Braden v. United States

PETITIONER:Braden
RESPONDENT:United States
LOCATION:John H. Kerr Dam and Reservoir

DOCKET NO.: 54
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 365 US 431 (1961)
ARGUED: Nov 17, 1960
DECIDED: Feb 27, 1961

Facts of the case

Question

Audio Transcription for Oral Argument – November 17, 1960 in Braden v. United States

Earl Warren:

Number 54, Carl Braden, Petitioner, versus the United States.

Mr. Boudin.

Leonard B. Boudin:

May it please the Court.

The petitioner, Carl Braden was convicted of contempt of Congress under 2 U.S.C. 192 as a result of his refusal to answer certain questions put to him in Atlanta, Georgia on July 30th, 1958 by the House Committee on Un-American Activities.

The questions are set forth on page 3 of the petitioner’s brief and in pages 3 to 5 of the record on appeal.

Since there is some ambiguity in the questions at least as they appear, I shall, of course, have to explain something of the context which they were put.

The petitioner is and was one of two field secretaries, the other being his wife, of the Southern Conference Educational Fund, an organization interested in furthering the cause of racial integration through education.

The President is Mr. Aubrey Williams, who is the Director of the National Youth Administration under the late President Roosevelt.

The petitioner has been active even before that employment in the field of racial integration, having and — was indicted in Kentucky under a state law for sedition, as a result of having aided a Negro to purchase a house in a white community.

The sedition indictment and conviction were eventually overruled as a result of this Court’s decision in Pennsylvania against Nelson, which played a part in petitioner’s hearing before the House Committee.

On May 21, 1958, the House Committee passed a resolution which appeared on page 137 of the record, directing that hearings to be held in Atlanta, Georgia on three subjects.

The first is what it called, Communist organization and infiltration in the textile and other basic industries located in the South.

The Second is Communist propaganda activities in the South and the third, the entry and dissemination within the United States, of foreign Communist Party propaganda.

And they say at the beginning, that while the Government’s brief in opposing certiorari states on page 2, we think is the fact that the actual subject matter of these hearings was, “Communist infiltration of Southern industry.”

I emphasize that word because there is no suggestion that Mr. Braden ever had any connection with the textile or other industry.

Actually, the Government takes the position, that all three of the subjects of the current investigation.

Now, Your Honors will recall, I said May 22 was the date of this Committee resolution, May 21.

Between May 21, 1958 and July 23, 1958, when Mr. Braden was served with a subpoena, directing him to appear on the second day of the hearing on July 30th, he continued to be engaged in his activities on behalf of the Southern Conference Educational Fund.

And he did two other things which were the subject to the hearings.

First, he played a part, the Committee believed he paid — played a major part, in a letter sent on or delivered but certainly bearing the date of July 22, 1958 to the members of Congress and signed by 200 Negro leaders in the South, asking the Congress not to commit the House Committee to carryout its contended visit to Atlanta, Georgia, on the theory that the Committee would — that there would be a confusion between Un-American Activities and what went out, it were regarded by many people in the South with Un-American Activities, namely, furthering racial integration.

That was July 22, which happens to be the date of the subpoena that was issued to Mr. Braden and served on him on July 23.

In addition, there appears in the record here, a letter, I should say, by the way, that the minister — the Negro leader’s letter is at page 98 of the record, but there appears in addition, what I will refer to as — well, the sedition letter, though it’s very far from being seditious.

It appears on 107 and 108 of the record and also at page 116 of the record and that is a letter which Mr. Braden and his wife, on the letterhead of this — of the Southern Conference Educational Fund, wrote to the public, to their fellow citizens asking them to oppose three bills then pending in Congress, which would have had the effect of overturning the decision of this Court in Pennsylvania against Nelson.

That by the way is the very letter which is the subject of Count 5, of the indictment.

Mr. Braden appeared at the congressional committee hearing on the second day in Atlanta.

He had been served incidentally, while vacationing at the seashore home of Mr. Harvey O’Connor, the Chairman of the Emergency Civil Liberties Committee, a committee directed principally towards the vindication of civil liberties, a contrary distinction of Southern Conference was interested in the civil rights, that distinction can be made.

Mr. O’Connor is a well-known biographer of industrial leaders principally and headed by then, Mr. Braden and its entire family to spend their time in Little Compton, Rhode Island, not Newport but near Newport.

I mention that because Your Honors will see that two other counts referred to the Emergency Civil Liberties Committee.

When Mr. Braden appeared on the second day, he was interrogated by Mr. Arens, the counsel to the House of Un-American Activities Committee, on this subject of the letter which had been sent by the Negro leaders.

The interrogation appears at 97 of the record and includes an attack upon a Negro leaders by Congressman Jackson, who first charged to that point that they were, were practically Communists and later on, at the end of the record, after some further thought, said, perhaps they were only dukes and gave them a chance to exculpate themselves by writing to the Committee and saying that they really didn’t know what they were doing, Your Honors can see that.

Leonard B. Boudin:

Then Mr. Arens proceeded to examine Mr. Braden with respect to the matters which are set forth in the indictment because the item with respect to the Negro leaders is not up here in the indictment, although Mr. Braden refused to answer that, as well as the other questions.

Before I come to the question, let me say, that the refusal to answer these six questions set forth in the indictment was based explicitly upon the First Amendment and explicitly, upon this Court’s decision in Watkins and in Sweezy and other cases, that the issue of pertinency was raised by Mr. Braden explicitly, a lack of legislative purpose, the vagueness of the Committee’s mandate, all of the textures that could be raised, were raised at that point.

Your Honors will recall that this occurred after the Watkins decision in 1957 and before the Barenblatt decision was therefore, no occasion from Mr. — from Mr. Braden to mention Barenblatt would it take that into consideration.

Now, Mr. Arens in the course of the extended colloquy which appears between 89 and 110 of the record, charged Mr. Braden with respect to this letter which is referred to in Count 5, a stimulating political pressure against security as if a letter to ones fellow citizens, which is reproduced in the record, should be subject to criticism and also said that he thought that they wanted information concerning the Southern Conference Educational Fund because they might want to cite, C.I.T.E that organization as a Communist front or a subversive organization as they referred to the Committee.

Now, I come down to the counts in the indictment.

The first counts, 1 and 2, appearing on page 3, “Did you participate in a meeting here at that time and who solicited the quarters to be made available to the Southern Conference Educational Fund, related to a meeting, only secret ones, so far as the record shows, of the executive board of the Southern Conference Educational Fund headed by its officers at the American Red Cross building in Atlanta, Georgia?”

And while the record seems to indicate that Mr. Braden did participate from further cross-examination of him, he declined to answer these two questions for the reasons stated.

The next two questions “Are you connected with the Emergency Civil Liberties Committee and did you and Harvey O’Connor in the course of your conference there in Rhode Island, developed plans and strategies, somewhat frightening phrase, outlining work schedules for the Emergency Civil Liberties Committee?”

I suspect and there’s nothing in the record to indicate any connection between Mr. Braden and the Emergency Civil Liberties Committee, except as being the guest of a more well-to-do host, who happened to have a seashore home, I suspect that if the marshal had not found Mr. Braden at the home of Mr. O’Connor, these questions were never have been asked, but there is no connection between Mr. Braden and Mr. O’Connor or the Emergency Civil Liberties Committee.

I came to the last question first because I want to come to — except, being the most interesting.

I would just like to ask you whether or not, you being a resident of Louisville, Kentucky, had anything to do there with the Southern Newsletter?

Now, oddly enough, there is nothing in this record, even the hearing which Mr. Braden appeared or in a trial to indicate what the — the Southern Newsletter is.

Other witnesses testified generally on the subject and it appears to be a periodical devoted furthering the cause integration.

Although Mr. Braden is not the editor of that but of another paper, which he refers to in the record and all that Mr. Arens could say on the trial is that he thinks that the Southern Newsletter sort of — some sort of a pamphlet that you fold up.

This is all the content with respect to this putatively seditious document.

I should add also that at the course of the hearings at which Mr. Braden appeared on July 30th, and on the course of the trial, there was not a single word of testimony.

I mean testimony, I’m not talking about hearsay or opinions as Mr. Arens gave a great deal of that and it was characterized by the court which accepted it as merely hearsay and is not proof of facts.

There is no — no evidence in this record at all that the Southern Conference or the Emergency Civil Liberties Committee or the Southern Newsletter are Communist organizations or periodical in the last case or that Mr. O’Connor or that Mr. Braden is or was, a member of the Communist Party.

I’m not suggesting now that I would have a different view as to the rights of Mr. Braden, bad in such evidence.

I don’t have to meet that issue in this case.

Then came a trial, first it was a citation, there was in indictment and a trial.

Then at the trial, Mr. Arens testified again.

I mentioned before that he stated it was the Committee’s understanding that these people were Communists.

It was the Committee’s information that they were, in those special cases and he repeated his interest in citing Emergency Civil Liberties Committee.

He described the petition of the Negro ministers as an attempt to preclude, I’m referring now to page 29 of the record, preclude committee and soften committee hearings as no one appealed to the statement of the House and the members House, was again subject to criticism and referred to generally, on page 29 of the record, and this is Count 5 of course, at least one of the letters — one of the letters, with a letter signed by Mr. Braden and another person, his wife, I say, urging congressional action of some kind.

And of course, this was a subject of count 5, which says, “Were you a member of the Communist Party,” the instant, Your Honors aren’t here to hear the dramatic inflection of the question, the instant that you affixed your signature to that letter.

This was not a — a general inquiry of the Communist Party, the inquiry had been contained in the letter and the effort was made to criticize the writing of a letter or to undercut its appeal at — on the theory that perhaps, Mr. Braden at that instant, which is also that the (Inaudible) are concerned about that are members of the Communist Party.

Now, we come down to our argument.

First, while taking the position as we have in the briefs that we do not — or as differentially concur in this Court’s decision of the Barenblatt case.

We do not feel that that issue has to be met in this case, because neither the rationale of Barenblatt nor the facts in that case, are the same as the rationale which we think, controls this case and the facts in this case.

Leonard B. Boudin:

Let me state in a few lines that why we feel that to be the case.

In Barenblatt, this Court held that an inquiry into Barenblatt’s membership better known into the Communist Party — in a Communist Party, could be made notwithstanding what was recognized in the majority opinion, of course, in the other opinion, as an intrusion into the First Amendment area.

The theory — theory on which the right to ask was held to outweigh the right to refuse, was the theory of what it called self-defense of the Government, citing or paraphrasing Dennis, namely the right of the Government to investigate violent overthrow of the Government.

Now, the Court held that that Communist Party was by its tenants, so aligned to the doctrine of the overthrow the Government that it was proper to substitute the words Communist Party for the words, those who want to overthrow the Government.

And therefore, that this intrusion was permissible.

