Motion Amicus Curiae Brief — Pipefitters v. United States

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|

In THE |

| Supreme Court of the Huiten States

, Ocroser Tze, 1971

| . oe - No. 70-74 | MOTION FILED

| Pureerrens Loca. Uwiow N 0. 562, et al.,

, Petitioners,

—_—Vv.— ,

Unrrep STATES or AMERICA, :

oS - Respondent.

MOTION FOR LEAVE TO FILE A BRIEF AND BRIEF

OF AMERICAN CIVIL LIBERTIES UNION, Tes

AMICUS CURIAE |.

-. » SanForp Jay Rosen. .

| American Civil Liberties. Union

“156 Fifth Avenue

New York, New York 10010:

Attorneys: for Amicus Curiae

Wau J. Bes .

American Civil Liberties Union,

156 Fifth Avenue

New York, New York 10010

Of Counsel .

Liberties Union, as Amicus - Curiae : Tae ae |

Interest of Amicus Curiae shines tcaitens Byte: oN ee

Statement | spiel ssocnielieiiats Patt AO ‘iabeaticiens IE 5

\ ee. ae es.

ARGUMENT inte ot

ped Section 610 Does Not Apply To The Facts Of

This’ wane. vsbveentnesetneeeBctennenpne hipaa coosiepianete 6

II. Section: 610 Violates The ‘First Amendment

And Is. Overbroad ........ Lasicsestbchisicaeniansitehinabicicaete Cae - f

. TI. Section 610 1a; Unconstitiitionally Vague Sate 14,

~ ConcLusion EEE ALD OR: Cm ie | aoe

S17 U8.1 (1964) u

"Connally ‘v. General Cénstruction| Co., 269 “. 385

(1926) L Sorceress

: Cases:

AFSCME. v. Woodward, 406 Fr. - 137 (8th Cir. 1968), 10

Baggett v. Bullitt, 377 U.S"360 (1964) : eaacnnons 14

INDEX

PAGE .

- Motion for Leave és File a Brief of American Civil

TaBLE oF AUTHORITIES

. Brandenburg v. Ohio, 395 U.S. 444 (1969) ae

Brotherhood of Railroad Trainmen v. Bhs :

- t | . . | te : | | x a ; | ; | oe, - . im ; s = .

on i ; ~t “eh pape ‘\ eee ae Sa = : ‘PAGE

ae 20 ~ Dombrowski Wi Pa ter, 380 US: 479 (1965). ooeeceecensece a6

i N vy

i as “Basiern Railroa re Pridents: ‘Denbereaie v. Noerr:

1

‘

P|

oN & _Motor Freight Inc., 365°U.S. 12% (1961) 22g 11

- oy cree ae Russell, 384 US: ALL — weegtnsine i ll

4 ; " Gjaceo s Ve . Pent isy wania, 38 382 US. 399 (1966) Oe ona a

3 +) ; af os nt EN rae » rae ‘.

we eee: vi “¢ L O., 30% U. S. 496 (1939) vane ; 10 :

- -“Hertidon v. Low ry; 30% US. 242.(1987). 2c 15

eee LE }

ek e . ae he 7 es mm, ‘

‘ , . a laine Site ae ae ee LaDy

sisi patecdan ciety —— Sai po rene

. ; -*

“Hurwitz. v. Directors Guild: of ‘America, Tnc,, 362.F. 2d

Po gt (2d Cir 1966), cert, denied, 385 U.S. 971 (1966) . Bo

"International, ‘Abopsintion< of- Machinists Vv. ‘Bkract. Py

4a US. 440(1961) mer Soyptenetndnepseeanneinnenmien ~T, 951141 B

aol ae 3 meg ek

Key ishian v, Boara of Regents of New York, 385 Us: S.

589 (1967) siete wii ostctamgeicenspnsvestcshteeen a

ee

7 sia is New Jersey, +306 ve. s 451 (2939) cathe 14,15

* MeLaughlin V: -Tilendls 398 BF. oa: 287 (7th Cir. - 1968).

ON, ‘i A.C. Pp. Nv. dele. 351 U. S. 449 (i958) :

N.A.A.C:P. Vv. Button TL US. 415 (1963). 20:23... 10, 16

* National Association. of ‘Letter Carriers v. Blount, 304.

F. Sapp: 546 PBL, 5908), gph dism: 400 US. 801.

ost ee spk we

@ i

“Orv Thorpe, 427 F.2d’ 1129 (5th, Cir. 1970). ne coe 10

Behar vy; Smith, 3900 U.S. 17-(1968) 13, 18,

Shelton v. Tucker, 364 U:S. 479 os. me lor 13:

_ Smith v. California; 361 U.S. 147 (1959) . a 1,

ir pea ee Sct ee a Seca nie Sao f

cof

“Thomas v. Collins, 328°US. 516 (1945) ccteecneclnoncee 10°

p » Thornhill v v. faneeramece: 310 U. S..88 (1980) sveeceetetnecee 16

United . Mine Workers Vv: - Tinos. Bar, 389, US: 217

RIT) as nese eee 11

- United States ¥. PROMS. Cont. Labor Council, 193 °

“‘Cnited States v. Painters Local Union No. 481, 79 F.

