# Opposition Brief — Eastland v. United States Servicemen's Fund

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1975
- **Citation:** 421 U.S. 491

## Text

nO ene “TISKAT T
SUPREME COURT, U. &
HINGTON, D. C.

ao
>

IN THE

Supreme Court of the United States

OCTOBER TERM, 1973

No..... ¥-3-19283

JAMES O. EASTLAND, et al., Petitioners,
v. :
UNITED STATES SERVICEMEN’S FUND, et al.

COMMITTEE ON INTERNAL SECURITY OF THE
UNITED STATES HOUSE OF REPRESENTATIVES, et al., Petitioners,

v.
NATIONAL PEACE ACTION COALITION, et:al.

COMMITTEE ON INTERNAL SECURITY OF THE
UNITED STATES HOUSE OF REPRESENTATIVES, et al., Petitioners,

v.
PEOPLES’ COALITION FOR PEACE AND JUSTICE, et al.

COMMITTEE ON INTERNAL SECURITY OF THE
UNITED STATES HOUSE OF REPRESENTATIVES, et al., Petitioners,

v.
PROGRESSIVE LABOR PARTY, et al.

JOINT BRIEF IN OPPOSITION TO THE
PETITION FOR WRIT OF CERTIORARI

NANCY STEARNS BURT NEUBORNE
c/o CENTER FOR CONSTITUTIONAL RIGHTS American Civil Liberties Union
853 Broadway 22 East 40th St.
New York, N.Y. 1003 New York, N.Y. 10017
JEREMIAH 8. GUTMAN HOPE EASTMAN
363 Seventh Avenue : American Civil Liberties Union
New York, N.Y. 10001 410 First Street, S.E.

i , D.C.
PHILIP J. HIRSCHKOP Washington, D.C

503 D S8t., N.W.
Washington, D.C.
Attorneys for Respondents

Peete oe

.
a

INDEX

OPINIONS BELOW ...ccccccccccccccccccccccces
JURISDICTION wovccgevecececcccccreseseveccs
QUESTIONS PRESENTED ...ccccccccescccvcccses
CONSTITUTIONAL PROVISION INVOLVED .........
STATEMENT OF THE CASE ..cccccccccccccccccce

tetiiebeblibies< ace

FACES cccccccccccccccccccccccssccccccces
REASONS FOR NOT GRANTING WRIT ........-e0e

I.The Opinion of the Court Below te in

Accordance with the Long Established
Principles of Perlman v. United States..

II.The Information Sought by Petitioners
Herein Has Long Been Recognized as Being
Protected by the First Amendment........

III.There Is No Live Case Here..........

Ces oo hbo ebk noekee seks eeceuesadonst

RPP RE Eo 48.60.6506 06006606 6b R44 bb Ss KOS

Page

13

a3

18

20

21

la

TABLE OF CASES
Page
Anderson v. Dunn, 6 Wheat 204 (1821)..... on 2

Ansara v. Eastland, 442 F.2d 751 (D.C.
CLE. 1971) ccccocccccccevcccccccccovceccves 16

Couch v. United States, 409 U.S. 322 (1973). 18

Dombrowski v. Pfister, 380 U.S. 479 (1965)... 11

Donaldson v. United States, 400 U.S. 517
CDTi ncctnrccevervevsedsssbeoncevevicccese 18

Flast v. Cohen, 392 U.S. 83 (1968)........ ss 26

Gibson v. Florida Legislative Investigating
Committee, 372 U.S. 539 (1962)........ 18 ,19

Gojack v. United States, 384 U.S. 702 (1966) 21

Marshall v. Gordon, 243 U.S. 521 (1916)..... 21

McGrain v. Dougherty, 273 U.S. 135(1927).... 20

McSurely v. McClellan, 426 F.2d 664 (D.C.
Cir., DOPE be cbbdscosccbicpvensccceseocene 30

NAACP v. Alabama, 357 U.S. 449 (1958).....13,18

Perlman v. United States, 247 U.S. 7
CZOEE) . cccccbacestbecesccssvecesescosoessshyl§

Powell v. McCormack, 395 U.S. 486 (1969).... 10

Stamler v. Willis, 415 F.2d 1365 (7th Cir.,
1969), cert. denied sub nom Ichord v.
Stamler, 399 U.S. 929 CUSTER so sbcvc cosecdghe

ii

United States v. Gravel, 408 U.S. 606 (1972). 15

United States v. Nixon, U.S. (1974)
42 L.W. EST ie bc td ha ok sb 6554s DSO aoe EO 14,17