Now, of course, this Court recognized in Barenblatt not only by its devotion, its analysis of the Communist Party, but by the questions which it did not decide, which Your Honors will recall, namely, other peoples membership in the Communist Party and finally Barenblatt’s connection with the art sciences and professions group, recognized that it was dealing with a group which it regarded and as sui generic a special dangerous group and in Mr. Justice Frankfurter’s opinion in — in Sweezy, this point is made that there is a special status to the Communist Party — of the Communist Party.

The Court in making its decision in Barenblatt, relied upon a combination of I think what we can call, judicial notice based upon prior trials of Dennis etcetera and based upon the variety of legislation in which Congress perhaps, violating the principles against the (Inaudible) perhaps not has made findings with respect to the Communist Party.

Now, in the present case as I’ve indicated, we are not dealing with the Communist Party.

He only mentioned that the Communist Party is in count 5, which I think for the reason which I will indicate, as a weakest count for the Government.

I’m rather pleased that the Government thinks, is the strongest count here.

All of these others deal with organizations, which so far as this record is concerned, have been devoting themselves to good causes.

And they say the Emergency Civil Liberties Committee, a sponsor to at least three cases in this Court, I think that its principal function (Inaudible) against Casey (Inaudible) and Abramowitz against Brucker and no one could suggest dysfunctioning of those cases, bought it within the ambit of Barenblatt.

Now, I say again that there was not a word in the record of a single witness, there was a testimony by the way in Barenblatt on this subject, a single witness that these people were members of the Communist Party, or that the organizations were subversive organizations of any kind.

And we say that we do not here, have what was called in Sweezy, compelling reasons, what was called in Kelly the same, what was called in Bates cogent reasons, what was called in N.A.A.C.P. against Alabama controlling the substantial reasons for overriding what are recognized to be First Amendment rights that we were dealing in some of these cases with — with the recognition that Communist Party within the area of the First Amendment right to be overrule, surely, that will apply here in the organizations that I am discussing.

Now, I turn specifically to count 5 because there we regard, it has the most dangerous argument that can be made by a Government because count 5 involves an appeal for one’s fellow citizen to protest against pending legislation.

Well, this is a very far cry, it hardly needs to be argued, very far cry from the violent overthrow the Government that in one of the earliest cases as Second Circuit indicated referring to the judgment can take of course was within the permissible ambit of this vague or what we thought was vague language in House Resolution 5 and its predecessors.

It’s certainly a far cry from the violent overthrow the Government discussed here.

I —

Potter Stewart:

I — I just saw it and I try to understand it.

The — the letter referred to in the question covered by count 5 appears on page 107 of the record?

Leonard B. Boudin:

That is correct sir.

Potter Stewart:

Thank you.

Leonard B. Boudin:

And I may say Mr. Justice Stewart that it is interesting that not only does it appear there but the Court of Appeals for the Fifth Circuit.

Apparently, I thought it was sufficiently important to reprint entirely.

I — I was amazed by that.

Hugo L. Black:

Apparently thought what?

Leonard B. Boudin:

I thought it was important enough, critical enough to the conviction here of the defendant or the offender to the conviction to reproduce the letter itself on page 116 of the record.

And, when one bears in mind that not only the rationale of Barenblatt and of this overwriting of First Amendment, but more affirmatively, the meaning of the right of petition, a right which I think really is antecedent to the right of freedom of speech in the Anglo-Saxon world, a right which appears in Magna Carta in the petition of right, one is rather surprised at the emphasis placed by the court below and by the Government on this exercise of the right to petition.

I would have said that the Government should welcome even the use by communist of the right to petition as against the imputed desire to overthrow the Government by force and violence.

Now, when I read the Government’s brief and I should like to give Your Honors one or two quotations from its reference.

Leonard B. Boudin:

I’m again rather surprised as the emphasis made on count 5.

At page 33 of the Government’s brief in this case, it refers to spreading Party propaganda to petitions to Congress.

Well, it is suggested that the Congress will be enticed into membership of the Communist Party and of course, when we examine the petition itself, two petitions are involved here.

The Negro ministers, Negro leaders and Mr. and Mrs. Braden, how can that possibly be considered communist propaganda?

Page 44, the Government says, the Communists were circulating petitions in the South concerning legislative activity, it refers to the Pennsylvania against Nelson bills.

Surely, that is permissible and that need a kind of activity that we want.

Then a reference is made later on, an effort to petition Congress with the Communist infiltration and propaganda activity on page 53 and on 54, the Party efforts to pressure or influence Congress act as the security measures.

When one places these remarks in the Government’s brief.

Again, as what Mr. Justice Brandeis has said in Gilbert against Minnesota in dissenting — in his concurring opinion in Whitney against California, it is impossible to reconcile the reliance by Mr. Justice Brandeis upon an active political force in the community actively engaged in playing the part of the democratic process.

And what is really the most undemocratic, the most un-American I would respectfully suggest — suggestion that petition should not be permitted or that they should be — I think they should be dissuaded sanctions to be imposed upon the petitioner by the investigation of their political affiliations.

There is of course a massive history and if time permitted and if I have well learning, I should probably indicate it to the Court that there are few things that I came across recently that’s quite interesting.

One was an early sedition case, an early case against William (Inaudible) if Your Honors will recall 1798 would be added to the Philadelphia aurora and he was charged — I may say he was acquitted in 30 minutes, he was charge with being evilly disposed because he willfully and maliciously stirred up a seditious riot (Inaudible) by attempting to obtain signatures to a petition against the alien law.

And Your Honors will recall at John Quincy Adams as a Congressman in 1837 where he had a very vigorous fight in the Congress over the question none of which he could ask people whether they were members of any organization but whether the Congress should not table or consider petitions which were filed with it.

He wanted them to consider it and he said, and describe that interesting, he said it very doubtfully, the next step will be to inquire — it’s the political belief of petitioners.

For a quite number of years from 1837 to date before the Congress decided to do that or a Committee decided to do that.

Now, I turn to my second point but I want to leave enough time for Mr. Coe, my distinguished colleague here to argue, I think in the second point which is was there a legislative purpose in this investigation in Atlanta and specifically with respect to our client, Mr. Braden, there is considerable doubt on our mind as to whether the investigation in Atlanta at all had a legislative purpose for anybody because the principal witnesses who testified there, one on this colonization of the textile industry, Mr. Penia, had given exactly the same testimony in Boston in March and he named exactly the same people who had worked under his direction in the textile industry.

Therefore, I can’t quite say the purpose of the hearing in Atlanta, Georgia except, a repetition of headlines in the press.

And Mr. Fishman, the collector of — Deputy Collector of Customs — Director of Customs, testified as to the importation of foreign propaganda, exactly what he has testified to between 7 and 12 times in the United States for that and several times after.

I do not have to sustain the burden, I’m sure of persuading the Court that the entire hearing in Atlanta had no legislative objective but that of exposure, etcetera.

If I can limit myself to Mr. Braden, in Mr. Braden’s case, we say that there are four basic non-legislative purposes of the interrogation.

The first is that this is an attempt despite full critics of the Committee.

Not only the interrogation here, but Your Honor will see the 1958 Annual Report of the Committee which we have quoted, “In referring to the Atlanta cases of Mr. Wilkinson and Mr. Braden, describes them in connection with the Emergency Civil Liberties Committee and that Committee’s criticism of the House of Un-American Activities Committee.”

But I failed to indicate Your Honors that there is one thing the Emergency Civil Liberties Committee has done besides sponsoring cases in this Court, it has led an obviously ineffectual campaign against the House Committee on Un-American Activities, by asking Congressmen to oppose it not to — to a continuous its existence.

I don’t think that the failure is necessarily a ground for a private conviction of Mr. Braden.

But, not only was Mr. Braden subpoenaed here, but Mr. Wilkinson in the next case, who appeared in Atlanta, Georgia and who is the subject to the most interesting admission by Committee counsel I think, namely if you had not appeared here in Atlanta, Georgia, said Mr. Arens and Mr. Wilkinson, we would to oppose the Committee, we would never have subpoenaed you and the Committee couples Braden and Wilkinson together.

And I may say that Mr. O’Connor did not escape either, because if he was about to address a public meeting (Inaudible) critical of the Committee, which is holding hearing there, he was subpoenaed and has been indicted for failure to appear.

We have here three critics of the Committee, thus far subpoenaed and we have the Committee’s attacks upon the Emergency Civil Liberties Committee, quite vigorous and perhaps understandable if not justifiable, since we have thought that the people were sovereign rather than the Committees, but there’s a difference between the Committee putting out of publication, which one can’t enjoin this distribution of publication of and subpoenaing a witness and compelling him to testify because he is a critic.

Now, the second objection, oh, I — I should tell Your Honors one thing and that goes back to the Wilkinson brief if Your Honors do not have that brief before you, I assume at the moment, because it’s the Government’s theory on why it has the right to subpoena critics of the Committee.

A — I won’t even call it a radical, I would call it a violent extension of Barenblatt.

In the Wilkinson brief, the Government says at page 53 and 54, the reason why it has to — it has a right to examine Braden and other critics is because this Committee constantly has before it, the issues whether it should be abolished, continue present course or change or expand its activities.

Leonard B. Boudin:

And therefore, it has a right to call a man, make him testify because it wants information from him as to whether it should expand it.

Applying for the present case, the Committee would then say, we call Mr. Braden and Mr. Wilkinson before us, because we wanted to know whether we should abolish ourselves.

And the reason we asked them whether or not, they were members of the Communist Party, was because we wanted to know whether it discount their recommendations to us that we be abolished.

I think the Government’s statement at page 53 and 54 in Wilkinson, I wish it had been in a Braden brief.

I cast Your Honors, will apply the admission from one to the other, is the most valuable admission and of course, I wish it was really true but — but we all know the Committee did not call Mr. Braden and Mr. Wilkinson because it wanted to evaluate their evaluation of the Committee’s progress.

Now, the third — the third objection we find here, you can say, the second, is the theory of citation.

The desire to get information from Braden and from these other people, as to whether organization, should be cited as Communist organizations.

And we have a considerable doubt and this Court will resolve that doubt possibly at the SACB case, which I have no connection with, as to whether any branch of the Government, even one created by a statute, having quasi-judicial functions, subject to judicial review as a history of that case has shown, whether any governmental agency has the power to condemn an organization as subversive.

But, assuming for the moment that somewhere there is a branch of the Government that can exercise what is really a judicial function, if it is any function, surely that isn’t a function of a congressional committee to cite and to declare subversive.

Again, we say we can’t stop the Committee in doing so if it publishes a — a leaflet.

(Inaudible) Federation against Eastland, which is cited in our brief, indicates that we can’t do that, but — and there is considerable doubt as to whether in the interest of freedom of speech of Congress, we should do that.

Although I was involved in the case, I have some reservations about whether it was proper, but to compel people to come forward and make them testify so that a judgment of a congressional committee or any committee, should come down very questionable.

