Amicus Curiae Brief — Lawson v. United States

INDEX

STATEMENT

I—The blacklist has been traditionally utilized to re-

strain working people from exercising constitutional

rights

CASES CITED

AFL v. Swing, 312 U. S. 321

Amalgamated Utility Workers v. Consolidated Edison,

309 U. S. 261

American Steel Foundries v. Tri-City Central Trades

Council, 257 U. 8S. 184

Atkins v. W. & A. Fletcher Co., 65 N. J. Eq. 658...

Cantwell v. Connecticut, 310 U. S. 96

Carpenters Union v. Citizens Committee, 333 Ill. 225...

Cornellier v. Haverhill Shoe Mfgrs. Ass’n, 221 Mass.

554

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

DeJonge v. Oregon, 299 U. S. 353

Follett v. Town of McCormick, 321 U. 8. 573.

Grower-Shipper, Vegetable Ass’n of Central Co., 15

NLRB 322

Hague v. CIO, 301 U. S. 496

Herndon v. Lowry, 301 U. S. 242

Hundley v. Louisville Railroad, 105 Ky. 162...

Joyce v. Great Northern Railway, 100 Minn. 225__..

Martin v. Struthers, 319 U. S. 141

National Labor Relations Board v. Waumbec Mills, Inc.,

1940, 114 F. 2d 226

North American Refractories Co., 52 NLRB 1049...

NLRB v. Jones & Laughlin, 301 U. S. 1

NLRB v. Waumbec Mills, Inc., 114 F. (2d) 226...

PAGE

ii

Phelps-Dodge v. NLRB, 313 U. S. 177 10

Schneider v. New Jersey, 308 U. S. 147 11

Stewart Die Casting Corp., 14 NLRB 872 8

Thomas v. Collins, 323 U. S. 516 11, 12

Thornhill v. Alabama, 310 U. S. 88 11, 12

United States v. Lovett, 328 U. S. 303 11

Willis v. Muscogee Mfg. Co., 120 Ga. 59 10

STATUTES AND AUTHORITIES CITED

American Labor Unions, Florence Peterson, Bureau of

Labor Statistics, Department of Labor, 1945, p. 16... 7

Boycotts and the Labor Struggle, Harry W. Laidler,

1913, p. 44 6

Industrial Commission Report, Vol. 12, p. 37, April

11, 1899. 8,9

Labor Problems, Woodrow, pp. 288-289 9

Magazine Industry, Jan. 1, 1921 7

The Bending Cross, Ray Ginger, Rutgers University

Press, 1949, p. 182 6

The Dies Committee, a Study of the Special House

Committee for the Investigation of Un-American

Activities, 1938-1944, August Raymond Ogden, FSC,

Catholic University of America Press, 1945. ae

The Labor Movement in America, Ely, p. 110.000. 9

The Labor Movement in the United States, Philip S.

Foner, p. 101, 1947 5

The Labor Movement in the United States, 1860-1895,

Norman J. Ware, 1929, p. 222 6

United States Constitution:

First, Ninth and Tenth Amendments 2, 11

Fourth and Fifth Amendments 2

IN THE

Supreme Court of the United States

OCTOBER TERM, 1949

No. 248

Joun Howarp Lawson

v.

Unrrep States oF AMERICA

No. 249

Datton TrRuMBO

Vv.

Unrrep States oF AMERICA

No. 236

Ricuarp Morrorp

Vv.

Unrrep States or AMERICA

No. 197

GrorcE MARSHALL

v.

Unrtrep States or AMERICA

No. 766

Epwarp K. Borsky, et al.

Vv.

Unitep States oF AMERICA

MOTION FOR LEAVE TO FILE BRIEF AS

AMICII CURIAE AND BRIEF

ae

Ba

2

The undersigned Trade Unions respectfully move for

leave to file a brief amicii curiae in support of the petitions

for certiorari and the application for rehearing on a peti-

tion for certiorari in the matters herein. The written con-

sent of petitioners and respondents to these applications

have been filed with the Clerk of this Court.

