1969).

they had peacefully assembled to discuss public affair;

(Uphaus v. Wyman, 364 U.S. 388 [1960]). We have

appropriated, in effect, the pitiful funds that a law.

fully resident alien paid towards his old-age pension,

by arranging first to deport him for an ancient, long.

terminated, and probably innocuous membership in

the Communist Party, and then declining to send pay.

ments to him in the country to which he was banished

(Flemming v. Nestor, 363 U.S. 603 [1960]).2° This

sorry catalogue has moved some members of the

Court to remark upon “the disastrous consequences

upon [the liberties guaranteed by the Bill of Rights]

which have resulted from the Court’s use of [bal-

ancing] concepts” (Uphaus v. Wyman, 364 U.S. 388,

dissenting opinion 389, 3€2-393 [1960]).

It was the intention of the Framers to create a

structure capable of resisting the ravages of time. In

the Constitution that they bequeathed, there was

traced out for future generations a system of checks

upon the exercise of power, and a balance between

the departments of government exercising power, pre

figured to insure the vitality of the Charter’s guar-

antees. Preeminent among those guarantees was the

1°Cf., however, Reed v. Gardner, 261 F. Supp. 87 (C.D. Calif.

[3-judge court], 1966) which held unconstitutional, as violative of

the First Amendment, Section 103(b)(1) of the Health Insurance

for the Aged Act, 79 Stat. 333 (1965), denying medicare benefits

commitment undertaken in the First Amendment, by

which the interests of government are subordinated

to the paramount purpose for which government was

ordained, a way of life that supremely stresses the

inviolable dignity and worth of the individual. So

that this precept should not be easily tampered with,

it was woven into the very fabric of our national

existence in words of unqualified commandment. It

was out of a recognition that such was the grand de-

sign, that there was handed down the great decisions

of this Court in the era following the First World

War. Why else did this Court order Angelo Herndon,

an acknowledged Communist Party organizer, to be

set free if it was not because the record lacked proof

that he had personally advocated the unlawful aims

of the. Party or that he approved them or that he

brought them home to his listeners (Herndon v.

Lowry, 301 U.S. 242, 260 [1957])? Why did this

Court reverse the criminai csnviction of Dirk De

Jonge if it was not that, despite his conscious par-

ticipation in a meeting held under Communist Party

auspices, the evidence showed no act of miscon-

duct on his part (DeJonge v. Oregon, 299 U.S. 353

[1937]) ? Why did this Court condemn the attempt

to revoke the citizenship that William Schneiderman

had obtained by naturalization, if it was not because

there was lack of proof that he himself had espoused

forbidden doctrine or engaged in forbidden activ-

ity (Schneiderman v. United States, 320 U.S. 118

[1943]) ? Why was the deportation of Harry Bridges

stayed if it was not because his admitted associations

with members of the Communist Party were not

shown to indicate any intention on his part to fur-

ther the supposedly prohibited policies or programs

of the Communist Party (Bridges v. Wizxon, 326 US.

135 [1945])? And why, at the very beginning of this

series of landmark decisions, did this Court nullify

a prison sentence pronounced upon Yetta Stromberg,

if it was not that her open adherence to the red-flag

symbol of communism was unlinked to any iniention

or effort on her part to engage in acts of criminal

syndicalism (Stromberg v. California, 283 U.S. 359

[1931]}) ?** In all of these decisions, the Court gave

powerful expression to the principle that no unlawful

purpose should be imputed to any one from the mere

fact of political association. It is these decisions that

are in the true spirit of the great plan outlined in

the Constitution.

The petitioner here is one of the persons victim-

ized by the legislative policy embodied in Sec-

tion 9(h), the statute that was used against him. In

the pages that follow, we analyze that statute and

show that it was repugnant to the Constitution in

several basic respects. We argue that the prosecution

of petitioner was therefore an act beyond the legiti-

mate powers of government; that his, conviction, im-

prisonment, and fine were contrary to law; and that

the sentence imposed on him, some of it already

served and some of it not yet discharged, must be

set aside in its entirety.

1#The continued vitality of Stromberg, supra, has been recently

recognized. See Shuttlesworth v. City of Birmingham, ... U.S. —,

37 U.S.L.Wk. 4203, 4207 (concurring opinion) (March 10, 1969);

ory v. City of Chicago, wwe US, ......n. 87 U.S.L.Wk. 4213, 4216,

8 (coneurring opinions) (March 10, 1969).

SECTION 9(h), THE STATUTE ON WHICH PETITIONER'S CON-

VICTION WAS BASED, WAS AN UNOONSTITUTIONAL

ENACTMENT.

The proceeding instituted by petitioner in the Dis-

trict Court resulted in a determination that Section

9(h) was unconstitutional as a bill of attainder, and

also because it was violative of the First Amendment.

The District Judge was of the view that United States

v. Brown, 381 U.S. 437 (1965), supported his decision

on the bill of attainder ground; and in support of the

holding as to the First Amendment, he cited such

cases aS Keyishian v. Board of Regents, 385 U.S. 589

(1967), Elfbrandt v. Russell, 348 U.S. 11 (1966), and

Aptheker v. Secretary of State, 378 U.S. 500 (1964).

The Court of Appeals considered neither of these

determinations, because it thought petitioner’s motion

was foreclosed altogether by the decision of this Court

in Dennis v. United States, 384 U.S. 855 (1966).

In this portion of the argument, we first show that

9(h) is a bill of attainder, in violation of Article I,

Section 9 of the Constitution. We thereafter argue

that Section 9(h) is incompatible with the First and

Fifth Amendments to the Constitution.

2°In United States v. Brown (334 F.2d 488 [9 Cir., 1964]), the

Court of Appeals had rested its decision, holding Section 504 un-

constitutional, on First and Fifth Amendment grounds. In affirming

the judgment, this Court placed decision on the ground that 504

was a bill of attainder, therefore that it was “unnecessary to con-

sider First and Fifth Amendment arguments” (United States v.

Brown, 381 U.S. 437, 440). The dissenting opinion, observing

that “An overbroadness challenge could also be made under the

(A) On its face and as applied to the petitioner, the provision

of 9(h) offend the constitutional prohibition against bills of

attainder (Article I, Section 9).

Article I, Section 9, Clause 3 of the Constitution

provides:

“‘No Bill of Attainder or ex post facto law shall

be passed.”

The term “‘bill of attainder” was defined by Mr.

Justice Field in these words:

*‘A bill of attainder is a legislative Act which

inflicts punishment without a judicial trial.”

(Cummings v. Missouri, 4 Wall. 277, 323 [1867]).

This definition has received general assent. (Pierce

v. Carskadon, 16 Wall. 234 [1872]; United States v.

Lovett, 328 U.S. 303 [1946]; Garner v. Board of Public

Works of Los Angeles, 341 U.S. 716 [1951]; United

States v. Brown, 381 U.S. 437 [1965].)

The early use of bills of attainder in Colonial Amer-

ica and the pre-Constitution States was reviewed by

this Court in United States v. Brown, 381 U.S. 487

(1965). There, the historic English antecedents and

their American counterparts were examined and ana-

lyzed ; the conclusion was reached that the Framers of

the Constitution, from an abundance of personal

knowledge and vivid experiences, were determined to

First Amendment .. .” put the question aside because “the Court

expressly disavows decision of First Amendment claims” (United

States v. Brown, supra, 464, n. 1). In view of these expres

reservations in Brown, we assume that it is appropriate for us to

urge, as being fairly encompassed within the questions certified

here, that Section 9(h) is repugnant to the First and Fifth Amend-

ments.

make it impossible for bills of attainder ever to be

employed in this Nation (ibid, 441-442). That de-

termination rested solidly on a union of factors re-

lating to the occasions for resort to such bills, the

means they employed, and the unconscionable punish-

ments inflicted on their victims.

They were usually enacted in periods of ‘‘violent

political excitements” (Story, Commentaries, §1344).

The penalties meted out ran the gamut from death

and the confiscation of property in cases of treason,

down to such comparatively mild punishments, for

lesser offenses, as lengthy terms of imprisonment or

banishment from the realm, or banishment from pur-

suing gainful professions and occupations within the

realm (United States v. Brown, 381 U.S. at 441-442).

A feature unique to all such measures was that their

victims were branded, i.e., ‘‘attainted.” A frequent

aspect of attaint was that it rendered the recipient

unfit to vote or hold office, and in cases where the

death penalty was imposed, visited the taint of dis-

qualification from office-holding on the sons of the

victim (tbid.). The causes that were assigned for such

treatment were numerous and diffuse. Some bills des-

ignated their victim or victims by name, while others

used a descriptive generalization that served to identify

the members of a group (United States v. Lovett, 328

US. at 315-316). Often the punishment pronounced

was absolute and irrevocable; but in some instances

opportunity to escape was afforded, for example, if

the person attainted were to come forward and per-

form a prescribed act on or before a specified date

(United States v. Brown, 381 U.S. at 442). |

As this Court indicated in United States v. Brown

(381 U.S. at 442), “‘the wide variation in form, pur-

pose and effect” of bills of attainder lends support to

the conclusion that the men who unanimously adopted

Article I, Section 9, did not intend that any narrow,

halting or capricious approach should be taken in ap-

plying the absolute prohibition which they wrote into

that Article. Rather, they distilled from their experi-

ence and knowledge a general, all-inclusive statement

of principle that took into account the essential fea-

tures of the attainting measures with which they were

familiar, i.e., the combination of (1) a legislative

action in lieu of a judicial trial, (2) which singled

out named or identifiable persons, and (3) inflicted

punishment on them. What Article I sought to do was

to place such methods of exercising governmental

powers beyond the realm of possibility in the United

States. By denying to Congress any authority to sub-

stitute “‘trial by legislature” for trial by the courts

(United States v. Brown, supra, at 442), an additional

safeguard was erected against encroachments on the

separation of powers created in the Constitution (Con-

stitution, Article I, Section 1; Article II, Section 1;

Article III, Section 1). A like provision against bills

of attainder was inserted to insulate the citizen from

similar attempts at unfair treatment by the States

(Article I, Section 10). Thereby, it was thought to

insure the exclusiveness of the judicial process for the

protection of the people against the abuses of arbi-

trary power.”?

There have been few instances in our national his-

tory of any effort to enact bills of attainder. Follow-

ing the Civil War, Congress adopted a law requiring

attorneys, before they could appear in federal courts,

to subscribe to an oath that they had not taken part

in the rebellion against the Union. This would have

barred from practice in those courts an ascertainable

number of lawyers who could not truthfully take the

oath, The law was held to be a bill of attainder (Ez

_ Parte Garland, 4 Wall. 333 [1867]). A provision con-

tained in the newly amended Constitution of Missouri

required a similar oath of priests; this, too, was held

to be a bill of attainder (Cummings v. Missouri, 4 Wall.

277 [1867]). In both decisions Mr. Justice Field, draw-

ing on cogent historical sources, demonstrated with un-

answerable logic how such legislative action ‘‘is direc-

ted not merely against overt and visible acts of

hostility to the government, but is intended to reach

words, desires, and sympathies also”; and that the use

of test oaths is not, in fact, based on any rational

relationship to fitness for the callings involved, but

*1“Bills of attainder are legislative acts passed for the special

purpose of attainting particular individuals of treason or felony,

or inflicting pains or penalties beyond or contrary to the common

law.” (Blackstone, Tucker Ed., Vol. I, 292; emphasis supplied).

“In short, in all such cases, the Legislature exercises the highest

power of sovereignty, and what may very properly be deemed an

wresponsible, despotic discretion, being governed only by what it

deems political necessity or expediency.” (Story, Constitution, Vol.