United States v. Rumley, 345 U.S. 41 (1953)... 16

United States Servicemen's Fund v. Eastland,
488 F.2d 1252 (D.C. Cir., 1973) .2,3,7,12,13,19

Watkins v. United States, 354 U.S. 178(1957)..16

CONSTITUTION AND STATUTES
First Amendment.......+s+esseeeeeeees 4,13,15,18 |
28 U.S.C. $516. ccccveccciccscccccccccccsccsesoe 3
28 U.S.C. $518... eeeecevcecetecceveccccesses OD
28 U.S.C. §519...ccccvcccccsccccccsccqecsesese 5
OTHER AUTHORITIES '
Annual Report of the H House Committee on

~ Internal’ Security y of the House of
Representatives, 1973, H. Rept 93-771 02.021

/

Manual of Rules of House of Representatives,
93rd Cong., H.Doc. 384, 92nd Cong. 2d Sess..21

Stern & Gressman, Supreme Court Practice, :
4th Ed. CRON) wv cah hob bedbeekcb neha sesdnces 6

iii

sia ll ne iah

IN THE
SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973
NO.

JAMES 0. EASTLAND, et al., Petitioners
v.
UNITED STATES SERVICEMEN'S FUND, et .al.

COMMITTEE ON INTERNAL SECURITY OF THE
UNITED STATES HOUSE OF REPRESENTATIVES, et al.,
Petitioners
Vv.
NATIONAL PEACE COALITION, et al.

COMMITTEE ON INTERNAL SECURITY OF THE
UNITED STATES HOUSE OF REPRESENTATIVES, et al.,
Petitioners
. Vv.
PEOPLES’ COALITION FOR PEACE AND JUSTICE, et al.

-

COMMITTEE ON INTERNAL SECURITY OF THE
UNITED STATES HOUSE OF REPRESENTATIVES, et al.,
Petitioners
Vv. ?
PROGRESSIVE LABOR PARTY, et al.

JOINT BRIEF IN OPPOSITION TO THE PETITION FOR WRIT
OF CERTIORARI

—_— sper =

OPINIONS BELOW N
The opinion of the Court of Appeals in United

States Servicemen's Fund v. Eastland is reported at

488 F.2d 1252. (Pet. App. A, pp. la-65a). Respon-.
dents’ applications to the Court of Appeals for
stays are not reported but two are set forth in
Petitioners’ Appendix; the June 4, 1970 opinion and
order (Pet. App. B, pp. 67a-68a); the July 28, 1970
opinion and order (Pet. App. C, pp. 69a-70a). An
additional emergency stay was granted by the Court
of Appeals cn July 2, 1970 which is reproduced as
Res. App. A.

The opinions of the District Court in United

States Servicemen's Fund v. Eastland denying res-

pondents' motion for a preliminary injunction and
denying a permanent injunction and respondents’
motion to compel testimony are not reported but
are set forth in Petitioners’ Appendix (Pet. App.
D, pp. 7la-80a and Pet. App. E, pp. 8la-84a).
JURISDICTION
The judgment of the Court of Appeals in United

willie:

States Servicemen's Fund v. Eastland was entered on

August 30, 1973. The judgment in the remaining
three cases was entered on October 26, 1973 in con-

formity with that in United States Servicemen's

Fund v. Eastland (Pet. App. G, pp.862-87a). On

January 23, 1974, the Court of Appeals denied a
petition for rehearing with a suggestion for re-
hearing en banc (Pet. App. H & I, pp. 88a-89a)
filed on behalf of the Congressional defendants by
the United States. On April 18, 1974, Mr. Chief
Justice Burger extended the time for petitioning
for certiorari in all four cases to and including.
June 22, 1974. The jurisdiction of this Court is
invoked under 28 U.S.C. §1254(1).
QUESTIONS PRESENTED

1. Was the lower court correct in exercising
its power to consider the constitutionality of a
Congressional subpoena for the financial records
of a politically controversial organization, which

had been served on a third ie adit requir-

ing that disinterested third party to risk con-

aSe,

EE

tempt in order to gain coche

2. Was the lower court correct in concluding
that the financial records of a politically contro-
versial organization, which include the names of
contributors to that organization as well as the
names of individuals and groups receiving its fi-
onal support, are protected by the First Amend-
ment?

