Dombrowski v. Pfister

PETITIONER:Dombrowski
RESPONDENT:Pfister
LOCATION:Heart of Atlanta Motel

DOCKET NO.: 52
DECIDED BY: Warren Court (1962-1965)
LOWER COURT:

CITATION: 380 US 479 (1965)
ARGUED: Jan 25, 1965
DECIDED: Apr 26, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – January 25, 1965 in Dombrowski v. Pfister

Earl Warren:

— versus James H. Pfister et al.

Mr. Hubert, you may proceed with your argument.

Leon Hubert, Jr.:

Mr. Chief Justice and may it please the Court.

This is an appeal under 28 U.S.C. 1253, from a judgment of a three-judge court denying the appellant’s application for an injunction to strain the enforcement of three acts of the State of Louisiana contained in the — our criminal code, Title XIV, Sections 358 through 374, 384 through 385 and 390 and the following.

All of these statutes on their face purport to deal with regulations of the Communist or subversive parties.

The three-judge court in the procedure which I will elaborate on in a minute decided against us with the vigorous dissent by Judge Wisdom and that we appeal in this Court nor the jurisdiction on June the 15th, 1964.

Now, before going into the actual procedure, I would like to say who the appellants are.

One of the appellants is Mr. Dombrowski who’s the president of the Southern Conference Educational Fund, a Tennessee Corporation whose purpose is dedicated to anti-segregation or rather in favor of integration movements.

Mr. Ben Smith an attorney at law and member of this Court who was actively engaged in the south and particularly in New Orleans area and civil rights cases, and then particularly in integration cases that is to say in anti-segregation cases.

He also happens to be treasurer of the organization, Southern Conference Educational Fund which I referred to if it please the Court, as SCEF from now on out.

And Mr. Bruce Waltzer who is a partner, a law partner of Mr. Ben Smith and is also engaged in a practice that specializes anti-segregation matters.

Is the Southern Conference affiliated with (Voice Overlap).

Leon Hubert, Jr.:

The 7th (Voice Overlap) — no sir, not as such but it has the same purposes according to his charter and according to the statement of facts alleged in the petition filed here, filed in the local court.

Now, in 1954, just after the decision of Brown in this Court, Louisiana created a joint legislative committee and also passed the first act which has to do with alleged anti-segregation or rather alleged Communist activities.

It required then solely that the Communist Party and Communist-front organizations which are defined in the statute should register and that was all that was done at that time it made a penalty for the members of those organizations and for the organizations themselves to fail to register.

Then in 1962, the legislature created a Joint Committee on Un-American Activities and at the same time it passed the legislation which is actually before this Court now which is a combination actually of the earlier statutes and I will have the occasion in a moment to analyze those various statutes.

Now, before going into the pleading aspect and all the issues that are brought before this Court, I think it would be well for me to state certain facts which however are part of the record and therefore officially before this Court.

As I’ve said, Mr. Smith and Mr. Waltzer, my clients, and Mr. Kinoy by the way, represent Mr. Dombrowski and we’ll share the — our argument that we have here.

Mr. Smith and Mr. Waltzer have been engaged in anti-segregation activities in the New Orleans area and all over the south for several years.

And on October 2nd of 1963, the appellees, Pfister who was chairman of the Un-American Activities Committee of Louisiana legislature, Rogers who is the attorney follow that committee, Burbank and Willie, all of them were defendants in this case who were police officers of the state police department, and the governor of the State of Louisiana and the Attorney General and the District Attorney of Orleans Parish, all made defendants in this case.

But Pfister and Rogers and Burbank and Willie got a search warrant from a judge in Orleans Parish and using that search warrant and also a warrant of arrest.

They searched the offices, the homes and the automobiles of my clients and also of Mr. Dombrowski with arms in downtown New Orleans at 3 o’clock on a Friday afternoon and hold off from their offices a great deal of the material including private litigants files which in fact have never been recovered to this day.

Now, the search warrants were based upon the statutes involved and the warrant of arrest were based upon the statutes before this Court today.