III, 209; emphasis supplied).

proceeds from the desire to inflict punishment (Cum-_

mings v. Missouri, supra, at 318-320).

In this century, an effort was made in 19437? to use

the weapon of attainder against several employees of

the federal government whose political associations

were thought by Congress to be ‘subversive’. On

this occasion, Congress identified the three persons

by name, and sought to compel their separation from

federal service by attaching to an appropriations bill

@ proviso that none of the funds should be used to

pay their salaries. The President, for reasons beyond

*2An earlier instance of a bill singiing out a named individual for

punishment is afforded by the case of Harry Bridges. In 1940, a

measure was introduced which purported to find that Bridges was

practice and tradition” (S. Rep. No. 2031, 76th Cong., 3rd Sess.).

The House thereupon sought to achieve its aim by less direct means,

resorting instead to amending

his control, was obliged to sign the bill into law, but

he expressed his disapproval of the action taken

against the employees. They remained at their posts,

without pay. Later they brought suit to collect what

was owing to them. This Court, ruling in their favor,

held that the action of Congress was to be judged

by its purpose and effect; so judged, that action was

held to be an unconstitutional bill of attainder

(United States v. Lovett, 328 U.S. 303 [1946]).7

The next occasion for resort to the attainder tech-

nique occurred with the adoption in 1947 of Section

9(h) of the Taft-Hartley Act, the statute with which

we are here concerned. It was passed against a back-

ground of already intensive governmental attack

against beliefs, associations, and activities that were

thought to present dangers to the security of the

Nation. The genesis of this official attitude would

seem to have been the commencement, in 1946, of

what has come to be known as the Cold War (see

Komgsberg v. State Bar, 366 U.S. 36 [1961], dissenting

opinion at 78-79). In time, there was spawned a vast

body of federal and state legislation, aped by meesures

Against the argument that only a “mere question of com-

pensation procedure or of appropriations was involved,” and

that the employees could therefore get their money from other

government funds despite the clear wishes of Congress to the con-

trary, this Court declined to close its eyes to the undeniable fact,

as shown by all the background circumstances, that the Congres-

sional purpose was to force the employees to be discharged and to

bar their future employment (United States v. Lovett, supra at

313-314). The fact that the punishment inflicted was merely a cut-

ting off of pay, was said to be “no less galling or effective” a

‘ema of disloyalty than if it had been done by an act designating

the “duct as such (ibid, 316-317).

—

adopted within private industry, that were so designed

that their inevitable effect must be to visit ruinous

losses of liberties and livelihood upon multitudes of

people, whose fate could serve only as an intimidation

and a warning that in its drive to establish conformity,

the government meant business (see Emerson, Po-

litical and Civil Rights in the United States, 3d Ed.

[1967] Vol. 1, 68-69). It is, we think, unnecessary

for us to attempt here to trace or document the devel-

opment of these occurrences in the late 1940’s and early

1950’s; they are still fresh in the minds of all who

suffered through the period that witnessed the events

which led at one crucial juncture to the censure of

Senator Joseph McCarthy of Wisconsin (see S. Reps.

Nos. 2507, 2508, 83rd Cong., 2d Sess. [1954]).”

The constitutionality of Section 9(h) was unsuc-

cessfully challenged in ‘American Communications

Assn. v. Douds, 339 U.S. 382 (1950).* Although

24This Court has observed that in Cummings v. Missouri and

Ex Parte Garland, “The finding of punitive intent drew heavily

on the Court’s first-hand acquaintance with the events and the mood

of the then recent Civil War, and ‘the fierce passions which that

struggle aroused’” (Flemming v. Nestor, 363 U.S. 603, 615 [1960]).

As to whether it could properly be said that the adoption in 1954

of an anti-Communist amendment to the Social Security Act (68

Stat. 1083, as ey Baan poet Bae not nape pn

a similar atmosphere,” Mr. Justice Brennan, in dissen t, wi e

concurrence of The Chief Justice and Mr. Justice Douglas, wrote,

“Our judicial detachment from the realities of the national scene

should not carry us so far. Our memory of the emotional climate

stirred by the question of Communism in the early 1950’s cannot

be so short.” ( ming v. Nestor, supra, at 637, n. 3).

6The decision in that case came at a time when Congress was de-

bating new and more drastic measures to carry out its “anti-

Communist” drive—measures that a few months later were incor-

porated in the most comprehensive statutory scheme ever devised

in this country for the control of political beliefs and activities:

the Internal Security Act of 1950 (50 USC 781-794, 811-826). This

the Court recognized United States v. Lovett, supra,

and its early forerunners, Zz Parte Garland and

Cummings v. Missouri, as authoritative precedents,

those cases were thought to be distinguishable because

“the individuals involved were in fact being punished

for past actions; whereas in this case they are subject

to possible loss of position only because there is sub-

stantial ground for the congressional judgment that

their beliefs and loyalties will be transformed into

future conduct” (Douds, supra, 339 U.S. at 413; em-

phasis in original)—a distinction that was said to

be “emphasized” by the fact that the statute per-

mitted escape from its provisions by the mere renun-

ciation of proscribed beliefs and affiliations (339 U.S.

at 414). Mr. Justice Black, in dissent, noted the fact

that 9(h) bore an indistinguishable resemblance to

the infamous oath prescriptions employed in England

in the Sixteenth and Seventeenth Centuries (339 U.S.

at 446-451; see especially nn. 3-9, incl.), and stated:

“Never before has this Court held that the Gov-

ernment could for any reason attaint persons for

their political beliefs or affiliations. It does so

today.” (339 U.S. at 449).7°

As we have already noted (supra, n. 25), Congress

in 1950 adopted the Internal Security Act (50 U.S.C.

781 et seq.), which was directed at the Communist

law was so extreme, and so far departed from our traditions, that

despite this country’s engagement in military actions in Korea,

President Truman vetoed the Act. It was passed over his veto.

(See Emerson, Political and Civil Rights in the United States, 3d

Ed. [1967], Vol. 1, 157.)

26He also reminded of the teachings of history that “wherever

the test oath was in vogue, spies and informers found rewards far

more tempting than truth” (339 U.S. at 447).

Party through its provisions regarding ‘‘communist-

action” organizations, and which also contained provi-

sions concerning ‘‘communist-front organizations. This

legislation came before the Court in Communist Party

v. Subversive Activities Control Board, 376 US. 1

(1961). There, a majority of the Court rejected the

claim that the Act was a bill of attainder as respects

the Communist Party, saying ‘““The Act applies to a

class of activity only, not to the Communist Party as

such” (367 U.S. at 88). However, as this Court has

since observed, the majority opinion, in reaching that

conclusion, focused particularly upon “the crucial

constitutional significance of what Congress did when

it rejected the approach of outlawing the Party by

naine and accepted instead a statutory program regu-

lating not enumerated organizations, but designated

activities,” and the implication was plain ‘‘that if the

Act had applied to the Communist Party by name, it

would have been a bill of attainder” (United States v.

Brown, 381 U.S. at 451).

Experience with Section 9(h) in the period be

tween 1947 and 1954 was considered by Congress to

be unsatisfactory. So far as we are aware, no political

strikes occurred anywhere in the country during that

time, nor have we found anything in the pertinent

legislative records to suggest any reason to fear the

possible occurrence of such strikes thereafter. What

evidence exists indicates that the Congressional temper

had simply grown short because Communists had not

heen driven from the labor movement with the alac-

rity that had been expected of Section 9(h). To

remedy the situation, Congress adopted in 1954 the

Communist Control Act (68 Stat. 775), adding “com-

munist-infiltrated organizations” (i.e. trade unions)

to the organizations made subject to the Internal

Security Act of 1950 (50 U.S.C. 841-844).27

These provisions, by which Congress sought, in part,

to reinforce the punitive purpose and thrust of Section

9(h), explicitly denounced the Communist Party as a

pseudo-political party whose policies are prescribed by

“the foreign leaders of the world Communist move-

ment,” and dedicated to seek the overthrow of our Gov-

ernment by any means, ‘‘including resort to force and

violence.” The Party was labeled ‘“‘the agent of a

hostile foreign power,” and was charged with being a

“clear, present and continuing danger to the security

of the United States” (50 U.S.C. 841). The Act de-

clared that the Party was ‘‘not entitled to any of the

rights, privileges and immunities attendant upon legal

bodies,” and all such rights, privileges and immunities

were, for the Party, furthwith ‘‘terminated” (50

U.S.C. 842). Party members were made subject to the

provisions and penalties of the Internal Security Act

of 1950, as members of a ‘‘communist-action” organi-

zation (50 U.S.C. 843). These penalties included regis-

2™There developed considerable criticism of Section 9(h) of the

Taft-Hartley Act as inadequate and ineffective to deal with the

problem of Communist influence in labor unions [citations omitted }.

The first Congressional response to the operation of Section 9(h)

came in the provisions of the Communist Control Act of 1954 deal-

ing with ‘communist-infiltrated organizations ...’” ( Emerson,

Political and Civil Rights in the United States, 3d Ed. [1967],

Vol. I, 252) ; see also Note, 64 Yale L.J. 712, 713-714 (1955).

tration and the possibility of internment in detention |

camps (see 50 U.S.C. 787, 814). Fourteen rules of

evidence were promulgated to advise “the jury, under

instructions from the court,” how to find the exist.

ence of “membership or participation” in the Party.

These included such items as making a financiai con-

tribution ‘‘in any form” to the Party, acting in any

capacity for it, and conferring with Party officers or

members (50 U.S.C. 844).

Petitioner’s trial occurred in 1955, the year follow-

ing the adoption of the Communist Control Act. It

would be naive to suppose that the widespread pub-

licity that accompanied the passage of that Act, fol-

lowed by repeated reminders of the prevailing and all-

pervasive Communist menace, as portrayed in televised

federal and state legislative committee hearings and on

the front pages of newspapers, could leave the citizenry

indifferent.** Congress had openly proclaimed, in a law

political thought and activity during the past two decades.”

(Emerson, Political and Civil Rights in the United States, 3d

In the 12-month period prior to petitioner’s trial, among the

persons brought before the numerous committee hearings that oe-

curred (usually televised and always highly publicized), followed

by criminal prosecutions for contempt, were these: John T. Wat-

kins, April of 1954 (see Watkins v. United States, 354 U.S. 178

[1957] ) ; Lloyd Barenblatt, June of 1954 (see Barenblatt v. United

States, 360 U.S. 109 [1959]); Professor Paul M. Sweezy, June of

1954 [before the State’s Attorney General] (see Sweezy v. New

Hampshire, 354 U.S. 234 [1957]); Harry Sacher, April of 1955

(see Sacher v. United States, 356 U.S. 576 [1958]).

Wide publicity was also given to court decisions; e.g., this Court’s

decision in April of 1954, upholding New York’s order suspending

whose text bristled with denunciatory passages of the

Party, that ‘Therefore, the Communist Party should

be outlawed.” (50 U.S.C. 841), and had then proceeded

to do so, stripping the Party of “‘all rights, privileges

and immunities” (50 U.S.C. 842). Then, turning its

attention to the task of selecting the persons on whom

the official stigma was to be focused, Congress had laid

down, in words that carried a mandate—(‘‘the jury,

under instructions from the court, shall consider evi-

dence”; 50 U.S.C. 844)—a detailed description of the

kinds of ‘‘evidence” that were to be accepted as proof

of “membership or participation in the Communist

Party” (tbid).