3. When certiorari is souglt by or on behalf
of Committees or icsiekeeien of the United
States Congress and the Solicitor General has
failed to file for that relief, should this Court
consider that application although the United
States is not properly before the Court?

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the Constitution pro-
vides:

Congress shall make no law respecting

an establishment of religion, or pro-

hibiting the free exercise thereof; or

abridging the freedom of speech, or of

the press; or the right of the people

peaceably to assemble, and to petition

the Government for a redress of grievances.

wlio

STATEMENT OF THE CASE

Introduction

Certiorari is sought by the Subcommittee on
Internal Security of the Committee on the Judici-
ary of the United States Senate and by the Commit-
tee on Internal Security of the United States
House of Representatives. Both committees, al-
though represented by the Department of Justice at
all stages below, are now represented by counsel

* /
other than the Solicitor General.

*/ Petitioners assert an interest on behalf of

the United States and the respective constitu-
ents of the bicameral Congress. It is the duty
of the Solicitor General to conduct litigation in
this Court "in which the United States is interes-
ted." 28 U.S.C. §518. "Except as otherwise author-
ized by law, the conduct of litigation in which
the United States, an agency or officer thereof is
a party, or is interested...is reserved to offi-
cers of the Department of Justice, under the direc-
tion of the Attorney General." [28 U.S.C. 516 (em-
phasis supplied)] who in turn "shall supervise all
[such] litigation...and shall direct all United
States attorneys, assistant United States attor-
neys, and special attorneys...." 28 U.S.C. §519.

There is no indication that counsel for peti-
tioners have been “authorized by law" so that in the
absence of the Attorney General through the Soli-
(fn. continues on next page)

=5-

This opposition to the granting of the Peti-
tion for a Writ of Certiorari is filed jointly by
the United States Servicemen's Fund, the National
Peace Action Coalition, the People's Coalition for
resis and Justice and the Progressive Labor Party.
Four different subpoenas for organizational bank
records resulting in four different lawsuits are
the subject of the Petition herein. One subpoena
was issued by the Subcommittee on Internal Security
of the United States Senate, three were issued by
the House Committee on Internal Security.

In only the case of the United cates Service-

men's Fund were evidentiary hearings held and full

(fn. continued from preceding page)

citor General, petitioners may not be properly be-
fore this Court. Even if there be some authoriza-
tion in an unrevealed Congressional resolution,
however, at least this Court can and should note
the extended time to file granted petitioners and.
the last minute appearance by private counsel
reasonably infer that the Solicitor General deter-
mined that he would not seek certiorari because

of the absence of merit. See, Stern and Gressman,
Supreme Court Practice, 4th Ed. (1969), p. 151.

-6-

. Ap ene ——

ae

decisions rendered, the decisions in the other
cases, both by the District Court and the Court of
Appeals being of a summary nature, in conformity
with the Court of Appeals decisions in the United

States Servicemen's Fund v. Eastland, (488 F.2d

1252 (D.C. Cir., 1973)). For the purposes of sim-

plicity, respondents will therefore refer herein

only to the facts in United States Servicemen's

Fund v. Eastland, except where expressly noted.

FACTS

On or about April 20, 1970, the Subcommittee
on Internal Security of the United States Senate
(hereinafter, the Subcommittee) served a sweeping
subpoena ‘on the Chemical Bank of New York demand-
ing the production of

. . « any and all records appertaining

to the United [States] Servicemen's Fund

such records to comprehand papers, corres-

pondence, statements, checks, deposit slips
and supporting documentation, or microfilm

a

*/ The original subpoena and the resolution author-
izing it incorrectly named the organization.

The resolution was subsequently corrected and the

subpoena re-issued. See page 9 , below.

A BRN Ei BN Be a ER oe

a,

se

*
antl tetas

| . -8-
‘ iasiatita ’ TN PRG IN HER IR RIS

vo

thereof within your control or custody
or within your means to produce.

The United States Servicemen's Fund (herein-
after USSF) is a non-profit tax exempt corporation
which is dedicated to the furtherance of the wel-
fare of persons who are serving in the military.
Amongst the activities it supports financially are
G.I. coffeehouses, newspapers, entertainment, and
civilian legal representation for military person-
nel. ‘

Its bank records, subpoenaed by the Subcommit-
tee, contained the names of USSF's contributors.
They also contained the names of all individuals or
projects which received financial support from the
organization.