_B Supp.-504 (D. Alaska 1961) .-2.sleceeeecene le 19

United States ¥ CE 0.; 335 US. 106 (1948), ri ane 6 7, 8,9,

| : / -12,17,19

| ‘United States v. L. Cohen Grovery Co, 255 US. 81

Pe (1921)/ niiivasbes ssnecesespdopnanecanemrnectineenstnnsielsenenins eee 15

United States ¥. Construction and: Genarel ae

Union Ng. 264,.101 F.Supp. 860 10, 17

United Stat@& v. O’Brien, 391 U.S. 367 ITA MOOS. 12

Supp. 516, ((D. Conn, — 172. dees 854 (2d Cir.

1949), ---1.----. sc scsaletaibiaaeciaiiaiia Canasceasunaetlancuadint anscioppieaeln 8,17.

United States. v. Robel, 389 UR. 266 11967) 5 11,15

- United States v. Rumely, 345 U.S..41 (1952) .........:......8, 17

United States v. Teamsters Local: 688, 4 L. C.. 23, 380°

- ° {E:D. Mo. 1960), Bd tls serait esi Asceanglghduddenivenetiindemnenie _ 19

United States v. U.A.W., 352 U.S. 567 (1957) sia 6, 8, 18

United oe aces Union v. Michigan Bar, 401

eT RTT ne | 8 |

“First Amendment nae aS AIR sisi an 10, 11, 13, 16, 19

_ FifthsAmendment One ARS ee RLY A (i114

a

Bia Se é

oe e

oe .« . as ~¢

. «

ed - ° .

id - .

’ . _*

.

: iv 7

a | PAGE:

- . Statutes: os et ,

18 US. C: $610. es nae cseseenecneeeenees sesesegeee-D-14, 17,19

29 U.S.C: §411 areca tenet na eeeornss | ra Cae

| Other Authorities : Mee ; ak Fg . | :

Amsterdam, Federal Constitutional Restrictions on the

Punishment of Crimes of Status, Crimes of General — |

Obnoxiousness, Crimes of Displeasing Police Ofi- . |

- cers, and’ the Like, 3 Crim. L. Buty. 205 (1967) . Sbexncs 15°,

Bok and’ Dunlop, LaBor AND THE AMERICAN Chance ITY

at 414 (1970) scpenieneenedheGibesmsnenstueseanicecssideccssawentederrane: cect 12. 13

Conference Coinmittec Report of -$382, No. 92-58 «(De- .

cember 14, 1971) occ. cceeeceseeeeeeeeeccceeee cece 13 +}

382 Federal Election camiey Act of 1971 0... — ae 2

| Heard, THe Costs'or Democracy at 20° (1962) WZ

. Note, The Void for Vagueness Doctrine in-the Su- |

preme Cotrt, 109 U. Pa. L. Rev. 67 aie “4, 15, 17

92d Cong., Ist Sess. oo. eeeeccccecceeccceeeee eee. t- 13

93 ee Ree. 6440 .. D tnt Penni eee hewn, Se

‘ |

RA Ne LL HO EIS OTT Soi) LE

In THE

| Sipeesi Court of the United States

Octoper TERM, 1971

No. 70-74: .

.

,

° a

- Prrerrrrers Loca Union No. 562} et al.,

Petitioners,

—against—

Unitep States or AMERICA, ;

- Respondent.

—

Motion ter Leave to File : a Brief of American Civil

—— Union, as Amicus Curiae |

It is, hepely peeneritdliy moved pursuant to Rule 42 of |

the Rules of this Court that the American Civil Liberties

_ Union be granted. leave to. file the accompanying brief .

amicus curiae in support of the petitioners.

’ A letter of consent- from the Respondent has been filed

Ww ith the Clerk. Petitioners have declined to consent to the

filing of a brief amicus curtae.

The American Civil Liberties Union is a nation-wide

non- partisan organization with approximately 160,000 .

‘members ‘in the United States. It is engaged solely in the

defense of those principles embodied in the Bill of Rights.

During its fifty-year existence, the ACLU has been. par-

ticularly concerned: with the values: of _the First Amend-

LOR IPL ORT MS ORR ET: Ue gE ak COR CT tae

a:

PREG SIONS TN

MI HAS

4 SR FER A OPH TEI MER AIT NORE ae Pi PHN

. _ .