An accused who faced trial in 1955 on an indictment

such as is here involved might well conclude that, how-

ever innocent he might be of the charge, it was utterly

impossible to overcome, in a climate of such bitter

Dr. Edward K. Barsky from the practice of medicine on account

of a committee-contempt conviction (Barsky v. Board of Regents,

347 U.S. 442 [1954]); the decision in September of 1954, of the

Illinois Supreme Court, declining to license George Anastoplo to

practice law for his refusal to answer questions concerning possible

Communist Party membership (In re Anastoplo, 3 Ill. 2d 471

[1954]; see, also, Re Anastoplo, 366 U.S. 82 [1961]); the decision

in April of 1955 of the California Supreme Court [without opin-

ion], refusing to review a determination of the Board of Governors,

denying to Raphael Konigsberg admission to the Bar of California

on grounds similar to Anastoplo’s case (see Konigsberg v. State

Bar, 353 U.S, 252 [1957]; Konigsberg v. State Bar, 52 Cal. 2d 769

Oe ae Komigsberg v. State Bar, 366 U.S. 36 [1961]).

In tember of 1954, Congress enacted a biil to compel wit-

nesses to answer questions, in order to cireumvent the Fifth Amend-

ment’s provision concerning self-incrimination (Immunity Act of

1954; 18 U.S.C. §3486; upheld in Ullmann v. United States, 350

U.S. 422 [1956] ). Congressional elections occurred in November of

1954; “(T]he Republicans made Communists-in-government the

eg ialpaamamarcaanl (Goodman, The Committee, 364

hostility to the very word ‘‘communist,” the combined

force of: (1) a law that assumed his guilt (i.e., pre

judged his supposed readiness to instigate crippling

political strikes and excluded as irrelevant his per-

sonal intent to the contrary), (2) the impact of testi-

mony given by prosecution witnesses whose favored

political status undoubtedly supplied subtle assurances

that they might safely take liberties with the truth,

and (3) the psychological conditioning to which the

jurors had been subjected, creating a frame of mind

conducive to convict the accused out of a sense of

performance of patriotic duty, indeed perhaps in some

instances to be almost fearful of doing otherwise.

When, to these factors, there was added the knowledge

that the trial judge could, if so inclined, compel the

defendant, on pain of adjudication of contempt of

court, to become an informer against other persons

with whom he had associated in years long since past,

the accused might well ‘ind himself helpless even to

take the witness stand in his own defense, for fear

_ of undermining all possbility of acquittal as well as

earning an additional sentence of imprisonment for

incurring the judicial wrath.

On the morning for which the petitioner’s trial was

scheduled, his case was unexpectedly assigned to a vis-

iting judge who normally sat in Los Angeles. The dis-

position of this judge toward refusal by a defendant,

who had voluntarily chosen to testify at her Smith Act

trial, to answer questions that served no purpose ex-

cept to identify other persons as Communists, was a

matter of record (see Yates v. United States, 355 US.

66 [1957], granting certiorari from Yates v. United

States, 227 F.2d 851 [1955]).?® Petitioner did not tes-

tify.”

One might suppose that the dissatisfaction of Con-

gress with 9(h) would have been removed by the op-

erative effect of the Communist Control Act, which has

29At the trial of Mrs. Yates, which took place in 1952, she de-

clined “to answer four questions about the Communist membership

of a non-defendant and of a co-defendant who had rested his case”

(Yates v. United States, 355 U.S. at 68). District Judge William

C. Mathes “adjudged her guilty of civil contempt for refusing to

answer these questions, and committed her to jail until she should

purge herself by answering the questions or until further order of

the Court. She was confined for the remainder of the trial” (355

U.S. at 68-69). She served “a total of over 70 days in jail awaiting

final disposition of the several proceedings against her” (355 U.S.

at 75). These events had occurred prior to the 1955 trial of peti-

tioner here, and appeals by Mrs. Yates from the orders of Judge

Mathes were still undisposed of, three years later, when petition-

er’s trial commenced. (Subsequently, the Court of Appeals affirmed

the action of Judge Mathes, Yates v. United States, 227 F.2d 851

[1955], and this Court affirmed in part, remanding the case for re-

sentencing (Yates v. United States, 355 U.S. 66 [1957]). In a dis-

senting opinion, Mr. Justice Douglas, with the concurrence of The

Chief Justice and Mr. Justice Black, called the case “a shocking

instance of the abuse of judicial authority. It is without precedent

in the books.” (355 U.S. at 76.)

Other but related instances of the disposition of the same District

Judge toward persons accused of charges involving communism,

were also matters of record prior to petitioner’s trial in 1955. See

United States v. Schneiderman, 102 F.S. 52 (1951) ; Stack v. Boyle,

192 F.2d 56 (1951) ; Stack v. United States, 193 F.2d 875 (1951) ;

Spector v. United States, 193 F.2d 1002 (1952) ; Stack v. Boyle,

342 U.S. 1 (1951).

%°Tt was thought sufficient in Douds to say that men need have

no fear of suffering from miscarriages of justice “while this Court

sits” (American Communications Assn. v. Douds, 339 U.S. at

410). Petitioner’s applications to be heard by this Court were

denied (355 U.S. 817; 360 U.S. 919). Two years after Bryson’s

trial, this Court reversed a conviction for contempt by a witness

who refused to identify former associates by their political ac-

tivities (Watkins v. United States, 354 U.S. 178 [1957]). That

decision dealt with a person who was compelled under su

to testify in a legislative committee hearing; a different rule has

generally been applied to a defendant who voluntarily takes the

witness stand in a criminal trial (Yates v. United States, 355 U.S.

66, 73 [1957] ).

been called ‘‘the most far-reaching” of the numerous

security measures enacted in 1954 ( Emerson, Politica]

and Civil Rights in the United States, Vol. I, 3d Ed.

[1967], 197). Certainly, the Act provided the ¢li-

mate necessary to convict such persons as the peti-

tioner in Section 9(h) prosecutions. But even these re-

sults did not appease the Congressional demand. With

additional experience under Section 9(h), additional

discontent must have been voiced in the legislative

corridors, for in 1959 that section was repealed alto-

gether. In its place was substituted a more ‘‘direct”

attack on the problem, in the form of Section 504 of

the Labor-Management Relations Act (29 U.S.C. 504)

(see United States v. Brown, 381 U.S. 437, 452

[1965]). By that law, it was made a crime for any

person simultaneously to hold office in a labor union

and to be a member of the Communist Party.*!

This Court passed on the validity of Section 504 in

Umted States v. Brown, 381 U.S. 437 (1965). It

there held that the section was invalid for the reason

that it constituted a bill of attainder, plain and sinm-

ple. It pierced the veil with which Congress had sought

to masquerade recourse to a bill of attainder, and ex-

posed the way by which Section 504, instead of estab-

lishing ‘‘an objective standard of conduct” (Brown,

supra, at 454), incorporated ‘‘an empirical judgment

of, and inflict[ed] its deprivation upon, a particular

group of men” (ibid, 455). Saying that this Court

“took no position on whether or not members of the

*1The statute applied only to membership in the Communist

Party. In this respect, it differs from Section 9(h), which applied

also to persons “affiliated” with the Party.

Communist Party are in fact likely to incite political

strikes” (at 450, n. 24), the opinion reminded that ‘‘the

Constitution forbids Congress from making such deter-

minations” (ibid), reminded also that Congress pos-

sesses ample power to accomplish desired results ‘‘by

rules of general applicability”; but held that it ‘‘can-

not specify the people upon whom the sanction it

prescribes is to be levied” (at 461).

“Under our Constitution, Congress possesses

full legislative authority, but the task of adjudica-

tion must be left to other tribunals” (tbid).

Four dissenting Justices expressed the view that

American Communications Assn. v. Douds, 339 U.S.

382 (1950), should have been followed. They observed

that, by reason of the opinion of the majority, Douds

‘tis obviously overruled” (381 U.S. at 464-465). Saying,

“Tt is not difficult to find some of the cases and statutes

which the necessary implications of the Court’s ap-

proach will overrule or invalidate,” the minority view

suggested that any constitutional basis for Section

9(h) had now been removed: “The Bill of Attainder

Clause now forbids Congress to do precisely what was

validated in Douds” (ibid, 465).

Following the decision in United States v. Brown,

supra, as our earlier discussion has pointed out, peti-

tioner instituted the present proceeding, challenging

his conviction and sentence on the ground of 9(h)’s

unconstitutionality. For its part, the Government

commenced an action to enforce collection from peti-

tioner of the $8,000 balance of the fine which remains

unpaid.

We think Section 9(h) cannot be distinguished in

any significant way from Section 504, and as we read

the Government’s brief to this Court in United States

v. Brown, supra, neither does the Government. In that

brief, it was argued that ‘‘insofar as Section 504 singles

out Communist Party members and bars them from

positions of power in labor unions it is a permissible

regulation of interstate commerce. This conclusion is

supported by the constitutional principles articulated

in Douds and confirmed by subsequent decisions”

(United States v. Brown, No. 399, O.T. 1964, Govern-

ment Brief, 14-15). It was further contended that

““Congress was certainly warranted in drawing the

line at Communist Party membership, regardless of

the particular member’s activity or commitment” [i.e.,

to the apprehended evil and the Party’s program]

(tbid, 22), and that, to the extent that 9(h) and 504

differed from each other, 504 was not “unreasonably

broad,” but rather was “‘more appropriately and fairly

calculated to achieve the legislative purpose” ( ibid, 30).

Insofar as our own brief sought to differentiate be-

tween Section 9(h) and Section 504, the effort was, of

course, to urge that Brown’s case was not necessarily

controlled by the decision in Douds (United States v.

Brown, No. 399, O.T. 1964, Brief of Respondent,

28 et seq.). We sought chiefly to support, by argument,

the decision of the Court of Appeals which had decided

in Brown’s favor on First and Fifth Amendment

grounds. However, our brief shows that, despite our

main reliance upon the grounds on which the Court of

Appeals had rested its decision, not only did we sep-

arately urge the bill of attainder point, but throughout

our discussion of the First and Fifth Amendments, as

well as in our treatment of other issues, the logic of

the argument compelled us time and time again to re-

mark on the attainting feature of the statute (ibid, 20,

30-32, 39, 43, 48, 51, 56, 58, 59-60, 62-63). Moreover,

our contention so far analogized the two sections that

we concluded our brief with the request that Douds be

reexamined and overruled (ibid, 65 et seq.). We make

the same argument here, in the belief that no meaning-

ful difference can be found between the two statutes,

and that the reasons for striking down 504 equally call

for a decision that 9(h) is invalid.

It is appropriate to recall this Court’s observation

in Brown that wide variations in form, purpose and

effect are found in the bills of attainder that had been

in use in early America and during the Sixteenth, Sev-

enteenth and Eighteenth Centuries in England (381

U.S. at 442). It is also to be noted that sharp contrasts

in form may be seen in a comparison of the state con-

stitutional provision in Cummings and the statutes in-

volved in Garland, Lovett, and Brown—all of which

were held to be bills of attainder. In light of these

facts, we do not see how the surface differences between

9(h) and 504, existing only in respect of their tactical

approach to the solution of the same supposed problem,

can save 9(h), upon application of this Court’s ration-

ale in Brown, from a fate similar to that of Section

504, In this precise area, we have been admonished as

to the nature of bills of attainder, in these words:

“The Constitution deals with substance, not

shadows. Its inhibition was leveled at the thing,

not the name” (Cummings v. Missouri, 4 Wall. at

325 [1867]).

The two sections are plainly indistinguishable in

the intent and purpose with which they were passed,

and we assume this much will be conceded by the

Government. In its brief to this Court in Brown, the

Government argued as follows:

“«. , . [Section 504] was enacted in 1959 to

meet the very same problem that moved Congress

to pass Section 9(h) in 1947.” (United States v.

Brown, swpra, Government Brief, 14).

