Doe v. McMillan

PETITIONER:Doe
RESPONDENT:McMillan
LOCATION:Allegheny County District Court

DOCKET NO.: 71-6356
DECIDED BY: Burger Court (1972-1975)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 412 US 306 (1973)
ARGUED: Dec 13, 1972
DECIDED: May 29, 1973

ADVOCATES:
Fred M. Vinson, Jr. – for Legislative respondents
David P. Sutton – for the District of Columbia respondents
Michael J. Valder
Michael Valder – for petitioners
William C. Cramer – for Legislative respondents

Facts of the case

Question

Audio Transcription for Oral Argument – December 13, 1972 in Doe v. McMillan

Warren E. Burger:

Mr. Valder.

Michael J. Valder:

Thank You, Your Honor.

Mr. Chief Justice and may it please the Court.

My name is Michael Valder.

With me are Mrs. Jean Camper Cahn and Mr. Dan Bowling.

On behalf of the petitioners, we request this Court to reverse the judgment of the lower courts and to remand this cause for consideration of preliminary injunctive relief and trial on the merits.

But more important, than a reversal and remand, is our request that you declare the law which will govern this case.

The issues presented compel, we believe, several declarations by this Court.

First and perhaps, more importantly is the declaration that the federal courts are open for the business of adjudicating petitioners claims based on the Constitution and the Civil Rights Laws of the United States.

Secondly, a declaration that the Speech or Debate Clause protects no one, Congressman included from defending a suit for violation of constitutional rights to privacy.

The decision in the Gravel case we believe indicates that Speech or Debate Clause immunity extends only to valid legislative acts.

Gravel expressly —

Warren E. Burger:

But the speech on the floor of the House that was libelous per se invading the privacy or some person in a very gross way, is there any remedy for that?

Michael J. Valder:

The cases don’t indicate so, Your Honor.

We’re not faced with that here however.

Here it is —

Warren E. Burger:

[Voice Overlap] interesting on a right of privacy claim and I am assuming now the grossest kind of libel you could imagine on the floor of the House and the speech by a member.

Michael J. Valder:

I suspect that that case would be taken to Court and this Court would be asked.

Warren E. Burger:

And having to decide that some of them been taken to Court?

Michael J. Valder:

I believe so Your Honor and the speeches on the floor have been held to be immune under the Speech or Debate Clause. But here as in Gravel, we’re dealing with activity not on the floor.

We are dealing with subsidiary activity in committee by committee staff, by investigators and it seems to us that, your teaching in Gravel that invasions of citizen privacy or illegal or unconstitutional actions by legislators or their staff are not immune under the Speech or Debate Clause.

I believe the technical language in your decision in Gravel in Mr. Justice White’s decision was that the Speech or Debate Clause should not be extended to protect the illegal or unconstitutional actions beyond those which would prevent executive control of legislative speech debate or legislative activity.

Byron R. White:

Can I ask that — let’s assume that the group of publications had gone — been in the congressional context or just a newspaper or an author or a magazine and simply gone around pickup the same information from the same sources and had published?

Now what right of your clients would have been infringed?

Michael J. Valder:

Their constitutional right to privacy.

Byron R. White:

Now, are you claiming are there anything inaccurate about any of the statements?

Michael J. Valder:

Absolutely, Your Honor that they were inaccurate.

We never had a chance to correct those inaccuracies.

We never had noticed that this publication was —

Byron R. White:

Are you saying they were libelous?

Michael J. Valder:

They are libelous, they are invasions of privacy.

They are violations of constitutional civil rights protected by the Civil Rights Act of 1871.

Byron R. White:

I know but you talk about privacy.

Are you — you are asserting the role of whatever right it is to sue for libel.

For damage to reputation?

Michael J. Valder:

Right.

All of the allegations we would make if the respondents were private persons are being made plus additional claims and that is that the deprivations here were by and under color of governmental authority and that the bill of rights as a protection against governmental access.

Byron R. White:

I’ll put it to you this way.

Do you think you have any right at all against anybody you have to allege or assert that the statements were false?

Michael J. Valder:

No, Your Honor no.

The statements could be true.

It is still a violation of human rights.

Byron R. White:

Where do you find any constitutional right of privacy unless the statements are false?

Michael J. Valder:

Well, I believe we could —

Byron R. White:

Where do you find that the statements as long as they are true are not protected?

Michael J. Valder:

The common law right of privacy is a private tort.

The manners disclosed can be true, they can be false.

Byron R. White:

What would be your answer though to the defendant who treated the First Amendment and said “I am protected in making these statements unless you can show their faults?”

Michael J. Valder:

I think we are in the law of privacy where even if true there are areas of our lives as citizens where others cannot disrupt or destroy or breach that privacy, you get into the additional sanction of libel and slander if the statements are false.

Warren E. Burger:

As you said, you are relying on all the law that would be available to you if the — if these defendants were private people such as defamation law, common law, statutory law of defamation plus constitutional claims since these defendants are Government, the Federal Government and surely, I don’t suppose the Fourth Amendment or the Fifth Amendment have anything or whatever to do as truth or falsity, do they?

Michael J. Valder:

That’s correct Your Honor.

I believe the Griswold case in Mr. Justice Douglas’ opinions and other opinions in Griswold constitute a clear majority of the Court at that time perhaps even of this Court that there is a constitutional underpinning for the right of privacy, independently of truth or falsity that there is a private sphere it was known at common law and the Constitution included that within the special protections of the Constitution so it is private common law tort plus it is constitutional.

And here if there’s still a third-degree of liability and that is the whole doctrine of governmental access that the Constitution protect citizens more against governmental access than excesses are overreaching by private parties and that of course brings us to you that is we submit your role, your special and peculiar role in this case because it is the Government which is responding in its officials.

Warren E. Burger:

But who would have the same allegations on the same thrust to your complaint I take it if instead of having the invasion of privacy that you claim made up by written reports of the Committee, one of the members had made a speech on the floor of the House saying using all of the same words revealing all of the same information, would you not.

Michael J. Valder:

I believe we would bring that suit Your Honor.

We would bring it against his aides or his staff who procured the information assuming it was procured in the way this information was procured which was as alleged surreptitiously and clandestinely, and we don’t know what else because we were thrown out of court without a chance of discovery.

William J. Brennan, Jr.:

I take it in the case Mr. Justice White would appeal where it appears in the newspapers, where you’ll be seen in the newspapers, and then even though it’s based on invasion of privacy in that sense.

You would be subject to the strictures of time and privilege.

Michael J. Valder:

Yes, I see it.

William J. Brennan, Jr.:

You can see it against newspaper.

William J. Brennan, Jr.:

But here you rely on other constitutional provisions because here you are involved in the alleged conduct of the Congress, is that it?

Michael J. Valder:

That’s correct.