Now, as far as the third point, the investigation of political pressure; in short, the Government argues that it has right to determine whether the opposition of Mr. and Mrs. Braden to the security bills pending on the Congress, in our position that many fine people adhere to and that was successful in opposing the bills.

But they have a right to determine what this political pressure is.

Now, again we say, this is a — a complete revolution.

It is one thing to examine.

Overthrow the Government, is one thing to examine things within the formula of force and violence, but to examine political pressure openly made, this we suggest is again not a legislative function.

Felix Frankfurter:

Do we have to decide any of these questions in this case?

Leonard B. Boudin:

Well, I do not know, Your Honor.

I think — I think, Your Honor — I think —

Felix Frankfurter:

If you don’t know, who would know?

Leonard B. Boudin:

I think, Your Honor is — it has to decide whether or not, the Committee had a legislative purpose or whether the questions are of the Barenblatt type or whether they fall within the character that I’ve indicated.

Felix Frankfurter:

In the Court of Appeals merely arrested the afferents on the propriety or the legality of that in one question, your conflict isn’t that true?

Leonard B. Boudin:

I am a little puzzled — Your Honor, I’m a little puzzled as to whether the Court of Appeals relying upon one question, or four.

Felix Frankfurter:

But they said so that the —

Leonard B. Boudin:

Well, that the opinion is somewhat ambiguous.

I’ve looked at it again.

Your Honor will — is referring to the opinion at page 112 and there, the Court at page 118 discusses the Southern Conference, apparently Educational Fund.

You see — Your Honor, the Court doesn’t refer to particular counts.

Felix Frankfurter:

They do.

Felix Frankfurter:

They’ve discussed count 3 and on page 119 they say, we need not make any analysis of the pertinency of the questions upon which other counts, it took me some time to discover what — what the exclusion was which other counts of the indictment were based.

Leonard B. Boudin:

Well —

Felix Frankfurter:

Stating of the appellant’s conviction on any one of the counts would require an affirmance of concerns that were imposed and it is that count third, beginning with the bottom page 115 —

Leonard B. Boudin:

Well —

Felix Frankfurter:

Is that true?

Leonard B. Boudin:

They do discuss count 3 and I was going to indicate Your Honor that they do not discuss count 5 at all, the question of the signature to the letter, but either — or the Southern Newsletter, but there is some —

Felix Frankfurter:

They put all the other (Inaudible) as I read his opinion.

Leonard B. Boudin:

Well, I think the opinion is ambiguous.

I — I must say that fairly in fairness to the Government, to the court below.

I think it is possible that the opinion also refers to questions concerning the Southern Conference Educational Fund, if Your Honor will see the paragraph directly above that.

But I do not know.

It’s an ambiguous statement.

Felix Frankfurter:

While you make — While you make of the explicit statement, we need not make any analysis of the pertinency of the questions upon which other counts to the indictment were based.

Leonard B. Boudin:

Well, but the question is whether —

Felix Frankfurter:

That implies that they were merely concerned with some counts or counts that (Inaudible)

Leonard B. Boudin:

Exactly.

I —

Felix Frankfurter:

And from page 159, it is such that one count, the third count and one question.

Leonard B. Boudin:

Well, the — my only hesitation about exceeding to what is of course helpful to the petitioner here, is the ambiguity of that paragraph on page 118.

But I want to leave it at that.

I trust Your — I hope Your Honors will come to that conclusion, but I can’t say that it is fourth at the moment as I analyze it.

Felix Frankfurter:

It’s very important what you did.

Leonard B. Boudin:

Yes, but I — that’s the problem on the Court of Appeals.

Now, finally, I want to indicate to Your Honors that the fourth objective, which is called the investigation of the motives of people fighting integration, is again a very harmful doctrine and that we suggest is a non-legislative one.

Now, in the few minutes remaining, because I’ve have extended myself in this very point, at least we made Mr. Chief Justice, I want to indicate two other basic objections that we have and state them somewhat, some reforms such as of course, to the Court.

The first relates to the vagueness of the resolution creating that committee.

And we are of course well aware of what this Court said in Barenblatt.

We read the Court’s language in Barenblatt to mean that based upon the legislative history, not the language necessarily of House Resolution 5 and its predecessor, a legislative history knowledge of which is imputed to the witness, Barenblatt, he should’ve known that membership on the Communist Party and Communist Party activities as such, were subject to investigation by the Congress.

And we suggest that whatever may have been the rule in Barenblatt, this witness could not have known by reading House Resolution 5 and we do not think, by reading the legislative history that questions concerning his motives, questions concerning petitions that Congress were within the ambit of House Resolution 5 and if so, then we say that the statute’s resolution was vague.

Now, finally, I come down to our reliance upon the Watkins decision.

Leonard B. Boudin:

And what we say there is —

Felix Frankfurter:

May I ask you whether this resolution is any different than the resolution that we’ve been considering?

Leonard B. Boudin:

— it is exactly the same, Your Honor.

Felix Frankfurter:

Alright.

Leonard B. Boudin:

Finally, I come down to our last basic point which is the reliance of the witness explicitly upon this Court’s opinion in Watkins case.

Now, Your Honors again, will recall that this occurred after Watkins and before Barenblatt.

And we suggest here that where there is the problem of statutory construction, whether we had to impute the word, willfully, to the word as such vague ambiguity itself, into the statute to U.S.C. 192 or whether we had to consider this a matter of due process of essential failed fairness, I think that the latter more than the former, that it is unfair and so unfair as to be a denial of due process to take a witness, particularly confronted with questions like this, take a witness, following Watkins, who has read Watkins and to believe that he could not unreasonably have said to himself, I thus — this resolution is so vague, it in — inviolate First Amendment rights that I do not have to obey this — answer these questions.

Now, we are told by the Government that Sinclair says that a man takes a risk, but of course, Sinclair with the reliance upon a man’s lawyer, he takes a direct risk when he hires a lawyer to begin with and this is very different from following the opinion — that opinion described by five members of this Court, toward opinion by even three members of the Court and, we think that regardless of whether Watkins has been modified or whether Barenblatt can be reconciled with it, whether the two are consistent, it was not unreasonable, not unreasonable for Mr. Braden to rely upon that decision.

When one considers the — the cloud as follows, that cloud is followed in a dispute, among judges, Judge Youngdowd decided that Barenblatt meant what Mr. Braden says in meant, in United States against Peck and indeed, many members of the Congress — House Committee thought so.

They were fighting for a resolution to give the Committee new authority, the explicit one.

They never pushed it through.

And Congressman Shearer was an active member, a very articulate member of this Committee, said in the course of the hearing which I have hear on investigation of Communist penetration facilities, when somebody mentioned United States against Peck, he said, I will have to take the Fifth Amendment before commenting on that decision, this is Congressman Shearer.

The – there was a very great looseness in discussing constitutional rights by this Committee and then he says, but Judge Youngdowd in that opinion said, this witness here today, if he didn’t want to cooperate and do the fine job that he is for the Government, consider here and refused that tell us who were the Party, whether at the time he was member of the Party.

He can evoke the First Amendment or refuse to tell it.

That is what Judge Youngdowd said in that opinion.

Of course, he is following the Supreme Court.

Well, I suggest that Mr. Braden’s reliance upon the opinion in this Court, at least, means that essential fairness should not call his conviction.

And I call the Court’s attention to its opinion in Raleigh, where he talks about conflicting demands and we think that the opinion of this Court in Watkins, which was a demand which conflicted with at least what the Committee believed was a mandate of the statute.

And of course, Your Honors will recall the two Murdock cases, which we discussed in our brief, where Murdock was acquitted despite the fact that he had improperly pleaded the Fifth Amendment before a federal agency, relying upon the danger of incrimination before a state, because the Court said at 290 U.S., until we had spoken in 284 U.S., the witness didn’t know what his rights were under the Fifth Amendment.

Well, we say, he didn’t know in this case, unless this Court were to decide to reverse Barenblatt, which of course, we hope it will do, in the proper case.

This witness knew no more than Murdock did.

And they say that what I am now suggesting is not to be taken as an indication that we are relying exclusively upon Murdock — upon the — the Watkins decision my — the whole burden thrust of my argument is then that this is a very different case from a Barenblatt.

And finally in the last minute, let me again suggest to Your Honors, most respectfully, we have had a considerable difficulty in determining whether to make a direct and unambiguous attack.

Most differentially of course, upon the Barenblatt decision.

And, we have indicated why we think that decision was an error and why the entire legislative history of this Committee has been directed toward exposure.

But we have — have to say to the members of bar before this Court, that we think, this is a very different case in Barenblatt and while — to the extent that advocates can, we express our regret at the Barenblatt decision.

We feel very strongly that this case would be a radical extension of the Barenblatt doctrine going to the heart of the right of petition, the heart of the democratic process and would cover organizations never contemplated by the principle of the violent overthrow of the Government by force or violence.

I thank, Your Honors.

Mr. Coe will handle the rebuttal I should’ve told you that.

Earl Warren:

Mr. Yeagley.

J. Walter Yeagley:

Mr. Chief Justice and may it please the Court.

Whereas, it has been the interest and objective of counsel for petitioner to seek to tear down the validity and the purpose of the committee hearings here in question, it is the purpose of the Government of course, to establish the good faith as shown by the record and the validity of those hearings and in particular, the validity of at least one count of the indictment.

Well, —

Felix Frankfurter:

Could you suppose of that at the beginning, what the Government’s view is — you say, at least one count, anyone, if it to anyone, then it must consider all five or other five counts, six counts?

J. Walter Yeagley:

— There are five —

Felix Frankfurter:

If you say anyone, then we — when do we must consider all five.

If you say a particular one, then one may concentrate on and see if that satisfies him.

J. Walter Yeagley:

As in that —

Felix Frankfurter:

What is the view of the Government?

J. Walter Yeagley:

Mr. Justice Frankfurter, it is our view that count 5, is clearly proper, valid and sustainable.

That the question in count 5 as to whether or not, this man was a member of the Communist Party at the time he wrote up a certain letter, is almost the same question that — that was had in Barenblatt, as to whether or not, Barenblatt was a member of the Haldane Club of the Communist Party at the time he attended the University of Michigan.

Now, to — we’re not abandoning the other counts, by any means.

Potter Stewart:

But count 5 was not — was not relied on by the Court of Appeals?

J. Walter Yeagley:

The Court of Appeals did not treat with count 5, very much at all.

Potter Stewart:

They were not discussed at all?

J. Walter Yeagley:

That’s right.

And I am — I’m clarifying that —

William J. Brennan, Jr.:

Do you believe — on what count do you think the Court of Appeals rested its (Inaudible)

J. Walter Yeagley:

I think it —

William J. Brennan, Jr.:

On what counts?

J. Walter Yeagley:

One and three.

I believe that the counts that the Court of Appeals discussed and principally was (Inaudible)

William J. Brennan, Jr.:

One and three?