‘Tt is clear that Congress’ purpose in enacting

Section 9(h) and Section 504 was to eliminate

the threat of Communist-controlled political

strikes by ‘wholly eradicat[ing] and bar[ring]

from leadership in the American labor movement,

at each and every level, adherents to the Com-

munist Party and believers in the unconstitu-

tional overthrow of our Government.’ ” (ibid, 29).

That both sections imposed punishment, is also

clear. In the one case, pressure was brought to bear

to remove a union leader from office by the threat

of imprisonment if he failed to disassociate himself

from the Communist Party. In the other case, the

pressure to force him from office emanated from the

threat that the union would otherwise become vulner-

able to rival attack and, being barred from participa-

tion in elections or other proceedings conducted by

the National Labor Relations Board, must succumb.”

82The pressure exerted by 9(h) was summarized by Chief Justice

Vinson as follows: “For example, a union whose officers do not file

an affidavit in compliance with §9(h) may not enter into a union

But the difference between the direct and indirect

force exerted, in the context of the situation dealt

with, was not deemed by Congress to involve any

considerations other than those of expediency, and

in the Government Brief to this Court in Brown, it was

argued that no essential distinction exists between the

foree employed in the one statute and that which is

used in the other:

‘Section 504, like Section 9(h), does not di-

rectly restrict speech and association but touches

these constitutionally protected liberties only con-

ditionally. * * * [Prevention of political strikes]

could not be achieved by any less ‘drastic’ means

than the kind of statute represented by Section

504 and its predecessor, Section 9(h).” (Umted

States v. Brown, supra, Government Brief, 8-9).

“By requiring all union officers to file non-

communist affidavits and then denying the facili-

ties of the National Labor Relations Board to

unions whose officers had not filed the affidavits,

Congress sought to apply the squeeze to union

members in the expectation that potential Com-

munist officers would feel the pinch. Section 504,

on the other hand, announced a ‘flat prohibi-

tion’ ”. (ibid, 29-30; italics supplied).

“*For if, as the compliance records demonstrate,

a union did not really have the practical alterna-

shop contract with an employer, as it was free to do before passage

of the National Labor Relations Act. A non-complying union is

excluded from the ballot in representation proceedings. If another

SP CURES he, peeves enlon, eee De Seeiities

a 468 () (4) (C) and 303(a) (3), as it would not have done prior

y, certain strikes and boycotts are prohibited to

om -omplying unions by $98(b) ¢ (4)(B), 8(b) (4) (C), and 8(b)

(4)(D) of the Act” (American Communications Assn. v. Douds,

339 U.S. 382, 390, n. 6 [1950]).

tive of doing without Board remedies and elect- |

ing Communist Party members to union offices,

a Communist Party member who wished to be

come a union officer was as fully denied the right

to retain Communist Party membership as if a

‘flat prohibition’ or statute applicable ‘directly

upon the individual’ were on the books.” (ibid,

43).

“‘Prospective union officers who wished to asso-

ciate with the Communist Party could not

realistically weigh the non-criminal consequences

of retention of such membership; it was just

practically unfeasible for a union—particularly

a small or weak one—to expect to be successful

if it was denied access to the Board. Hence the

non-criminal aspect of Section 9(h)’s sanction

could simply be taken as an absolute bar.” (ibid,

44).

Finally, the result achieved, in terms of the impact

made upon the persons subjected to the two statutes,

was the same in both instances. As the Government

further argued in its brief to this Court in Brown:

‘*. . . [Section 504] achiev[ed] much the same

practical result as Section 9(h) .. .” (United

States v. Brown, supra, Government Brief, 11).

“* * * [T]n this case, as in Douds, the sum

total of the harmful effect of the regulation is

that it ‘results in an indirect, conditional, partial

abridgement of speech.’ 339 U.S. at 339. Section

504, like Section 9(h), ‘touches only a relative

handful of persons, leaving the great majority

of persons of the identified affiliations and be-

liefs completely free from restraint.’ ” (ibid, 17).

“* * * Section 504... did not substantially

alter the incidental abridgement of free associa-

tion which accompanied the predecessor statute

. 2” (tbid, 41).

“* * * TSjuch a ‘direct’ sanction does not

really have a substantially greater impact on

First Amendment liberties than the indirect ‘dis-

couragement’ of Section 9(h). The history of

Section 9(h)’s administration has shown that

nearly all unions are unable to function without

the access to National Labor Relations Board

facilities which is provided by the federal labor

laws.” (ibid, 42).

‘‘Moreover, it seems entirely clear that the

criminal nature of the sanction does not really

exert more ‘force’ than if the remedy were civil.”

(ibid, 44).

It thus appears that in every essential particular,

both statutes possess the same identical features of a

bill of attainder: each of them applies in specific

terms to the members of the Communist Party; each

of them seeks to eliminate Communists from positions

of union leadership; each of them proceeds from an

assumption that all Communists possess the danger-

ous likelihood that they will exploit their holding of

union offices to instigate political strikes; each of

them makes that assumption conclusive and irrebut-

table, in disregard of the undeniable fact (as well as

this Court’s frequent pronouncements on the subject)

th.t the individuals who belong to the Communist

Party do not all ‘“‘subscribe unequivocally to all of its

platforms or asserted principles” (Schneiderman v.

Umted States, 320 U.S. 118, 136 [1943]); each of

them not only makes the automatic inference that “all

members share[e] [the same] evil purposes or par-

ticipat[e] in [the same] illegal conduct” (Schware »,

Board of Bar Bxaminers, 353 U.S. 232, 246 [1957]),

but renders it impossible to show, in any given in-

stance, that no relationship whatever can be demon-

strated ‘‘between the characteristics of the person in-

volved and the evil Congress sought to eliminate”

(United States v. Brown, 381 U.S. 437, 456 [1965]);

and, finally, each of them inflicts a legislative punish-

ment falling alike on guilty and innocent, without re

quiring or permitting any of the safeguards of a

judicial trial. The fact that the punishment employs

“indirect” force in Section 9(h) rather than “direct”

force as in 504, is no more relevant than the fact that

504 was restricted to ‘‘members of the Communist

Party” whereas 9(h) sweeps even more broadly by

applying also to persons ‘‘affiliated” with that Party.

For as we have shown, the selection of the more

“‘direct” form of punishment employed in 504 was not

an original effort to inflict punishment on Communists

in the labor movement, but was rather an outgrowth

of the dissatisfaction that was felt at the seemingly

inadequate results achieved under 9(h), even after

its punitive force had been buttressed by the in ter-

rorem conditions created by the Communist Control

Act of 1954. Between 1947 (when 9(h) was adopted)

and 1959 (when it was supplanted by 504), no politi-

cal strikes or other interferences with interstate com-

merce had occurred as would confront Congress with

a situation calling for a generically different attack

against Communists in the labor movement. The two

statutes, then, must stand or fall on the same ‘‘con-

stitutional principles’—we have the Government’s

word for that (United States v. Brown, No. 399, O.T.

1964, Government Brief, 8, 12).

It is plain, we think, that just as the Congressional

action taken against Lovett was a bill of attainder

because ‘‘the statute was the product of a congres-

sional drive to oust from the government persons

whose (congressionally determined) ‘subversive’ ten-

dencies made their continued employment dangerous

to the national welfare”, spurred on by the purpose

“to ‘purge’ the then existing and all future lists of

government employees of those whom Congress

deemed guilty of ‘subversive activities’ and therefore

‘unfit’ to hold a federal job” (United States v. Brown,

supra at 460), so Section 9(h) fits the description of

its successor 504, of which this Court said ‘‘[T]he pur-

pose of the statute before us is to purge the governing

boards of labor unions of those whom Congress re-

gards as guilty of subversive acts and associations

and therefore unfit to fill positions which might affect

interstate commerce” (ibid, 460). It was because the

decision in Lovett was ‘‘misread” (United States v.

Brown, 381 U.S. 437 at 460) that Section 9(h) was

not condemned as a bill of attainder when the ques-

tion was considered in Douds. And the holding in

Brown that 504 was forbidden by Article I, Section 9

of the Constitution necessarily implied that Douds

imuust be overruled, and that 9(h) must be invalidated

(United States v. Brown, supra, dissenting opinion

at 464, 465). Such was also the opinion expressed

the following year by Justices Black and Douglazv,

who were of the view that 9(h) should have been

declared unconstitutional as a bill of attainder when

that section was before the Court in Dennis v. United

States, 384 U.S. 855, 875 [1966]). For reasons not

applicable to this case, as we later show, the issue

was not then decided. We submit that the time for

making that decision is here and now. |

It cannot be too often repeated that the Constitution

forbids Congress from exercising im any guise the

powers reserved to the courts. When there exists be

tween Government and aay of its citizens a disputed

issue of fact upon whose resolution depends the in-

fliction of punishment, the task of adjudication has

been confided exclusively to the judiciary. Congress

may, of course, make findings for its legitimate legisla-

tive purposes, and on the strength of such findings may

adopt statutes of general application as a part of its

law-making functions.** But Congress cannot decide

ex parte that Hugh Bryson constitutes a danger to

the Nation and, on that basis, condemn him to punish-

ment in any form at all, be it death, imprisonment,

loss of job, pressure exerted to force surrender of his

88Congress may not, however, preclude this Court by engaging

in distorted fact finding (cf. Cox v. Louisiana, 379 U.S. 336 [1965]

at 545, n. 8, and cases there cited).

constitutionally-protected rights and liberties, or even

a public statement of condemnation injurious to his

reputation and hurtful to his family. It certainly

cannot do this by open legislative fiat (United States

v. Lovett, 328 U.S. at 316-317), and what it cannot

do directly, it may not do by indirect means. It is no

less an exercise of judicial functions for Congress,

instead of avowedly purporting to find or assume

Bryson to be guilty of the supposed offense, to pro-

duce the same result by throwing him into a common

cauldron with others and spelling out a description

that, in covering all such persons, necessarily includes

him as an individual.** Between any such efforts of

this nature and the classical bills of attainder utilized

in variegated forms in the times of Charles I and

James II, the difference lies only in the degree of

sophistication with which the same identical purpose

is pursued. The same intent is present, and the same

result follows.

We do not mean to disparage the right of Con-

gress to be concerned with political strikes, nor do

we deny that it is for Congress to enact general legis-

lation to deal effectively with any problems created

by the threat of political strikes. We may assume

that a law prohibiting strikes for defined political

purposes, and imposing penalties for violation of

that law, could be drawn without offending the Con-

34“That the persons legislatively punished were not named was

a mere detail of identification.” (United States v. Lovett, 328 U.S.

303, 827 [separate opinion of Mr. Justice Frankfurter, constru-

ing ‘the oaths involved in Cummings and Garland} ).

stitution.** Congress has, for example, adopted legisla-

tion of that nature in its treatment of the problems

created by jurisdictional strikes, secondary boycotts,

and the like, without any felt need to enact bills of

attainder (Section 8 of the Labor Management Rela-

tions Act, 29 U.S.C. 158(b) (4) (B) and (D)). If it be

urged, in opposition, that Congress need not wait for

the evils of political strikes to occur, additional steps

are readily available; for example, the use of the

courts’ injunctive processes, as in national emergency

strikes, to provide time in which to dissipate the im-

petus for such strikes (Section 208 of the Labor Man-

agement Relations Act, 29 U.S.C. 178). If this still is

thought to be inadequate, there are yet other things

that can be done, ‘including provision for administra-

tive hearings if that is considered desirable; and in

any event, at all times, penalties may be imposed for

wilful violation of a court’s orders, both in restraint

and in enforcement, that are not necessarily limited to

85In point of fact, we have been unable to find in the legislative

background of 9(h), or in other relevant bibliographical materials,

any well-reasoned presentation against the validity, let alone the

conceivable desirability, of “political strikes.” The term has no

settled meaning; however, it has been called “the refusal to perform

a civic duty or a private job in order to compel a change in political

policy.” (Ziskind, One Thousand Strikes of Government Employees,

Columbia University Press [1940], 7). Why would not a president

of the United States have the right to call on the American people

to engage in a strike to demonstrate their support for his program

against the obstructionism of a recalcitrant Congress? Could Con-

gress constitutionally legislate to prohibit such an occurrence? If

the situation were reversed, could not Congress solicit the trade

union memberships to lay down their tools as an expression of dis-

approval of a president’s policy? To be sure, these are not likely

possibilities but they do point up the too simple readiness to ascribe

disloyal motives to any strike initiated for “political” as distin-

guished from economic purposes.

only an 80-day period, but which would be carefully

tailored in each case, as is customary in judicial pro-

ceedings, to the given fact situation before the court.