Statement

The petitioners in the above cases now before this Court

for its consideration were convicted of contempt of the

House Committee on Un-American Activities. The Trial

Court refused to permit the petitioners to show that the

purpose and functioning of the House Committee’s investi-

gation was to institute a blacklist based upon the exer-

cise of constitutional rights of press, speech and assembly.

The existence of such a blacklist designed to restrain the

exercise of constitutional rights violates the guarantees of

speech, press, assembly and political activity in the Bill

of Rights. Conduct on the part of a Congressional com-

mittee which so violates the most fundamental guarantees

of constitutional democracy transcends the limits which

the Constitution places upon the Congressional investiga-

tory power. The activities of a Congressional committee

directed towards such unconstitutional ends lying beyond

the scope of Congressional power should not be the basis

for a proceeding in contempt.

The petitioners in their briefs to this Court have urged

that the Committee’s utilization of Congressional power to

compel disclosure of private political opinion and associa-

tion is forbidden by the First, Fourth, Fifth, Ninth and

Tenth Amendments, and that the Statute creating the

Committee is unconstitutional on its face in that it per-

mits congressional invasion into the protected domain of

ideas, speech, press and assembly. As trade unions repre-

senting the interests of working men and women, we asso-

ciate ourselves wholeheartedly with these arguments. The

aoe

3

trade union movement depends for its very existence upon

the free, untrammelled exercise of the democratic liberties

contained within the Bill of Rights.

While the actions of the House Committee on Un-Amer-

ican Activities have caused considerable fear for the

preservation of constitutional liberties on the part of

Americans in all walks of life, as representatives of work-

ing men and women organized into trade unions, we must

call the attention of this Court to one aspect of the Com-

mittee’s functioning which seriously threatens the exist-

ence of a free and independent trade union movement.

The records in the cases now before the Court indicate

| that the House Committee on Un-American Activities has

| resurrected from the darkest recesses of our history one of

the most despised and feared weapons of industrialists

bent on destroying the constitutional rights of working

| people—the blacklist.

The record in one of the cases before this Court—that

of John Howard Lawson reveals that one of the most fun-

damental purposes of this entire phase of the Committee’s

activity was to create a blacklist of undesirable individuals

in their respective industries. Prior to the investigation,

a subcommittee of the House Committee went to Los

Angeles in the Spring of 1947 and after examining a num-

ber of motion picture producers called upon them to dis-

charge and suspend certain writers and directors. The

producers had first rejected this demand of the subcom-

mittee. Later in the summer of 1947, the Committee sent

certain investigators to Hollywood who urged the pro-

ducers to “clean out their houses of certain writers * * *

else there would be trouble in the industry from the House

Committee.” (Joint Appendix, Petition of John Howard

Lawson, #248, pp. 312-316.)

During the hearings of the House Committee, the Motion

Picture Producers Association were urged to establish a

blacklist of individuals whose supposed views and affilia-

tions were disapproved by the Committee. Following the

close of the hearing, the motion picture industry gave in

4

to the House Committee’s demand for a blacklist and 10

individuals, including two of the petitioners in the cases

now before this Court were blacklisted by the industry.

Contracts were terminated and further employment in any

branch of the industry was denied to all of them. The

Committee thereafter claimed the credit for these dis-

charges and the establishment of this blacklist. (Congres-

sional Record, Nov. 24, 1947, at p. 10890.)

I

The blacklist has been traditionally utilized to re-

strain working people from exercising constitutional

rights.

Throughout the entire course of the history of this

country, the industrial blacklist has been one of the tradi-

tional weapons utilized on every occasion to terrorize work-

ing people from exercising their constitutional rights to

organize and bargain collectively. Judge McGruder, for

the First Circuit Court of Appeals, aptly described the

significance of the use of a blacklist:

“«* ** A long experience had shown that one of the

most provocative and effective means by which em-

ployers sought to impede the organization of workers

was the blacklisting of union men, thereby denying

them opportunities for employment. See Final Re-

port of the Industrial Commission (Government

Printing Office: H. Doc. No. 380, 57th Cong., Ist Sess.,

1902), Vol. XIX, pages 892-893, 952; Encyclopedia of

the Social Sciences (1935) Vol. II, pages 578-579;