J. Walter Yeagley:

That’s my recollection.

William J. Brennan, Jr.:

You don’t think, also four, being four of them.

J. Walter Yeagley:

I may have — I — I’m not going to insist on my own statement there because I — I maybe wrong in the one and three.

William J. Brennan, Jr.:

In any event, towards —

J. Walter Yeagley:

My —

William J. Brennan, Jr.:

It was not five by which the Government —

J. Walter Yeagley:

It was not five.

J. Walter Yeagley:

Our brief here in the Supreme Court is largely on five and my argument knew the Barenblatt case and the question in Barenblatt, I would like to devote to count 5 principally, but I am — do not intend of enemy of the counts — in behalf of the Government.

One reason —

Earl Warren:

May I — may I just refer to the question that — that Justice Frankfurter propounded to counsel, do you consider — you don’t consider that everything is out of this case except, count 3 as a — as Justice Frankfurter’s reading of the decision implied.

J. Walter Yeagley:

Well, I don’t —

Felix Frankfurter:

If I may briefly —

J. Walter Yeagley:

Know that I understood his question, I —

Felix Frankfurter:

That was my view.

J. Walter Yeagley:

— but I can speak my own position is that we are not abandoning any of the counts.

I personally would rely principally on count 5 in this argument, as the brief has emphasized.

Earl Warren:

Well of course, if you don’t rely on just one count —

J. Walter Yeagley:

Yes.

Earl Warren:

That counsel on the other side shouldn’t have to — to devote his attention to just one count either, should he?

J. Walter Yeagley:

Right, oh well, he would have to — he was — his client was convicted on all five counts and he would have the burden of meeting that.

Earl Warren:

Yes.

Felix Frankfurter:

But then I’d like to ask you one other question at the threshold, if you mainly rely on five and if the Court of Appeals didn’t even consider five, then there arises in my mind, the question of whether the Court of Appeals shouldn’t be — shouldn’t be asked to consider five rather than have us consider it in the first instance(Inaudible).

If — if what you regard as the strongest count, such as the infiltration as was just said, be what you regard is the strongest count and that has been considered by the Court of Appeals and that Court had reversed — as in — as unsupportable that count, then presumably, they would’ve found the other counts in support of it.

And if they had reversed and we are confronted with the contingency, whether it’s the Government that sought to appeal which is might not have done, we would ever granted certiorari and therefore, the reversal would have been — from judgment to the Court of Appeals rather than an affirmance.

J. Walter Yeagley:

Well, Mr. —

Felix Frankfurter:

I’m not suggesting, this thing is — is the answer. I want to know what the Government’s position is.

J. Walter Yeagley:

Mr. Justice Frankfurter —

Felix Frankfurter:

(Inaudible) because that terms on even every count in this state is some blend as is explained from the argument is some blend of judgment on what might be called facts of the inferences or atmosphere, the case is full of atmosphere.

J. Walter Yeagley:

I — Mr. Justice Frankfurter, I don’t recall the language of the Court of Appeals in its opinion sufficiently to make a reference.

But I do not believe that that court said anything or indicated anything to raise a doubt on any of the counts.

Felix Frankfurter:

No, but you said they didn’t even refer to count 5 except to say that there was a —

J. Walter Yeagley:

As far as making — I meant to say — as far as making the basing their holding, the Court of Appeals felt and said as I recall, that they only have to determine whether or not, some particular count was valid and sustainable and that is what they did and they did not attempt to discuss or analyze carefully all five counts.

Felix Frankfurter:

Well.

J. Walter Yeagley:

Although, I do think, they referred to them.

They didn’t base the whole in all five as I understand.

Felix Frankfurter:

They didn’t discuss it.

They did in the rest of it.

J. Walter Yeagley:

That’s right.

Felix Frankfurter:

And to me — and to me even if a court — as before it, several problems and doesn’t consider one, I mean articulately, discloses its mind on the title of page that didn’t consider it.

J. Walter Yeagley:

Well, I would like to reread that opinion and that before making definite answer to that’s sort of a question, it’s too important in the point you are raising in that like the basis for —

Hugo L. Black:

Count 5 was based on the letter, wasn’t it?

J. Walter Yeagley:

Yes and it — and it’s part of the membership.

Hugo L. Black:

And it printed the letter in full, isn’t it?

J. Walter Yeagley:

Pardon me?

Hugo L. Black:

They printed the letter in full in their opinion, did they not?

J. Walter Yeagley:

Yes, the letters — is — so forth, is in the opinion.

I know but, it’s — it’s referred to the — I didn’t understand the Court —

Hugo L. Black:

Did the all — did they all closely related to the same transaction, are they not, all five of the six of these counts?

J. Walter Yeagley:

Well, that would — I — I couldn’t answer that unless I knew what you have in mind now, for myself —

Hugo L. Black:

What did you have in mind?

J. Walter Yeagley:

I would like to —

Hugo L. Black:

I have a number of questions asked about the same thing.

J. Walter Yeagley:

I — if I may — I would answer that yes, if I will make a statement first in — in reference to this whole subject matter why, I’m emphasizing count 5 and I think, it may a bearing on the question you are answering — asking Mr. Justice Black.

Our position here is, this Committee was not investigating integration or any other unrelated problem such as added, as it’s stated in its resolution and as it was stated committee hearings was investigating Communist activities, it was investigating Communist infiltration on the South, it was investigating Communist propaganda in the South.

It had information through a testimony of Mrs. Ahearn, who had appeared and before the Internal Security Committee, under oath, that this man Braden and his wife are members of the Communist Party and had for some years and recruited her into the Party.

It had information according to the — this record here that Mr. Braden at this time, had been traveling through the South, in the interest of Communist activities and spreading Communist propaganda, advising that they had evidence that he had just travelled to Atlanta and to New Orleans, before going up to meet Mr. O’Connor in the interest of Communist activities.

I think the whole tenure of the hearings, if you will read it despite particular witnesses that Mr. Boudin has pointed out, the whole tenure of the hearing is that they — and from the type of witnesses they have subpoenaed, by enlarge as that they were investigating, trying to get information on what the Communist interest in this area and this matters were.

What was the propaganda that this particular man who was a writer, was dispensing in the South?

They were trying to determine from him as a Communist, what techniques were and this was mentioned at the hearing likewise and this — because of this purpose of the Committee as we see it, the investigation of Communism, the investigation of this through — a person believed by then to be a member of the Communist Party, we felt that this was clearly within Barenblatt, it was clearly within the same question and Barenblatt regarding whether or not, he was a member of the Haldane Club of the Communist Party at the time he was up at the University of Michigan.

Here, the question was, “Were you a member of the Party at the time you wrote this letter?”

Potter Stewart:

Well, isn’t — isn’t there a substantial difference?

In Barenblatt, the subcommittee was investigating Communist infiltration in the educational institutions — over a long period of time.

Here, the question referred to the petitioner’s membership in the Communist Party at a particular moment.

They — they — the moment being at the time he sent a perfectly proper letter to Congress, having nothing to do at all on it’s face, would overthrow the United States Government by force and violence.

Isn’t the context, the very context of the questions in Barenblatt on the one hand and then this case on the other, doesn’t that difference in context make a substantial difference?

J. Walter Yeagley:

Oh, I — Mr. Justice Stewart, I fail to — to see that.

They were asking him about his party membership, they related it to a time of when he signed the letter.

J. Walter Yeagley:

Number one, I interpreted that to mean and he was trying to avoid the question of generally, were you a member of the Communist Party?

He wants to pinpoint now — or within the immediate time — trying at the time of the hearing.

He showed to pinpoint I assume, in reference to this letter, because they were investigating Communist Party propaganda, techniques and activities.

If as he believed, this witness was a Communist and if he was writing a letter — this was the “Dear Friend” letter, I believe Mr. Justice Stewart, not the other letter, he was trying to get other people to write the Congress regarding legislation, this one?

Potter Stewart:

Yes.

J. Walter Yeagley:

If you want to — if you want to know if this man who did, this was a Communist.

The Court has clearly recognized it in many cases, the nexus between Communism and the overthrow of Government and the – right of the Government to defend itself.

It’s the Government’s position — this question is the same question in essence as was involved in Barenblatt.

Earl Warren:

Well is there — is it your position that every time anyone writes a letter to the Congress or to a Congressman criticizing either the Congress or the Committee or to particular Congressman, that — that that brings about a legislative purpose, which would authorize him to call him up before the Committee and ask him if he’s a Communist?

J. Walter Yeagley:

No sir, Mr. Chief Justice, I certainly, that’s a broader question, I certainly could not say that —

Earl Warren:

Well, isn’t this just about as — isn’t this just about as broad as that?

J. Walter Yeagley:

Oh, I just certainly don’t think so.

I believe I can point out some differences if I may.

Earl Warren:

Very well.

J. Walter Yeagley:

First of all, this letter was not directed to any Congressman or any Senator.

This was a Dear Friend letter, widely circulated asking —

Potter Stewart:

Asking others, the recipients to write to (Inaudible)

J. Walter Yeagley:

The Committee was apparently considering this Communist propaganda.

They were trying to get a move on going for someone else to write to Congress.

Earl Warren:

Well, I would like to change my question then to refer to writing a letter of this kind.

J. Walter Yeagley:

Well, in — I might have to answer that, yes, it’s a hypothetical — you have to know all the circumstances.

Here, I must say, yes, because this man, the Committee believed not only he was a Communist, but he occupied positions in which he could exert considerable influence on public opinion.

Earl Warren:

What positions?

J. Walter Yeagley:

His — previously he had been a writer for newspapers.

He was submitting material to the Southern Newsletter, which had a circulation, now, enlarging with the circulation through the South of some 2600, I believe the record showed.

And he was a — an officer, a field officer of this particular organization, that he was then traveling for allegedly in the — in the South from Atlanta to New Orleans.

And the Committee’s information was, according to their statement in the record, that he was doing this to advance Communist objectives.

Now this record doesn’t show that this Committee —

Hugo L. Black:

Suppose a Communist had an objective to try to keep those bills from being passed, suppose they had that objective —

J. Walter Yeagley:

Yes.

Hugo L. Black:

And suppose that a — a Communist actually wrote a letter to somebody saying that, I want you to oppose this bill, would that be any offense?

J. Walter Yeagley:

An offense?

Hugo L. Black:

Doesn’t a Communist —

J. Walter Yeagley:

Oh, that’s not an offense, no sir.

Hugo L. Black:

— right to ask people to impose bills to non-communist?

J. Walter Yeagley:

Yes, indeed.

I don’t understand that this Committee is saying that this people can’t write his letters.

I think what the Committee’s effort is aimed toward — towards masquerading who’s behind this?

Is it the Communist group behind or not?

If not, final (Inaudible) for there’s the Committee who had an interest.

I think it’s something like —

Earl Warren:

What was the interest if the — if the thing that what was done was legitimate?

J. Walter Yeagley:

If the Act itself was legitimate?