2

ment. .It has adopted as formal policy’ the following ©

statement: - 7 of

. _ Expenditures by labor unions and ‘corporations for .

political purposes, including the support of candidates .

and the expression of views on and support of legis- L

lative and social issues, are a proper exercise ‘of the {

‘Tights-of free expression protected by the First Amend. °

ment. There should: be no-absolute prohibition against

, Such expression, but reasonable limitations may prop-

erly be set by statute as'to the total amount expended. |:

_ The. use of members’ dues by labor unions for po- f

- litical: purposes is thus permitted by the First Amend: ©

ment. Although some union members may dissent.

from the’ choice expressed by the union majority in

political campaigns, so long as those members are free

to participate in the decision-making process within. |

the union they are not deprived of their civil liberties. | .

In addition, dissenting union members are free to ex-

press their contrary opinion outside the union in public

' debate. However, special union assessments for: po- |

litical purposes, separate from union dues receipts,

Should be made by vote of the union’s. membership, . | f

with the rights’ of any member opposing to be free of

, the assessment: .

. This case raises an important, question concerning the |

right of labor unions and of union members to contribute /

financially to candidates in federal elections. -It also ‘in- ’

- volves the rights of. free speech and association of. union

3 |

members. ‘Tt also involves a question of the application of

_ the Due Process Clause to vaguely drawn statutes.

Respectfully submitted,” sw.

‘Meus L.. Wour |

Sanrorp Jay Rosen

American Civil Liberties aion

156 Fifth Avenue .

New York, New York 10010

, (212) 675-5990.

Attorneys for Movants |

Winntase J. Brrt_es |

American Civil Liberties Deion

156 Fifth Av enue

New York; New-York 10010

(212) 675-5990 |

Of Counsel

® a . . 7

\ .

eT ki ok Uae

PEN SERA EL NE STRAIN RO RY

. “f «

s

%

%

iy: THE.

"Supreme Court ut the Yuited § States

Ocronen Ter, °1971 +

No. 70-74.

S ..

Pipgritters Loca, Union No. 562, et al.,

Petitioners, .

—_—V.— . |

_Untrep States oF AMERICA, ek

Beg oe Respondent.

—— . ,

_ BRIEF OF AMERICAN CIVIL LIBERTIES UNION,

AMICUS CURIAE

. Interest -of ne Curiae

- The cteveet of the aniicus curiae. is set forth: ‘in the :

pees motion.

Statement .

The ‘petitioner-union and the individual petitioners were

convicted on September 19, 1968, by.a jury in the United.

~ States District Court for the Eastern District of Missouri,

of conspiring to violate 18 U.S.C. §6 10, w ‘hich proscribes,

inter alia, any contribution

connection with any election:

Vice ‘Presidential electors of a Sena

residential and

or Representa-

tive * * * are to be voted for * * *” Local 562 was fined *.

- $5,000, and union officers John’ L. Lawler and George

PR |

ganization “in.

wh we

sg prance Nes: CAE

is ,

9 canbe ‘ Syed

Tatra SORA ne ae Cae SR dS

aA ‘

Seaton were each sentenced . to one year’s imprisonment

and fined $1,000. A panel -of the Court’ of Appeals for -

_ the Eighth Circuit affirmed, one judge dissenting. The ©

ease was reheard en banc, and the court again affirmed

petitioners’ convictions.

The action for which petitioners were icneieted con-

: sisted essentially of establishing a separate fund to which

members of the union, as well as non-members working.

under the jurisdiction of the union, contributed. Part of -

the fund was used to support candidates in federal elections.

ARGUMENT

L. Section 610 Does Not — To — Facts Of _—

This case involves the constitutionality of a provision :

of the Federal Corrupt Practices Act, 18 U:S.C. §610.

Twice before the ‘statute and its predecessor’ have been

| before the Court; on both occasions, however, the Court

-. avoided passing upon its constitutionality. United States

ae U.A.W., -352 U.S. 567 (1957); United States a2 C1.0., :

“$35 U.S. 106 (1948). The constitutional: issues can "ly

- avoided in this case too. The judgment below could be

"reversed on the ground that the statute was iniproperly

construed to cover. the activities of the defendants. See .

Brief for Petitioner's, pp. 51-77; Brief of the’ American

.Federation of ‘Labor and Congress of Industrial Organi- :

zations as Amicus Curiae. Indeed, the present amicus _

curiae agrees -with the petitioners and the AFL-CIO that, x

on the record in this case, these convictions cannot be.

sustained under Section 610. Further, the. trial judge’s

_ charge improperly construed the statute so that the jury

~

af

could bring back guilty verdicts even if they found that

contributions to the, Pipefitters Voluntary Political, Edu-

eational, Legislative, Charity and Defense Fund [herein-.

after the Fund] were strictly voluntary.

/

The theory of the. government, and of the enierts baow,

is that Section 610 “prohibit[s] labor unions from using

‘regular union funds to make direct monetary contributions

for political purposes to candidates in federal elections.”