And when they were booked following the arrest at the police station, the statutes before this Court today were used for booking purposes.

However, after this arrest and our client was able to get out on bond very shortly.

After this arrest, no formal charges were brought against our clients.

Is this the preference of the attorney?

Leon Hubert, Jr.:

It never has been sir to this moment.

Well, it was a proceeding brought to suppress it?

Leon Hubert, Jr.:

Yes sir.

Leon Hubert, Jr.:

The proceeding was brought to suppress it and it was ordered to suppress as a matter of fact but that is on appeal.

However, that comes in another proceeding because that’s not in this proceeding yet.

I will — I will explain that in — in just a moment.

No formal charges were filed, however, and as a result of that, we filed an application for preliminary hearing which is permissible under the Louisiana law and the judge dismissed all of the arrests but did not turn loose the evidence at that time.

So that after November 26 then there was nothing pending except that the material seized during the search was still in the custody of the committee of which Mr. Pfister was then a chairman and of which Mr. Rogers was the attorney.

On November the 8th, 1963 however, Mr. Pfister held a committee meeting in Baton Rouge in which he took selected portions of the material seized, placed them in the record which the state has made part of this case by its Exhibit C attached to its brief which is a report of November 8th, over the activities of November 8, report number 4 as a matter of fact.

And he also announced at that time that he was going to call upon the District Attorney of the Parish of Orleans as of November the 8th to institute prosecutions and he was going to turnover this material to the District Attorney of Orleans or at least make it available to him.

Well, on November the 12th, Mr. Dombrowski alone at that time, fearful that the statutes would be used against him, however, filed a petition asking for a three-judge court in the Federal District Court in Orleans Parish and it was convened, Judge Ellis, Judge West and a Circuit Judge, Judge John Minor Wisdom, composed the Court.

At that time, that was, say on November the 12th Mr. Dombrowski did not ask for a restraining order but asked if the statutes be declared unconstitutional as for declaratory judgment also and asked if the statutes were not unconstitutional upon their face that leads the procedures involved that the administrative manner of handling and enforcing the statutes should be declared to be improper and unconstitutional.

And that was done on November the 12th.

However, on November the 15th, the judge who was then in charged of the grand jury in New Orleans convened the grand jury as these statutes required them to do and charge them with respect to their duty — with respect to the statutes.

That is to say that they should look into the matter.

That happened on a Friday, November the 15th of 1963.

So then on Monday, November the 18th of 1963, Mr. Dombrowski asked for a temporary restraining order which was granted and which had the effect that goes of halting any prosecution at least at that time.

Excuse me.

Do you have to (Inaudible) General.

Leon Hubert, Jr.:

It did so.

In 1964.

Leon Hubert, Jr.:

That is correct.

(Inaudible)

Leon Hubert, Jr.:

Well, as you see, the criminal indictments did not come until after November the 10th.

They came on the 22nd.

Yes.

Leon Hubert, Jr.:

Well, what happened to them is this.

In the case of Dombrowski, there was a motion to suppress filed and also the plea of res judicata which — both of which were upheld by the lower court on June the 15th of 1964.

The State of Louisiana has taken an appeal which has suspended the judge.

With respect to this indictment against Smith, there was a motion to quash file but it was not argued and it’s in the bench as to well, say nothing has been done there.

As a matter of fact, the sort of a gentlemen’s agreement on the matter that nothing will be done until this Court speaks.

Arthur J. Goldberg:

What were the basis for the court in the quashment indictment that has been done?

Leon Hubert, Jr.:

It didn’t quash the indictment.

Arthur J. Goldberg:

What would you think is that?

Leon Hubert, Jr.:

The motion to quash was filed but it has not even been argued, it’s just being held in events.

Now, in the Dombrowski case, the motion to suppress was upheld and the plea of res judicata was upheld too but that — those — both of those are on appeal now in this —

Arthur J. Goldberg:

Plea of res judicata?

Leon Hubert, Jr.:

What’s that sir?

Arthur J. Goldberg:

What kind of plea is that?

Leon Hubert, Jr.:

Plea of res judicata, yes sir.