Commons and Associates, History of Labour in the

United States (1926) Vol. 1, pages 362-363, 420-422;

Sub-com. of the Senate Comm. of Education and

Labor, Preliminary Report, Sen. Rep. No. 46, 75th

Cong., Ist Sess., 1937, page 8, Daugherty, Labor Prob-

lems in American Industry (1933) pages 389-390; Pat-

terson, Special Aspects of Industry (2d ed. 1935)

pages 402-403; Cummins, The Labor Preblem in the

United States (2d ed. 1935) page 351.”

National Labor Relations Board v. Waumbec Mills,

Inc., 1940, 114 F. 2d 226.

The history of the long struggle of the American work-

ing people to exercise their constitutional rights is filled

with examples of the use of the blacklist. From the very

beginning of the development of industrialism in this coun-

try employers resorted to the blacklist to hold their workers

in subjugation. In the 1820s the Mill owners in Waltham,

Lowell and Lawrence had’ an effective blacklist system

which made it impossible for any worker to obtain employ-

ment with the new company without the approval of the

former employer.’

During the earliest struggle for a shorter work day, the

fight in the 1840s to establish a 10-hour day, the employers

answered these rudimentary efforts of the workers to

improve their working conditions with the institution of

wholesale blacklists. Workers who refused to sign con-

| tracts with the employers permitting a work day of over

10 hours were threatened that their refusal to sign would

result in their being blacklisted in the entire industry.

When the metal trades workers organized their first

| union during the Civil War years, the Association of Engi-

| neers of New York issued a secret directive establishing

a blacklist of union workers throughout the industry.* When

the brewery workers in New York in the 1870s formed a

trade union to fight for a 10-hour day and a wage of 50¢

an hour, their organizing activities were smashed through

the institution of an industry-blacklist. The members of

the union were barred from employment and many of the

1 See, The Labor Movement in the United States, Philip S. Foner,

p. 101, 1947.

2 Foner, cited supra, p. 211.

3 Foner, cited supra, p. 353.

6

leaders had to leave their home communities.‘ When the

iron and metal workers in up-state New York in the 1880s

organized to fight a wage cut of 20%, the companies in-

volved retaliated with an industry blacklist.®

One of the first major attempts of railroad workers to

organize into a national union to defend themselves against

the powerful railway industrialists was destroyed by the

institution of a national blacklist. The blacklist which

smashed the American Railway Union in the 1880s has

never been forgotten by the organized trade union move-

ment. For years after the defeat of the famous Pullman

strike, railway men who had joined the American Railway

Union were denied employment throughout the entire

country.®

The steel trust met the earliest efforts of steel workers

to organize together for their mutual protection with the

weapon of the industrial blacklist. The City Editor of the

Pittsburgh Leader testified in 1912 before the Stanley In-

vestigation Committee that he had in his possession a list

of 3,000 former employees of the Carnegie Steel Company

who were blacklisted for union activity from obtaining

work in the steel mills.?7 Similarly, the National Metal

Trades Association faced with the first efforts by workers

in this industry to utilize their constitutional rights to

organize, set up a widespread system of industrial blacklist

through a spurious employment bureau with branches in

many large cities.®

It is no coincidence that after the first World War during

the surge of union-smashing activities engaged in under

the name of the “American Plan”, the industrial blacklist

4 The Labor Movement in the United States, 1860-1895, Norman

J. Ware, 1929, p. 222.

5 Ware, cited supra, p. 340.

® The Bending Cross, Ray Ginger, Rutgers University Press, 1949,

p. 182.

