# Petitioners Brief — Bryson v. United States

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0127%3A4

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petitioners Brief
- **Published:** January 1, 1969
- **Citation:** 396 U.S. 64

## Text

II.

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

14

58

(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

o&

2
3

Tasiz or AuTHoritizes Crrep

P.
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
4
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,

vs

Unttep STATES OF AMERICA,
Respondent.
4

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.,

3

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).

3

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-

6

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

—

7

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~"”" :
9

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
P

*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

——

10

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) ).

11

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

12

(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.)

13

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,

14

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
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.

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

15

“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.

16

II

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.

17

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

18

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,

19

“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

—

21

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 —
22

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).

23

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.

24

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.

25

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).

26

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

27

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

28

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).

29

I

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

30

(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.

31

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-

32

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

33

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).

as

34

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

35

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).

—

36

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

37

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).

38

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

39

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).

40

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

41

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

42

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

43

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] ).

44

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.

45

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.

46

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

47

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,

48

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

49

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]).

--

50

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).

51

“* * * 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

54

(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).

55

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} ).

Se

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.

57

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.

58

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

59

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.

60

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]).

;

61

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

62

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] ).

63

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 doct

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386413_0127%3A4. Public record. Not legal advice.