Finally, if all this panoply of powers is not deemed

enough, a general law could presumably be drawn to

provide that anyone who occupies union office for the

purpose or with the intent of calling political strikes,

or is about to do so, or is likely to do so, shall be

punished by removal from office. For purposes of

argument, we assume such a law might not offend

the Constitution; indeed, if such a law were to be

unconstitutional, then assuredly 9(h) is. The point

of our argument is that Hugh Bryson would thus

have had a chance to meet the accusation that his

continued occupancy of union office actually would, or

reasonably might be supposed to, present a threat to

the country.** A trial would afford the Government

full opportunity to prove any of its assertions against

86Among the specious assumptions concealed by the statute, is

that the petitioner was or ever could be in any position to call a

political strike, even if he wanted to. Only those who are totally

ignorant of American labor unions can truly suppose that all that

needs doing for a strike to be called is for a union leader to press

a button, at which American workers promptly leap to the oppor-

tunity to terminate their sources of livelihood. All unions are gov-

erned by constitutions and established practices that control the

calling of strikes; these invariably make it difficult, not easy, to

strike; e.g., in the case of petitioner’s union, a requirement existed

for the conduct of a secret referendum vote of all members on all

a as well as the members ashore before a strike could be author-

It was not charged or proved that petitioner had ever advocated

a political strike. In fact, his uni had engaged in only one strike,

for economic reasons alone, subsequent to the famed West Coast

strikes of 1934 and 1936. The Congressional “findings” seem to rest

on the belief that American workingmen are too stupid, too un-

patriotic, and too strike-happy to be entrusted with the right to

exercise the franchise.

him, and a like opportunity to Bryson to defend

against the charge—to prove, if he could, to the satis

faction of court and jury that, far from posing a

threat to the safety and welfare of the Nation, he

was loyally disposed to his country, and utterly un-

willing to call or support a political strike, notwith-

standing any associations he previously had sustained

with members of the Communist Party or the Party

itself. If any valid reason existed to remove him from

office, such a trial would accomplish the Congressional

purpose, and it would do so without offering Bryson

up as a sacrificial lamb on the twin altars of expedi-

ency and hysteria—nor, what is worse, establishing

the precedent, with all its ominous implications, that

any citizen can be shorn of his most precious rights

without the slightest semblance of a judicial trial.

(B) On its face and as applied to the petitioner, Section 9(h)

also abridges rights of speech, assembly and association, in

violation of the First Amendment and deprives of liberties

as oe ee a me viene

Fifth Amendment.

It would be difficult, we submit, to imagine a law

which, possessing the essential characteristics of a

bill of attainder, could possibly avoid conflict with

the command of the Fifth Amendment that no person

shall ‘‘be deprived of life, liberty or property without

due process of law,” for the very essence of bills of

attainder, as we have shown, is precisely to deprive

their victims of due process. And when the activities

that Congress purports to be regulating involve the

political beliefs of an individual, then, whether such

beliefs are expressed in association with others or

without such association, the legislation cannot fail

to violate the First Amendment as well. The neces-

sary and inevitable effect is to discourage freedom of

expression; indeed, that is its purpose and design. It

comes, therefore, as no surprise that Section 9(h),

whose purpose, effect, and means of operation are

those of a bill of attainder, should also contravene

both the First and Fifth Amendments.

It is unnecessary, we think, to demonstrate that the

area dealt with here, is that in which are to be found

rights protected by the First Amendment. Although

the constitutional attack on 9(h) was unsuccessful in

Douds, it was not for want of proof that First

Amendment rights were abridged by the statute; the

Court recognized this to be so, saying, ‘‘. . . Congress

has undeniably discouraged the lawful exercise of

political freedoms . . .” and that the law had the

“ |, . necessary effect of discouraging the exercise

of political rights protected by the First Amend-

ment.” (339 U.S. at 393.) The abridgement was

thought, however, to be justifiable because the Con-

gressional interest was, on balance, found to be suffi-

ciently great to warrant the action taken (339 U.S.

at 406), accordingly the individual’s rights were

held to lose their protected character. With all re

spect, we think that the rationale of Douds leads only

to the conclusion that the fundamental rights there

involved had lost the protection of the Court, not

of the Constitution, and that this unfortunate result

reflects chiefly the inappropriateness of applying the

test there used.

That test—of ‘‘balancing” an asserted Congressional —

interest against the freedoms infringed—has never

commanded the adherence of a majority of the Court

for a sufficient period of time, or with a sufficient

degree of attachment as to its utility, propriety, or

scope, to settle the troublesome questions raised by it,

and no unbroken line of decisions has been produced

that rely unwaveringly on the use of that test; nor

has there been unvarying agreement among the pro-

ponents of that test on the results to be reached by

resorting to it. To the contrary, the relevant decisions

have in some instances resulted in this Court support-

ing the claim of the individual against the Govern-

ment or the State—in other instances that involve

searcely distinguishable fact situations, opposite re

sults have been reached. (Compare Garner v. Board

of Public Works of Los Angeles, 341 U.S. 716 [1951]

with Baggett v. Bullitt, 377 U.S. 360 [1964]; Baren-

blatt v. United States, 360 U.S. 109 [1959] with Wat-

kins v. United States, 354 U.S. 178 [1957]; Konigs-

berg v. State Bar of California, 366 U.S. 36 [1961]

with Schware v. Board of Bar Examiners, 353 U\S.

232 [1957]; Adler v. Board of Education, 342 US.

485 [1952], with Keyishian v. Board of Regents, 385

U.S. 589 [1967] ; Scales v. United States, 367 U.S. 203

[1961] with Noto v. United States, 367 U.S. 29

[1961]; and see N.A.A.C.P. v, Alabama, 357 U.S. 449

[1958], Sweezy v. New Hampshire, 354 U.S. 2%

[1957], Aptheker v. Secretary of State, 378 U.S. 500

[1964] and United States v. Robel, 389 U.S. 258, 268

n. 20 [1967]).

;

On all occasions, the use of the balancing test has

never failed to evoke strong criticism, particularly

in cases involving oaths. (See, for example, In re

Summers, 325 U.S. 561, dissenting opinion at 573

[1945]; Garner v. Board of Public Works of Los

Angeles, 341 U.S. 716 [1951], dissenting opinion at

731; Barenblatt v. United States, 360 U.S. 109 [1959],

dissenting opinion at 134; Braden v. United States,

95 U.S. 431 [1961], dissenting opinion at 438;

Konigsberg v. State Bar of California, 366 U.S. 36

[1961], dissenting opinion at 56; and Commumst

Party v. Subversive Activities Control Board, 367

US. 1 [1961], dissenting opinion at 137.)

Granting the difficulties that are posed when an

Act of Congress abridges rights concededly protected

by the First Amendment (as cannot be denied in re-

gard to 9(h)), we submit that this Court should un-

hesitatingly denounce any such law as unconstitutional.

When all the deference has been paid to Congress

that is its rightful due, the fact remains that Con-

gress, like this Court and the Executive, must exer-

cise its powers within the limitations of the Constitu-

tion. And when it does not do so, this Court must act.

As Chief Justice Taft (in another context) said:

“‘Tt is the high duty and function of this court

in cases regularly brought to its bar to decline

to recognize or enforce seeming laws of Congress,

dealing with subjects not intrusted to Congress,

but left or committed by the supreme law of the

land to the control of the states. We cannot avoid

the duty even though it require us to refuse to

give effect to legislation designed to promote the

highest good. The good sought in unconstitutional

legislation is an insidious feature because it leads |

citizens and legislators of good purpose to pro- —

mote it without thought of the serious breach it

will make in the ark of our covenant, or the

harm which will come from breaking down recog-

nized standards.” (Bailey v. Drexel Furniture

Co., 259 U.S. 20, 37 [1922].)

Just as Congress may not invade powers reserved

to the States, it is equally forbidden to invade the

domain of the judiciary (Constitution, Article I, See-

tion 9; Article III, Section 1), or to enact laws that

abridge rights secured by the First Amendment or

deprive of personal liberties or property without the

due process for which the Fifth Amendment provides.

In this case, Congress has offended the Constitution

both in respect to this Court and to all persons affec-

ted by the law. As Mr. Justice Black aptly said, 9(h)

is a ‘‘eonstitutionally doubly prohibited freedom-

destroying, legislative bill of attainder.” (Dennis v.

United States, 384 U.S. 855, 881.)

The liberties of our people, as prescribed in the

Constitution, cannot, we submit, long tolerate a case-

by-case method of weighing Congressional interests

against First Amendment freedoms,® and _ history

87 Adherence to the balancing test has led to the appearance, in

a coneurring opinion, of the following statement, “We are to set

aside the judgment of those whose duty it is to legislate only if

there is no reasonable basis for it.” (Dennis v. United States, 341

U.S. 494, concurring opinion at 525 [1951].) If these words

mean what they appear to mean, their unquali application in

practice would threaten to effect a judicial repeal of the First

Amendment. It is, we submit, important to remember, as we have

been reminded, that “the First Amendment . . . absolutely forbids

such laws without any ifs or buts or whereases” (Beauharnais v.

Illinois, 343 U.S. 250, dissenting opinion at 275 [1952] ).

provides no reason for adopting that method. No

such balancing process is to be found in the famous

dissenting opinions of Holmes and Brandeis (“chaefer

v. United States, 251 U.S. 466, 482 [1920]; Pierce

v. United States, 252 U.S. 239, 253 [1920]; Gitlow

v. New York, 268 U.S. 652, 672 [1925]; Whitney v.

California, 274 U.S. 357, 372 [1927] [concurring

opinion]), nor in the decisions of this Court where,

persuaded by the doctrine expounded by Holmes and

Brandeis, the freedoms and liberties of the people

were extended and given vigorous protection, limited

only by the clear and present danger test. (DeJonge

v. Oregon, 299 U.S. 353 [1937]; Herndon v. Lowry,

301 U.S. 242 [1937]; Bridges v. California, 314 US.

252 [1941]; West Virginia State Board of Education

v. Barnette, 319 U.S. 624 [1943]).

“For these reasons any attempt to restrict those

liberties must be justified by clear public interest,

threatened not doubtfully or remotely, but by

clear and present danger. The rational connection

between the remedy provided and the evil to be

curbed, which in other contexts might support

legislation against attack on due process grounds,

will not suffice. These rights rest on firmer foun-

dation.” (Thomas v. Collins, 323 U.S. 516, 530

[1945]).