Brief of Respondent, p. 24. Under this theory, of course,

the erucial | questions are whether the Fund is the alter

ego of Local 562, and whether. the Fund’s money is in .

reality the Union’ s money. Hence, whether contributions

to the Fund are-in fact voluntary is not dispositive. |

We agree with the petitioners that the record in this

‘ ease demonstrates both: that the Fund is-not the alter |

ego of the Union and that the ftinds in question were not 7

- the funds of the. Union. Brief of Petitioners, pp. 51-69.

In addition, we do not agree with the gov ‘ernment that by.

enacting Section 610 Co ongress prohibited “all contributions

and expenditures made in the name of a union, without

regard to the source, of funds utilized...” Brief .for the:

AFL-CIO as Amicus Curiae, p. 7. See eecay, ibid. :

see United States v. C. I.0., supra; ef. Intérnational Asso- -

_ ciation of Machinists v. ‘Street, 367 U.S. 740 (1961). The.

-- statute does not presume” to bar all contributions. or ex-

- penditures made in the name of the union. See “United.

_ States v. C.I:0., supra. Further, the legislative history of £

~ the Act reveals: that union funds whose source is voluntary

contributions are excluded from the Act. See 93 Cong.

Rec. 6440 (Sen. Robert Taft).

—

Pe Se TS

sina ibaa ns aA ce.

Il. Section 610 Violates The First Amendment And Is * |

_ Overbroad. ee 3 : eae

Especially as construed’ and applied by the-courts below, -

Section 610 violates the rights of free speech, press, peti-"

tion ahd association guaranteed by the First Amendment..

tices of the Supreme. |

al on these grounds.”

In United States v. C.1.0., 335.U.S. 106 (1948), Justices ”

In the opinion of five different J

Court; Section, 610 is unconstituti

Rutledge, Black, Douglas and Murphy took that position.

~ In United States v. U.A.W., 352. U:S. 567 (1957), Chief”

Justice Warren joined Justices Black and Douglas in re- |

affirming their earlier position. In addition, four members

of: the Supreme Court. who participated in the majority ns

opinion of the Court in 1948 indicated that unless: the

Section could be construed to av oid a conviction -in those

tutional. United States v. C.1.0., supra, 335 U.S. at 121;

in United States v. Rumely, 345 U.S. 41, 47 (1952),

the Court stated. that it “strained words” to avoid the ~

constitutional issue presented - in the C. 1.0. case.

Other than the decision of the courts ‘helow, the only

decision cléarly sustaining the constitutionality of Section

Union No. 481, 79 F. Supp. 516-(D. Conn. 1948). This

decision was set aside on Appeal on the ground that the .

political expenditures involved. were. mot covered by law,

and the court of appeals declined to. -pass on the consti-

tutional issue. 172 F.2d 854, 856 (2d. Cir. — citing :

United. States’ v. C.1.0: supra. ae

We. submit that it is time for the Court to pass’ on the :

constitutionality - of. this atatute, and that at — be ..

declared void. :

eases, their only alternative would be to hold it unconsti- ©

610 in its present form is United States v. Painters Local ved

von 7

In United States v. CL. O.,. the denteale: ‘coneeded —

that \Section 610 is an abridgement of \“rights guaranteed

by the First Amendment.” 335 U.S. at 127-8, quoting the

district\court vpision, 77 F. Supp. 355 at 356, 357, 359 .

(D.D.C:! 1948). The government is quite corregt ; Section

610 is a fi prohibition. . It unqualifiedly: makes unlawful

all union expenditures in federal elections. It does: not.’

purport merely to regulate. It is not a mere limitation '

on the level of expenditures. Nor is it directed only to an’

identifiable, given specific ev ik controllable by Congress.

~ Rather, all union expenditures in federal elections are

absolutely barred. if they are used to bring the union’s -

-election ‘position before the general public. Compare

United States v. C: 1.0.; 335 U.S:.106 (1948). Section 610

- applies even. where the union allows dissenting members

“to withhold contributions from the fund which supports the

. expression of union’ views. At. Brief for Petitioners at:

™

pp. 36-37; but see International Association of Machinists x

v. Street, 367 U.S. 740 (1961). oe a *

Most political expenditures rilate diveety or fadiveslty on

to speech, publication or some form of communication

- addressed to those whose votes are sought. The distinction

between’ prohibiting speech and prohibiting expenditure for.

speech i is non-existent. It ‘is for this reason. that any law” |

‘that prohibits the right to engage in these types of political ;

activities dmmediately raises a question as to whether it ©

abridges the rights of free speech, press and association —

under the Constitution,

* Especially as it is applied i in. this case, Seition 610 goes —

: much too far. Union members have voluntarily. pooled

their: financial | resources in political association in an or-

-, US. 449 (1958)...

A labor 1 union operates i in many ony ata collects —

- bargaining, . - publie education, litigation, legislation and -

public elections. In order to serve its. members and their .

interests adequately, it needs to.do all of these things. ’.