Arthur J. Goldberg:

On what, what does it held?

Leon Hubert, Jr.:

Well, actually it was upon the fact that there was a hearing on October the 26th, you see which have the effect of adjudging the question.

Arthur J. Goldberg:

On suppression?

Leon Hubert, Jr.:

No, on the merits and — and on the suppression as well too.

But in any case, those merits are on appeal right now.

Byron R. White:

What happens — that means that what the — did that mean that the indictment is quashed or —

Leon Hubert, Jr.:

No sir.

It does not mean that.

Byron R. White:

You say that the state may not proceed on this?

Leon Hubert, Jr.:

Because of the fact that of — of a gentlemen’s agreement that we’re not proceeding at —

Byron R. White:

Then what — what was the — the plea that was held now barred?

Leon Hubert, Jr.:

It’s — all it does is say that the evidence may not be produced, that’s all.

And the plea of res judicata has no effect on that either so that the only reason why the State can proceed in this —

William J. Brennan, Jr.:

Well, I’m as confused as Mr. Justice White.

If — if the appeal fails as related to this res judicata or whatever it is —

Leon Hubert, Jr.:

Yes sir.

William J. Brennan, Jr.:

What happens to the indictment?

Leon Hubert, Jr.:

The indictment is still there but the state may not use the evidence which has been seized.

William J. Brennan, Jr.:

So the res judicata then pertains to the evidence?

Leon Hubert, Jr.:

Yes sir.

William J. Brennan, Jr.:

I see.

Leon Hubert, Jr.:

Well, in any case —

Arthur J. Goldberg:

On the — Mr. Hubert, excuse me.

Arthur J. Goldberg:

But does the State have any case independently of the evidence that was seized?

William J. Brennan, Jr.:

But of course, I don’t know.

Arthur J. Goldberg:

You don’t know.

William J. Brennan, Jr.:

No, I doubt it but I don’t know.

They are still on the statutes.

William J. Brennan, Jr.:

It covers simply the —

Earl Warren:

The premise for it.

Leon Hubert, Jr.:

The premise was that on October 26, there was a hearing with respect to whether or not there was any evidence to warrant, keeping these men under arrest — not actually under arrest but on the bond.

And the court held that there was no probable cause and therefore dismiss the warrant of arrest and that’s what — that’s what that’s about.

It has nothing to do with the indictment at all because the indictment wasn’t in existence at the time that the October 26 hearing was held.

Byron R. White:

Well, what are the indictments for, for failing to register?

Leon Hubert, Jr.:

Well, the indictments for failing to register and for also becoming and remaining and participating in subversive organizations and of course I will get to the analysis to the statutes in just a moment.

I might pause for a moment to state what happened next.

On December the 4th, the District Attorney Garrison of New Orleans filed his answer to the plea — to the petition for injunction and it’s interesting to note that in paragraph 2 of his petition which is at page 13 of the transcript, he states that SCEF, the organization which we have charged with belonging to and being a member of the registry is a subversive organization and that I think becomes important in just a moment.

In any case on December the 9th, Smith and Waltzer, my clients, fearing also that they were going to be prosecuted under these acts, intervened in the lawsuit which was then pending between Dombrowski and the other defendants and this intervention was allowed.

On December the 9th, there was an argument which was restricted at the time by the court to the validity of the statutes on its face, on their face.

Then at the end of that hearing, the court by two to one without a written opinion at that time stated that they thought that the statutes were valid on their face.

But that they plead a minute at that time the question of whether the administration of those statutes violated any constitutional provision and set an argument for that on January 10th of 1964.

Now, I might say that the arguments concerning the validity of the statutes are the same arguments that we make here today so that they were properly raised in the lower court and that is to say the First Amendment’s right and violates the Fifth Amendment rights and also the preemption of supersession doctrine under the Nelson case.

Well, on January 10th when the matter came for a hearing, the court decided that the statutes were valid but that it was not going to hear or it was not going to hear any evidence at all with respect to the administration of the statutes.