Also, we are in the deep, deep privacy area no public figure possibilities or implications here whatsoever and also it is the question here that what was done in this case was never authorized by the Congress.

Never authorize.

Yes, an investigation was authorized and we can see that but the investigation resolution clearly spelled out how information was to be procured and that is adherence.

Warren E. Burger:

Well if it wasn’t authorize, then recap for me how it becomes government action — governmental action.

Michael J. Valder:

Right.

It’s governmental —

Warren E. Burger:

Sometimes you say its ultra vires.

Michael J. Valder:

It — what was done the manner and method of procuring and compiling this information and putting it in a report was totally outside the house rules and the Committee n the District of Columbia.

Those rules have safeguards which provide minimal due process protections.

None of them applied here.

The information was obtained by an investigator and a consultant to the Committee from teachers — from a teacher and a principal.

So the obtaining of the information was not — the method was not authorized in the resolution and the manner in which it was incorporated into a report.

This information was not run into a record through a hearing.

There were several days of hearings in this law, in this investigation but none of them dealt with this information.

This information we’ve called it hip pocket information came in by an investigator to a consultant and put it in a report.

The Committee never passed on the report.

It was merely sent to the speaker by the chairman of the Committee with the request that it be printed.

Byron R. White:

Do you alleged that the investigator engaged in a little conduct in the course of gathering it like he entered any private files broke any lots or violate anybody else’s Fourth Amendment right?

Michael J. Valder:

To the extent that we know Your Honor and of course to spend no discovery.

We have alleged that the information was obtained by a District of Columbia police officer on loan to the Campbell Hill Police in turn on loan to the House Committee as an investigator by what authority he went about to schools whether he used his District of Columbia police credentials or his capital police credentials or was merely an independent —

Byron R. White:

But you don’t allege he engaged in any specific criminal conduct in the course of his investigation?

Michael J. Valder:

We alleged that he engaged than unconstitutional conduct because he participated in a breach of the privacy.

Byron R. White:

As I understand that but that’s just pre-stating a position?

Michael J. Valder:

That’s not a criminal statute, I don’t believe.

Warren E. Burger:

Well, if the newspaper or there had done precisely the same thing using the same conduct then what would be your position?

Michael J. Valder:

Our position would be that it was a breach of his right — constitutional right of privacy and common law tort, breach of teacher-pupil privileged all of which would —

Warren E. Burger:

Would you direct that against the reporter or the teacher?

Michael J. Valder:

Against both, the teacher because the teacher violated the rules and the constitution by disclosing information —

Warren E. Burger:

You mean the reporter can violate the Constitution by asking questions?

Michael J. Valder:

I think he certainly can.

Most reporters get away with it but if it is a breach of privacy which is protected a cause of action lies for that breach.

Now most information is given to reporters mostly by those who have the complete interest in the information.

Here the students had an interest and they were never consulted.

William H. Rehnquist:

Will they cover the reporters if they have to rely on some common law theory, as I understand the Fourth Amendment, it protects the privacy to the extent it does only against governmental action?

Michael J. Valder:

Well, one of the cases which we’ve cited in our brief as I recall was a case by a private citizen who was in an accident and was photographed evidently in some disarray, a lady and she successfully maintained an action for breach of privacy against the newspaper photographer who took her picture in the newspaper who published it.

William H. Rehnquist:

But that’s not constitutional Brandeis warrant type, right?

Michael J. Valder:

Positive yes.

Now, returning for a moment to the Gravel decision as we understand that case their can be Speech or Debate immunity for valid legislative acts and our position is that what was done here was not valid legislative act.

It was unauthorized.

The method used was contrary to house rules and contrary to procedural due process requirements and it was contrary to committee rules in the way in which the Committee report was processed and printed.

Secondly, to the extent that it was a valid legislative act.

The Bill of Attainder Clause speaks to a limitation on Speech or Debate immunity.

The Bill of Attainder provision of the Constitution is internal evidence within the Constitution itself that congressional action will not always escape judicial scrutiny so that if it is a valid legislative act it begins to partake of the Bill of Attainder and if it’s not a valid legislative act there is no Speech or Debate immunity.

Thurgood Marshall:

Then you say the Congress publishes report, it could be stopped?

Michael J. Valder:

We believe it can be.

It has been temporarily stopped.

Thurgood Marshall:

But certainly, you don’t have to go that far do you?

Michael J. Valder:

Well, actually we don’t want to report stuck, Your Honor.

We want the students’ names exhaust.

It can serve no valid legislative purpose whatsoever to contain the students and their parents’ names.

We concede that every ounce of information in that report may be relevant and serve a valid legislative purpose.

But what purpose is served by putting the names of 12, 13 and 14 year-old students in that kind of a report.

The only justification offered in the lower court was a terse statement that the names lent credibility.

While we submit that credibility used in that context really means the interest that a gossiper has in knowing who is the subject of gossip.

Byron R. White:

Do you say that everything was except the names served a valid legislative purpose?

Do you suggest that the information even though false shouldn’t be deleted?

Michael J. Valder:

If it may and it may not have served a valid legislative purpose.

We’re not challenging that.

Michael J. Valder:

Some of that information may be valid and useful other of it may not be at all.

We don’t really care.

Warren E. Burger:

But Congress isn’t limited by gathering useful information in the process of legislating, is it?

Michael J. Valder:

Probably most of the information that get turns out to be not useful.

Warren E. Burger:

Well, isn’t that normal process of inquiry whether you are preparing for trial in a lawsuit or preparing to past legislation?

You get a great — you do a great deal of sifting before you get any nuggets, isn’t that true?

Michael J. Valder:

That’s true.

What I was focusing on is the Barenblatt-Watkins really line of cases where without authorization and with no legislative purpose whatsoever this Court has said the federal judiciary may inquire into what’s going on in Congress and that was the focus.

Here, no authorization to get the names and published them.

No ostensible or apparent legislative purpose.

In fact contrariwise, the constitutional proscription of violating privacy would indicate that those names shouldn’t be there.

Affirmatively that they should not be there not just negatively that there is no need to put them there.

Now, I might say that we are also requesting a declaration that the Bivens doctrine.

Bivens versus Six Unknown Federal Narcotics agents creates an independent cause of action against the federal respondents here.

Those respondents acting under color of federal law, we submit are suable and a cause of action lies against them under the 1971 Doctrine in Bivens.

Just as against the District of Columbia respondents, there is an independent cause of action under the 1871 Civil Rights Act.

That’s Section 1983 of Title 42 that 1983 severely limited the immunity available to local officials.

Now, I wanted to mention that we are aware of the District of Columbia versus Carter case which was argued before you about five weeks ago.

It is significant that in that case the District of Columbia Government did not bring to this Court the issue of official immunity which was decided against the District of Columbia by the U.S. Court of Appeals.