Earl Warren:

Yes.

J. Walter Yeagley:

I don’t understand that the Committee is restricted to investigating acts that are criminal in the — in and of themselves or by themselves.

I think the investigative power of a congressional committee, if it has valid authorizing resolution of as conducted in its hearing otherwise, proper, their authority to investigate, I believe, is slightly larger leaps that as the Court have said and then there authority to legislate them and investigate a little bit beyond that.

They don’t have to investigate merely a crime I don’t believe.

I believe that the Committee is entitled to investigate and gather as they say a fund of information on Communism, so they can decide whether they need to recommend more legislation that might make have some or part of these activities illegal.

Potter Stewart:

How conceivably could Congress make the — the activity of writing this letter illegal?

J. Walter Yeagley:

I don’t think that — in this instance they — they could, but I think that if they’re going to treat in terms of Communist Party propaganda, the registration of propaganda agents, if they’re going to think in terms of that and the resolution specifically mentioned propaganda activities, they have to know what propaganda — Communist propaganda is and what — is not Communist propaganda.

They have to know who are the principal ones doing it and how they do it.

What techniques they’re using and what their particular objectives are I believe and I think that it isn’t the question of whether the writing of the letter is illegal or whether they might consider it illegal.

I just don’t — wouldn’t — wouldn’t say from my — my own part for a moment that we want to stop people from writing letters to anyone, but as the question of when it’s an organized group if it is, who’s behind it?

Who’s masquerading?

As is has been said in the decision on the lobbying in that case, which should not involve Communism, but which involved the Harris case, involved the interest of Congress in knowing who is attempting to influence legislation and Congressmen, it was recognizing both majority and minority opinions there, that the Congress has a right to find out who is the masquerading and who is — who are the agents and who are the principals more or less.

If someone’s trying to influence legislation but he’s doing and for another group, for another cause, in the lobbying instance, the — the Court there at least has recognized that that’s a valid congressional interest and not that the action is illegal or wrong at all.

It’s a matter of information that the Congress conceivably should have.

I certainly don’t want to contend that people should not have freedoms to write, to talk and speak.

When we get into the area of Communism and the overthrow of government however and it passed the question of masquerading or using agents representing others and who’s doing what, for what purpose, if the Congress is going to have the authority to legislate in this area and the authority that has been recognized in the certain instances of investigating in this area, it must have the authority to get this kind of information, the Government believes, at least, but not to say —

Earl Warren:

But now that they do have in this case, wouldn’t they have that right in the case of any individual who — who wrote the letter such as this to summon him before the Committee and asking if he weren’t in the Congress.

J. Walter Yeagley:

Mr. Chief Justice, I’d — I’ve had to find the valid legislative purpose in it.

Earl Warren:

Well —

J. Walter Yeagley:

— some place and just the fact —

Earl Warren:

Well (Voice Overlap) —

J. Walter Yeagley:

— that you wrote the letter would not to me, give that, no.

Earl Warren:

The letter is the letter, the letter — whatever it is, it is and to you — you say that they have a right to inquire into what’s behind it.

Now, wouldn’t they have the right to do that with any citizen, that they have the right to do it here?

J. Walter Yeagley:

It seems to me, they must establish a valid legislative interest or purpose first and now here that purpose was to determine that this was Communist-inspired.

This is the part of the Communist Party program, yes.

Earl Warren:

If suppose they said that with any — any citizen that they summoned before the Committee, our purpose is to inquire whether this petition you have made to — to the Government is Communist inspired.

Are you a Communist?

J. Walter Yeagley:

I think that the — that in that case, the Court might want to concern itself with the question of whether or not, they felt that the Committee conducting the inquiry had reasonable or probable cause to believe that the witness could furnish the information they were looking for or whether or not, they had reasonable cause to believe that as in this case, he was a member of the Communist Party that supplied this information on Communist techniques in this area.

I don’t think that they could just go on and ask anyone these questions without for lack of a better expression.

Well, I would say, a valid legislative purpose here that it has to be — their belief, this man is a Communist, as we see it.

If that’s out of — of the question then he’d have to know the facts at least, I would see what legislative purpose did they have?

It would have to be more than that and in this particular instance, the Committee tried to show that it was of the opinion that the people subpoenaed to this three-day — three-day hearings, were in fact, Communist.

At one point, Congressman Jackson asked a witness, are you always witnessed Communist and he said I leave that to you, sir.

As it turned out, one witness I recall, said that he wasn’t a Communist, he denied it and they didn’t harass him, they didn’t give him a great deal of trouble, as I recall it.

Apparently except to that for — what he had said, they asked him other questions and let it go.

And that’s the case, Mr. Braden had several case in the —

Earl Warren:

Did they have there information that he was a Communist or not?

J. Walter Yeagley:

They indicate — the indication — two or three places in their hearing that the Committee will see the opinion of these other people subpoenaed, were Communists and that they had information to that effect.

I think Peina had testified that regarding one or two of them and they indicated they had other information on some of the other witnesses.

I’m not able to pinpoint that now, but I believe, I can from the record.

Earl Warren:

But you mean they asked him whether they — whether they knew — where they had information or not, whether Communist they asked him before?

J. Walter Yeagley:

Yes.

Some of the witnesses for example, were on the other point of the legislative inquiry, a member of the resolution authorizing to investigate infiltration of colligation under the industries or Communist propaganda.

On the industry side, the witnesses have been subpoenaed. They had informations that they were Communist.

In most instance they were either college trained or college graduates and one or two are masters and they were trying to bring out that these people were not working at their trade or their education, they were taking laboring jobs, much lower pay jobs, in order to file the Communist Party program of infiltrating the South and the growth of industry in the South.

These people however, for the most part, didn’t answer questions regarding the Communist Party membership either.

William J. Brennan, Jr.:

Well, was their anything in this record except the counsel’s own statement, we have information that you are a Communist.

And that —

J. Walter Yeagley:

As one, it’s not a great deal that comes out in this —

William J. Brennan, Jr.:

Was their anything except that statement?

J. Walter Yeagley:

Yes, for example, I asked him if he wanted to deny the accuracy of the testimony of Mrs. Alberta Ahearn before another committee regarding his Party membership and he declined to take the opportunity to comment on that.

And —

Earl Warren:

Is that evidence against him —

J. Walter Yeagley:

But —

Earl Warren:

— in this contempt matter?

J. Walter Yeagley:

It is not before — it was — it was not, the testimony taken at this hearings, no, sir.

Earl Warren:

But can you base — can you base a commitment on it, if it isn’t?

J. Walter Yeagley:

I would think so.

The question of — of probable cause is a matter that can’t be established by — by hearsay as far as invading the right of privacy of person in his home for the search warrant, can be based on hearsay.

Here, this Committee of the counsel had worked for the other committee at another time.

The Committee had access to the records of the testimony of the other committee.

The — the witness himself was the one brought up, they conduct this sedition trail, where he had been charged under the Kentucky law and the conviction was reversed because of Nelson versus Pennsylvania.

William J. Brennan, Jr.:

Are you suggesting that (Voice Overlap) based in the alleged Communist activity?

J. Walter Yeagley:

The — the Committee had that information on that record —

William J. Brennan, Jr.:

And was that conviction, that Kentucky conviction based on anything related to Communism?

J. Walter Yeagley:

Related to the Communism, yes.

The — I cannot say the issue was not whether he was a member of the Communist Party.

The Kentucky indictment contained live —

William J. Brennan, Jr.:

I thought it was — I thought it was entirely for racial activity, wasn’t it?

J. Walter Yeagley:

Not entirely, Mr. Justice Brennan.

The indictment contained language — I can’t expect to recall it too accurately but it contained language to the effect that he was charged with having destroyed property there was the explosion, destroyed his house that he had built or that he had help the (Inaudible) occupy.

He had destroyed — properties for — for obtaining the political end and then —

Hugo L. Black:

Destroying property how, by doing what?

J. Walter Yeagley:

That indictment didn’t specify, but according to other information, it was the explosion in the house — the house had been bombed.

Hugo L. Black:

Doing what?

J. Walter Yeagley:

This house had been bombed or dynamite gone off in the — in the —

Hugo L. Black:

— was he indicted for bombing a house?

J. Walter Yeagley:

In the case — course of this addition indictment, in addition to the charge of — of the sedition of advocating, they also can set forth the paragraph stating in essence that he had destroyed a property in order to attain a political end.

Earl Warren:

That was his own home?

J. Walter Yeagley:

I’m not quite clear — one he had bought with —

Hugo L. Black:

Is that —

J. Walter Yeagley:

— whether he had title in or whether the (Inaudible) had title, I’m not sure, pardon?

Hugo L. Black:

No one has to do it, but as the case, where he was charged with having guns of colored people to live in a white section?

J. Walter Yeagley:

Oh, that’s — that was the circumstance that was not on the charge, I don’t believe.

He had bought the house.

He had either rented it or sold to the wage who I believe were colored people and l believe two or three weeks time had passed as some strike of and on and sometimes it was quite bit in sometimes not.

And one night, there was an explosion in the basement of the house and the north part of the house I believe, the west part was partially destroyed.

I don’t who owned it at that time and then —

Earl Warren:

But is, supposedly his — his own house wasn’t it?

J. Walter Yeagley:

I would say, he probably still owned it.

Earl Warren:

Yes, well that’s our (Inaudible)

J. Walter Yeagley:

Yes.

Earl Warren:

Was he convicted to that offence?

J. Walter Yeagley:

Yes, but it was reversed on Nelson versus (Voice Overlap) the Nelson wasn’t decided until later and it was decided before the case reached — reached the Kentucky Supreme Court and the Kentucky Supreme Court reversed it based on Nelson as having preempted it.

The charge had not been restricted to sedition against Kentucky.

They have based in that — in our sedition against Kentucky and the United States of America and the Supreme Court reversed for that reason.

But that doesn’t have a direct bearing on this case other than that — on probable cause this Committee, the members knew some of the testimony regarding Braden at that hearing, again where Mrs. Alberta Ahearn had testified that he had recruited her into the Party.

Hugo L. Black:

I don’t quite understand what probable cause has to do with the case of this kind.

I understand that probable cause has something to do when you swear out a warrant against him or when you get a search warrant or when you’re trying a man for crime.

What is probable cause?

Every time they have a probable cause to believe a man belongs to something, do you mean to say that that opens up the way for bringing him in to find about it?

J. Walter Yeagley:

Mr. Justice Black, I would approach it from the other side and say that if they don’t have reason to believe that the witness has information useful and helpful to the Committee in an area of a valid legislative purpose, I think, should not call the witness.

Hugo L. Black:

Well that’s why I didn’t see the relevance of you continuing, both in the idea of what the Committee had probable cause to say.

J. Walter Yeagley:

— This has been discussed in earlier cases.