Upon notification by Chemical Bank of the Sub-
committee hioninns respondent USSF filed an action
for declaratory and injunctive relief in the United
States District Court for the District of Columbia.
Because of a technical error in the subpoena, it
was withdrawn and the civil action dismissed with-

out prejudice to the respondents to file a new ac-

tion should a new subpoena be served.

A new subpoena was issued on May 26, 1970
returnable June 4, 1970. Respondents therefore
reinstated their federal action, amending their
complaint to seek declaratory and injunctive re-
lief against the new subpoena. They sought a tem-
porary restraining order which was denied on June
1, 1970, on the grounds that the court was without
subject matter jurisdiction, that plaintiffs lacked
standing to sue, and that plaintiffs failed to
demonstrate the probability of success on the
merits. The court, however, did not dismiss the
complaint. In an emergency appeal to the Court of
Appeals, a stay of the subpoena was granted on the
morning of the return date, June 4, 1970, "...
waett the district court has an opportunity to
fully consider and to act..." because of the...
serious constitutional issues...presented by this
litigation which require more time than is pres-
ently available for proper consideration."

On June 8, 1970 petitioners applied to the

‘alii

PRR EE oF ERE LETRA SES TI ER Se EE TROY ree

——

Court of Appeals with a suggestion for a rehearing
en banc. On June 24, 1970, all parties were in-
formed that there was not a majority of the cir-
cuit judges in favor of the requested rehearing.
On June 30, 1970, after an evidentiary hearing,

the District Court denied Vespeebente’ motion for

a preliminary injunction on the grounds that irre-
parable injury had.not been established, and that ,
there had been insufficient showing of probable

*/
success at a full trial. (Pet. App. D)

‘*/ The District Court also considered defendants-

petitioners’ contentions that (1) the defendants
in the case are immune from suit; (2) that plain-
tiffs lack standing to object to the challenged
subpoena; (3) that the complaint raises a non-jus-
ticiable issue; and (4) that the complaint fails
to state 4 claim upon which relief can be granted.
The court disposed of points (1) and (2) stating
"Defendants' first two grounds merit little discus-
sion," citing Powell v. McCormack, 395 U.S. 486
(1969); Flast v. Cohen, 392 U.S. 83 (1968); Mc-
Surely v. McClellan, 426 F.2d 664 and Perlman v.
United States, 247 U.S. 7, 12-13 ‘1918). See, Pe-
titioners Appendix, p. 73a. The court then proce-
ded to dispose of defentait's third and fourth con-
tentions concluding the issues presented by plain-
tiffs are justiciable and that the courts are
able to grant the relief requested by plaintiffs
relying on Powell v. McCormack, supra; Stamler v.
(fn. continues on next page)

ith.

FL ee eres . . . .
ge Siw 4 are ae a 7 PN ERT DNL INE GIES ais

3
ny
s
i
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s
8
i
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“
3

Respondents tumediately appealed from the deni-
al of a preliminary injunction and again the Court
of Appeals issued an emergency sfay on July 2, 1970,
pending further consideration. Then, on July 28,

1970, the Court extended the stay writing that "the

_ final judgment is likely to be appealed whichever

way the court rules" and that appeal from the deni-
al of the preliminary injunction could be consoli-
dated with the appeal from the final determination
of this action." (Pet. App. C)

A hearing on the merits was held on February
23, 1971. Testimony was presented concerning the
50% drop in contributions to the organization fol-
lowing the service of tie subpoena as well as tes-
timony from expert witnesses concerning the "devas-

tating effect" of a subpoena of a congressional in-

(fn. continued from preceding page)

Willis, 415 F.2d 1365 (7th Cir., 1969), cert. de-
nied s sub nom Ichord v. Stamler, 399 U.S. 929 (1970);
and Dombrowski v. Pfister, 380 U.S. 479 (1965).

(Pet. App;—D;—pp. 71la-80a).
afin

é

vestigating committee on the fundraising capability
of a politically controversial organization such as
each. of the respondents now before this Court.