The only issue brought to you in that case was whether the District is a person within the meaning of Section 1983.

As noted in the dissenting opinion in our case, the Carter decision which have been decided before the Doe case was decided, clearly ruled on the question of immunity.

However, the majority opinion below did not even mention the Carter case.

It was discussed at length in the dissenting opinion and it is our position that the extent and degree and scope of official immunity in the District of Columbia has been refined and honed to a very sharp edge in a series of decisions beginning with Spencer, Elden and leading up to and including the Carter decision, and that the method of adjudicating official immunity questions has been set.

The District of Columbia has not appealed that method of adjudicating official immunity claims.

William H. Rehnquist:

You’re talking about the District of Columbia defendants, and not about the congressional defendants.

Michael J. Valder:

That’s correct.

Under 1983, we assert a claim against the teacher, the principal, the superintendent and the Board of Education.

William J. Brennan, Jr.:

Well, as far as the congressional group, are you asserting claims only against congressional employees not against the Congressman himself?

Michael J. Valder:

We are asserting claims against the Congressman himself, Your Honor.

William J. Brennan, Jr.:

Even Judge Wright didn’t consider the case as against except the employees, did he?

Michael J. Valder:

I believe Judge Wright’s opinion makes clear that he was so much more concerned about the sweeping grant of authority to committee aides that he took that question of and dealt with it.

Now as you may recall this case.

William J. Brennan, Jr.:

Well, except this starts — your concise opinion without reaching the more difficult question while this cause protects members of Congress.

I will hold the seven congressional appellees who are not members of Congress are not so protected.

Michael J. Valder:

Our position is that certainly as to injunctive relief the federal courts have the power in appropriate cases to enjoin a congressional report that would be relief directed against congressmen.

Now the question of damages is stickier but we believe that we can reach the congressman respondents on the question of damages upon showing that they participated in a violation of our constitutional rights that as said in United States versus Lee, “no man is above the law, no one is” and if that means that you must exercise your most supreme power to touch the congressmen, we submit it must be dark.

William H. Rehnquist:

But their immunity wouldn’t depend on what the Court of Appeals with this the District of Columbia said about the District of Columbia law of immunity, would it?

Michael J. Valder:

It would ask to the official immunity doctrine, Your Honor.

Let me recapitulate.

There are two doctrines of immunity operating for the Federal respondents the Speech or Debate —

William H. Rehnquist:

Can you take the Barr versus Matteo type of immunity.

Now certainly in Barr versus Matteo, the fact that Barr may have been here in the District of Columbia did not lead this Court to say that it is the District of Columbia law is construed by the Court of Appeals that governs his immunity, did it?

Michael J. Valder:

No, it didn’t but in the District of Columbia the courts have in the past 10 years done a tremendous amount in several cases of expansion, contraction and redefining how the Barr doctrine is applied in the District of Columbia.

William H. Rehnquist:

Well then, buy if you’re going to urge that here is governing the congressional definite, you must it urge it on its merits. It seems to me, I mean we’re not bound by what the Court of Appeals says.

Michael J. Valder:

No, you’re not.

But we submit that the Court of Appeals was bound by its earlier opinions in this area and that it did not follow them under principles of stare decisis that Court, a different panel of that Court had just decided Carter, comes Doe versus McMillan, they don’t even cite it.

They disregard it and they ruled contrary to it and we are suggesting that you need not reach the Barr versus Matteo question.

You need only declare that in the District of Columbia stare decisis principles operate.

The doctrine as it has been announced and defined, and is operating should be applied in this case the same as in any other case.

We did not ask you to rule on the Barr versus Matteo doctrine.

We merely want the Court of Appeals to follow stare decisis principles which we believe our binding in the District of Columbia because they did not appeal that question in the Carter case.

Now —

Thurgood Marshall:

Can we preclude it from getting into?

Michael J. Valder:

Well, certainly I don’ think you are precluded if you care to.

It seems to us that as —

Thurgood Marshall:

In that way you take the sizes the wrong direction, wouldn’t it?

Michael J. Valder:

Well, it is our belief that Barr versus Matteo should be applied perhaps throughout the country as it is in the District of Columbia under that line of cases.

But it is —

Thurgood Marshall:

The Barr against Matteo had nothing to do with the District of Columbia.

It’s a Federal rule.

Michael J. Valder:

That’s right.

As to how person sued in the District of Columbia in Federal Court.

Thurgood Marshall:

Well, on Matteo is as to immunity of federal officials in Alaska, Hawaii, and the other 48 States and the District of Columbia.

Michael J. Valder:

That’s right.

Thurgood Marshall:

Is that right?

Michael J. Valder:

That’s correct, Your Honor.

Now —

Thurgood Marshall:

So, I don’t see how we can be bound by an interpretation of Barr-Matteo by the District of Columbia Court of Appeals.

I don’t think it’s binding on us.

Michael J. Valder:

No, Your Honor it is not —

Thurgood Marshall:

It is not binding on me.

Michael J. Valder:

If I may, Your Honor.

In the line of cases in the District the doctrine of Barr was not played around with.

It was the way in which the courts in the city must apply it and that is they might take a look at the case.

They must take a close look at the precise governmental function at issue.

What the Carter’ case stands for is you can’t throw out the case the day it’s filed.

The judge has an important role to play.

He has to look at the function.

Is it discretionary?

Would it inhibit the proper exercise of the Government to hold this official liable for the performance of this function?

That was the point in the Court of Appeals, that it was not proper to throw this case out on the very day it was filed without any responsive pleading.

Without any chance to take a good look at the function at issue.

Now that’s the modification of District of Columbia.

It did not throw out Barr versus Matteo that’s still absolutely the law.

Thurgood Marshall:

Well, would it be possible for us to agree with you without considering the Carter case?

Michael J. Valder:

It would be possible by simply saying that —

Thurgood Marshall:

Well, that’s my only point.

Why did you work on only one case?

Michael J. Valder:

Your Honors, I flashed on my time.

I would like to save a minute or two for rebuttal if it’s possible.

Warren E. Burger:

Very well, Mr. Valder.

Michael J. Valder:

Thank You.

Warren E. Burger:

Mr. Vinson.

Mr. Chief Justice, may it please the Court.

My brief and that of my colleague Mr. Cramer is on behalf of those whom we referred to as legislative respondents, the members of Congress, the Committee members and their aides, the Committee staff who were named as defendants, the Public Printer and Superintendent of Documents.

This case involves an attempt by petitioners to selectively sensor by injunction a document of the Congress a Committee Report which was ordered printed pursuant to the rules of the House of Representatives.

The petitioners also seek damages against the respondents for their failure to delete the names from the report.

A House Resolution which is printed at page 5 of our brief authorized the Committee on the District of Columbia to conduct the full investigation and study of any instrumentality of the District of Columbia Government.