7 Boycotts and the Labor Struggle, Harry W. Laidler, 1913, p. 44.

8 Laidler, cited supra, p. 47.

ears

was a principal weapon of employers bent on destroying

the constitutional rights of working people. Under this

so-called “Plan” open shop associations composed of Manu-

facturers’ groups, Boards of Trade, Chambers of Com-

merce, Bankers’ associations and many others joined to-

gether to maintain blacklists of union men and women.®

The American Bankers Association in their magazine

Industry stated openly that the purpose of this “Plan” was

to save the workers from “the shackles of organization

to their own detriment”’.?®

In the years directly following the economic crisis in

1929, employers constantly resorted to the blacklist in a

feverish attempt to stem the tide of union organization

encouraged by the harsh necessities of the times. Out of

the countless stories contained in the records and proceed-

ings before the National Labor Relations Board in the

early years of the Wagner Act, of the use of the blacklist

to terrorize workers from exercising their legal and con-

stitutional rights to self-organization the experience of the

employees of the Fruehauf Trailer Company is a vivid

example. A member of the National Labor Relations

Board stated to a Congressional Investigating Committee:

7

“T have never listened to anything more tragically

- un-American than stories of the discharged employees

of the Fruehauf Trailer Co., victims of a labor spy.

Man after man in the prime of life, of obvious character

and courage, came before us to tell of the blows that

had fallen on him for his crime of having joined a

union. Here they were—family men with wives and

children—on public relief, blacklisted from employ-

ment, so they claimed, in the City of Detroit, citizens

whose only offense was that they had ventured in the

lend of the free to organize as employees to improve

their working conditions. Their reward, as workers

® American Labor Unions, Florence Peterson, Bureau of Labor

Statistics, Department of Labor, 1945, p. 16.

10 From a statement of policy of the A.serican Bankers Associa-

tion in the magazine Industry, Jan. 1, 1921, cited in Peterson, at

p. 16.

8

who had given their best to their employer, was to be

hunted down by a hired spy like the lowest of criminals

and thereafter tossed like useless metal on the scrap

heap.” 1

The early years in the struggle to establish and maintain

a union among the mine workers are filled with the terror

of the industry-wide blacklist. Mr. John Mitchell, one of

the first officers of the United Mine Workers, testified as

follows before the Industrial Commission in hearings held

in 1899:

“The blacklist has been one of the worst weapons

organized labor has had to contend against. For in-

stance, if a miner was discharged by a coal company

for insisting upon better conditions, or trying to induce

his fellow workmen to join his labor organization, he

found it impossible to find employment in the State

where he then resided. It has always been difficult for

our organization to secure proof that this method has

been resorted to by employers. It is a well-known fact,

however, that in the State of West Virginia, if a man

dares to assert the rights guaranteed, he is deprived

of the opportunity to earn a living for himself and

family by his employment, and many times is unable

to secure employment at any other mine in the State.” ”

Before the same Commission, the President of the

Colorado Federation of Labor, testified from his own

experience as to the utilization of the blacklist:

“I know from my own experience that men are kept

from positions in all parts of the State of Colorado

because of their connection with organized labor. * * *

They (the employing class) practically have the power

11 Preliminary Hearings before the LaFollette Committee, p. 291.

Compare also cases before the National Labor Relations Board

holding blacklisting to be discrimination, violation of the NLRA:

Stewart Die Casting Corp., 14 NLRB 872;

— Vegetable Ass'n of Central Col., 15 NLRB

North American Refractories Co., 52 NLRB 1049.

12 Industrial Commission Report, Vol. 12, p. 37, April 11, 1899.

ee

9

to say that a man shall not have work; to destroy

his credit with the merchants; to destroy or make

valueless what little property he has; to separate him

from his family and make him a wanderer upon the

face of the earth.” 18

The functioning of a blacklist is simple and forthright

in its ruthlessness. It deprives a man of the opportunity

to earn a living to support himself and his family. It

conditions the exercise of the constitutional rights upon

starvation. It holds hostage a man’s wife and children.

It is a most pitiless weapon in the arsenal of reaction.

An observer of the American labor scene at the turn of

this century described its effectiveness in these terms:

“Blacklisting has the merit of being very effective.