_ Support for particular legislation by testimony before"leg- _

- islative bodies, aid to sympathetic candidates and elected

v. Button, 371 US. 415 08% $

politicians, pressuring state and federal government bodies.

are all necessary if a union is to function @ffectively.. The

. legislative: and. political functions cannot be divorced from

the bargaining functions. That is precisely what Section —-

; = 610 attempts to do. Cf. United States v. Construction and »

: General Laborers Union No. 264, 101 F. Supp. 869 at 875.

Congress may ‘not require unions to divorce themselves

| ‘from politieal and legislative functions. They are at the ;

heart of- the First Amendment freedom of assdciation ; * --

they are. constitutionally protected. ‘See e.g., Thomas. v. |

‘Collins, 323 U.S. 516 (1945) ; Hague v. CI.0., 307. US.

.496 (1989) ;, AFSCME. v. Woodward, 406 F.2d ° 137 (8th.

Cir. 1969) ; Orr v. Thorpe, 427 F.2d. 1129 (5th Cir. 1970) ;

McLaughlin vy. Tilendis, 398 ‘F.2d 287 (7th ‘Cir. 1968); -

- National Association of Letter Carriers.v. Blount; 304 y.

. Supp. 546 (D.D.C. 1969). (Three. judge), appeal dismissed, ar

400 U.S: 801 (1970). , This Court has explicitly recognized

the First Amendment protection of labor union activities |

to secure judicial enforcement of union members’ rights

even when these rights are not directly related to a union® -

__ Bametion as a collective. bargaining agent. United Trans- |

|

S52 45

: oe coal Ne es me

: Vaion’ v. “Michigan Bar, 401 US. 516 (1971).

* United Mine Worker3 v. Illinois Bar, 389 US: | 217 (1967); -

A * Brotherhood of Railroad Trainmen. y. Virginia. Bar, 377 -

‘US. 4 (1964). “Surely a labor union’s right to. petition —

" alegislators receives the highest protection of the First

Amendment. Cf. Eastern Railroad Presidents Conference

—s Noerr Motor Freight, Inc., 365 U.S. 127, 137-38 (1961),

: where the Court refused to apply the Sherman Act. against

' an Association ‘of railroads seeking to, advance their own

' eommercial interests by high: powered propaganda efforts

designed to persuade Congress to enact legislation restrain-

ing the trade of competitive truck companies. See ‘Inter-

-national: Association of Machinists v. Street, supra, 367 ©

ee at 812-14 (1961). (Frankfurter, J. dissenting). Fur-

ther, in ‘the Street case, the Court in effect, ‘legitimated.

_ labor union expenditures in support of candidates for pub- 7

‘lic. office. See. Street, supra; id. 367:U.S. at: scapins, 796

"Ate, 3, Gideeattag) Ne

Because Section 610 invades “nett prosizite ot :

_ free press, speech, petition, and association, it suffers fatal =

> - defects under the overbreadth doctrine, which has two.com- |

- ponents. A law ‘is. overbroad when it proscribes acts “which

eo legitimately may be _proscribed” as well as acts “which may -

ae not. be proscribed. ” Keyishian v. Board of Regents of New.

York, 385 U.S: 589, 609 (1967) ; see also, e.g., United States 2

_- v. Robel, 389. U.S.'258, 267-68 (1967) ; Schneider v. Smith, -

- 390 U.S. 17, 24 (1968) ; Elfbrandt v. Russell, 384 U.S. 11

a 1966): A law is also overbroad, in violation of the First

: . > Amendment, if some means less restrictive of the essential” —

democratic interest j in free communication and association

_ is available for government to pursue its other subordinat, ,

_ ing or paramount —— See, e. 8. = United States vy.

. _ US: 367, 376-77.

-* to the extent that it penalizes clearly protected activities.

. oe See, »8-8-, Unitéd States v. C.I.0., supra (semble) ; ‘ef. Bran- 4

a denburg v. Ohio, 395 US.. 444 (1969). Seetion 610 is un- _

-*. constitutional’ under the second aspect of the overbreadth: |

te den of demonstrating that no. less restrictive. means are

‘Ras. . supra; Shilton - v. Tischer, 364 U: S. 479, 488; )

Schneider v. “Smith, supra; ‘United States v. O'Brien; 391 .

Section 610 anffevs tions both didocis af uverteuudith. ;

- It is unconstitutional under the first aspect of the Hoctrine ©

doctrine as well. The gov ernment cannot sustain its bur- |

available to accomplish its —< purpose. :

In United States v. C.I. 0., the government contended, as;

to Section 610, that “Congress has power under Article I,

Section 4, of the. ‘Constitution to abridge First Aiswndiit .

ae rights if it. considers such a course nécessary in ‘maintain- .

-- ing the purity and freedom of elections.” 332 U.S. at 127-.

a citing the district court opinion, 77. F. Supp. 355 at 356, a

- 357, 359 (DD: 1948). . The. [he government makes the same

‘daim again in this case. Brief for Respondent. at pp. 25-36. 7

‘The government also contends that Congress may act to

= 2 protect the rights of individual thion members. Brief aad

Respondent at pp. 36-39. .