The resolution also empowered the Committee to require by subpoena or otherwise the production of documents as it deems necessary as further directed, the Committee to report to the House the results of its investigation and its findings and recommendations.

The report in question issued after seven months of investigations 14 hearings, all of which concerned in the District of Columbia school system and the report contained 36 specific findings and 27 recommendations.

It’s our position that the opinions of the Court in Gravel and then Brewster and all of the dissents in those cases, Cowles as a unanimous holding that the legislative respondents, all of them, are immune from questioning in any other place on account of the matters complained.

In short, we feel that the Speech or Debate Clause affords absolute immunity to the legislative respondents in the context to this case.

Byron R. White:

Mr. Vinson, are you arguing — are you urging any substantive deficiency in the plaintiffs’ case just as on its own bottom?

Do you feel you must turn to immunity or to legislative or otherwise?

I think it is best to turn to the immunity Mr. Justice because the Speech or Debate Clause was designed to prevent harassment of legislatures and —

Byron R. White:

Or for even considering the substantive merits within merits?

Yes, that’s correct Mr. Justice.

The holding of —

Warren E. Burger:

In your theory Mr. Vinson, could the legislative people involved here have simply made no appearance at all in the District Court and stood on the Speech or Debate Clause as a complete defense even to having — even being required to put in an answer.

Theoretically, I suppose Mr. Chief Justice that’s correct.

Warren E. Burger:

It might not be a courteous thing to do with respect to the District Court but you say, you could do that as a matter of constitutional law?

It might neither be courteous nor prudent.

We feel that the holding of Gravel settled the question of who is covered by the Speech or Debate immunity and the scope of that coverage.

The scope extends to in the words of the opinion a sphere of legitimate legislative activity and the court’s opinion made clear that the clause applies not only to a member but also to his age in so far as the conduct of the latter would be protected legislative act if performed by the member himself.

Applying this test you have to analyze the nature of the acts performed by the members and by their staff to determine whether they are protected acts, first, the members of the House.

Now, there involvement in the complaint relates solely to the issuance of the Committee Report which was authorized by the House which was spread and distributed pursuant to the rules of the House and statute.

The members we feel are clearly protected by the Speech or Debate Clause of long line of cases running from Kilbourn through Johnson to Gravel unequivocally upheld that Committee reports are as much within the coverage of the clause as our speeches on the floor of the House.

Secondly, we return to the Committee aides, the Clerk, the Staff Director, the Counsel, a consultant and an investigator for the Committee which issued the report.

The complaint doesn’t allege that the clerk or the staff director or the counsel did anything with respect to the report.

It does allege that the consultant to the Committee was responsible for the investigation and that the investigator of the Committee conducted the investigations which were used in the report.

Now, exactly what actions are complained of?

Turning again to the allegations of the complaint reproduced on page 9 of the appendix it’s alleged that Seville who was a Junior High School Principal gave the investigator the copies of disciplinary letters and other materials.

It’s alleged that Irvine who was a teacher gave the investigator copies of attendance list, school test papers, and other materials.

So we have an investigator for our committee and he’s alleged to such in the complaint.

The Committee was authorized to inquire into the D.C. school system and further authorize to obtain documents by subpoena or otherwise if this investigator was given and that the words in the complainant given.

He was given school documents by school officials and petitioners now characterized the obtention of these documents as clandestine and surreptitious in attempt to avoid the holding in Gravel.

But they don’t really challenged the Committee’s right to interview school officials and obtain school records from them.

In the Court below the majority opinion at page 75 of the appendix state that petitioners quote, “do not challenge the propriety of the investigation or the issuance of the report generally – i.e. absently use of their names – nor could they” and the dissenting opinion below page at 104 of the appendix stated that “indeed, they the petitioners do not even challenge the right of Congress to examine and summarize the confidential material involved.

They only wish to retain their anonymity, thus we have a Committee aide receiving relevant documents in a most routine way.

We submit this as an enterable and legitimate part of the preparation for a legislative act.

The graveling of the petitioners complaint against the aides and the Congressman too for that fact really boils down to the failure of the Committee in the House of the Representatives to delete their names from the documents included in the official report and the Speech or Debate Clause affords complete immunity to the congressman and in this context their aides with respect to the Committee report itself.

As the opinion in Gravel says at page 17 slip opinion, a member’s conduct at legislative committee hearings may not be made the basis for a civil or criminal judgment against a member because that conduct is within the sphere of legitimate legislative activity.

As this Court said in Katz v. United States 399 US at 350 in footnote 5 virtually every governmental action interferes with privacy to some degree.

Byron R. White:

Mr. Vinson, if there are allegations said in the course of gathering the information.

A congressman or an aide in his direction invaded the constitutional rights of some private person.

Wouldn’t you be called upon to answer that allegation even if you weren’t with respect to the later republication?

Yes, sir.

I think you would doubtless assert Speech or Debate immunity and you also would respond as to the merits and the charge.

Byron R. White:

You would have to — my question is you do agree that Speech or Debate immunity would not cover unconstitutional invasions of other people’s rights in the course of gathering information?

I think that’s correct, Your Honor.

I might add there that the Bivens case, referred to by counsel for petitioners didn’t even reached the immunity the official immunity doctrine that merely held there was a federal cause of action for an illegal search under the Fourth Amendment situation that’s not present in this case.

Byron R. White:

Well are there such other allegations made in this case?

None, Your Honor.

William H. Rehnquist:

Mr. Vinson as you refer to Mr. Justice White’s question about having to answer a question or answer a summons based upon a violation of plaintiffs constitutional rights limited to the Speech and Debate immunity or would you give the same answer for the question of the official immunities.

Oh!

I think the same answer Mr. Justice.

William J. Brennan, Jr.:

What do you understand Mr. Vinson, are the constitutional rights that the petitioners here claim were in view?

I think they claim a generalized right of privacy, a right of anonymity, or right to be left alone and asked what stated in Katz virtually every governmental action interferes with privacy to some degree.

The question in each case is whether that interference violates a command of the United States Constitution.

Many people who are named in congressional hearings and who are named in Committee reports would much prefer to be left alone to remain anonymous.

But that wish cannot and should not prevail in light of Congress’ constitutional mandates and the protection.

William J. Brennan, Jr.:

When in your judgment then would this kind of claim reach the State where you would have to answer as you suggested [Voice Overlap]?

I can conceive — I can conceive of no case Mr. Justice where in the context of a Committee hearing and a Committee report where it is alleged that the contents of the Committee report breach some right of privacy or a Speech or Debate wouldn’t afford complete immunity.

Byron R. White:

I take it what you are saying that, they say that what really hurt them is when the names are published.

That’s correct Your Honor.

Byron R. White:

And that breach with that invasion could not have and didn’t occur until publication.

That’s correct.

