Amicus Curiae Brief — Marshall v. United States

We ARGUMENT

_ -[_The Resolution creating the Committee is uncon-

stitutional on its face and as applied

be II—The Committee’s use of the blacklist is uncon-

stitutional 14

J1I—Conctusion

CASES CITED

Barsky Case, 167 F. (2d) 241, 262

| Board of Education v. Barnette, 319 U. S. 624, 642...

_ Bridges v. California, 314 U. S. 282

"Bridges v. Wixon, 326 U. S. 135, 163

x Cummings v. Missouri, 4 Wall. (U. S.) 277

De Jonge v. Oregon, 299 U. S. 353

Feinglass v. Reinecke, 48 F. Supp. 438

Garland, Ex parte, 4 Wall. (U. S.) 333

Girouard v. United States, 328 U. S. 61

Hannegan v. Esquire, 327 U. S. 146

Herndon v. Lowry, 301 U. S. 242

Johnson v. Oregon Stevedoring Co., 128 Ore. 121, 270

Pac. 772

| Kilbourn vy. Thompson, 103 U. S. 168

x Knauer v. United States, 328 U. S. 654

a nS A canes

ii

Kottlakos v. U. S., 328 U. S. 750, 772

Lanzetta v. New Jersey, 306 U. S. 451

Lovell v. Griffin, 303 U. S. 444

Mackay Radio & Telegraph Co., 1 N.L.R.B. 201.0 45

Meyer v. Nebraska, 262 U. S. 390. 8

N.L.R.B. v. Fruehauf Trailer Company, 301 U.S. 51. 15

N.L.R.B. v. Jones & Laughlin Steel Corporation, 301

Us a 3 15

Schenck v. United States, 249 U. S. 47 8

Schneiderman v. U. S., 320 U. S. 118, 136 3, 11,17

Stromberg v. California, 283 U. S. 359 6, 8,17

Thomas v. Collins, 323 U. S. 516 8

Thornhill v. Alabama, 310 U. S. 88 6,8

United States v. Ballard, 322 U. S. 78 8

United States v. Lovett, 328 U. S. 303 9, 15, 16

West Virginia State Board of Education v. Barnette,

319 U. S. 624 8, 10

Winters v. New York, 333 U. S. 507 6

STATUTES

Legislative Reorganization Act of 1946, See. 121(b),

60 Stat. 828 6

United States Constitution:

First Amendment 6, 7, 16

Fourth Amendment 6, 14, 16

Fifth Amendment 6, 7, 14, 16

Article I, Section 10 6, 16

iii

MISCELLANEOUS

PAGE

“Educators Warn on Loyalty Oaths”, N. Y. Times, Oct.

9, 1949, p. 1

81 Cong. Ree. 3286 (1937)

89 Cong. Ree. 797 (1943)

89 Cong. Rec. 806 (1943)

92 Cong. Ree. A4743 (1946)

ee OR i | Pico ec ee eee

Note, 96 U. of Pen. Law Review, 381, 396 (1948)...

Note, 47 Columbia Law Review at 418

Note, 47 Columbia Law Review at 422, 423

H. R. Rep. No. 2742, 79th Cong., 2nd Sess., 16 (1947)

H. R. Rep. No. 2748, 77th Cong., 2nd Sess., 2, 3 (1943)

9 Hearings before Special Committee on H. R. 282,

p. 5447 (1939)

John Lord O’Brian, “Loyalty Tests and Guilt by Asso-

ciation”, 61 Har. L. Rev. 592

Memorial of the Special Committee Appointed by the

Association of the Bar of the City of New York,

5 N. Y. Legis. Doe. No. 30, 143rd Sess. 4 (1920).

5

11

11

11

17

18

a

IN THE

Supreme Court of the United States

OCTOBER TERM, 1949

No. 197

Grorce MarsHat., Petitioner,

vs.

Untrep States or America, Respondent.

No. 236

Ricuarp Morrorp, Petitioner,

vs.

Untrep States or America, Respondent.

No. 248

JoHn Howarp Lawson, Petitioner,

vs.

Unrtep States or America, Respondent.

No. 249

Datton Trumpso, Petitioner,

vs.

Unrtep States or America, Respondent.

No. 766

Epwarp K. Barsky, et al., Petitioner,

vs.