It is by no means ‘clear, however, that union ccbiirslations be

" to candidates for federal office have any ‘deleterious’ effect

. on “the purity and freedom ‘of elections. ” Any conceivable .

- bad effect is likely to be diminimus; for- Union contribu-

tions have never amounted to matigh more-than 3D per cent of

the total contributions to both parties. This is not a Bre :

_ portion large enough to exercise a decisive’ influence i in any

direction. Box anp Duwxtop, Lasor ae Anpath Come-

’ : Nee a i Ren NS |

; g "|

a}

ye “aagibe as ne (1970), citing Ha, ‘Te Costs oF Democ- a

er ee

. , x

. :

in : é “6

a. Se

ae

¢ oe

+ Ge

LAN)

"RACY at 20 ' ff. (1962). -

| Considering Section 610’s massive. invasion of First . eS

<e8 Xmendment rights, the government’s interest just. is not:

oS ‘compelling. Further, the less restrictive alternative of — |

_¢omprehensive election reform, including the setting of. 2

| maximum limits: on expenditures, is clearly available to a

*“gecure its legitimate interest. 2

‘The government’s aim that plostind 610 protects. hei in-

tioners- at pp. 29-36. This Court has ruled that. the dissent-

‘ing union member’s interest is ‘adequately protected if he

‘ean contract out the portion of his dues: that woukd be. ex-

pended in support of political positions with which he dis-

agrees. - International Agsociation of Machinists y. Street,

: supra. In addition, the dissenting union member is fully

’ protected in his: right. to express hi8 contrary opinion inside

Ed

- 299 U.S.C. §411; Hurwitz v: ‘Directors Guild of ‘America,

Inc., 362 F.2d 67 (2d Cir. 1966), cert. denied, 385 U.S. 971. |

the union and outside—of it -in ‘public. debate. See The ae o

Labor. Management, Reporting and Disclosure Act. of 1959,

- (1966) ; cf. International ‘Association of Machinists ve,

v3

Street, supra.

pas

“* See 382. Federal Election Commie Act of 1971; 924 Cong. <i

. Ast. Sess.; Conference Committee ment of — = (92-58

2 pea M4, 1971).

‘ : ¥

a,

-

terests of dissenting union members is also unavailing. On

the record in this case, the government has not demon-'. ©

- strated that. the dissenting union member is compelled to :

_eontribute to the political Fund. See, e.g., Brief for Peti-

i. Section 610 Is s Unconsiitutionally Yee

Séetion 610, Title 18, US.C., on its face, and as caption :

and applied by the cougs ‘below, i is.so vague and uncertain |

as to violate the Due Process Clause of the Fifth Amend.’ :;

- ment to the Constitution of the United States. 4.

aoe a of federal constitutional law, or of due proe-

ess of law, is better: established than\ the so-called _vague- —

ness doctrine. See generally, Note, Tho" Void for Vagueness

- Doctrine ‘in the Supreme Court, 109 Us Pa. La Rev.. 67 Se

_ (1960). Early and’ oftén this Court has declared thgt: -

A statute which either forbids or requires the doing of

an act in terms so vague that men of common intelli-

. gence must necessarily guess of its meaning. and differ ~

. as to.its appliedtion, violates the first essential of due

: process of law. Connally y. General. Constructions Co., :

269 U. S. 355, 391. (1926)...

Penal laws especially must meet a heavy sscpatieliaut-« -Of

- elarity. Eaneetta. v. New Jersey, 306 US. 451, 453 (1939).

Further, where.a law- may “abut upon_sensitive-areas-of

—pasig Fist Amendment freedoms,” Baggett v. Bullitt, 377

U.S. 360, 372. (1964), the requirement of clarity:i is heaviest

of If the rule were otherwise, wé would have cause to

fear t “the free disseminatoin of ideas may- ‘be the loser,”

3 Smith’ v1 alifornia, 361 U.S. 147, :151 (1959): for uncer-

-. tainty would cause people to “steer far wider of the un-

lawful zone, Speiser v. Randall, 357 U.S. 513, 526 1958)

arate than-ifthe-boundaries of the forbidden are were

7 ‘dearly mark - Baggett v. Bullitt, supra at: badest

qe ee voor pcareger er on ey eter

The doctrine of vagueness has ‘several interteldted com-

: ratios or tection each of which mam <i Arp re

f -

~

tional — for -caanity at mae various suit side the a a

nal process. See generally, Note, supra, 109 U. ee ce

brictions

67 (1960) ; Amsterdam, Federal Constitutional

- on thé Pifnishment- of Crifnes of Status, Crimes of ‘General ee

Obnoziousness, Crimes ispleasing Poliée Officers, and

the Like, 3 Cam. i. Bott. 205° (1967) ; Note, Bringing the

Vagueness Doctrine on. Campus, 80 Yale LJ. 1261 (197. 1): .