Byron R. White:

Which is in connection with a Committee [Voice Overlap]?

Which then, wasn’t part of a Committee report?

That’s correct, Your Honor.

Byron R. White:

And there couldn’t have been any such invasion publishing a name prior to that time?

That’s correct.

Byron R. White:

Because even the process of gathering information, they naturally gather the name.

Well —

William J. Brennan, Jr.:

Is there any invasion at the time of publication itself?

Really all that — as I understand this, the Government or their claim is that the anonymity which comes totally.

That’s correct.

They wish to see [Voice Overlap].

William J. Brennan, Jr.:

Is there anything else that’s in the report except their names that they make no complaint about?

They wish to sensor out their names that’s correct.

Thurgood Marshall:

Mr. Vinson, what about this charge if this is outside of the scope?

All of this, is that outside the scope of the Committee?

Mr. Justice, the resolution authorized the Committee on the district —

Thurgood Marshall:

But first of all, does it matter if it’s published by the Committee?

I don’t — I would argue that it does not matter that Congress made the decision to publish this in a Committee report but I would urge upon use that it is not without the scope of the Committee in its enabling resolution.

The — there have been other cases of speech on the floor and Committee reports that may have been unfortunate but as the court’s opinion in Brewster points out at pages 15 and 16 of the slip opinion.

The clause has even enabled reckless men to slander others.

But as the court said that was conscious choice of the framers.

The third group of legislative respondents is made up of the Public Printer and his subordinate the Superintendent of Documents.

The Public Printer was once officially titled congressional printer.

He is required by statute to print congressional documents.

Committee reports are required by rules of the House to be printed and a statute requires Congress to have its printing done by the Public Printer.

The printing of Committee reports I think it goes without saying is an absolutely essential part of the legislative process and the printer is as much in the process as the investigator or as is the Committee Clerk who collates pages.

William J. Brennan, Jr.:

Suppose, in fact the publication of the names here was in unconstitutional invasion of the children involved here.Let’s assume that for a moment, who would have to answer for that in your view?

I don’t think anyone would be answerable Mr. Justice because I don’t believe the Speech or Debate Clause is a balancing type clause.

I think it affords immunity to speech on the floor of the House and to Committee reports.

William J. Brennan, Jr.:

Even to the House printer who publishes?

Yes, Sir I think the printer in this case.

The Congress is required by statute to use him to print their materials.

So he is an essential part of the legislative process and to hold otherwise would entirely frustrate the intendment of the Act.

Byron R. White:

Why wouldn’t you at least limit immunity on the publication and to the publication that’s recently connected with the legislative process?

That’s exactly what statute provides, the statute itself Title 44 which is printed at the outset of our brief sets up by statute the pattern of publication and distribution.

Byron R. White:

Well, I put it to you this way.

Do you think that the legislative immunity governs sale of committee hearings to the public?

I think it will might in view of the informing duty of Congress.

Byron R. White:

What if it doesn’t?

Well, perhaps you might make a distinction between sale to the public although I think it is difficult.

Byron R. White:

Or distribution to the public?

There could be a difficult distinction to make in view of Congress’ duty to inform that however is not our case Mr. Justice.

Byron R. White:

You are assuming that duty to inform is within Speech or Debate Clause frame, aren’t you?

Well, I think it is but we don’t have to get into privately publication.

Byron R. White:

You may have a duty to inform but it may not be a legislative act.

Yes.

Warren E. Burger:

If the Committee did not publish and suppose it refused public request of some newspaper request for copies of the report, might not the Freedom of Information Act come into play?

It could very well Mr. Chief Justice.

It is our position the printing of Congressional report required by rules of the House is an integral part of the legislative process without the printing, how do the members the other members learned of the 36 recommendations and 36 findings and 27 recommendations suggestions for appropriations, etcetera.

William H. Rehnquist:

You are limiting at the printing by the Public Printer, I take it.

Yes, indeed.

Yes, indeed we feel that the Public Printer comes well within the intendment and scope in Speech or Debate in printing.

Byron R. White:

Was there any reports, are there any allegations or distributions or publication in this case beyond simply publishing for the purposes of informing the other members of Congress?

There are none I’m aware of and —

Byron R. White:

But what about the distribution to the District of Columbia and their further publication of the information?

There are extending and standing request of those to whom Committee reports are distributed.

There are people on the list for distribution.

I am not aware of how far the list extends for instance Federal agencies get copies of all Committee reports.

Byron R. White:

Well, now why would — tell me why would this — why would you say that distribution of this report to the Secretary of Labor for example be within Speech or Debate Clause immunity?

What’s that got to do with performing legislative duties?

William J. Brennan, Jr.:

Or to the members of this Court?

You may be in that list for a while.

What do you have to do with Speech and Debate?

The only response I can give to that has to do with the conforming function.

Warren E. Burger:

Well, then again returning to the Freedom of Information Act, wasn’t the whole thrust of that Act to retire all Government agencies to open their records and far more wildly than they had ever done before?

To open them totally to the public unless they fall within one of these specific exemptions.

William J. Brennan, Jr.:

Including congressional actions?

Does Freedom Information Act can replace congressional actions?

I really can’t answer that question Mr. Justice.

I don’t know whether the Freedom of Information Act is applicable to the legislator or not it may not be?

Warren E. Burger:

I was addressing myself to the thrust of the Freedom of Information Act passed by the same Congress that we’re now talking about.

I don’t mean the same Congress by number but the same institution.

The Philosophy.

If need to be the Public Printer also has available to him the protection of the official immunity Clause which I will not labor, my colleagues, who represents the District respondents will be addressing himself to Barr v. Mateo.

With respect to petitioner’s arguments concerning Bill of Attainder and House Rule 11, we would stand on our brief.

In closing I would point out what this case is not about.

This case does not involve the Grand Jury inquiry nor private republication of documents introduced into a committee hearing as Gravel.

It does not involve criminal charges as in Johnson and Brewster.

Nor does it involve a search alleged to be a violative of the Fourth Amendment as in Dobrowski and we don’t have here Kilbourn or Powell situations where legislative decisions lack constitutional underpinning, rather we have here a case involving the most routine legislative acts all well within legitimate legislative processes with —

William J. Brennan, Jr.:

I gather Mr. Vinson that your basic submission is however right the petitioners may be that has been an invasion here of personal constitutional rights, nevertheless legislative immunity Speech and Debate means it may be no judicial inquiry indeed whether or not those rights have them.

I would take that position yes.

My prior position would be ever that there has been no invasion and constitutionally protected rights we respectfully urged that the decision of the Court of Appeals should be affirmed.

Thank You.

Warren E. Burger:

Thank you Mr. Vinson.

Mr. Cramer.

William C. Cramer:

Mr. Chief Justice, may it please the Court.

Let me first put in focus as I see it Speech and Debate as compared to separation of powers.