United States Servicemen's Fund v. Eastland, supra,

488 F.2d at 1266. (Pet. App. A, pp.26a and 27a.)

On October 22, 1971, the District Court issued
its opinion and order, making no new findings of
fact, referring back to gts opinion of June 30,
1970 and denying respondents’ motion for a perma-
nent injunction. Be vatertine back to its earlier
opinion and order, the District Court reaffirmed
its power to rule on the constitutional questions
before it, but denied relief on the basis of the
facts presented. (Pet. App. E)

Respondent USSF then filed a consolidated

*/
appeal in the Court of Appeals. On August 31,

*/ USSF appealed simultaneously from the denials
of temporary, preliminary and permanent relief
by the District Court. Its appeals were heard to-
gether with the appeals of the House Committee on
International Security from the issuance by United
States District Judge George L. Hart of prelimin-
ary injunctions against its subpoenas for the
(fn. continued on next page)

«j=

noche ppOPRE OLA OLR IED DPE LEO OE LE IO ie jas ik Nasi
F YOR

eee

1973, that Court reversed the judgment of the Dis-
trict Court and held that:

The showing made by the plaintiffs clearly
meets the standards found to exist in
those cases in which the Supreme Court

has determined that the First Amendment
was violated. See NAACP v. Alabama and
other cases cited. USSF v. Eastland,
supra at p. 1267.*/ (Pet. App. A, p.29a)

It is of that opinion of the Court of Appeals
that petitioners seek review.
REASONS FOR NOT GRANTING THE WRIT.
I. THE OPINION OF THE COURT BELOW IS IN

ACCORDANCE WITH THE LONG ESTABLISHED
PRINCIPLES OF PERLMAN v. UNITED STATES.

(fn. continued from preceding page)

bank records of National Peace Action Coalition,
People's Coalition for Peace and Justice, and Pro-
gressive Labor Party.

*/ The Court of Appeals agreed with the District

Court that there was jurisdiction over the sub-
ject matter, the issue was justiciable and that
there were parties-defendants available who were
not immune from suit.

Judge MacKinnon, who dissented from the prior
grant of emergency relief also dissented from the
final opinion.

~13~

on

The Subcommittee, in its Petition for Certio-
rari has attempted to characterize the opinion be-
low as a dramatic break from judicial practice by
reviewing the constitutionality of congressional
committee nbeceane without requiring the sub-
peonaed party to submit to contempt. In fact the
opinion below is fully consistent with the prin-
ciples established by this Court as early as 1918

in Perlman v. United States, 247 U.S. 7 (1918).

Only this term this Court reasserted.that there
are some few situations when the Federal Courts must
review subpoena prior to contempt. In the case of

United States v. Nixon, U.S. (1974), 42 L.W.

5237, 5240, this Court stated as a threshold matter:

The requirement of submitting to contempt,
however, is not without exception and in
some instances the purposes underlying the
finality rule require a different result.
For example, in Perlman v. United States,
247 U.S. 7 (1918), a subpoena had been
airected to a third party requesting certain
exhibits; the appellant who owned the exhi-
bits, sought to raise a claim of privilege.
The court heid an order compelling produc-
tion was appealable because it was unlikely
that the third party would risk a contempt
situation in order to allow immediate review
of the appellant's claim of privilege. Id.

- thn

— GE OTR, PAIOD 4 , o

—

at 12-13. That case fell within the
‘limited class of cases where denial of
immediate review would render impossible,
any review whatsoever of an individual's

claims. United States v. Ryan, supra, at
aaa

This case is one of the "limited class of
cases" this Court mentioned for it arose as a re-
sult of a third party subpoena as in Perlman. Just
as in Perlman, respondents sought court review of
the subpoenas to protect their interests - here,
the First Amendment rights of their supporters.

The fact that the subpoenas were issued by a
congressional subcommittee in no way diminished
the necessity or appropriateness of court review
at the stage that it was granted. For as Mr. Jus-

tice White noted in United States v. Gravel, 408

U.S. 606 (1972):

- - eno prior case has held that Members
of Congress would be immune if they ex-
ecuted an invalid resolution... or, if
in order to secure information for a hear-
ing themselves seized the property or in-
vaded the privacy of a citizen. Neither
they nor their aides should be immune from
liability in such circumstances. 408

U.S. at 621. (emphasis added)

=

Thus, the Committee's assertion of total immun-
ity from judicial review is demonstrably baseless. ~,

It is plain that court review of congressional
committee subpoenas — always been available.

United States v. Rumley, 345 U.S. 41 (1953); Wat-

kins v. United States. 354 U.S. 178 (1957). The

only question has been the timing of that review.
Had the Subcommittee sought to obtain the member-
ship records or contributors lists directly from
USSF, respondent could have obtained judicial re-
view by refusing to comply with the subpoenas and
challenging the constitutionality of the subpoenas
in a contempt proceeding. As both the Court of
Appeals and the government recognized in Ansara v.
Eastland, 442 F.2d 751, 753 (D.C. Cir., 1971), here
that route was not available to respondents since
they were not subpoenaed directly and "would have
no way to claim their constitutional protections
at the time of the committee's questioning."