..,» First, a statute must be sufficiently clear that reason- _

- .:able-men seeking td onform their condiict to the require-

ments of law will be able to understand and agree as to

a _ what is prohibited and what is permitted. In this sense,

vagueness effects a depriv ation ‘of notice. See, e.g., . United

States v. Robel, 389 U. S. 258, | 281 (1967) (Brennan, J., con-

curring). That : was the point of the Connally and Lanzetta

decisions. The requirement of: notice exists: not merely to

_ enable men to eonform* théir. conduct to. law, but also ‘to en- s

"able men charged with violations of law to sex aa their

defenses properly. ©

At this point the notice enotiiad of the vagueness. doe- :

trine , merges: into a second function. The crux: of the prob-

—1 Tem becomes improper ‘delegation:. The Court. has reeog- _ ;

nized that an over-vague ‘eriminal statute will: tend =

“license the jury to create its own standards i in each case.’

Herndon v. Lowry, 301 U.S. 242, 63 (1937). Accord United _

_- States v:-L: Cohen Crocery Co.; 255 U.S. 81, 89° (1921);

* Giacco v. Pennsylvania, 382 U. S. 399, 402-03 (1966

sense, this dimension of

tive.judgment’.. .....” United States v. Robel, supra, 389

US.-at 275 (Brennan Zz. concurring). But it is much more —

than-this. It is also responsive to the likelihood that, un-

3 less the legislature provides reasonably clear standards of:

illegality, judges and juries may have a tendency to enforce 3

3 s as a chide to the

= eatahadaeas hanainne ob} its “failure to have made a Jegisla-

6 ai *

‘hws. not ot evade handedly but siiaclieds and: -diseriminatorily ae

against only the unpopular and the downtrodden. — :

‘This due process need. ‘to const _ discretion ‘extends :

- not only to the actions of. ge. jury, but also to the

'- aetions of the prosecutor. 1 is the third function of

_ ‘Yagueness. The prosecutor t6o must be restrained because

an overvague ‘criminal law i is “susceptible of sweeping and

improper application.” “ NAACP v. Button, 371 U: S. 415,

433 (1963). Even if judges and j juries refuse to. convict un:

_ der'a vague law, it still “lends itself to selective enforee- :

ment against unpopular. causes,”. NAACP v. Button, supra, =

371 U. S. at 435; more specifically, it furnishes a ‘conv )

$

tobl for. “harsh and discriminatory ¢ enforeement t by prose-

2 -euting officials against partictlar gr groups deemed to merit,

~ their. r displeasure,” * Thornhill v. Alabama, 310 U.S.- 88, 971

_ 98 (1940). Convictions ‘are not-necessary to deter and sup id

- «~press;. usually mere prosecution or threat of prosecution :

., will be sufficient. os v. sasuaie Ans ~ S. 479 q

tr i).

Set : oe ; <-

The fourth function. of the Aijnchess doetrine “sche

from many of the same considerations. as do the second. and

third functions: .The vagueness: doctrine bars government

from - “overreaching | constitutionally pratected freedoms.

- That is why the vagueness doctrine is applied with greater ..

strictness when a law abuts’ sensitive First ‘Amendment

aA rights. “Standards of permissible statutory vagueness are . .

strict in the area of free. expression... . Because the First

_ Amendment freedoms need breathing space to survive, gov-

; ernment may regulate i in the area only. with narrow spec-

ificity (when such freedoms may be affected by the regu- |

-Jation).” NAACP v. Button; 371,U.S..415, 432-433 (1963);

- see ¢ Dombrowski‘. ‘Pfister, 380 U.S. 479 (1866), ~~ au-

-

ee ee

- * thorities cited. tei a siintic,. this: prea of thie cgi .

_ doctrine is the equivalent of sever eeneae Note, supra, |

'- 109 U. Pa. L. Rev. at 76, 80-81. , 7 :

a Especially as “illuminat > iy. Cohsmanecl ig shi’ alt 7

and by its spotty history of enforcement, Section 610 |

* well within the due process prohibition against vagué is

utes—all four aspects of that prohibitic In other words, —

~ on its face and as. applied. to ‘petitioners : (1) This:

statute provides inadequate n notice to the petitioners. They -

do not know t conduct’ is necessary to confornt- to the

-Feqiinement of. law; and they are imable adequately to 7 ,

prepare their. defense. (2) This statute lodges much too

~~ much discretion in the judge and jury. It leaves them free |

ae decide, unconstrained by legally, fixed standards, what

”. is prohibited and what is not in each case. (3) This statute iS

: also leaves the prosecutor. ‘SO: unrestrained that he n y en- 5

. foree the law discriminatorily and selectively a t.oply

_ persons’ ‘and groups with whom. he is displeas: . (4) This.

* statute dangerously abuts and impinge es ‘upon federally bee

"* protected freedoms and activities.