It was from these beginnings that this Court de-

veloped and expanded its protection of the freedom of

expression which the Framers of the Constitution in-

tended, as shown by the language they chose, to be

absolute. Far from undertaking to ‘‘balance” con-

flicting interests between the legislative body and the

citizen, the rule was that, whenever rights guaranteed |

by the First Amendment were involved, the presump-

tion was in favor of the rights, not the Government

(United States v. Carolene Products Co., 304 U.S. 144,

152-153, n. 4 [1938]; Schneider v. Irvington, 308 US.

147, 161 [1939]; Thomas v. Collins, 323 U.S. 516

[1945]). These ‘‘freedoms .. . are to be presumed to

be invulnerable and any attempt to sweep [them]

away” is “‘prima facie invalid” (Prince v. Massachu-

setts, 321 U.S. 158, dissenting opinion at 173

[1944]). Under the clear and present danger test, only

the most essential, indeed indispensable, restrictions

on the exercise of freedom of expression may be per-

mitted, and then only if a statute is narrowly drawn,

with meticulous specificity so as to result in the least

possible infringement on rights (Lovell v. Griffin, 303

U.S. 444, 451 [1938]; Schneider v. Irvington, 308 US.

147, 162-164 [1939]; Hague v. C.I.0., 307 US. 49%,

516 [1939]; Thornhill v. Alabama, 310 U.S. 88, 97-98

[1940]; Carlson v. California, 310 U.S. 106, 112

[1940]; Cantwell v. Connecticut, 310 U.S. 296, 307-

308 [1940]; Sata v. New York, 334 U.S. 558 [1948];

Shelton v. Tucker, 364 U.S. 479 [1960]; Schneider v.

Smith, 390 U.S. 17 [1968]). For these rights occupy

a ‘preferred position” in our scheme of constitutional

government (Jones v. Opelika, 316 U.S. 584, dissent-

ing opinion 600, 608 [1942]; Murdock v. Pennsyl-

vania, 319 U.S. 105, 115 [1943]; Prince v. Massachu-

setts, 321 U.S. 158, 164 [1944]; Follett v. McCormick,

321 U.S. 573, 577 [1944]; Marsh v. Alabama, 326 U.S.

501, 509 [1946]; Sata v. New York, 334 U.S. 558, 561,

562 [1948]. Legislation so drawn as to result in chill-

ent stifling of freedom of thought, will not be toler-

Jated (Keyishian v. Board of Regents, 385 U.S. 589

[1967]; Elfbrandt v. Russell, 384 U.S. 11 [1966];

Dombrowski v. Pfister, 380 U.S. 479 [1965]; Aptheker

v. Secretary of State, 378 U.S. 500 [1964]). For these

are ‘‘privileged” rights (VAACP v. Alabama ex Rel.

Patterson, 357 U.S. 449, 460 [1958]). They are ‘‘su-

premely precious in our society” (NAACP v. Button,

371 U.S. 415, 433 [1963]). And they have been ‘‘en-

shrined in the First Amendment of the Bill ef Rights”

(Sweezy v. New Hampshire, 354 U.S. 234, 250

[1957].

The teachings of these cases take on added luster

when one turns to facts such as are found here, facts

that present a particularly egregious instance of the

kind of miscarriage of justice that occurs when

courts, out of an undue deference to legislators, allow

conjecture to be substituted for fact, and individual

guilt to be irrebuttably presumed from mere non-

criminal association. The assumption made in Douds

was that any person must unavoidably know whether

he was swearing falsely, hence only those would be

convicted who knew perfectly well that they were

lying, for ‘‘no honest, untainted interpretation of

those words [i.e., ‘affiliated’, ‘supports’ and ‘illegal

or unconstitutional methods’] is punishable . . .” (339

US. at 412, 413). The reality is that no man can truly

be sure what is meant by such a word as ‘“‘affiliation,”

a word that has plagued judges and lawyers alike,

and of which it has been said in a case involving this

very Section 9(h) :

fe effects on First Amendment rights, with conse-

‘‘And what does it mean to be ‘affiliated’? The |

Supreme Court, in Bridges v. Wixon, supra, de- |

voted several pages to the meaning to be attrib |

uted to the word ‘affiliation,’ as used in the depor-

tation statute. The court’s discussion is convincing

that its meaning is quite beyond the reach of the

ordinary citizen.” (Circuit Judge Major in In-

land Steel Co. v. National Labor Relations Board,

170 F.2d 247, 262 [7 Cir. 1948]).**

Should any person be compelled to take the risk of

speculating about the meaning of a law?

‘*Men of common intelligence cannot be required

to guess at the meaning of the enactment” (Win-

ters v. New York, 333 U.S. 507, 515 [1948]).

“«. . . a statute which either forbids or requires

the doing of an act in terms so vague that men

38 Affiliation” is an elusive concept whose components are

variously, perhaps contradictorily, identified in the cases. But

at the least, it would seem that some element must be present that

ties the accused to the illegal purpose or illegal activities of the

0 ization—“‘. . . meaningful association” that is not “. ..

wholly devoid of any political implications” (Rowoldt v. Perfetto,

355 U.S. 115, 120 [1957]); the word is not to be applied in “as

broad, fluid sense” or given “too loose a meaning” or applied so

as to visit hardship “for slight or insubstantial reasons”; “But

unless he also joined in that overall program [i.e., unlawful ob-

jectives] he would not be ‘affiliated’. . .” (Bridges v. Wizon, 326

U.S. 135 at 147, 149 [1945]).

4t petitioner’s trial, the jury interrupted its deliberations to re-

quest a Webster’s Dictionary: it was having difficulty, the Fore

man said, with “the words ‘affiliation’ and ‘member’” and wanted

“elaboration on those two terms.” (Bryson v. United States, supra,

n. 2, Reporter’s Transcript on Appeal, 1170-1171.) The dictionary

was refused, the Court saying, “I can assure you that if there

is anything in Webster’s Dictionary that I thought would help you

on it, you’d have it” (ibid); no elaboration was given. (See also

Bryson v. United States, No. 171, O.T. 1957, Petition for Writ of

Certiorari, 12-13; and also 27, showing that the jury took a written

poll to decide whether “affiliated” and “member” were the same or

different—5 thought they were the same, 7 thought they were

different).

of common intelligence must necessarily guess at

its meaning and differ as to its application, vio-

lates the first essential of due process of law.”

(Connally v. General Constr. Co., 269 U.S. 385,

391 [1926]).

Plainly, ‘‘No one may be required at peril of

life, liberty or property to speculate as to the mean-

ing of penal statutes” (Lanzetta v. New Jersey, 306

U.S. 451, 453 [1939]), and when ‘Words . . . are

vague and fluid” they ‘‘may be as much of a trap for

the innocent as the ancient laws of Caligula” (United

States v. Cardiff, 344 U.S. 174, 176 [1952]. “*... [T]he

exaction of obedience to [such] a rule or standard” is

to command obedience to something ‘‘so vague and

indefinite as to be really no rule or standard at all”

(Champlin Ref. Co. v. Corporation Com. of Oklahoma,

286 U.S. 210, 243 [1932]). ‘‘All are entitled to be in-

formed as to what [Government] commands or for-

bids” (Lanzetta v. New Jersey, supra, at 453).

The attorneys who counseled petitioner in 1951 that

on the facts of his case, he was entirely free, as a matter

of law, to subscribe to the oath, were entitled to think

that their advice drew sound support from such deci-

sions as De Jonge v. Oregon, 299 U.S. 353 (1937), Hern-

don v. Lowry, 301 U.S. 242 (1937), Schneiderman v.

United States, 320 U.S. 118 (1942), Bridges v. Wixon,

326 U.S. 135 (1945), and Untted States ex Rel. Kettu-

nen v. Reimer, 79 F.2d 315, 317 (2 Cir., 1935) ; and they

could later properly claim that the accuracy of their

advice was confirmed by the subsequent decisions in

Schware v. Board of Bar Examiners, 353 U.S. 232

(1957), Yates v. United States, 354 U.S. 298 (1957),

Rowoldt v. Perfetto, 355 U.S. 115 (1957), Scales »,

United States, 367 U.S. 203 (1961), Noto v. United

States, 367 U.S. 292 (1961), Aptheker v. Secretary

of State, 378 U.S. 500 (1964), Dombrowski v. Pfister,

380 U.S. 479 (1965), Elfbrandt v. Russell, 384 U.S. 1

(1966), and Keyishian v. Board of Regents, 385 US.

589 (1967). They could even point to Douds itself,

where fewer than five Justices had thought ‘‘affilia-

tion” to be an acceptable statutory term, and where

Chief Justice Vinson observed that Communists

‘‘carry on legitimate activities” (American Commumni-

cations Assn. v. Douds, 339 U.S. 382, 393 [1950]) and

no person holding innocent beliefs need have any

anxiety ‘‘while this Court sits” (ibid, 410). Yet none

of these assurances protected the petitioner from

prosecution, conviction and imprisonment, although

he twice sought relief from this Court (355 U.S. 817;

360 U.S. 919).

If lawyers can be thus misled, what may be ex-

pected of the layman who acts on the advice of law-

yers?** Is he bound to assume the peril that, in his

ease, no attention will be paid to the doctrine expressed

in this Court’s decisions: that even assuming illegal

aims or activities of some members of the Communist

Party, “it cannot automatically be inferred that all

members shared their evil purposes or participated

3%‘That is what lawyers are for. If consultation with counsel

indicates anything, it shows a desire to conform with legal require-

ments to obey the law.” (Schwarzenbach-Huber Co. v. National

Labor Relations Board, .... F. 2d ..... [2 Cir., 1969], 37 U.S.L. Wk,

[March 5, 1969], per Medina, J.)

—

in their illegal conduct” (Schware v. Board of Bar

Examiners, 353 U.S. 232, 246 [1957]), for ‘‘men in

adhering to a political party or other organization

notoriously do not subscribe unqualifiedly to all of

its platforms or asserted beliefs” (Schneiderman v.

United States, 320 U.S. 118, 136 [1943]); that ‘‘it

is difficult to perceive how the requisite specific intent

to accomplish such overthrow [of government] could

be deemed proved by a showing of mere membership

or the holding of office in the Communist Party”

(Yates v. United States, 354 U.S. 298, 331 [1957]);

that a person may not be punished “for his adher-

ence to lawful and constitutionally protected pur-

poses because of other and unprotected purposes

which he does not necessarily share” (Noto v. United

States, 367 U.S. 290, 299-300 [1961]) ; that Congress

may not ignore “plainly relevant considerations such

as the individual’s knowledge, activity, commitment

and purposes” (Aptheker v. United States, 378 US.

500, 514 [1964]); that the justification for punishing

an individual requires evidence that “must be suffi-

ciently substantial to satisfy the concept of personal

guilt” (Scales v. United States, 367 U.S. 203, 224-225

[1961]) ; and that ‘‘it is upon the particular evidence

in a particular record that a particular defendant

must be judged, and not upon the evidence in some

other record or upon what may be supposed to be

the tenets of the Communist Party” (Noto v. United

States, 367 U.S. 290, 299 [1961]) ?