Unitep States or America, Respondent.

MOTION FOR LEAVE TO FILE BRIEF AS

AMICUS CURIAE AND BRIEF

2

Statement

The Civil Rights Congress (hereinafter called the Cop.

gress) respectfully moves for leave to file a brief amicys

curiae in support of the petitions for certiorari herein and

in support of the petition for rehearing in the Barsky Case.

Consent to such filing has been given by counsel for peti-

tioners in all the cases and by counsel for the Government,

The Civil Rights Congress, as its name indicates, is an

organization devoted to the protection, extension, and

strengthening of civil rights in this country. It has chap.

ters in all parts of the United States, including all of the

principal cities. The constitution of the Congress pro-

vides that in order to achieve its major objective, the Con-

gress will engage in efforts along the following lines:

“To strive constantly to safeguard and extend all demo.

cratic rights, especially the rights of labor, and of

racial, political, religious and national minorities;

“To combat all forms of discrimination against these

groups;

“To defend and aid victims of the fight for these

groups;

“To fight against domestic fascism and all of its forms—

jim crow, anti-Semitism, red-baiting, discrimination

against the foreign born.

Bit sein ends the Civil Rights Congress dedicates it-

self—

“To educate, mobilize, and help coordinate the efforts

of the democratic forces of America in the defense and

advancement of their civil rights and democratic

rights;

“To promote the unity of all groups and individuals

dedicated to the defeat of fascism in all its forms.”

The petitions in these cases raise fundamental constitu-

tional and other issues concerning the creation and fine-

tioning of the Un-American Activities Committee of the

House of Representatives (hereinafter called the Commit-

wa

tee). Because the Congress regards the Committee as a

profound and pervasive menace to the civil liberties of the

American people, the Congress believes that the filing of

this brief is not only consistent with its purposes but is

also a responsibility it owes to the continuance of the Amer-

jean democratic tradition.

No governmental agency in the history of our country

has done as much to undermine our basic liberties as has

the Un-American Activities Committee and its predeces-

sors. For more than a decade, this Committee has roamed

at large in areas which the Constitution forbids to any

agency of government. The Committee has trampled on

free speech and utterance. The Committee has interfered

on a large scale with freedom of assembly and freedom of

association. The Committee has employed as a guiding

principle the doctrine of “guilt by association” which this

Court has condemned as violative of our traditions (Schnei-

derman v. U. S., 320 U. S. 118, 136). The Committee has

inhibited freedom of thought and has drastically choked off

the free discussion of political issues which the Constitu-

tion seeks to encourage and which is more than ever nec-

essary in a period when fateful issues confront the Ameri-

can people. The Committee has interfered in political elec-

tions and in the legitimate activities of labor organizations.

The Committee has attacked and denounced common citi-

zens, public officials, Cabinet members, and the President

of the United States merely because their notions of sound

public policy differed from the Committee’s.

The Committee, though an arm of the legislature, does

not concern itself really with legislation. Instead, the Com-

mittee acts as if it has been given a mandate to pass judg-

ment on political, social, and economic ideas, and to in-

dict and convict as “disloyal” or “subversive” or “un-

American” any person whose ideas or affiliations it disap-

proves. The Committee has sought to punish, in one way

or another, those it has found “guilty”. The Committee

has slandered and libeled and held up to publie contempt

aud obloquy countless persons and organizations which

have refused to accept its standards of orthodoxy.

4

In all these activities, the Committee has never felt itgelf

bound by accepted rules of procedure or by standards of

fair play which are the essence of due process, and has js.

sued reports and statements on a wholesale scale without

giving its victims the opportunity to be heard or the oppor.

tunity to test, by cross-examination or otherwise, the acen-

racy or truthfulness of its informants and witnesses,

The people of the United States are today faced with the

most extensive and violent onslaught ever made on their

civil liberties. Encouraged by the apparent success of a

committee of the Congress in this field, several states have

set up committees which have employed methods similar to

those employed by their federal progenitor, with similar

results and effects. The preoccupation with “loyalty”

which the Committee has stimulated has generated wide-

spread efforts by the Federal Government, by state and

local governments, and by other private and public consti-

tutions, to separate the “loyal” from the “disloyal”, and to

impose “loyalty” oaths and affidavits. The result has been

an unprecedented interference with freedom of speech,

thought, assembly, and association.