I don’t recall whether it was Watkins or — or Barenblatt, but it — there must of course be a — a reasonable ground for the Committee to believe that this man is going to be helpful in a valid area.

Otherwise, they’ll be using the so-called dragnet procedures of just calling in anyone and that’s one point that I’d like to point out here.

J. Walter Yeagley:

They did not call in the board of directors of any of these organizations that have been mentioned of it.

They did not call in the members of the other officers.

They, based on this record, we’re attempting to call in the ones upon whom they had enough information to feel that they were going to feel that given information about Communist activities in these areas.

That’s why we say that the Committee was not investigating immigration and doesn’t call that kind of a witness.

They called –just who they thought we’re |Communist and — and who, under the resolution of the parent committee that could give a testimony regarding Communist colonization or infiltration in basic industry or who could give testimony in Communist propaganda in the South.

William J. Brennan, Jr.:

Well Mr. Yeagley, do you think that it’s enough for a foundation of reasonable probable cause as we put it?

I’m speaking about this record now.

Is it enough that counsel merely says the Committee has information which we think that justifies our belief that you’re a Communist, therefore, we want answers these questions, is that not?

J. Walter Yeagley:

Yes.

I believe so, if we’re going to give good faith, we’d better —

William J. Brennan, Jr.:

Without disclosing anything at all or what this is?

J. Walter Yeagley:

I — I — Mr. Justice Brennan, I would say yes, with the reservation.

As some would think, we’re going to get good faith and credit one government agency or official to another, which I think we — we must do if a — a question is raised on this by the witness’ counsel or by the witness, you might get into a different situation.

I’m not prepared to try to resolve now.

But it seems to me that if the Committee feels and if when you say to the counsel was doing interrogating, I — my position on that is that he can’t do this unless the Committee knows what he’s doing and approved it.

If he is saying, we have information, as far as I’m concerned, the Committee is satisfied that they do that and if the witness wants it specified or spelled out, it poses the question I have gone into, I appreciate the point you’re making, there’s a bit point I would want to try.

It’s not in this case here, I don’t believe.

William J. Brennan, Jr.:

Well this is because you think there is enough evidence otherwise to support —

J. Walter Yeagley:

Yes.

There has been evidence on — at least we know it was under oath in one instance before our Court had a chance to evaluate Mrs. Ahearn, she again, was before a Committee and Congress that had a chance to evaluate.

It was introduced in writing by a court reporter.

In other words, there’s more than just information that may have been brought in by another unidentified source.

Its evidence, it is printed, it’s under oath and it has been evaluated at least by someone.

In this case —

Hugo L. Black:

What you’re thinking is the withdrawal between the Committee’s right to ask Mr. Runway to give the names of the people who had something to do with his books and the — the (Inaudible) to get these people (Voice Overlap) to give the information they ask, both of them were seeking to influence legislations.

J. Walter Yeagley:

Yes.

The Runway case, as I recall was in regarding the investigation of lobbying activities and the resolution there, I don’t know the wording, but it was related to lobbying with Congressmen or something like that.

And as I recall, Mr. Justice Black, the Court felt that the language of the resolution was so specific that the Congress had intended the Committee to restrict its investigation to lobbying with Congressmen, context with Congressmen and the facts in the Runway case involved as I believe, a Committee that — its operation had been opposed to some of the legislation and — and there’d some book sales and purchases of books to this Committee and the material in the books dealt apparently with some of the legislation pending and the question involved on the production of these books do not, in any way involve anyone’s direct contact with a Congressman or senator or any direct lobbying.

And I believe it was on that basis that the Court held that there was no valid legislative purpose in asking this question.

Hugo L. Black:

Have you compared — have you compared the language of that revolution with reference to the (Inaudible)

J. Walter Yeagley:

Yes, I don’t recall it now.

Hugo L. Black:

With the language of this — with the language of this.

J. Walter Yeagley:

I have it, sir, but I do not have it here and I don’t recall it.

Hugo L. Black:

I don’t — I haven’t noticed but I haven’t seen it again.

J. Walter Yeagley:

I’m sorry that I don’t have (Inaudible)

Felix Frankfurter:

Mr. Yeagley, I haven’t read your point and looked at your brief and so I don’t know whether the Government sets forth inferences in which wherein legislation is proposed to Congress, efforts are made through mass telegrams and letters that influenced the defeat or to pass it if you will, for that legislation, have you collected the instances in history of this country which that was done?

J. Walter Yeagley:

That was not in our brief.

Felix Frankfurter:

And people were summoned before a committee to testify whether they did send such messages and for whom they did and whether there were similarities in the messages (Inaudible) would tender or focus of such propaganda at all?

J. Walter Yeagley:

We don’t have any thing like that and I believe —

Felix Frankfurter:

But I think you’ve found a good deal.

J. Walter Yeagley:

Yes, I know there have been instances.

I don’t have any immediate reference to it.

Earl Warren:

Mr. Yeagley, Mr. Boudin read something from — that the Committee stated to one of these witnesses to the effect that we never had any idea of — we never had any idea of subpoenaing you at all.

We didn’t — we didn’t think anything of you, until we found you were in town here and you were — you were working on this integration that matters so — so we subpoenaed you.

That’s the reason we subpoenaed you.

Now is that — was that true?

Did he say that?

J. Walter Yeagley:

The language isn’t quite that way.

I don’t have really records but here’s what happened is that —

Earl Warren:

Where would we — where would we find — where would we find that?

J. Walter Yeagley:

This is, I believe, Leonard may have it.

This is the Wilkinson indictment, Mr. —

Leonard B. Boudin:

Page 219 of Wilkinson record.

J. Walter Yeagley:

219.

Earl Warren:

219.

J. Walter Yeagley:

Here’s the other — the sentence in the other case.

Leonard B. Boudin:

Last full paragraph, page 219 of the Wilkinson record.

J. Walter Yeagley:

And if — though I don’t want to indulge too much at Mr. Marensey’s argument, Mr. Chief Justice.

I can point out that he had come into town in Atlanta and he had been subpoenaed on that occasion.

And he happen to have been the person who had been —

Earl Warren:

219 —

Leonard B. Boudin:

Of the Wilkinson record in number 37, Your Honor.

J. Walter Yeagley:

That’s the other case.

Leonard B. Boudin:

I don’t have the other case.

Earl Warren:

I got Wilkinson here and it jumps from page 70 —

Leonard B. Boudin:

At the bottom, I’m sorry, the bottom of (Inaudible)

Earl Warren:

Oh — Oh, I — I see.

Oh yes, thank you.

Leonard B. Boudin:

219.

Paragraph we’re getting with — it is the information of the Committee.

Earl Warren:

Go right ahead, Mr. —

J. Walter Yeagley:

Well, I just want to point out that it was not just in that random arbitrary subpoena of Mr. Wilkinson.

He has been identified in the hearings previously by — I should not say previously I’m not — by Mr. Peina that Mr. Boudin referred to as having testified at an earlier hearing as well as of this hearing and I believe that he’s the one who identified Mr. Wilkinson as a — an active member of the Communist Party.

I’m not familiar with the Wilkinson record and I would not want to get in that too much, if it’s alright in here.

Earl Warren:

Yes, it’s alright.

J. Walter Yeagley:

Mr. Boudin said that Peina did not identify him in this record.

Mr. Marensey can answer that, I know he was identified as a Communist before he was subpoenaed.

Earl Warren:

Yes.

J. Walter Yeagley:

I’d like to point out unlike the Watkins case here, the — in additional to Rule 11, the parent committee, the House Un-American Activities Committee, specifically adopted the resolution and spelled out the legislative purpose that they had in mind and the things that they wanted this Committee to investigate when they went to Atlanta, it authorized specifically hearings in Atlanta.

The pertinent part where they had in mind, stated that the Committee was accumulating — pardon me, I got the wrong one.

They want to conduct an investigation in Atlanta relating to the extent, character and objects of Communist colonization and infiltration into the textile and other basic industries in the South land and Communist Party propaganda activities in the South.

The resolution went on beyond that but those two things seem to be clear as far as most of these witnesses were concerned, a rather express authorization by the parent committee and this was elaborated on to some extent by Chairman Willis beginning of the hearing.

Now, Mr. Braden, we can’t show who was present when Walter testified, nonetheless, it goes to the question of — of pertinent not to say and I think Wilkinson was present.

And Willis explained at some length, their legislative interest in the bills they had pending on Congress, why they wanted to get into this Communist propaganda and techniques and he said that the Committee was accumulating factual information respecting Communists, the Communist Party and Communist activities which will enable the Committee and the Congress to appraise the administration and operation of the Smith Act, the Internal Security Act of 1950, the Communist Control Act of 1954 and numerous provisions of the criminal code relating to espionage, sabotage and subversion.

In addition — in addition to the Committee as before, numerous proposals to strengthen the — or legislative weapon designed to protect the internal security of the nation.

His statement actually was in many pages long and then during the hearing, when the witness or witnesses did not answer the question in a — in apprising the witnesses of the pertinency, Mr. Arens and sometimes Congressman Jackson and Chairman Willis would explain at some length, the Committee’s feeling why these questions were pertinent.

Now, there’s been some issue raised as to whether not, the man was advised.

At least he has insisted all the way through in his answers in not answering most of the questions that there was no valid legislative purpose that the mandate of the Committee is vague and that he did not feel that he had to answer any of these questions, this is I believe the reason Mr. Boudin points out that the man was relying or Watkins and should have some protection there.

The care of which they did discuss with him, advised him of pertinency may be of some of interest here, if I can locate it.

Mr. Arens said on first occasion when Mr. Braden refused to answer her question, “Sir, it is our understanding that you are a Communist?”

J. Walter Yeagley:

You see all the way through the hearing, they’re trying to base their questions on Communism, Communist activities and very often, the Committee Chairman and — and Congressman Jackson said, we don’t care about your opinions.

We’re not investigating immigration.

We’re investigating Communist and Communist activities.

You are now a Communist, a member the Communist Party, that you have been identified by reputable, responsible witnesses under oath, as a Communist.

Part of the Communist Party which is tentacle of international Communist conspiracy, it is our information further, sir, that you as a Communist, had been propagating on a Communist activity in the Communist line principally in the South, that you have been masquerading behind the facade of humanitarianism that you have been masquerading behind the facade of emotional appeal to certain (Voice Overlap)

Potter Stewart:

What page of the record are you reading from?

J. Walter Yeagley:

I have — it’s 2669 of the — Committee print, which is case number — I’m sorry I won’t be on —

Potter Stewart:

So we don’t have it?

Hugo L. Black:

Is it within the record?

J. Walter Yeagley:

It’s in the record.

I don’t have it.

Potter Stewart:

It’s in the Wilkinson record.

J. Walter Yeagley:

In the Wilkinson record, the Committee print is inserted and the Committee case number is 2669.

“That you have been masquerading behind this façade of emotional appeal to certain segments of our society, that your purpose, objective, your activities are designed to further the cause of the international Communist conspiracy in the United States.”