. On its face, Section 610 i woman vague in.

several. particulars. Most notably, there. is no definition -

. of the word “expenditure.” By “strain[ing] words” (United

States v. Rumely, 345 US. 41, 47 (1952) ), the courts have

. involved: was pot prohibited by the Section despite the

-_ apparent flat prohibition therein. United States v. CI.0., :.

335 U.S. 106 (1948) ; United States v. Painters - ‘Local Union .—

No. 481, 172 F.2d 854 (2d-Cir. 1949); United: States v..

‘Construction and General Laborers Union No. 264, 101

. * Supp. 869 AW D. Mo. 1951). pete. none: of these

-

?

held that in three cases the political ‘expenditure there

decisions instructs tis crema to the nies y :

'. * Countless questions - arise. Compare United States v.

UAW., 352 U.S. 567, 592. (1957). ‘May a union ‘mail a

os mimeograplied statement on political candidates to every :

‘member of the union f May-a union use a radio program,

* to express its views on candidates? “Would it .be: different :

if almost all the listeners were nfembers of the union? A

majority? Half? Less than half? “May a union pay Presi- a

dent . George Meany’s plane fare to Missouri to make a.

political. speech there? May it do the same for a potential «

’ or actual candidate in: an election? ‘These and — other ;

questions: remain unanswered. :

- Similarly the. phrase “ in connection with any federal |

: election” -has no commonly accepted. Meaning either i in the

re statute, any legislative history, « or the dictionary.- The re-

~~ Jation in time to an election, primary or convention, within

‘whieh particular speech or action’ may be held “in connec.

tion: -with” the event is. wholly uncertain. Would a unjon. ; |

expenditure in 1971 directed. toward a long range educa-_

_ -tional ‘program. designed to shape the outcome of the 1972:

. @leetions be. prostribed? Would the preparation and dis-

ae tribution by the union of Congressional voting. records

demonstrating that certain:legislators had more often voted

for ‘the union movement than eertain. others constitute an

“expenditure “in connection: with” an election? ©

» ‘The vagueness and indefiniteness of. the. term “in con- *

-nection with any federal election” finds an exaggerated

counterpart in the term*“expenditure.” Together, when —

-. read literally, the two.terms would interdict virtually every ©

form of conduct which could be characterized as “m con--.

nection with”. a federal election. | |

‘_ « ae IF ie oie

ig Se EX

2 ee a Bae.

- ° ” . 4

4 2 - eee Jf ¢

SS fe y ie GZ Ps i hl 2. Sete : a

~ tended’ for the. prohibition to stop. Congress itself ga

little, indication ‘of the eyils: at which it was aiming during, -

the enactment in~1947 of what is now Section 610... (No \

it is” ‘empoistile to. deteeniits sail the lepistaiae i - 3 ee

s clearer signals were provided when the predecessor pro- ‘oe

~ -yision was énactéd in 1943.). The lack of discussion in ‘the jae

hearings ang reports prior to the Passage ‘of the’ ‘Labor- ce

"Management Relations Act’ results in’ there being little

ft evidelnte as to the particular dangers which Congress may - y

“have felt made this outright ‘prohibition necessary. See,”

"United States v. C.1.0., 335°U.S. 106, 132, 134, 150, 151, 153°

-. (£948) (Rutledge, Black, Douglas and Murphy, JJ. con- - :

curring). Hence, if taken literally, on. its face Section 610°

encroaches too much on First Amendment rights; if oe

taken literally, it is too vague, : -

Not only i is ‘Section: 610: unconstitutional ¢ on its oa but -

it is inherently _ vague when applied to the facts of this |

” : _ease. Three judges dissented i in the Court of Appeals over —

- its application here, ‘and the decision ‘itself. conflicts with

two federal district’ court decisions decided prior to this

case. United Statés v.. Teamsters Local 688, 41 LC. 23,380 ;

| (ED. Mo. 1960); United States v. Anchorage Cent. Labor

_ Council, 193 F. Supp. 504 (D. Alaska 1961). Petitioners

. -took skilled legal. advice as to the correct way in establish: °

: ing the Fund. There was nothing more that petitioners

could do without rélinquishing * their First Amendment

‘rights. See generally Brief for Petitioners at pp. 84.94. _

‘ + ee 4

"CONCLUSION es Oe

Bor a ech set forth i in “dhe: iia. the acs should q

reverse the. josdipeente of ee courts below. —

aa “Respectfully submitted, $° ? = Se

ie ON * © Lee : ae = Wo. . ; Toe a “

: : Sawrosn' Jay Roske 6°

. American Civil Liberties Union q

is these : : : 156 Fifth: Avenue >: —

cna . New York, N. ¥. 10010 *. °

— Altona for: ete Oinioe

<Wausaie 3. "Briss oan.

a “American Civil Liberties ‘Union | :

é a - 156 ‘Fifth Avenue

' e. "New York, N. Y. 10010

“of Counsel. *

Diicdiabvet 16,1971 ee gee

i an

vl :

a