These considerations give emphasis to the import-

ance of the principles enunciated in the cases on

which we here rely: that statutes such as 9(h) are

impermissibly vague; they give no adequate defini. ,

tion of what is proscribed; they provide no ascertain-

able standard to be applied at trial for the guidance

of judge and jury, and the exoneration of the accused

when it is merited; they operate, in fact, to enmesh |

and entrap the unwary and the innocent into a }

criminal conviction based on nothing more than in. [

nocuous associations, despite the fact that the theory }

of guilt by association is obnoxious to our system of |

justice (EHifbrandt v. Russell, 384 U.S. 11 [1966];

Bridges v. Wizxon, 326 U.S. 135 [1945]). Such human

tragedy as befell petitioner here ought not to occur,

and there would be infinitely less chance of its occur.

rence if Congress were held strictly to account in

matters of elementary due process; or, to put the

matter differently, if the American ple could be

assured in advance that the rules laid Sawn in the

Constitution may be relied upon; that the vital in-

terest of the American people in freedom of expres-

sion will not be smothered because some supposed

higher interest in government dictates obeisance; that

an exercise of associational rights will not subject

the American people to the risk, on an ad hoc basis,

of some of them being convicted and imprisoned

while others are adjudged guiltless of crime on sub-

stantially the same facts; and that those who bear

responsibility to legislate within the framework of

the Constitution will receive no judicial deference

whatsoever when they flaunt the Constitution with

their “seeming laws” (Chief Justice Taft, in Bailey,

supra, 259 U.S. at 37) that create innocent victims

and would make conforming puppets of us all. ‘“‘Our

whole constitutional heritage rebels at the thought of

giving government the power to control men’s minds”

(Stanley v. Georgia, US. .-. 37 U.S.L.Wk.

4315, 4317 [April 7, 1969]. The Nation would be on

safer ground, we submit, if closer heed were paid to

wise counsel :

“The powers of the legislature are defined and

limited, and that those limits may not be mis-

taken or forgotten, the constitution is written. To

what purpose are powers limited, and to what

purpose is that limitation committed to writing,

if these limits may, at any time, be passed by

those intended to be restrained? The distinction

between a government with limited and unlimited

powers is abolished, if those limits do not confine

the persons on whom they are imposed, and if

acts prohibited and acts allowed are of equal

obligation.” (Chief Justice Marshall, in Mar-

bury v. Madison, 1 Cranch 137, 176 [1803]).

II.

PETITIONER IS ENTITLED, UNDER THE POST-CONVICTION

STATUTES, TO HAVE HIS CRIMINAL CONVICTION SET

ASIDE AND TO BE RELIEVED OF THE REMAINING DIS-

ABILITIES OF THAT CONVICTION.

Petitioner contended in the District Court that jur-

isdiction of his motion was grounded on both 28 U.S.C.

9955 and 28 U.S.C. 1651 (App. 6, 13). The District

Court found” that it had jurisdiction under 28 U.S.C.

2955, and, alternatively, under 28 U.S.C. 1651. The

Court of Appeals considered neither statute, stating

“The District Court directed that its “Order Setting Aside Con-

vietion and Sentence” (App. 26) constitute its “findings of fact

and conclusions of law.” (App. 43). F.R.C.P., Rule 52,

that Dennis v. United States, 384 U.S. 855 (1966),

compelled it to hold that petitioner had no standing

to attack the constitutionality of 9(h) (App. 45),

We shall show that both 28 U.S.C. 2255 and %

U.S.C. 1651 invest the federal courts with jurisdiction |

of petitioner’s cause, and that nothing in Dennis de

prives him of standing to attack the constitutionality

of 9(h).

err

(A) Petitioner qualifies for relief under 28 U.S.C. 2255.

In pertinent part, Section 2255 provides that:

“A prisoner in custody under the sentence of {

a [federal] court .. . claiming the right to bh}

released upon the ground that the sentence was }

imposed in violation of the Constitution . . . of |

the United States, or that the court was without |

jurisdiction to impose such sentence ... or}

[that the sentence] is otherwise subject to col-

lateral attack, may move the court .. . to vacate,

set aside or correct the sentence.”

Our brief here has argued that the sentence in-

posed upon petitioner in 1955 was in violation of the

Constitution of the United States; it was therefore

not within the jurisdiction of the court to impose,

and, accordingly, is now subject to collateral attack.

In the District Court, the Government contended that,

inasmuch as petitioner had been released on parole

prior to the institution of the proceeding below, he

did not satisfy the ‘‘in custody” requirement of Sec-

tion 2255 and, therefore, the statute did not confer

jurisdiction. Neither the record nor the law supports

this position.

— ts

Petitioner’s motion alleged that by virtue of his

inability to pay the entire fine, “the said period of

parole [has] continued in effect”; that as a result,

he remains “under the supervision” of the probation

officer; that he is “required” to make monthly reports

to the probation officer; that he cannot travel outside

of California without first securing permission from

the probation officer, and that he is “«- -ct at all

times to the supervisory parole powers” § “Se pro-

bation officer. It also alleged that, as an additional

concomitant of the conviction, he has been deprived

of his right to vote and to obtain a passport (App.

5-6).

These allegations were not denied, and the District

Court found them to be true:

“Petitioner is presently on parole and a sub-

stantial part of his fine ($8,000) remains unpaid.

Consequently, his parolee status continues with

its attendant restrictions on his personal free-

dom. He must make monthly reports and must

seek permission to travel outside the state. He

is unable to vote.” (App. 27).

This finding was not assailed as “clearly erroneous,”

F.R.C.P., Rule 52. It was therefore required to be

accepted by the Court of Appeals, as it must be now

by this Court.

In addition to these restrictions on petitioner’s lib-

erty, it must be remembered that, as a matter of law,

the parole board’s jurisdiction over him continues

“yntil the fine is paid or otherwise discharged,” be-

cause the sentencing judge expressly provided for

“further” imprisonment for nonpayment. (See United

States v. Gottfried, 197 F.2d 239 [2 Cir., 1952].

nena

Compare 18 U.S.C. 3535: the issuance of execution

shall not discharge the defendant from imprisonment

“until the amount of the judgment is pai ”; and see

Panno v. United States, 203 F.2d 504, 509-510 [9 Cir,

1953], and Callahan v. United States, 371 F.2d 658,

661 [9 Cir., 1967]). Indeed, United States v. Baird,

241 F.2d 170, 175 (2 Cir., 1957), suggests the possi-

bility that petitioner may still be reincarcerated for

contempt upon a wilful refusal to obey orders which

might issue in proceedings undertaken to collect the

balance of the fine.

In view of the aforementioned restraints on peti-

tioner’s liberty which were found by the District

Court to exist, ol as the further disabilities to

which we have referred, there can scarcely be any

doubt that petitioner is “in custody” for the purpose

of permitting him to invoke jurisdiction under See

tion 2255. In Jones v. Cunningham, 371 U.S. 236

(1963), this Court held that a state parolee was sufi-

) ” ciently “in custody” so that the jurisdiction of the

federal courts under 28 U.S.C. 2241" should be ex-

tended to him:

“. .. in fact as well as in theory, the custody

and control of the Parole Board involve signifi-

cant restraints on petitioner’s liberty because of

his conviction and sentence, which are in addi-

tion to those imposed by the State upon the pub-

“Both 28 U.S.C. 2241 (dealing with habeas corpus for state

prisoners) and 28 U.S.C. 2255 use the identical words “in rt

The two sections have been similarly construed, and “in

means the same in each of them (Kaufman v. United States, U.S.

my 87 U.S.L.Wk. 4238, 4239 [March 24, 1969]; United States v.

Hayman, 342 U.S. 205 [1952] ; Matysek v. United States, 339 F. 2d

394 [9 Cir., 1964]).

lie generally. Petitioner is confined by the parole

officer to a particular community, house, and job

at the sufferance of his parole officer. He cannot

drive a car without permission. He must periodi-

cally report to his parole officer, permit the officer

to visit his home and job at any time, and follow

the officer’s advice” (Jones v. Cunningham, 371

U.S. 236, 242 [1963]).

The restraints upon petitioner’s liberty to do and

go as he pleases are in no substantial way different

from those imposed in Jones. Petitioner’s duty to

report monthly and to secure permission to travel

outside the state are restraints sufficient to constitute

“custody.” (Compare Hoptowit v. United States, 274

F.2d 936, 938 [9 Cir., 1960]; Wapnick v. United

States, 406 F.2d 741 [2 Cir., 1969]; and United States

v. DeMario, 246 F.Supp. 786, 787 [E.D. Mich., 1965]).

For recent further expansions of the ‘‘in custody”

concept in other contexts, see Peyton v. Rowe, 391

US. 54, 64, 67 (1968), and United States v. Myers,

394 F.2d 619 (3 Cir., 1968) ; and compare the restric-

tions on petitioner’s liberty with those held in Carafas

v, LaValle, 391 U.S. 234 (1968), to be sufficient to

sustain jurisdiction under the habeas corpus statute:

“Tt is clear that petitioner’s cause is not moot.

In consequence of his conviction, he cannot en-

in certain businesses; he cannot serve as an

official of a labor union for a specified period of

time; he cannot vote in any election held in New

York State; he cannot serve as a juror. Because

of these ‘disabilities or burdens [which] may flow

from’ petitioner’s conviction, he has ‘a substan-

tial stake in the judgment of conviction which

survives the satisfaction of the sentence im

on him.’ Fiswick v. United States, 329 U.S. 211,

222 . . . (1946). On account of these ‘collateral

consequences’, the case is not moot. Ginsberg y.

New York, 390 U.S. 629, 633-634, n. 2 (1968) ;

Fiswick v. United States, supra, at 222, n. 10;

United States v. Morgan, 346 U.S. 502, 512-513

(1954).” (Carafas v. LaValle, 391 U.S. 234, 237.

238).

(B) Petitioner also qualifies for the requested relief under the

All-Writs Statute, 28 U.8.0. 1651.

In pertinent part, Section 1651 provides that the

District Courts “‘may issue ali writs necessary or ap-

propriate in aid of their . . . jurisdiction and agree-

able to the usages and principles of law.” Petitioner

relied on this section, as well as 2255, to give the

District Court jurisdiction of his motion. That Court

specifically found that 1651 provided an alternative

ground for the assertion of its jurisdiction (App. 29).

The Government had argued that this was not a

proper case for a writ of error coram nobis and that

the only relevant statute was 28 U.S.C. 2255 (App.

18-19). In the Court of Appeals, the Government

let the point go by default for, despite the District

Court’s holding that 1651 was an alternative ground

of jurisdiction, nowhere in its brief did the Govern-

ment argue against that determination. As we have

already seen, the Court of Appeals did not reach the

question at all.

“Nevertheless, the Government argued that 2255 could not be

Oa) because, in its view, petitioner was not “in custody” (App.

eS See RS,

The District Court’s conclusion that it had juris-

diction under 1651 was manifestly correct, sinice “cus-

tody” is not a prerequisite to relief under that

section. (United States v. Morgan, 346 U.S. 502

[1954]; Migdal v. United States, 298 F.2d 513, 515

[9 Cir., 1961]; cf. Wapnick v. United States, 406 F.2d

741, 742 [2 Cir., 1969]). Jurisdiction existed there-

under to hear and determine petitioner’s claim upon

his allegations (App. 7-13) that the state of the law

had changed after his time for direct appeal had ex-

pired. (See Sunal v. Large, 332 U.S. 174, 181 [1947]).

Even the fact that a prison sentence has been

served is not a basis for refusing to assume juris-

diction of a petition filed under Section 1651:

“The district court denied appellant’s petition

without a hearing indicating that it had no juris-

diction by reason of the fact that the sentences

in the District Court of Arizona had been com-

pleted.

‘‘We disagree, One of the purposes of coram

nobis is to allow a defendant to attack a convic-

tion notwithstanding the fact that he has com-

pleted sentence. United States v. Morgan,

supra at 512, 74 S.Ct. 247. A defendant may be

harmed by an invalid conviction even after he

has served his sentence; i.e., subsequent convic-

tion may carry heavier penalties, and his civil

rights may be affected. Coram nobis must be kept

available as a post-conviction remedy to prevent

‘manifest injustice’ even where the removal of

a prior conviction will have little present effect

on the petitioner. See Mathis v. United States,

369 F. 2d 43 (4 Cir., 1966); see generally, Note,

55 Geo.L.J. 851, 865-870 (1967).” (Holloway v, ,

United States, 393 F.2d 731, 732 [9 Cir., 1968]).