He went on and explained pertinency further to — explained to the witness that they had these legislative proposals under the consideration that were draft — drafted.

They might have others to prepare —

Hugo L. Black:

Who was that?

J. Walter Yeagley:

This was the counsel —

Hugo L. Black:

I can’t find it in the record.

J. Walter Yeagley:

This was the counsel of Committee in Mr. Arens who was asking the questions at this time.

It only added after explaining the legislative considerations that they had and Mr. Arens said, “It is for that reason and for these reasons which I just describe to you that this Committee has come to Atlanta, Georgia for the purpose of assembling factual material which the Committee can use in connection with other materials, which it has assembled and apprising — in appraising the administration the opera — an operation of the laws and in making a studied judgment upon whether or not, the current provisions of the laws are adequate and whether or not, each or any of these proposals pending before the Committee, should be recommended for enactment.

Now shortly thereafter, at another point in the question about one page or after that, Mr. Arens said that he wanted the record to be absolutely clear, that the explanation that he gave to the witness as to the pertinency of the question on the first occasion, is understood that the applicable to similar questions, which he intended to propose to the witness, later on.

The reason I mentioned this is that as you go through the record, you will notice that on many occasions, there was no detailed reason why the witness was objecting and no detailed explanation of pertinency and no direction to answer.

The reason is that through a series of pages, they finally agreed with the witness and his counsel and the one doing interrogating and the Committee Chairman, that it wouldn’t be necessary.

He asked and the witness said, “Do I have to list all of these every time I object” and they said no and the counsel, well, we’re going to arrange that.

I would like to have it understood that the statement of pertinency that we have given before and they had done it two or three times, is going to be applicable to all of these future questions.

And that the Committee does not accept the witnesses’ grounds upon which his reason to answer and that the Committee expects an answer and on two occasions, he said, I understand.

On the second occasion, he had it, I understand what my counsel understands and he had two lawyers there with him.

I mentioned that because I know you’ll (Inaudible) there in going through the record.

On the fifth question for example, there was no direction to answer.

J. Walter Yeagley:

This has been done in reference to other questions.

It has been done as a part of this arrangement they have between witness and counsel.

I can go on to that in detail.

If there’s a — a question I think that it would be binding now, on — on the witness under the — under the circumstances.

Earl Warren:

Well, I suppose that if you’re entitled to bind the witness by his failure to raise every time the objection that he originally made that — that you also should be bound by the fact that each time you don’t explain.

J. Walter Yeagley:

Correct.

Earl Warren:

So those two things ouoght to balance up, pretty well, but may —

J. Walter Yeagley:

That’s right — or he would just say, I refuse to answer on the grounds of the First Amendment, we — under the arrangement understand that he is meaning that he’s challenging the — the authority of the Committee’s challenge Rule 11.

He’s — he has relied on all the objections that he earlier stated.

We apply all those objections to each of the questions, regardless of whether he enumerated them, that’s right, the Government takes that position.

Potter Stewart:

Mr. Yeagley, the Court of Appeals said that Harvey O’Connor was known to the Committee as a hard-core member of the Communist Party.

Perhaps you’ve already told us about that but is — does the record in the hearing’s hearings’ main evidence reporting on statement.

J. Walter Yeagley:

I don’t believe so unless Peina again would have — would have been the witness who identified that O’Connor.

I don’t recall, Mr. Justice Stewart, the basis for the identity of O’Connor.

Other than, I know the Committee stated at the hearing that they had reliable information that he was a member, so it must be the Party to have that.

I don’t think that that — is testimony at this particular hearing.

Earl Warren:

I’ve been wondering since counsel stated the fact of why it was that the Committee had one sort of a traveling witness who went — went with them on not once, but a dozen or so times and gave the same testimony on each occasion?

J. Walter Yeagley:

I — I’m afraid that I’m not the one to answer that, I know, you mean Mr. Fishman?

Earl Warren:

I — I don’t remember who it is, that counsel (Voice Overlap)

J. Walter Yeagley:

Fishman is the one that testified 7 to 12 times —

Earl Warren:

Yes —

J. Walter Yeagley:

Mr. Boudin, said —

Earl Warren:

— which has the same — to the same effect and name the same persons.

J. Walter Yeagley:

I have not checked on that, but I would take Mr. Boudin’s word on that.

Mr. Fishman is employed by the Bureau of Customs and has something to do with the — this — determine the amount of Communist propaganda coming into this country from abroad, particularly from behind the iron curtain, what the volume is and things of that kind.

And I know that he has testified before Committees of — of Congress on many — many occasions.

I know in some instances, their purpose is to show the volume on Foreign Agent’s Registration Act, of coming in and the requirements for labelling that is not label that it should be and what the damage might be to an unlabeled propaganda coming in from abroad.

I believe that his testimony in this occasion was the longest — this line.

Earl Warren:

Then there was another witness, he said who had — who had just finished testifying in Boston to —

J. Walter Yeagley:

That was Mr. Peina.

Earl Warren:

— exactly the same things.

Why would be down in there repeating all this if this was a fact finding expedition?

J. Walter Yeagley:

Well, Mr. Chief Justice, I would say for this reason.

First of all, I don’t know that Boston circumstance and why he was in Boston.

I think I do understand why he was here at this hearing.

The witness, Peina, had testified that he had been a member of the Communist Party and as a matter of fact, he had been placed on the National Textile Commission, they call it, of the Communist Party, it could more or less, I think I’d be right in saying that it’s a secretly, semi-secret group in the Party whose function was to sponsor this colonization and claiming forth an infiltration of the — the developing textile industry in the South.

After he had served on this Textile Commission of the Communist Party for some time, he had left the Party and he isn’t, at least in this Atlanta hearing, testifying to his knowledge as a member of the National Textile Commission of the Communist Party, as to a Party policy that there was such a policy of infiltration down there.

That it was new in the last two or three years, I believe.

That it wasn’t new, if it is being emphasized in the last or three years.

Earl Warren:

Well, of course —

J. Walter Yeagley:

That he testified to some length.

Earl Warren:

— in his written testimony, for there is new testimony, there’s no question about it.

The only thing I understood from Mr. Boudin that it was the identical testimony that he had just given up in Boston and then he was taken down there to testify the same thing and that —

J. Walter Yeagley:

I have not read this Boston testimony —

Earl Warren:

I see — I see, alright.

In the Government —

J. Walter Yeagley:

— I’m sorry I’m not familiar with it at all.

Earl Warren:

Alright — alright —

J. Walter Yeagley:

It’s my first time to hear about it.

Hugo L. Black:

Is there anything unusual about that practice on the part of the government — take into a different — taking the same witnesses on the different parts of the country to testify to the same thing?

J. Walter Yeagley:

I know that Mr. Fishman has — has testified with him.

I don’t know how — how often.

I did not know that Mr. Peina had testified in more than once.

I can’t think of other examples.

I think there has been but I — I can’t name any examples, I think that they have had a witness appear more than one time and I assume perhaps in different localities.

We — I’m not — I haven’t studied the operation of this Committee anymore than the average person may have.

It isn’t our purpose to try to defend all of the actions of this or any other Committee anymore than we tried it on the actions of the Department of Defense or State, when we represented them in a — on a suit in civil action.

Well, in this case, the Government’s interest is in — is in sustaining the validity of the legislative purpose thereof the Rule 11 as applied here under House — resolution that was adopted on May 21st of 1958 and then particularly, of sustaining the validity of the conviction on this indictment in the five questions.

Beyond that, we — we don’t feel that we should be prepared with to completely defend all of the actions of — you might say is our client, nor to condemn them of their actions either.

Now, you must pardon me, if I have not made my argument in sequence and I’ve —

Earl Warren:

Well, you’ve been interrupted —

J. Walter Yeagley:

— trying — trying to answer the —

Earl Warren:

And up close, not to make it in an orderly (Voice Overlap)

J. Walter Yeagley:

The question is nice — I may — well, I frankly feel that this is a case where that serves a better purpose on the — than me trying to (Inaudible).

One point that perhaps we haven’t covered that I don’t need to believe needs covering in great details, covered in our brief and you are all very familiar with it, this is a question of the First Amendment.

I know that you’ve all examined it carefully and discussed it and written out in the Barenblatt case.

This is a question apparently, as we see it or weigh in the interest of the Government against the interest and the rights of the individual to have these constitutional rights protected and not unduly abridged.

We believe that in this instance and that with the Rule 11 and the authorizing resolution of the House and the statement of the Committee Chairman and the general conduct of the Committee in advising the witnesses here and the purpose — the actual purpose of trying to get to this Communist conspiracy and to stand away from the dragnet procedures and bring in integration as of in charge which didn’t happen though, subpoena those they thought we’re Communist.

We believe that they have been pursuing a valid legislative purpose as recognized by this Court and that the rights of the witnesses were not unduly abridged under the First Amendment because of the overriding interest and this interest of the State and — and investigating and legislating on the Communist Party in view of the recognized nexus of the Party would overthrow the Government.

Thank you.

John M. Coe:

If the Court please?

Earl Warren:

Mr. Coe.

John M. Coe:

Mr. Justice.

Let me state if I understand it boldly, the position of the Government as to these questions other than the one, the Count 5.

It is that if the investigating officer or committee has information which it deemed reliable, the directness is connected with the Communist Party or that the organization being investigated has such connections, that he may — that they may proceed to ask question which otherwise would be barred under the First Amendment.

This Court has with great care in the Barenblatt decision and perhaps some others, carved out a narrow exception, where First Amendment rights maybe disregarded in the interest of the self-preservation of the state.

If the Government’s position is correct, we have taken an enormous leap and no longer do we have the control which is implicit in the Barenblatt and other opinions, but all the — to protect the First Amendment rights of the witness, but the Government can come in and say, “We suspect you and we suspect your organization and these First Amendment rights vanish.”

To me, that is equivalent to an abolition of the First Amendment rights.

Now, let us see what has been the history of that question before this Court.

Twice, this Court has had before it, once it decided and once it did not.

The Question of the right to interrogate (Voice Overlap) an individual as to things other than the Communist Party — in — the one, first time was in the Sweezy case.

In the Sweezy case, he was interrogated at certain other matters that quite were for argument here there was interrogation as to the Progressive party.

On page 265 of the report of that — of — of the opinion, this appears, I believe that Mr. Justice Frankfurter’s concurring opinion, stating of what the Court the, Supreme Court of that New Hampshire had said, it ruled that that he — the Attorney General, did posses information with suspicion to reasonably warrant inquiry and citing a as evident to the statement made during the hearings held before him that Communists — that considerable sworn testimony had been given in this investigation to the effect that the in New Hampshire had been heavily infiltrated by members of the Communist Party and that the pauses and purposes of the Progressive Party had been directly influenced by members of the Communist Party.

I need not repeat to this Court what it decided in that case.