The Federal Government’s loyalty program, and the At-

torney-General’s list of proscribed organizations which is

part of that program, has given the full sanction of the

Executive Department to the Committee’s notion that gov-

ernment has the power to tell the people to what organiza-

tions they may or may not belong, what thoughts they may

or may not think, what words they may or may not utter,

what meetings they may or may not attend.

This blantant trampling by government on the most

fundamental of constitutional and human rights has had

fearful results. The encouragement given to truly un-

democratic forces by these policies has already eventu-

ated in widespread interference with freedom of assembly

and in vicious and violent physical attacks on peaceful

meetings of citizens. The private and public educational

institutions and systems in the country are in constant

agitation as authorities seek to impose “loyalty” tests and

5

other implements of orthodoxy while teachers struggle to

resist them, so that while it is generally agreed that the

deterioration of the country’s educational plant has reached

emergency proportions and that a common effort must be

made to solve common problems, our educational institu-

tions are rent by violent dissension and educational leaders

become more and more alarmed.* The channels of politi-

eal discussion have been so poisoned that debate turns less

and less on issues and more and more on imputations of

disloyalty, so that no man, no matter how brilliant his rec-

ord of public service, is free of such imputations as long

as he dares advocate social, political, or economic reform.

It is for these reasons and for many others which limi-

tations of space prevent us from detailing, but which are

set forth in the petitions and briefs in the five cases, that

we say that the Committee is a profound and pervasive

menace to the liberties of the people. It is for these rea-

sons that we believe that this Court has no more solemn

responsibility than that of passing on the merits of the

serious issues presented by the petitions in these cases.

This Court has said that:

“Tf there is any fixed star in our constitutional con-

stellation, it is that no official, high or petty, can pre-

scribe what shall be orthodox in politics, nationalism,

religion, or other matters of opinion, or force citizens

to confess by word or act their faith therein” (Board

of Education v. Barnette, 319 U. S. 624, 642).

The Court has vindicated this principle in many other

cases as well as in the Barnette Case. It is difficult for us

to imagine any cases which more clearly call for its fur-

ther vindication than these five cases. The Un-American

*“The Educational Policies Committee, whose membership in-

cludes Gen. Dwight D. Eisenhower, president of Columbia University,

and James B. Conant, head of Harvard University, declared last

night that state laws requiring special loyalty oaths of teachers

were a menace to educational freedom” (“Educators Warn on

Loyalty Oaths”, N. Y. Times, Oct. 9, 1949, p. 1).

er.

“a Fe Pe nn eee ences

6

Activities Committee of the House of Representatives

does prescribe what shall be orthodox in politics, na.

tionalism, and other matters of opinion. The Un-Ameri-

can Activities Committee of the House of Representatives

does force citizens to confess by word or act their faith

therein. We respectfully urge the Court to assert once

more that the Constitution is supreme over such tyranny.

Argument

Although each of the five petitions presents different

issues which concern the Civil Rights Congress, the con-

stitutional issue under the First and Fifth Amendments js

common to all the cases and this brief therefore will deal

with that issue. In addition, the issue concerning the na-

ture of the evidence required by the Committee in its sub-

poenas and in its questions to witnesses raises a basic

issue of civil rights, and involves the First, Fourth, and

Fifth Amendments and Article I, Section 10 of the Consti-

tution.

I

The Resolution creating the Committee is unconstitu-

tional on its face and as applied.

The Resolution creating the Committee authorizes it to

investigate “un-American propaganda activities” and “sub-

versive and un-American propaganda” that “attacks the

principle of the form of government as guaranteed by our

Constitution” (Legislative Reorganization Act of 1946, See.

121(b), 60 Stat. 828).

No one would dispute the proposition that a regulatory

or penal statute would be unconstitutional on its face if

it embodied the words and phrases contained in the Resolu-

tion (Stromberg v. California, 283 U. S. 359; Herndon v.

Lowry, 301 U. S. 242; Lanzetta v. New Jersey, 306 U. 8.