Speech and Debate is a part of separation of powers and most specifically stated in U.S. v. Johnson “the Speech and Debate Clause serves a function of reinforcing the Speech and Debate powers to deliberately establish by the founding fathers therefore separation of powers is emphasized and it is reinforced by the Speech and Debate Clause and not limited by.

Then let me get it in, in view of the questions that had been asked and I would suggest, I would be most helpful to the Court the questions, some of the questions raise with regards to perhaps in spreading the information.

Once a Committee report properly printed by the Congress ordered by the Congress to be printed pursuant to a resolution of the Congress and unquestionably pursuant to the power of Congress because here we are dealing with the Congress as the sole legislator and sole governor of under the Constitution Article I Section 8 of the District of Columbia, and in those instances there is no question with what the Committee report itself is beyond question by this Court and by anyone else.

It is a legislative act.

Being a legislative act, it is beyond the province of this Court as it would be of the Executive to inquire into the motives of the members why they put in the information in that is the decision by the duly elected representative how he makes a mistake.

He is answerable to his constituents and that’s apparently in the House you are answerable every two years.

That is a pretty tough test and that is a good assurance to the public that their discretion is going to be properly exercised.

Now, as to the distribution of the papers, this is a report it is in the public domain and that Congress has a duty in representing the people, has a duty to inform the people otherwise how can the people can judge whether the legislator is doing a proper job, that Congress is properly representing him properly legislating for them.

So that Congress has a duty.

How else can the people determine what additional laws are needed and after all that Congressman is a representative of the people and, what we’re talking about here and what consumes me about some of the questions and some of the cases that I’ve read is that it appears that there’s an effort as my colleague has said balance, to balance what?

You cannot balance an individual’s constitutional right in the context of the duty of all of the Congress to legislate and the cases have clearly pointed this out.

Let me refer for instance the Methodist case which is a Circuit Court of Appeals by judge adjutant as Chief Judge, very find judge in which the court specifically said, “that the power to declare unconstitutional” and I think this is what causes a lot of the problems in the thinking of the judiciary.

Prior to the declare law unconstitutional does not support the conclusion that they the court may sensor language that they think is libelous and I say to this Court this is precisely what the petitioners in this case are requesting.

I say further that to accept their position would say would in effect say that this Court should balance the constitutional legislative powers in its broad sense not against one member as compared to a complaining U.S. citizen.

We’re talking about the broad sense when you are talking about the speech on the floor of the House, when you are talking about the contents of the document, when you are talking about an effort as these complainants are attempting to impose an effort to sensor because they’re asking them that you weigh the constitutional legislative mandate.

As a matter of fact, that comes almost within the doctrine of the major case recently decided relating to Powell.

The Constitutional mandate for Congress is to legislate and is a separation of past question when it is exercised and within the legislative act come at Once that’s determined there is no further question.

Byron R. White:

What it the further most scope of the congressional order to publish?

Does that mean that the Congress is ordering a report that it orders printed to the opened and purchased by the public?

William C. Cramer:

The Congress does not and has not exercise then I don’t say it couldn’t if it’s so fit to do so in its wisdom, has not published and printed documents for the purpose of public sale.

Now the Government office can make them available by request and they should.

Byron R. White:

I just want to know if in this case are you saying that the Congress ordered not only the printing of this report but the report to be available generally to the public?

William C. Cramer:

It did not however —

Byron R. White:

And but was it available to the public?

William C. Cramer:

It was consistent with the act of Congress that says specific document shall be made available and I would not take it would be improper for them to say, yes, it’s available to the public.

Even though it is defamatory assuming it’s not defamatory it’s a resolution authorized by the —

Byron R. White:

But I still don’t understand that you say that the authorization in this case was a congressional?

William C. Cramer:

It is the customary congressional numbers that go to largely governmental agencies in the Congress itself by statute.

Byron R. White:

But you aren’t saying that there is any authority from the Congress in this case to make a report available to the public?

William C. Cramer:

No, sir.

At page 4 of our brief and let me close by saying that whether the material in a report is wrongly acquired, defamatory, erroneous or with nothing the authority of anyone as a result of that, there is nothing that the authority of anyone has to prevent Congress from publishing any statements even if it is erroneous and defamatory and that is Methodist Federation.

Warren E. Burger:

I suppose this Court decided the question of prior restraints and the rule held that it was irrelevant how the information was acquired and what is called the Pentagon Papers case, did we not?

William C. Cramer:

I would take that’s correct sir.

In Hearst v. Black says, let me close with this, greeting there’s one comment.

Although the information there was unconstitutionally acquired, this is the case in this instance that they are heeding although I disagree with them on that conclusion on the facts.

If it be insisted that this is the acknowledgement of a power whose plentitude may become a catechism.

The answer is that the Congress is as much a guardian of liberties and welfare of the people as the courts on their separation to power.

William J. Brennan, Jr.:

At page 4 to that, I guess it just starts with non-distribution of documents —

William C. Cramer:

Yes.

William J. Brennan, Jr.:

— and reports and I noticed that this seems rather limited to the Senate, 150 copies to the Secretary of the Senate, 10 to the House document, not to exceed 500 to the Office of the Clerk of the House is 20, Library of the Congress 10.

William C. Cramer:

That’s correct.

William J. Brennan, Jr.:

Well now, what authority in that statute is of distributing this to the officials to the District Court?

William C. Cramer:

The question that was asked was could Congress distribute it?

If Congress —

Byron R. White:

No my question was did it?

William C. Cramer:

It did not.

William J. Brennan, Jr.:

It did not?

It did not to the District Court of Columbia?

William C. Cramer:

Well, the report was distributed to the District Court.

There are some additional copies made of evidence such as to the Library of Congress and the District of Columbia wants when it can go to the Library to get it.

Byron R. White:

But it didn’t.

I think, distributed though.

William C. Cramer:

So within the depth of the question is, is it distributed? [Voice Overlap]

William J. Brennan, Jr.:

Can you tell us Mr. Cramer?

William C. Cramer:

Yes.

William J. Brennan, Jr.:

Once it’s distributed by the House to the District of Columbia and its officials.

William C. Cramer:

Not to my knowledge.

William J. Brennan, Jr.:

Thank you.

Warren E. Burger:

Thank you Mr. Cramer.

Mr. Sutton.

William J. Brennan, Jr.:

Would you mind Mr. Sutton before you begin.

I gather that the District didn’t get copies, is it not?

David P. Sutton:

Yes, Your Honor.

There are several copies in our office.

Where they come from specifically, I don’t know but we were furnished with copies.

Byron R. White:

You didn’t go to the Library in Congress and get them, did you?

David P. Sutton:

I don’t believe so, Your Honor.

Byron R. White:

You didn’t buy them, did you?

David P. Sutton:

No, Your Honor.