In Harris v. Nelson, ...... U.S. ..... 37 U.S.L.Wk

4219, 4223 (March 24, 1969), Mr. Justice Fortas said

for this Court that the All Writs Statute “has served

since its inclusion, in substance, in the original Judi-

ciary Act as a ‘legislatively approved source of pro-

cedural instruments designed to achieve’ the rational

ends of law.”

Here petitioner invoked its use as precisely such

a procedural instrument.

disqualifying rule of standing enunciated in Dennis y,

United States, 384 U.8. 855 (1966).

The Court of Appeals did not consider petitioner's

attack on 9(h) because it held that petitioner had

no standing to mount such an attack. This holding,

it said, was “compelled” by Dennis v. United States,

supra, “because. there are no significant differences

between Bryson and Dennis” (App. 45).

“Bryson’s inability to reach the constitutional

issue defeats his attack on the validity of the

conviction and renders unnecessary our discus-

sion of the remaining contentions of the parties”

(App. 45).

We submit that the Court of Appeals is plainly in

error: (a) petitioner’s case is distinguishable from

Dennis on the point here at issue, because the reasons

which were given in Mr. Justice Fortas’ opinion for

the Court, as grounds for denial to the petitioners

of standing to attack the constitutionality of 9(h),

are not present here; and (b) since petitioner is

attacking 9(h) in a collateral proceeding rather than

on a direct appeal, different considerations apply to

the question of standing.

Because the District Court had no difficulty in dis-

tinguishing this case from Dennis (and rightly so),

it did not consider, although petitioner presented

(App. 35), the collateral attack argument. The Court

of Appeals did not consider it either, saying that

its inability to distinguish Dennis put an end to the

matter. We think that the Court of Appeals erred and

that Dennis is distinguishable; but even if it were

thought to be controlling in the case of a direct ap-

peal, its rationale can have no force in the case of

a statutorily authorized collateral attack.

(i) Dennis v. United States, supra, is distinguishable from the case

at bar.

Dennis, as both the Government (Br. in Opp. 4)

and the District Court (App. 35) recognized, involved

the crime of conspiracy to violate 18 U.S.C. 1001.

That fact in itself constitutes a decisive ground of

distinction between Dennis and this case.

“Tt is the entire conspiracy and not merely the

filing of false affidavits, which is the gravamen of

the charge.” (384 U.S. 855, 860).

Here, there is no ‘‘conspiracy”, ‘‘entire” or other-

wise; here there is ‘‘merely [the charge of] the filing

4Because the claimed invalidity of Section 9(h) would be no

defense to the ae of Bare pang charged in this indictment, we

find it ouds” (Dennis v. United States,

supra at 867 ; italics eepatel.

| ’

of [a] false affidavit . . .;” here there was not, as

there was in Dennis, a “conspiracy, cynical and

fraudulent” (384 U.S. 855, 865). Here the District

Court found that Rryson, unlike the Dennis defend-

ants, “at all times denied the falsity of his affidavit”

(App. 35) and that Bryson, unlike the Dennis de-

fendants, was acquitted by the jury of the charge

of falsifying as to “membership” (App. 36). These

findings, supported by the record, cannot be challenged

as “clearly erroneous” and therefore are to be taken

as true by this Court (F.R.C.P., Rule 52).

In Dennis, the gravamen of the charge was that

dedicated Communist Party members, acting at the

behest of the Party, conspired falsely to pretend to

leave it, while in fact remaining within it (384 US.

at 859) ; it was this conduct on their part that resulted

in a forfeiture of their standing to challenge 9(h).

Here, the whole of the case is that a trade unionist

who was not a Communist Party member was pun-

ished for the mistake of not knowing the meaning

which the courts would ultimately attach to the word

‘‘affiliation.”**

44Compare Shuttlesworth v. City of Birmingham, —.. U.S. —_,

87 U.S.L.Wk. 4203 (March 10, 1969) in which this Court

held that a defendant was entitled to assume that a statute

meant what it said on its face and that “with First Amendment

rights hanging in the balance,” it would not demand “extraordinary

clairvoyance” on his part to perceive what a court would find its

meaning to be four years later (37 U.S.L. Wk. at 4205). To the

same effect, see Gregory v. City of Chicago, ........... as kang

U.S.L.Wk. 4213, 4216 (March 10, 1969) :

“The infringement on First Amendment rights will not be

cured if the narrowing construction is so unforeseeable that

men of common intelligence could not have realized the law’s

limited scope at the only relevant time, when their acts were

committed.” (concurring opinion).

The distinction between “conspirators, cynical and

fraudulent” (Dennis at 865) who engaged in a ‘‘vol-

untary, deliberate and caleulated course of fraud and

deceit” (Dennis at 867) and petitioner who, at most,

mistook, while relying on legal advice, the significance

of the amorphous term “affiliation,” is of paramount

importance. As the District Court observed, “Stand-

ing is not a rigid concept . . . And it is well it is

not.” (App. 37). The differences between petitioner

and those who engaged in the deliberate, conspirato-

rial course revealed by the Dennis record are of such

dimension as to render the Government’s reliance on

Dennis untenable. The District Court was amply jus-

tified in reaching the conclusion that “the rule of

Dennis does not strip petitioner of standing to attack

the constitutionality of Section 9(h)” (App. 37).

Nor do the cases cited by this Court in Dennts (Kay

v. United States, 303 U.S. 1 [1938] and United States

v. Kapp, 302 U.S. 214 [1937]) compel a deprivation

of petitioner’s right to challenge the constitutionality

of 9(h).** In the first place, as the District Court

pointed out, neither of these cases (nor Dennis itself)

involved a false statement “which turned upon the

construction of a word like ‘affiliated’” (App. 36). In

45The other cases cited in Dennis as “analogous” (384 U.S. at

866)—United States v. Williams, 341 U.S. 58 (1951) ; United States

v. Remington, 208 F. 2d 567 (2 Cir., 1953) ; cert. den. 347 US.

913 (1954) ; United States v. Winter, 348 F. 2d 204 (2 Cir., 1965) ;

cert. den. 382 U.S. 955 (1965)—are not controlling for substan-

tially the same reasons that Kay and Kapp are not. In addition,

in each case there was “jurisdiction” in the sense that the tribunal

was constitutionally empowered to ask the question to which the

conceded false answer was given. Here it is the very constitutional

basis of the right to ask the question that is at issue.

Kay, the defendant “knowingly and falsely stated that ,

her claims were respectively in the sums of $590 and

$650, whereas in fact they were respectively $285 and

$150” (303 U.S. at 5). In Kapp, the indictment

charged a conspiracy to defraud the United States in

order to secure benefit payments under the Agricul-

tural Adjustment Act, by falsely stating to the Secre

tary of Agriculture that certain hogs were owned by

various producers “when in fact the hogs belonged to

one or more of the defendants” (302 U.S. at 215-216).

To “flout” the law (Dennis, supra at 867) by making

obvious misstatements of objective and readily demon-

strable facts about which there can be no subjective

mistake (e.g., the amount of a claim, the ownership of

hogs) is quite a different matter from making a good

faith statement (in reliance upon the advice of coun-

sel) that after four years of disassociation one is no

longer ‘’ affiliated” with the Communist Party. The

“principle of law” which in Kay and Kapp (and

Dennis) impeiled the Court to deny standing to the

defendants there is not applicable to petitioner, whose

circumstances are so manifestly different.

Additionally, as the District Court also observed,

the Kay and Kapp (and Dennis) defendants dia not

deny that they had lied.

“Bryson is a different case” (App. 36).

Moreover, neither Kay nor Kapp involved a con-

stitutional challenge limited to the precise provision

under which the sanction for the alleged falsity was

imposed. To the contrary, the challenges there went

to the entire statutory scheme. Here petitioner does

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not claim that the National Labor Relations Act is

unconstitutional. His claim, narrowly put, is only that

the Section 9(h) oath is constitutionally infirm. In-

deed, in Kay, the Government itself did not argue

that the defendant had no standing to challenge the

validity of the sections under which she was con-

victed, only that she could not challenge other por-

tions of the statute.“* And the Court, in Kay, en-

tertained (although it rejected) a “due process”

challenge, on the grounds of vagueness and uncer-

tainty, to the “False Statement” Section (8[a]) of

the statute under which the defendant had been con-

vieted (303 U.S. at 7.) It is true that, in Dennis, this

distinction was regarded as “without force” (384 U.S.

at 867), but we suggest that the “governing principle”

to which reference was made in that connection re

lated, of necessity, to those who engaged in a

“voluntary deliberate calculated course of fraud and

deceit” (ibid). Since petitioner is not includable in

such a category, the Dennis “principle” should not

apply to him.

It should also be observed that Kay and Kapp

involved situations where the offending statement was

made in order to receive a financial benefit from the

Government for personal profit; entirely absent was

the fact of pressure exerted upon the accused by the

46Jt should be noted that we do not argue that petitioner is

estopped to challenge the validity of Sections 8(a) and 8(e), under

which she was convicted. We urge only that the rule . . . precludes

petitioner from assailing the other provisions of the statute, under

which she has sought benefits.” (Kay v. United States, No. 991,

0.T. 1936, Government’s Brief in Opposition to Certiorari, 64.)

Government, This fact was emphasized by the Gov. ,

ernment in Kay in its Brief in Opposition to Cer-

tiorari, No. 991, O.T. 1936, saying (at page 7) that

the petitioner there had “invoked the statute for pur-

poses of profit to her business and yet seeks now to

reject its penal provisions.’*’ And in Kapp, this Court

cited, in support of the proposition that “such ques-

tions cannot be raised by those who make false claims

against the Government” (302 U.S. at 218), four

cases, each of which involved an effort to obtain a

financial benefit or bounty from the Government.“

Thus both Kay and Kapp are inapposite, for the

petitioner here neither sought nor obtained any per-

sonal financial benefit for himself, but merely sought,

for his union, the removal of ‘‘a number of restric

tions which would not exist if the Board had not

been established . . .” (American Communications

Assn. v. Douds, supra, at 389-390).

Finally, in each of the cases discussed above, there

was no question but what the agency had “jurisdic-

tion” to put the question. Here, if 9(h) is indeed

unconstitutional, the Board had no right even to put

the question relating to petitioner’s “affiliation.” The

47In its main brief in Kay (at page 62), the Government distin-

guished licensing cases where the applicant sought no benefit or

bounty and where the statute “merely delimits the freedom to en-

gage in business.”

48. anger v. United States, 76 F. 2d 817 (8 Cir., 1935) (“financial

gain or profit”) ; Madden v. United States, 80 Fed. 2d 672 (1 Cir.

1935) (embezzlement of funds) ; United States v. Harding, 81 Fed.

2d 563 (D.C. Cir., 1936) (“to secure a profit of $400,000’) ; United

States v. MacDonald, 10 F. Supp. 948 (W.D. Mo., 1935) (“to

obtain money from the public treasury”).

ease is therefore analogous to United States v. Ic

cardi, 140 F. Supp. 383 (D.D.C. 1965), in which a

question put by a Congressional committee acting be-

yond its competence was held to be immaterial, so

that the answer could not be perjury.*® And see, to

the same effect, Brown v. United States, 245 F. 2d

548 (8 Cir., 1957) (grand jury).

49Here, not only had Bryson terminated his Communist asso-

ciations four years prior to signing the affidavit, not only did

he sign in reliance on the advice of counsel, but there was

neither claim nor proof that he had ever advocated or furthered

prohibited doctrine or activity. These facts, which show that

he had every right to believe t

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