451; Thornhill v. Alabama, 310 U. S. 88; Winters v. New

a

York, 333 U. S. 507). In fact, as we understand the argu-

ment of the Government and the reasoning of the Court

of Appeals in the five cases, it is conceded that such a

regulatory or penal statute would be unconstitutional as

an interference with the rights guaranteed under the First

Amendment and as being too vague and indefinite under

the due process clause of the Fifth Amendment. But, says

the Court of Appeals, since these cases concern not a

regulatory or penal statute, not the power of Congress

to legislate but the power of Congress to investigate to de-

termine whether it should legislate, the First and Fifth

Amendments are not applicable. Typical of this attitude

of the Court of Appeals is the statement in its opinion in

the Barsky Case, 167 F. (2d) 241, that the precedents we

have cited and similar cases “dealt with statutes which

actually imposed a restriction upon speech or publication”

(246). But, argues the Court, here is not such a statute

but a resolution which authorizes investigation into

“threats to the existing form of government by extra-consti-

tutional processes of change” (id.).

It is submitted that the Court of Appeals is guilty of a

shocking misconception of the great constitutional guar-

antees and that unless that misconception is corrected such

a gap will have been torn in the First Amendment as to

make it only a question of time until our liberties run out

entirely. The Amendment says that “Congress shall make

no law * * * abridging the freedom of speech * * *.”

The Court of Appeals says that this means that Congress

“shall make no penal or regulatory law * * * abridging

the freedom of speech * * * ” and that therefore Congress

may pass a “resolution” which does not regulate or penalize

but which permits investigation even if free speech is

abridged.

The cases in this Court permit no such construction of

the First Amendment. To the contrary, this Court has

found again and again that the First Amendment forbids

impairment of the right to speak no matter in what man-

ner or in the exercise of what granted or reserved power

st AE INNA RR EER RTE:

—

the impairment is attempted (Meyer v. Nebraska, 262 U. §.

390; Stromberg v. California, 283 U. S. 359; Lovell y,

Griffin, 303 U. 8. 444; Bridges v. California, 314 U. S. 252;

West Virginia State Board of Education v. Barnette, 319

U. S. 624; United States v. Ballard, 322 U. S. 78; Thomas

v. Collins, 323 U. S. 516; Hannegan v. Esquire, 327 U. §.

146; Knauer v. United States, 328 U. S. 654).

The cited cases involve highly diverse Federal and State

powers and varying forms of direct and indirect inter.

ference. Uniformly this Court in absolute terms has vindi-

cated the untrammelled right to speak.* All of the expres.

sions of the Court are consistent with the ringing affirmation

in the Barnette Case that the First Amendment does not

permit Government to separate the orthodox idea from

the unorthodox, to distinguish “good” ideas from “bad”,

to forbid some utterances and permit others, to approve

propaganda which is not “subversive” and disapprove

propaganda which is. In Hannegan v. Esquire, the Court

said that it would be “a radical departure from our tradi-

tions” if Congress “undertook to clothe the Postmaster

General with the power to supervise the tastes of the read-

ing public of the country” (327 U. S. 146, 156). In the

Stromberg Case, the Court said that: “The maintenance

of the opportunity for free political discussion * * * is a

fundamental principle of our constitutional system” (283

U. S. 359, 369). In the Knauer Case, the Court said that

any effort to punish opinions “runs counter to our tradi-

tions” (328 U. S. 654, 658). Any interference or burden

on “the dissemination of ideas” is unconstitutional, said

the Court in the Thornhill Case (310 U. S. 88, 97). This

fundamental tenet has had this exposition from Mr. Jus-

tice Jackson, concurring in Thomas v. Collins:

8

“But it cannot be the duty, because it is not the

right, of the state to protect the public against false

*It is apparently conceded that neither the Resolution nor the

Committee’s actions thereunder can be justified under the “clear

and present danger” test (Schenck v. United States, 249 U. S. 47).

Any such justification would be palpably ridiculous.

ag

doctrine. The very purpose of the First Amendment

is to foreclose public authority from assuming a

guardianship of the public mind through regulating

the press, speech, and religion. In this field every

person must be his own watchman for truth, because

the forefathers did not trust any government to sep-

arate the true from the false for us” (323 U. S. 516,

545).