Mr. Chief Justice and may it please the Court.

I represent the District of Columbia respondents consisting of the members of the Board of Education, the Superintendent of schools, a Junior High School Principal, and a Junior High School Teacher.

Our position is that simply stated that that the doctorate official immunity as interpreted and applied by this Court and Barr versus Matteo and Howard versus Lyons, and companion case forecloses the liability.

We like to take these respondents individually.

First, we’d like to take the Board members and the Superintendent of schools.

The gravamen of petition in this case as to these respondents is that they should respond to damages.

The failures would promulgate regulations governing the confidentiality of school documents really and they did.

We respectfully submit to this Court that this is of course our legislative function to top level function is clearly within the framework of Barr versus Matteo and it is not remediable in damages.

The teacher and the principal perhaps taken on a different light, in regard to their liability or alleged liability we emphasize at the very outset that unlike the Barr versus Matteo case.

This case in the context of the principal and teacher involves an intergovernmental dissemination or communication, a communication within the framework of the Government itself.

Let me illustrate that with the comparison.

Let’s assume that instead of giving this directly to congressional committee, the principal and teacher gave the data to the School Board and the School Board in turn published it.

Perhaps there might be an action to damages against the School Board but not against the principal and teacher for giving the information.

We submit that Congress, vis-à-vis the District of Columbia school system may be fairly viewed as a supervisory or senior school board, and as a kind of employer, it has plenary power to investigate the school system that controls its purse strings, it certainly may be analogize with the top level employer.

It is within the periphery then of an employer-employee relationship that this information was tended with some of its absolutely privileged even applying the standards articulated by then Chief Justice Warren in his dissenting opinion in Barr versus Matteo.

And we also emphasized that petitioners do not question the right of these officials to give the information.

Well its officials we would refer the Court to pages 35 and 37 of the appendix.

David P. Sutton:

I am not going to quote chapter and verse but they emphasized that the trial court, we don’t question the right of Congress to get this information.

We don’t question the right of teachers to give it.

As petitioners said almost rebellion, they can’t go into schools; they can’t talk to people as they did.

About that we did not quibble.

What we complain about is the reproduction and the insertion of names while the insertion of names it so happens took place 12 hearings later.

Six months later.

The information was given —

Thurgood Marshall:

You don’t know how the — we’ve gotten, do we?

We don’t know what we said at all, do we between the policeman and the principal and the teacher?

David P. Sutton:

I believe we do to some extent Your Honor because the report contains a verbatim interviews conducting with many local school officials, many principals and —

Thurgood Marshall:

But there was no hearing on it, was it?

David P. Sutton:

No, Your Honor.

There was no hearing.

Thurgood Marshall:

We don’t actually know, do we?

David P. Sutton:

No.

We know that what petitioners alleged and what the report shows that there was —

Thurgood Marshall:

You don’t know that principal has turned it over to his superior, do we?

David P. Sutton:

We do in the sense that we know that Congress is the ultimate superior.

We know that the principal is a subordinate of that superior.

We also know that interviews took place —

Thurgood Marshall:

But I’m just emphasizing what Judge Wright said in the dissenting opinion that things like this should have a hearing to find out whether Barr-Matteo applies a lot and the only way to find that is what actually happened.

Now, why do you object to such a hearing?

David P. Sutton:

Because it is clear from the record as to what did actually happen.

If what happened was as alleged by petitioners, we would say it is another law the doctrine of official immunity applies that we have a kind of employer-employee relationship here that under the applicable decisional law that this gives rise to an absolute privilege and we also had the reported evidence which shows that there are many interviews.

Thurgood Marshall:

What is then the evidence that showed why the principal turned it over?

Nothing.

Am I correct?

David P. Sutton:

Well, the principal turned it over because he was called by investigator of the congressional committee to do so.

Thurgood Marshall:

Was hem, as in a congressional investigator or as a policeman or as an individual?

David P. Sutton:

As investigator.

Thurgood Marshall:

Where is that in the record?

David P. Sutton:

It’s alleged in the complaint, Your Honor that I think it’s fairly inferable from the complaint and the record that the investigator was acting in the Committee’s behalf.

Thurgood Marshall:

Even if I granted further, my only point is that the hearing would straighten this all out.

David P. Sutton:

The hearing certainly would have been better but our position is it does not legally require it.

I would like to emphasize in a few moments I have left the proposition that the Civil Rights Act does not offer the immunity of the District of Columbia respondents.

Under the Civil Rights Act, petitioners urged that the Civil Rights Act should apply to the District of Columbia respondents because the District of Columbia was a state.

First of all, that question is pending before this Court and his D.C. versus Carter.

Petitioners rely essentially upon the statement by Judge Wright dissenting it should be noted that the courts have consistently held that the District of Columbia is a state of territory within the meaning of the statute Cf. Hurd versus Hodge.

We submit that this is not that clear, it is now pending before this Court that the Court has request a supplemental memorandum.

We would also submit that in the peculiar circumstances of this case, we have the constitutional power of Congress to legislate the District of Columbia.

We have Congress vis-a-vis the school system as a supervisory school board.

Under the circumstances, we submit that it would be inconsistent to apply Barr versus Matteo standard to the (Inaudible) Federal Employees, get a Civil Rights Act standard to the District of Columbia employees.

Thurgood Marshall:

Are the District of Columbia Board of Education Employees of Congress?

David P. Sutton:

No, in the technical sense standout Your Honor but in the general sense they are.

Thurgood Marshall:

Well, if I say if they are and they are covered by Gravel.

David P. Sutton:

We don’t urge they are covered by Gravel.

Thurgood Marshall:

Well, I just wondered how far you’re going?

David P. Sutton:

No, we wouldn’t go that far.

Thurgood Marshall:

Oh!

Thank You.

David P. Sutton:

We would also have the size and even assuming the Civil Rights Act does apply in this case.

Then the question would be prior to dimensions of the immunity doctrine under that Act.

Now this Court has not yet articulated the dimensions but lower federal courts have and we can take standards articulated by lower courts.

We can weigh competing interests certainly and we can come up with an equitable result.

Now, it seems that, in one of the spectrum you have the right of the Congress to receive information.

If there are another spectrum you have the right to privacy.

But the right of privacy is alleged to have been violated here, not in the context of the right of Congress to receive information but in the context of publication of information.

So here again, it’s a question of complete good faith as conceded by the petitioners and though the federal courts do hold that if this good faith the Civil Rights Act of 1871 does not alter the immunity of the Government, and we submit that that is fairly applicable here.

Well, another analogy that I would like to make it seems that there was a companion case to Barr versus Matteo and that was called Howard versus Lyons, that companion case involves the Commander of a Boston Naval Shipyard.

It so happen that the commander of the shipyard made a press release, gathered information to congress.

David P. Sutton:

The information was not requested.