As the Court below correctly noted:

Here, in this case we have the case of

|

7

which is distinguished by this Court in
both Sanders and Ansara and apparently
by the government in its argument in the
latter case. Here the plaintiffs have no
alternative means to vindicate their
rights. They cannot contest a subpoena
issued on the Chemical Bank before the
Committee or before the Senate, and they
cannot force the bank's uninvolved offi-
cials to run the risk of contempt cita-
tions and criminal trials to aid the plain-
tiffs in establishing their First Amend-
ment Rights. 488 F.2d 1252 at 1260.

Here, because the subpoenas were served on third
parties, the normal route of review was not avail-
able. "[DJenial of immediate review would [have]
render[ed] impossible any review whatever of an

individual's claims." United States v. Nixon,

supra, since the third party banks could not have
been expected to resist the subpoenas in order to
raise respondents’ claims. Therefore, wspondents util -
ized, and the court below granted, the only re-
view available.

The opinion of the Court below will not,
therefore, as petitioners contend, "open the door
to lawsuits that would cripple the process of le-
gislative inquiry." (Petition, p. 12) It will

Py

merely reach those situations where the legislature
attempts to evade court review by issuing indirect
subpoenas to third parties who cannot be expected

to run the risk of contempt to protect the consti-

. tutional rights of the real party at interest, guar-

.~anteeing federal review in those few instances when
‘the normal route of review is not available.
II. THE INFORMATION SOUGHT BY PETITIONERS

HEREIN HAS LONG BEEN RECOGNIZED AS
BEING PROTECTED BY THE FIRST AMENDMENT.

Petitioners have sought to charactierize the
information they subpoenaed as simple financial
records which fall within the principles of Donald-

son v. United States, 400 U.S. 517 (1971) and Couch

v. United States, 409 U.S. 322 (1973).

In fact, the information sought is plainly
First Amendment protected and this case falls
squarely within the principles of such well estab-

lished cases as Gibson v. Florida Legislative In-

vestigating Committee, 372 U.S. 539 (1962) and

NAACP v. Alabama, 357 U.S. 449 (1958).

For the information in question is the func-

tional equivalent of membership lists - the names

-18-

and in many cases, addresses of the financial sup-
porters as well as individuals and organizations
receiving the financial support of a politically
controversial organization. As the court below
pointed out:

The right of voluntary associations, es-
pecially those engaged in activities which
may not meet with popular favor, to be

free from having either state or federal
officials expose their affiliation and men-
bership absent a compelling state or fede-
ral purpose, has been made clear a number
of times. See NAACP v. Alabama, 357 U.S.
449; Bates v. Little Rock, 361 U.S. 516,
Louisiana ex rel Gremillion v. NAACP, 366
U.S. 293 (1961); Gibson v. Florida Legis-
lative Committee, 372 U.S. 539 (1962);
Pollard v. Roberts, 393 U.S. 14 (1968)
affirming the judgment of the three-judge
district court for the Eastern District

of Arkansas, 283 F. Supp. 248 (1968).
United States Servicemen's Fund v. East-
land, supra, 488 F.2d at 1264. (Pet. App. 24a)

In Gibson, supra, a Florida state legislative

investigating committee first subpoenaed the entire
membership list of the Miami Branch of the National
Association for the Advancement of Colored People,
alleging that the organization was infiltrated by
the Communist Party. When that demand was invali-

-19-

Ee ee

=. *

dated by the Florida Supreme Court, the committee
required the organization's president to appear
with the list and answer questions regarding spe-

cific members. This Court, recognizing the protec-

ted nature of the membership list, reversed Gibson's

contempt conviction after he refused to comply with
the committee's demands. Even Justice Harlan,
joined by Justices Clark, Stewart and White dis-
senting in that case, implied that the original
broadside subpoena which was invalidated by the
Florida Supreme Court and which was similar to the

sweeping subpoena involved herein would be in vio-

lation of the First Amendment rights of the contro-

versial organization and its members. Gibson v.

Florida Legislative Investigating Committee, supra

at 582.