Its edict is final; it troubles no jury; sends for no

sheriff; its machinery is purely clerical, with the

magnificent advantage of being operative wherever its

agencies exist. It has its watchdog by every door,

and woe to the man who, with its brand on his brow,

seeks work and bread in any one of its departments.” **

Another student of American labor history wrote:

“A man who for any reason, be it even whim, caprice,

or personal spite, falls into disfavor with his employer

is placed on the blacklist, and his name, at times accom-

panied by a personal description, is sent to the allied

employers all over the country. * * * The blacklist

will pursue a man for years, will drive him out of an

honest trade * * * and will follow him across the con-

tinent, and everywhere defeat his efforts to gain a

livelihood.” '5

Wherever the technique of the blacklist has come before

the courts it has been rejected as a device destructive of

13 Industrial Commission Report, Vol. 12, p. 248.

14 Woodrow, Labor Problems, pp. 288-289.

15 Ely, The Labor Movement in America, p. 110.

10

human rights and violative of constitutional protections.’*

The courts have frequently lent their power to restrain

the existence of such blacklists..17 Many states have out-

lawed the blacklist by statute.’®

The resurrection of the blacklist in any form has always

met with the unanimous disapproval of every section of

the American people. The unashamed elevation to the

Congressional level of this infamous technique for destroy-

ing constitutional rights represents an open challenge to

the entire fabric of constitutional democracy.

It is little wonder that working people organized into

trade unions regard with considerable dismay the open

attempt by a committee of Congress to reestablish the long

repudiated technique of the blacklist.

Neither Congress nor any agency of the executive arm

of the government may condition or proscribe the exercise

16 A congressional blacklist designed to exclude certain individuals

from government employment was stricken down by this Court in

U. S. v. Lovett, 328 U. S. 303; see also Cummings v. State of

Missouri, 4 Wall. 277. Similarly, blacklists in private industry have |

been repudiated by this Court. See, for example, Phelps-Dodge v.

NLRB, 313 U. S. 177; NLRB v. Wambec Mills, Inc., 1114 F. (2d)

226. Examples of State Court decisions are Cornellier v. Haverhill

Shoe Mfgrs. Ass'n, 221 Mass. 554; Hundley v. Louisville Railroad,

105 Ky. 162; Joyce v. Great Northern Railway, 100 Minn. 225;

Atkins v.W. & A. Fletcher Co., 65 N. J. Eq. 658; Willis v. Muscogee

Mfg. Co., 120 Ga. 59.

17 See, for example, Carpenters Union v. Citizens Committee, 333

Ill. 225. In that case the Court enjoined a committee of citizens

without direct interest in the industry which attempted to coerce

employers not to employ union members by threatening them with

loss of business and unfavorable publicity.

18 Ala. Code 1928, S3451; Ark. Pope’s Digest 1937, $9121;

Calif.; Labor Code 1937, S1050, 1051; Fla. Fen. Laws 1927, S6606,

7773; Ill. Smith-Hurd Ann. Stat., c. 38 S139; Iowa Code 1935,

$13253; Minn. Mason’s Stat. 1927, S10378; Mo. Revised Stat.

1929, S4255; N. Y. Penal Law S580; Wash. Rem. Rev. Stat. $2382

(5); Wis. Stat. S343, 682.

11

of the rights of speech, press or assembly.?® The institution

of a blacklist to restrain the exercise of constitutional rights,

whether it be the fundamental right of self-organization

or the exercise of the rights of speech, press and assembly,

or the exercise of the political rights embodied in the

First, Ninth and Tenth Amendments, is in itself conduct

violative of the Constitution.

When Congress following the urging of the House Com-

mittee on Un-American Activities sought to establish a

blacklist of certain individuals from obtaining employment

in the Federal government, this Court struck down this

device as a bill of attainder, violative of the Constitution.

In response to the theory of some that such a Congressional

blacklist lay beyond the reach of this Court, Mr. Justice

Black replied:

“Were this case to be not justifiable, congressional

action aimed at three named individuals which stigma-

tize their reputation and seriously impaired their

chance to earn a living, could never be challenged

in any court. Our constitution did not contemplate

such a result.”

When a committee of the Congress, equally bound by the

mandates of the Constitution, engaged in such unconstitu-

tional conduct, it is likewise essential that this Court correct

this abuse of Congressional power.