It was delivered unsolicitedly by the Shipyard Commander and who it was given up to a congressional committee but to the Massachusetts congressional delegation.

We submit that that case would indicate that the rules of the immunity doctrines as a fortiori applicable here for two reasons.

First of all, the principal may fairly be analogized as we say it to the commander of shipyard.

He has extensive duties within the periphery of the school system.

Secondly, and we emphasize this, we don’t have an unsolicited inquiry or unsolicited response to a congressional delegation.

We have a solicited response by a Committee of the Congress.

That leaves only to teacher, as we see it.

Now, the teacher we don’t find analogies with any prior decision of this Court we admit, neither with the Barr decision nor the Howard decision.

But it’s not without significance, it seems Barr was decided and before Barr was decided, many lower federal courts have applied the immunity doctrine to (Inaudible) line officials comparable a nature of position to the teacher.

Personnel officers, game wardens, treasury agents, we submit that those authorities well, obviously not a binding on this Court are persuasive.

So in all respects, we submit that the Court should apply the doctrine of official immunity to the District of Columbia respondents in this case.

Thank you.

Warren E. Burger:

Thank you, Mr. Sutton.

Mr. Valder you have about five minutes left.

Michael J. Valder:

Thank you, Your Honor.

First it is our understanding of the Freedom of Information Act that before disclosure of this kind of information is permitted authorized or required into the Act that names of private citizens must be excised.

I consulted with the counsel and it is our understanding we do not have a copy of this statute with us but that is our understanding the same Congress or the same institution is —

William J. Brennan, Jr.:

You mean the Act applies to congressional (Inaudible)?

Michael J. Valder:

If the Freedom of Information Act were applying to this information, I understood that to be the Court’s question.

What would be the standards and we understand the standards to require excision of the names.

William H. Rehnquist:

I think Mr. Valder for this — permits the agency to refuse disclosure where names are involved rather than requiring them to refuse disclosure.

Michael J. Valder:

Your may be right, Your Honor.

I think the point is that the Congress showed a sensitivity in the Freedom of Information Act to that question and that there is a way to prevent breaches of the privacy or in anonymity.

Secondly, it is our understanding that the distribution of this report was virtually unlimited.

We called and got copies.

We, I don’t how many copies we have and Mr. Sutton says that they have copies.

I believe our clients —

William J. Brennan, Jr.:

Where did you get it?

Michael J. Valder:

Called the Committee.

Michael J. Valder:

Come down and get some copies.

William H. Rehnquist:

Is this one also in the pleadings in the District Court under your motion to dismiss?

Michael J. Valder:

On the pleading.

It went off the day our complaint was filed.

There wasn’t —

William H. Rehnquist:

When you say in your pleading, I mean I presume that would be the most authoritative source for us is to whether there was or was not distribution.

Michael J. Valder:

I’m not sure of whether it was in the complaint.

I am quite sure that in the arguments that day on the motion for TRO there was some discussion that it was, it was becoming circulated.

There was newspaper coverage.

I believe that the local Washington stations had stories.

William H. Rehnquist:

Do you say anything about distribution in your complaint?

Michael J. Valder:

Your Honor, I am referred to paragraph 15 in our complaint on information and belief unless we strained defendants will continue to distribute and publish information concerning plaintiffs, their children, and other students, etcetera.

I’m not sure that’s as good an allegation as might have been made.

But I believe that was the thrust of the case in the one day it was in District Court.

That it was being distributed, that’s why we went for a temporary restraining order.

The next point I’d like to make, Your Honor is that the District of Columbia respondents are in error when they claim in their brief and as Mr. Sutton did in his argument that we made a concession in the District Court —

Potter Stewart:

May I interrupt you on the — in paragraph 5 of your complaint said, defendants also caused the report to be distributed to the members of the public.

Michael J. Valder:

Okay.

Thank you, Your Honor.

Potter Stewart:

(Inaudible)

Michael J. Valder:

Thank you.

The concession is important because it’s a fundamental argument made by the respondents in the District of Columbia respondents.

The only concession that was made, was made by counsel at the hearing before Judge Sirica, when he said that he did not complain about the fact that investigators talked to the teacher and the principal, period.

He did not concede that the teacher and the principal had a right to give this information — these documents to the investigators and that is pertinent distinction.

Talk?

Yes.

Disclosure and passing of documents with names?

No.

There wasn’t such concession on.

I’m sorry if there’s been some confusion on that.

Michael J. Valder:

But I — and what’s more even if there had been that kind of that of a concession.

We submit that the procedures in the District Court were highly irregular.

We went to Court at 04:30, the day the complaint was filed on our motion for at temporary restraining order to be met by a sua sponte dismissal on the merits with the judge asserting he thought it was frivolous.

We had no idea, we were to defend a motion to dismiss or summary judgment that no one had made.

And even if there may have been a concession, we don’t think that it is a real concession but there was no concession on this teacher and principal giving the documents and I think you may have to read the transcript of the argument.

Another point is that, we submit that as to the District Court of Columbia respondents, Congress is not the ultimate superior.

The law is the ultimate superior of public officials and because of the peculiar relationship in this city between public officials and the House District Committee, it is tempting to say that the House Committee is the Government but it is not.

The real Government in this city is the law and teachers, principals, Boards of Education, Congressman’s staff and investigators have to comply with the law and that is the ultimate superior and that is why we are here.

We think that the processes of the law and that the protections of the Constitution and the protections of a Civil Rights Act now a 101 years old provide us with the remedy and that an injunction is possible if only the courthouse doors will open.

They’ve been close to us this is the last Court we can go to.

William J. Brennan, Jr.:

The Civil Rights Act of 1871 —

Michael J. Valder:

Yes.

William J. Brennan, Jr.:

— in fact you mean May 1983?

Michael J. Valder:

I am sorry it is Section 1983 of the Civil Rights Act of 1871 which incidentally was passed about two months after a Bill creating a territorial government in the District of Columbia that is the reference to the District of Columbia versus Carter Supplemental Memorandum.

We adopt that position.

Finally, Your Honors, these children have been hurt and they will continue to be hurt.

For this to follow them throughout their lives is we think unpardonable and must be remedied.

Warren E. Burger:

Well, if this document was in the Library of Congress, wasn’t it available to every newspaper, the one we got?

Michael J. Valder:

It certainly was, Your Honor.

Warren E. Burger:

Well, is it illegal for it to be delivered to the Library of Congress?

Michael J. Valder:

Your Honor, it is water over the dam.

It should have never been published with their names.

Having been published we want an injunction that further distribution excise their names into the practical extent possible the report be recalled with the names excised.

That is limited injunctive relief; it is not broad and sweepy.

My time is up.

We submit.

Thank You, Your Honors.

Warren E. Burger:

Thank You gentleman.

The case is submitted.