The assumption in the opinions of the Court of Appeals

that although it may be true that the First Amendment

limits all other legislative powers, it does not limit the

power to investigate, is a false assumption. As we have

shown, the First Amendment allows no exception. The

power to investigate is a power incidental to the power

to legislate. If legislation may not abridge fundamental

rights, then neither may investigation. Investigation must

bear some reasonable relation to prospective legislation,

and if Congress may not legislate on a subject it may not

investigate it (Kilbourn v. Thompson, 103 U. S. 168).* As

we have said, it cannot be argued and it is not argued,

that Congress has the power to legislate that “subversive

and un-American propaganda”, for example, may be

punished or regulated. By the same token, Congress has

no power to investigate “subversive and un-American

propaganda.”

Since, as we have said, it has been conceded that a

penal or regulatory statute embodying the standards of

the Resolution would be unconstitutional, it is scarcely

necessary to argue the point except to note that standards

considerably more definite and unambiguous than these

' *The Committee has in a sense confessed its powerlessness to

recommend legislation in this field. After a decade of sensational

headliness announcing the imminent crumbling of the pillars of the

Republic, the Committee has not given birth to a single piece of

valid legislation (94 Cong. Rec. 2495 (1948) ; Note, 96 U. of Pen.

Law Review, 381, 396 (1948) ). In fact, the only statute which has

emanated from the endeavors of the Committee, at least indirectly,

-_was found to violate the provision against bills of attainder (United

“States v. Lovett, 328 U. S. 303).

- 60s St eer

10

have been found to violate the First and Fifth Amend.

ments (Herndon v. Lowry, supra, and Lanzetta v. New

Jersey, supra). However, since we argue that even if the

Resolution could conceivably be sustained on its face, it

has been unconstitutionally applied, we pause at the outset

of that part of the argument to point out how vague, un-

certain, and ambiguous the standards are. It will then

be clear that such standards could not possibly be applied

in a constitutional manner.

There is of course no authoritative definition of “np.

American” or “subversive” or of “the principle of the form

of government as guaranteed by the Constitution.” It

is generally recognized by rational Americans, no matter

what their own beliefs are otherwise, that the term “un-

American” or “subversive” is a term of opprobrium which

means only that the speaker does not approve the person

or subject to whom the term is applied. As the Court put

it in Feinglass v. Reinecke, 48 F. Supp. 438: “Any politi-

cal idea that happens to conflict with the economic or

political notions of an individual is apt by him to be deemed

un-American” (at 441).

Nor is there any more authoritative exposition of “the

principle of the form of government as guaranteed by the

Constitution.” There is of course no one principle em-

bodied in the Constitution but it is our own conviction

that if it were necessary to select one principle which

most nearly expresses the essence of our constitutional

democracy it would be the “fixed star” which this Court

defined in the Barnette Case:

“«* * * no official, high or petty, can prescribe what

shall be orthodox in politics, nationalism, religion, or

other matters of opinion, or force citizens to confess

by word or act their faith therein” (319 U. S. 624,

642).

It is this principle which we are asking the Court to vindi-

cate in these cases.

Once we go beyond this principle, this “fixed star”, there

is no principle on which there is easy agreement. Jus-

11

tice Edgerton, dissenting, pointed this out in the Barsky

Case (167 F. (2d) 241, 262). This Court has also said so

in the Schneiderman Case, 320 U. S. 118, in Girouard v.

United States, 328 U. S. 61, and in other cases.

The history of the Committee demonstrates its inability

to define these so-called standards. Time and again, mem-

bers of the House have asked for definitions but have re-

ceived none (81 Cong. Rec. 3286 (1937); 89 Cong. Ree.

806 (1943)). The chief counsel of the Committee advised

a member of the House that the Committee has adopted

no definitions (92 Cong. Ree. A4743 (1946)).

In this context, it is small wonder that the Committee

has taken “as its field the whole gamut of American politi-

cal, social and economic life” in an “almost unlimited

variety” of investigations (Note, 47 Columbia Law Re-

view at 418). The Committee has attacked the President

of the United States, the Vice-President, and Cabinet

members. It has compiled a blacklist of the names of one

million “subversive” persons and over 1,000 “subversive”

organizations (H. R. Rep. No. 2748, 77th Cong., 2nd Sess.,

2,3 (1943); H. R. Rep. No. 2742, 79th Cong., 2nd Sess., 16

(1947) ; 89 Cong. Rec. 797 (1943)). It has attacked or

investigated or reported on opposition to “the American

system of checks and balances”, opposition to the Franco

government, opposition to General MacArthur, advocacy

of a world state, and criticism of members of Congress and

of the Committee itself (Note, 47 Columbia Law Review

at 422, 423). In fact, a complete analysis of the work of

the Committee, its hearings, its reports, its statements, the

speeches of its members, would show that it has at-

tempted to label as “subversive” or “un-American” prac-

tically every single important political, social or economic

idea which is current in America but which the Committee

or its members disapprove.