This attempt of the House Committee on Un-American

Activities to set up a widespread system of blacklisting

fundamentally threatens the constitutional rights of work-

ing people. The House Committee has on many occasions

attempted to interfere with the legitimate activities of

19 United States v. Lovett, 328 U. S. 303; Thomas v. Collins, 323

U.S. 516; Follett v. Town of McCormick, 321 U. S. 573; Martin v.

Struthers, 319 U. S. 141; Cantwell v. Connecticut, 310 U. S. 96;

Thornhill v. Alabama, 310 U. S. 88; Schneider v. New Jersey, 308

U. S. 147; Herndon v. Lowry, 301 U. S. 242; DeJonge v. Oregon,

299 U. S. 353. Fis .

12

trade unions.” This Court has long held that the right

of workers to organize and bargain collectively is a funda-

mental right protected by the Constitution. Amalgamated

Utility Workers v. Consolidated Edison, 309 U. S. 261;

NLRB v. Jones & Laughlin, 301 U. S. 1; American Steel

Foundries v. Tri-City Central Trades Council, 257 U. S.

184. The organization of workers into trade unions in-

volves the utilization of the rights of speech, press and

assembly guaranteed by the First Amendment. Thomas v.

Collins, 323, 516; Thornhill v. Alabama, 310 U.S. 88; AFL v.

Swing, 312 U. S. 321; Hague v. CIO, 301 U. S. 496. In

short, the existence of the trade unions have been recog-

nized by this Court as the primary means through which

working people utilize the First Amendment as a charter

of political democracy. Thomas v. Collins, 323 U. S. 516;

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

Any attempt to restrict or suppress this fnudamental

right of working people to organize and bargain collectively

violates the Constitution. Thomas v. Collins, 323 U.S. 516;

Thornhill v. Alabama, 310 U. S. 88. The institution of a

blacklist is one of the most severe restraints upon the

exercise of the constitutional right of self-organization.

There can be no more serious deterrent to the utilization

of constitutional rights than the deprivation of the right

of a working man to earn a living.

The very existence of constitutional liberties insofar as

they relate to the rights of working people depend upon

the repudiation by this Court of the institution of the

blacklist in any form whatsoever. For this reason the

20 See, for example, The Dies Committee, a Study of the Special

House Committee for the Investigation of Un-American Activities,

1938-1944, August Raymond Ogden, FSC, Catholic University of

America Press, 1945; Ogden’s exhaustive study of the functioning

of the House Committee on Un-American Activities reveals that

the House Committee actively intervened on the side of employers

in almost every major industrial dispute during the period of its

existence. See, The Dies Committee, cited supra, pp. 53, 55, 75,

183, 239, 243.

13

undersigned trade unions, as associations of working men

and women, urge this Court to grant the petitions herein.

Respectfully submitted,

American Communications Association, CIO,

Je 1ctor Rasrnowitz, General Counsel,

76 Beaver Street,

New York 5, N. Y.

Foon, Topacco, AGRICULTURAL AND ALLIED

Workers or America, CIO,

J NatHan Wirt, General Counsel,

9 East 40th Street,

New York, N. Y.

INTERNATIONAL Fur AND LEATHER WORKERS

User, C10,

Natuan Wirt, General Counsel,

9 East 40th Street,

New York, N. Y.

INTERNATIONAL Union OF Mine, MILL anp

Senter Workers, CIO,

NatHan Wirt, General Counsel,

9 East 40th Street,

New York, N. Y.

Unitep Exectricat, Rapio anp MAcHINE

Workers or America, CIO,

) Avip Scripner, General Counsel,

Ne” 11 East 51st Street,

New York 22, N. Y.

Unitep Furnttur&e™ or America, CIO,

Wernstock & Tauser, Ganeral Counsel,

_...150-Nassau Street,

New York, N. Y.

Unitep OFFICE AND PROFESSIONAL WORKERS OF

America, CIO,

See B. Bouprn, General Counsel,

76 Beaver Street,

New York 5, N. Y.

Unirep Pusiic Workuns or America, CIO

~ Natuan Wirt,\General Counsel,

40th Street,

New York, N. Y.