It decided that the interrogation of the witness as to its connection with the Progressive Party was impermissible, notwithstanding this assertion of the investigating authority that it had this information and notwithstanding in fact the state court (Inaudible) you want us for review, had found judicially that he had that thought.

The other time in which the question of outside information was sought to be held to justify the disregard the First Amendment rights was in Barenblatt.

At page 31 of the record in Barenblatt, I got from the library of the Court, there was an attempt made to have a committee investigator testify to the character of the counsel of Arts, Sciences and Professions, which dealt with — which was dealt with in count number 5 of the Barenblatt decision.

The court below ruled it out (Inaudible) but finally on page 64 of the record, the — the evidence got in that the witness had knowledge of the counsel of the Arts, Sciences and Profession that in the majority of its officers were a — a majority of officers who were members of the Communist Party.

In dealing with that, Your Honors in the (Inaudible) case upon the — the pertinency and importance of questions 1 and 2, the Court said in the footnote to question 4 which related to membership in the Haldane Club of the Communist Party, was also to the basis to sustain it, but the Court specifically failed to act upon the question where Barenblatt was asked if he was a member of the counsel of the Arts, Sciences and Professions, which is the one as to which the witness had said that it was — that the majority of its officers were member of the Communist Party.

Sub silentio and through disregarding count number 5, I take it that this Court expressed either an opinion or adopt that the (Inaudible) utterance of a gentleman like Mr. Arens who appears in this record, that he had cause to believe was not sufficient to overthrow the rights of a witness to normally would possess them.

John M. Coe:

It would — if I may draw a comparison from a practice of the ordinary criminal law in which I generally indulge, it would be just as though a member of the alcohol tax unit went to the United States Commissioner and says, “Mr. Commissioner, I have cause to believe that John Smith transports whiskey, give me a search warrant to know what happened there.”

So I submit to the Court that as to these questions, other than the fifth is a deal or dealt with, other than the fifth count, that there is no basis made here for the disregard of First Amendment rights.

Potter Stewart:

Mr. Coe, just before you leave that, on — on the top of page 14 of the Government’s brief, there is quote, Mr. Arens’ — part of Mr. Arens’ statement with respect to one of these questions.

Mr. Arens says that, Harvey O’Connor has been identified as a hard-core member of the Communist conspiracy.

Well, of course we know that — the record shows that it was with Harvey O’Connor that this petitioner had been staying just before —

John M. Coe:

What kind of —

Potter Stewart:

— just before coming out of Atlanta.

Now, is there anything in — in this record to support that statement of identification upon the —

John M. Coe:

Now, only the Court please, the statement of the investigator for the Committee, Mr. Arens —

Potter Stewart:

Well, that’s just what I — that’s what I just read.

John M. Coe:

Your Honor will find where that started on page 40 of the record.

I will not — unless the Court wished they’d consume time.

Potter Stewart:

No — no I don’t want you to but I just —

Felix Frankfurter:

Did any Committee member — did any Committee member make any such assertion as a Committee member?

John M. Coe:

You mean in the trial of the case, Your Honor?

Felix Frankfurter:

No — no, the hearings.

John M. Coe:

All the Committee members and the chairman made elaborate statements.

Felix Frankfurter:

No — no, on this point, on the question that Justice Stewart just asked you.

Did any Committee member other than Mr. Arens state on his oath as a member of the Committee to which this Court gave great weight to the oath of the member of Committee in the McGrain case, was that a statement made on the basis of an oath on his responsibility as a member of the House?

John M. Coe:

If I correctly understand Your Honor’s question —

Felix Frankfurter:

Well, I must be very stupid not to put a very simple thought into words.

What members of the Committee stated that they asked this question because they had information that he was a hardcore member.

John M. Coe:

That, if the Court please, I can’t answer.

I was counsel for him and sat beside him.

Felix Frankfurter:

Alright.

John M. Coe:

But I — I just don’t —

Felix Frankfurter:

If — alright that’s an answer.

John M. Coe:

I just don’t remember.

Earl Warren:

If you want to consult with Mr. Boudin on it, you may do so and then answer it.

Leonard B. Boudin:

May I state to the Court, no Committee member made that statement.

Earl Warren:

Alright, very well.

John M. Coe:

Then if the Court please, I will proceed to the next question that is had — has to do with count number 5 and the — the question, “Was he a member of the Communist Party at the time he signed this letter which is in effect, the initiation of a petition?

Now, as have said by — suggested by one of the Justices, this was not official, because it’s a Dear Friend letter, asking the Dear Friend to write this Congressman, but it is a far of the right of petition to initiate a petition and in order to initiate a petition, you may — you must reach your fellow citizens by a word of mouth or by letter.

So I think we are dealing here directly with the question of the right for petition.

Felix Frankfurter:

May I ask you whether you contend that merely because people petition Congress on any subject that immunizes them from being called with reference to that petition.

John M. Coe:

It does not, Your Honor.

I think if a man petitioned Congress on — well, and now perhaps, I spoke a little patiently.

I believe I’m happy to answer, Your Honor’s question, yes, sir.

Felix Frankfurter:

That if a man petitions Congress —

John M. Coe:

It — it —

Felix Frankfurter:

— thereafter, he can no longer be — he cannot be called and questioned regarding anything pertaining that exercise of the right to petition.

John M. Coe:

No, no, Your Honor.

I don’t answer that question, yes.

I think that he is immunized from inquiry as to the exercise of his right of petition.

Felix Frankfurter:

He can’t be asked — did you — were you stimulated, were you asked by some interested party to write that.

He can’t be asked any of those questions?

John M. Coe:

I am inclined to think he cannot, Your Honor.

Felix Frankfurter:

But you know the whole practice of Congress is against that, don’t you?

John M. Coe:

No, Your Honor, I do not.

I know that (Inaudible)

Felix Frankfurter:

Have you ever heard of the — the Committee dealing with lobbying and with utility regulations?

Hugo L. Black:

That was my committee.

John M. Coe:

I realized that’s the one.

Felix Frankfurter:

Have you heard of other Committees that had been doing that all the time?

John M. Coe:

To tell you the truth Your Honor, I’m not —

Felix Frankfurter:

I’m not saying that’s this case as such, but I just want to know what is implied by this argument that this was an exercise of the petitioning right.

John M. Coe:

I know that the Correct Practice Act deals with approaching people, because that deals with social money under certain systematic ways.

Well, that had been dealt with — I — in two cases, one of which I believe is the Harris case.

But I — if I may try to answer Your Honor’s question, I think that the approach of this citizen to his Government is something which, unless it takes the form of commercial activity or unless there’s something else in the statement (Inaudible) or rendered dangerous, they cannot be regulated.

If Your Honor will bear with me just a moment, I’ll tell you why.

Felix Frankfurter:

And because I have a financial interest and petitioned Congress, that takes me out of the First Amendment, does it?

John M. Coe:

No, I do not think so, Your Honor.

I think if you are hired lobbyist though, getting paid for it, it probably would, to some extent, but now, if — if I may proceed.

The First Amendment rights have always been an argument in (Inaudible) First Amendment rights are absolute or subject to regulation. This Court had established since Barenblatt case that because of the interest of the Government in self-preservation, First Amendment rights as to assembly and other activities, speech of press are subject to regulation under circumstances.

A committee thereof Congress, may investigate here only in the field in which it can legislate.

You may legislate against the exercise of the First Amendment rights and so — and investigate them because of the necessity of self-preservation and the danger of the overthrow of the Government, a — an assembly may become a howling mob and assure the public speech a new — newspapers or speeches may be used to scare people up to do damage as in the Terminiello case, but I respectfully ask you on, how are you going to overthrow the Government of the United States by petitioner to Congress and if the Communist Party presents it all, the evil attributes which are attributed to it, would it not be sound public policy to permit the exercise of a constitutional means to achieve that purposes rather than to stigmatize them and — with all the calm which as we all know problems of such an investigative sense.

Felix Frankfurter:

But, of course, if Congress has no power to legislate with the implication of that and it can’t inquire the basis of legislation.

John M. Coe:

I think —

Felix Frankfurter:

And if it has power to legislate, does it make any difference which power of Congress would be involved in the exercise of its power to legislate.

John M. Coe:

That is a philosophical question.

Felix Frankfurter:

I — I think that’s a very practical question.

If it has power to legislate with reference to the post office, if it has power to legislate under the Commerce Clause, if it has power to legislate for the security of the country, if it has power to establish unarmed — armed services, is the power of antecedent inquiry as to either the need or the nature of the proposed legislation, any different as to any of those powers.

John M. Coe:

Let me answer you — Your Honor’s question this way.

Felix Frankfurter:

That’s not a philosophic question.

That’s a very practical one.

John M. Coe:

— let me answer Your Honor’s question.

If the — if the state has the power to legislate as suppose — as suppose, of course it course have, it has power to inquire as to anything that deal with the matter of legislation, but would it have a right to ask me what did I put in the first class letter that I wrote to John Jones in New York.

Now, that brings me to one more thing and — and it’s just about time enough to mention it.

If the — the question as the membership into Communist Party are not to asking back to him, they are asked in a context which maybe important to legislation and may not be.

If you ask a man if he is a member of the Communist Party at the time he married his wife, I assume that Court, even under Barenblatt’s second decision, would hold that question was improper.

If you asked him if he was a member of the Communist Party at the time he received the shipment of machine guns, nobody from the moron would hold that it was not proper, but it would —

Felix Frankfurter:

But it could find out whether the shipment contained a machine gun or candy?

John M. Coe:

I think — if it please Your Honor, I think it would be pertinent but when you asked him if he was a member of the Communist Party when he did, pertinent to the simple proper thing that you and I, and a man in this Courtroom could do.

When he wrote a letter to his friend and asked him petition — petition Congress, I submit they are stepping beyond the (Inaudible)

Felix Frankfurter:

I’m not — I’m — I didn’t mean to intimate remotely.

Whether I thought this question was relevant, having addressing myself to the general atmosphere that has been created by counsel that because it was an exercise of the petitioning right of a citizen, therefore, the witness can’t be summoned.

John M. Coe:

If the Court please, we approach our case one at a time just like the Court does and we are dealing with the question in this particular way —

Felix Frankfurter:

Oh, but your — the emphasis has been on the fact that that this was an exercise of the petitioning right.

John M. Coe:

I — it seems to me, it was because you can’t allow petition by yourself within your transcripts (Inaudible) in this elaborate society of ours.

You have got to see your neighbors, you have got to get your neighbors to sign and you frequently use the post office to write your mail.

Felix Frankfurter:

So therefore, you now imply that because you exercise the petitioning right and because you asked somebody else to exercise it, therefore, the witnesses are immune and I’m suggesting to you that the nature of the exercise of the petitioning right may be and has been itself a subject matter of investigation by Congress.

John M. Coe:

That is possibly true, but I doubt it, Your Honor.

With that, I will leave it with the Court.