The petitions in these very cases demonstrate the scope

of the Committee’s activities:

(1) George Marshall (No. 197) is before this Court

because he was chairman of the National Federation

a

for Constitutional Liberties, which distributed litera.

ture in support of the right to vote, in support of

equal rights to work and to use of public facilities, in

defense of Negroes against maltreatment, in defense

of the rights of labor, in defense of democracy in

education and in the Armed Forces, and material

pointing out the danger of native fascism in America

(Marshall’s Petition, p. 3). The Committee regards

this propaganda as “subversive” or “un-American.”

(2) Richard Morford (No. 236) is before this Court

because he is Executive Director of the National Coun-

cil of American-Soviet Friendship, Inc., which was

organized in 1943, when the United States and the

Soviet Union were allied in war, for the following

purpose: “To promote better understanding and

strengthen friendly relations between the United States

and the Soviet Union as essential to the winning of the

war, and the establishment of world-wide democracy

and enduring peace” (Morford’s Petition, p. 2). Its

activities and propaganda were all directed to the

achievement of this purpose, and have been supported

by a large number of notable Americans (id., pp. 2-3).

The Committee believes that such propaganda is “sub-

versive” or “un-American.”

(3) John Howard Lawson (No. 248) and Dalton

Trumbo (No. 249) are before this Court because they

are motion picture writers and because the Committee

undertook an investigation of the motion picture in-

dustry for the purpose of eliminating the type of

pictures which the Committee disapproved and en-

couraging production of the type of pictures which

the Committee would approve (Lawson’s Brief, p.

61 ff.). The Committee believes that some motion

pictures are “subversive” or “un-American”, and

others are not.

12

(4) Edward Barsky (No. 766) and others are be-

fore this Court because they are chairman and mem-

“a

bers, respectively, of the Executive Board of the Joint

Anti-Fascist Refugee Committee, a relief organiza-

tion licensed by the President’s War Relief Board

(Barsky’s Petition, p. 2). The Committee believes

that it is “subversive” or “un-American” to furnish

relief to the victims of Franco’s fascist repression.

Thus, the five petitions present to the Court as repre-

sentative a picture of the Committee’s notions and ac-

tivities as it is possible to get from so small a sampling.

In these cases, the Committee has acted on the explicit as-

sumption that it is “subversive” or “un-American” to

engage in the protection of civil rights and labor’s rights

and in a struggle to eliminate discrimination against the

Negro people; or to attempt to foster friendship and

understanding between this country and the Soviet Union;

or to make motion pictures on any other terms than the

Committee’s notions of good and bad; or to furnish food

and shelter to the victims of fascist terror and repression.

In carrying out these notions, the Committee has here

used its customary variety of weapons. It has required

the production of financial and other records of the or-

ganizations involved; it has required the open confession

of political beliefs and affiliations; it has used sensation-

seeking publicity, the threat, the blacklist, the awful stigma

of disloyalty.

These cases demonstrate that the Committee has ap-

plied the Resolution in a manner which violates the con-

stitutional guarantees in shocking fashion, that it has set

itself up as the supreme arbiter of what Americans shall

and shall not think. No person, no matter how conserva-

tive he may believe himself to be, is safe from an inquisi-

tion such as this. And since there is no way of telling in

advance what the Committee may or may not approve,

there is an extensive previous restraint on the freedom

to speak, the freedom to assemble, the freedom to as-

sociate.

We do not believe that this Court will give its approval

to such tyranny.

a

14

The Committee’s use of the blacklist is unconstity.

tional.