III. THERE IS NO LIVE CASE HERE.

Normally this Court will consider a constitu-

tional issue when it is absolutely necessary - when,

for example, the cgntroversy is a live one. Here,
the subpoenas in question are four years old, and

-19-A

Rea

it would appear that whatever the Subcommittee's
interest in USSF's records, their investigation of
the respondent organizations has long been dead.

In fact, prior to filing the Petition for Certio-
rari herein, the attorney for petitioners Eastland,
et al., found it necessary to ask-attorneys for
respondents whether the United States Servicemen's
Fund, whose bank records they had subpoenaed, was
still alive. Certainly if the senator and his Sub-
committee had continued any real investigation of
the respondent organization, they would have been
in possession of that most basic information which
is available from sources other than bank records.
One can only conclude that no live investigation
is in process, and that the continued interest of
petitioners is at best theoretical. In addition,
there is a substantial question of mootness with

&/

respect to the subpoenas of the House Committee.

*/ There has been no authorization of these inves-

tigations by the House since 1970. Since nei-
ther the House not its Committees are continuing
bodies, McGrain v. Dougherty, 273 U.S. 135 (1927);
(fn. continues on next page)

-20-

CONCLUSION
The opinion of the court below, which peti-
tioners sought to characterize as a radical depar-

ture from prior judicial tradition is merely an

(fn. continued from preceding page)

cf. Anderson v. Dunn, 6 Wheat 204 (1821); Marshall
v. Gordon, 243 U.S. 521 (1916), an investigation
must be authorized during the ier: in which it is
pursued, Gojack v. United States, 384 U.S. 702, 707
(1966). Although Rule eleven of the.Rules of the
House (which establishes the Committee on Internal
Security adn defines the scope of its authority),
has been adopted at the beginning of each session
since the subpoenas were issued, there has been no
reference to any of the three organizations whose
banks were subpoenaed in 1970. See 1973 Annual
Report of the Committee on Internal Security of
the House of Representatives, H. Rept. 93-771.

Furthermore, it is clear that all House papers
die at the end of each session, Rule 26 & 36, Man-
ual of Rules of House of Representatives, 93rd
Cong., #384, 92d Cong., 2d Session, 12994. Since
these 1970 subpoenas have never been renewed by
the Committee they are void and can have no effect
on any of these organizations. Therefore, the con-
troversy between the House Committee and the sub-
poenaed organizations is moot.

>

BE a i a

application of established law as articulated in

Perlman v. United States, supra, as reaffirmed in

United States v. Nixon, supra, and Gibson v. Flor-

ida State Legislative Investigating Committee and

the many other opinions of this Court setting forth
the principles which apply where First Amendment
rights are at stake.

Finally, the cases themselves are at best dorm-
ant, if not completely dead.

Therefore, respondents respectfully urge the
Petition for Certiorari herein to be denied.

Respectfully submitted,

NANCY STEARNS

c/o Center For Constitutional Rights
853 Broadway

New York, N.Y. 10003

(212) 674-3303

JEREMIAH S. GUTMAN
363 Seventh Avenue
New York, N.Y. 10001
(212) 736-2226

BURT NEUBORNE

American Civil Liberties Union
22 East 40th St.

New York, N.Y. 10017
(212)725-1222

-22—-

PHILIP J. HIRSCHKOP
503 D Street, N.W.
Washington, D.C.

‘HOPE EASTMAN

American Civil Liberties Union
410 First Street, S.E.
Washington, D.C.

Attorneys for Respondents

August, 1974

=246

\

la

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBIA CIRCUIT

No. 24,412 Sept. Term, 1969

United States Servicemen's Fund,

et al., Civil Action 1474-70
Appellants,

Vv.

James 0. Eastland, et al.,
Respondents.

Before:Wright, Leventhal and MacKinnon
Circuit Judges,
in Chambers

ORDER

On consideration of appellants' motion for
an emergency stay and for a hearing, and of
appellees' opposition filed with respect thereto,
and to afford an opportunity for this Court to
consider the motion more fully, it is

ORDERED by the Court that enforcement of
and compliance with the subpoena issued by the
Subcommittee on Internal Security of the Committee
on the Judiciary of the United States Senate on
the Chemical Bank of New York Trust Company for the
production of records concerning the account of
the United States Servicemen's Fund on May 26, 1970,
is stayed pending further order of this Court.

Per Curiam

Judge MacKinnon dissents.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0419%3A3. Public record. Not legal advice.