As we have indicated, these cases also illustrate the ex-

tent to which the Committee has used the blacklist, a

weapon which our entire history has led us to regard as

unfair, sinister, and undemocratic. In Marshall’s Case,

the subpoena required the production of the records of the

National Federation for Constitutional Liberties relating

to the solicitation and disbursement of funds with a list

of all contributors. In Morford’s Case, the subpoena re-

quired the production of all books and records showing all

the receipts and disbursements by the National Council of

American-Soviet Friendship, Inc., and all correspondence

and communications for the year 1945. In the Lawson and

Trumbo Cases, the questions required disclosure of politi-

eal beliefs and affiliations, and the Committee otherwise

made it plain that an object of its investigation of the mo-

tion picture industry was to establish a blacklist of writers,

directors, producers, and actors (Lawson’s Petition, p. 69 |

ff.). In the Barsky Case, the subpoenas required the pro-

duction of all books and records concerning receipts and

disbursements; correspondence and communications; and

lists of contributors for the years 1944 and 1945.

The requirements here sought to be imposed by the Com-

mittee in its subpoenas and in its questions to witnesses

violate the Fourth and Fifth Amendments to the Constitu-

tion. Since these constitutional issues are fully argued in

the briefs supporting the petition, we will not burden the

Court with further argument, but we do wish to set forth

our views on the pernicious and sinister nature of a gov-

ernment blacklist.

Although the blacklist has been used in other connections,

its greatest use in this country has been against militant

union members. The use of such blacklists became so wide-

=

spread at the end of the last century and the beginning of

this, that most of the states enacted statutes making black-

listing a crime. Such statutes were held to be constitu-

tional (see, e.g., Johnson v. Oregon Stevedoring Co., 128

Ore. 121, 270 Pac. 772). Although the National Labor Re-

lations Act does not specifically deal with blacklisting, this

Court has sustained the application of Section 8(3) of the

Act to blacklisting (N.L.R.B. v. Fruehauf Trailer Company,

301 U. S. 51. See also Mackay Radio & Telegraph Co., 1

N.L.R.B. 201.)

The statutory prohibitions against blacklisting are based

on the conception that a man should not be deprived of his

livelihood because of the exercise by him of rights which

he may exercise under the Constitution. A man has the

right to join a union and to be active therein and the inter-

ference with that right may be prevented constitutionally.

(V.L.R.B. v. Jones & Laughlin Steel Corporation, 301

U.S. 1.)

This Court has also recognized this conception in other

situations, particularly in legislative attempts to cut off

those of whom the legislature disapproves from their spe-

cific jobs (United States v. Lovett, 328 U. S. 303) or from

their chosen professions. The Lovett Case, and Cummings

v. Missouri, 4 Wall. (U. 8S.) 277, and Ex parte Garland, 4

Wall. (U. S.) 333, hold that “legislative acts, no matter

what their form, that apply either to named individuals or

to easily ascertainable members of a group in such a way

as to inflict punishment on them without a judicial trial

are bills of attainder prohibited by the Constitution” (328

U. S. 303, 315-316). In the Lovett Case, the Court said

that proscription from employment is punishment “of a

most severe type”, as is the imposition of the stigma of

disloyalty (at 316).

In these five cases, like in the Lovett Case, we have an

open and avowed effort to build up a blacklist, the effect of

which would be to make employment impossible for the vie-

tims. One of the members of the Committee said during

the course of the hearings on the motion picture industry :

15

eee AEN

16

“* * * we have the problem of eliminating the Communist

element from not only the Hollywood scene but also other

scenes in America * * *” (quoted in Lawson’s Brief, p, 70,

n. 3). This is merely one illustration of the Committee’s

openly stated official objective of driving out of employ-

ment, public and private, all persons whom it finds to be

“subversive”. (9 Hearings before Special Committee to

Investigate un-American Activities on H.R. 282, p. 5447

(1939).) And, as we have noted, the Committee has pre-

pared a carefully indexed blacklist of a million “subver-

sive” persons and over 1,000 organizations. In these five

cases, the information required by the Committee, partieu-

larly in the subpoenas calling for lists of contributors, could

serve only to swell this sinister blacklist.

The creation, maintenance, and application of such a

blacklist violates not only the Fourth and Fifth Amend-

ments and Article I, Section 10 of the Constitution relat-

ing to bills of attainder, but also violates the First Amend-

ment. What more serious interference with the right of

free speech can be imagined than the threat that if the right

is exercised the speaker faces the loss of employment and

denunciation as “subversive”. Is this not the same “pun-

ishment—of a most severe type” which this Court de-

nounced in the Lovett Case? The same conclusion is of

course applicable here to the exercise of the other great

rights—freedom of press, assembly, and association. Those

who write in support of ideas or policies of which the Com-

mittee disapproves, those who attend meetings of organi-

zations on the Committee’s blacklist, those who join or

contribute to such organizations, all such persons are in

danger of such retaliation. And the danger is the more

sinister and pervasive, the more obviously unconstitutional

in that while the idea may not yet have been disapproved

by the Committee, it may disapprove the idea tomorrow,

while the organization is not yet on the blacklist, the Com-

mittee may put it on tomorrow.

Finally, the application of the concept of guilt by asso-

ciation which is at the core of the blacklist weapon as em-

17

ployed here, in the same way as it permeates the Commit-

tee’s work as a whole, is particularly abhorrent to our

constitutional traditions. The Committee’s adoption of

this doctrine impairs the exercise by every American of

his freedom of association, without which participation in

the political life of the country is meaningless and which

in turn destroys the First Amendment rights—freedom of

speech, press, and assembly.

In the face of this Court’s explicit rejection of the doc-

trine of “guilt by association” (De Jonge v. Oregon, 299

U. 8. 353; Schneiderman v. U. S., 320 U. S. 357), the Com-

mittee has erected the doctrine into a cardinal principle.

The use of the doctrine by the Committee in its blacklist

and in all of its other activities leads to far-reaching pre-

vious restraints on liberty. Hardy indeed is the American

who still dares exercise his right to associate freely. With

his job, his future, his reputation, and his self-respect at

stake, with the danger to having attached to him the stigma

of “disloyalty”, with the likelihood that the Committee may

unloose upon him its favorite technique of “exposure”

(with its accompaniment of klieg lights, television cameras,

sensational headlines, and slanted reports), he must think

twice and three times before he attends a meeting in pro-

test against discrimination against Negroes or before he

contributes a dollar or two to feed a refugee from Franco

Spain.

Such an unprecedented application of the doctrine of

“guilt by association” has recently been severely con-

demned by a prominent member of the New York Bar, with

a long record of distinguished public service (John Lord

O’Brian, “Loyalty Tests and Guilt by Association”, 61

Har. L. Rev. 592). His condemnation of the doctrine finds

full support in the language and decisions of the Supreme

Court:

“Guilt with us remains individual and personal * * *”

(Kottlakos v. U. S., 328 U. S. 750, 772).

“Under our traditions beliefs are personal and not a

matter of mere association * * *” (Schneiderman v.

U. S., 320 U. S. 118, 136).

18

“The doctrine of personal guilt is one of the funda:

mental principles of our jurisprudence. It pa ;

of the very essence of the concept of freedoms a and due

process of law” (Mr. Justice Murphy, concurring in

Bridges v. Wixon, 326 U. S. 135, 163).

And it is worth recalling that in 1920, when as now, polit. |

ical fears and tensions generated repressive measures

against freedom of thought and association, Mr. Charles ;

EK. Hughes, later the Chief Justice, protesting against’ the ©

expulsion from the New York Assembly of five duly elected © 4

members of the Socialist Party, declared that “it is of the 4

essence of the institutions of liberty that it be recognized —

that guilt is personal and cannot be attributed to the hold. —

ing of opinion or to mere intent in the absence of overt

acts * * *” (Memorial of the Special Committee Appointed.”

by the Association of the Bar of the City of New York, 5 a

N. Y. Legis. Doe. No. 30, 143rd Sess. 4 (1920) ).

The Committee’s application of the doctrine of “guilt by

association” calls for the severest condemnation by this

Court. Unless this is done, the exercise of the rights guar-

anteed by the First Amendment will become so perilous ag —

to endanger the future of self-government in America.

II!

CONCLUSION

With all the earnestness at our command, we respect- —

fully urge this Court to grant the petitions herein. The 3

House Committee on Un-American Activities has already ~

done untold injury to our freedoms. Its activities are bla- |

tantly violative of the constitutional guarantees. We urge —

this Court to so declare.

Respectfully submitted,

NatuHan WITT, 3

Attorney for the Civil Rights Congrestia J

9 East 40th Street, 4

New York, New York.