The court did allow, however, an offer of proof to be made and that offer of proof is of course contained in our brief and in — in fact in the facts which the lower court or in the — in our brief, it’s — repeat the opinion.

No, it’s on the transcript, they’re regularly on.

They accept the facts as alleged by us which on in itself makes up we think the cause of action because we alleged in our petition and it’s admitted that this organization, SCEF is mainly engaged and solely engaged in fact in anti-segregation activities and that we have been harassed individually and as an organization because of those activities in New Orleans and in the whole southern area.

The fact that those facts are admitted is also a matter of procedure and that the answer of all of the defendants except Mr. Garrison was plead to the jurisdiction and also a motion to dismiss for a failure to state the cause of action which of course has to admit the truth of the facts that are involved.

Now, when the opinions — when January 10th came and the court then denied as relief of any sought and denied a stay order, the State prosecuted the three defendants and I think it’s worthy for a moment see what prosecutions were about although I mentioned it just a moment ago, these prosecutions occurred on the 22nd and 25th of January.

So that was just a short period of time that elapsed actually before the indictments came out.

Mr. Dombrowski was indicted for being a member, the president of a subversive organization to which SCEF which it says, was not itself cited by the Board such as the Attorney General or the U.S. Control Board or any subcommittee or Committee of the House of Representatives but it was the same as another committee which is not perfect here except that it draw some light upon how the statute is being administered.

In any case, the second count in the indictment against Dombrowski was for failure to register as a member of SCEF when they’re part of the statute.

Now, as to Smith, he was indicted in the same way except that he was indicted count as to him that he was a member of the National Lawyers Guild, an organization that has been cited by the subcommittee of the Congress.

And as to Waltzer, the indictment as to him is simply that he is a member of the National Lawyers Guild because he has no — he did not — he was not a me — member or an officer at least of SCEF.

Leon Hubert, Jr.:

Now, may it please the Court, I should like at this moment to analyze the statutes that are involved here because we are asking this Court as we did in the court below and declare that those statutes of unconstitutional on their face.

We invoke Baggett versus Bullitt which was decided by this Court last June.

I’m sure (Inaudible) that the state court had it on its discretion.

Leon Hubert, Jr.:

Only as to one case sir, Dombrowski.

Dombrowski.

And what was suppressed in the evidence of the proceeding concerning that?

Leon Hubert, Jr.:

That’s right.

Is that indictment —

Leon Hubert, Jr.:

Yes sir.

— is made for (Inaudible)

Leon Hubert, Jr.:

The appeal is on the motion to suppress, yes sir.

Thereby the motion to suppress was (Inaudible) to dismiss the indictment?

Leon Hubert, Jr.:

Motion to quash the indictment.

Motion to quash.

Leon Hubert, Jr.:

That has not been ruled or found even by the lower court.

Now was that proceeding — are those proceedings in the state court and said the (Inaudible)?

Leon Hubert, Jr.:

Yes sir.

Mainly there state people (Inaudible).

Leon Hubert, Jr.:

That’s correct sir.

The state courts and the — and the prosecuting attorneys, I would say the District Attorney and the Attorney General are doing so.

Thank you.

Arthur J. Goldberg:

Do you think Mr. Hubert in your argument that such (Inaudible).

Leon Hubert, Jr.:

Yes indeed.

That is of course an important facet of our argument and that is to say that we need this relief and we need it right now.

It’s not fanciful as Mr. Justice White said in Bullitt versus Baggett.

What we’re facing here is not conjectural at all.

We have been indicted.

(Inaudible)

Leon Hubert, Jr.:

Well, because of the fact that as those argument — those cases may be disposed of in the court below in such a way that it would not raise these questions and not settled.

Suppose for instance we have quitted as we think we would be or suppose there were reversal on some other point.

Leon Hubert, Jr.:

Of course, actually if there were reversal on the ground that the statutes were unconstitutional, we would reach this point.

Arthur J. Goldberg:

I assume that the motion to quash the indictment was made.

Leon Hubert, Jr.:

Oh yes, yes.

It is indeed.

The statutes that contained in Appendix A of our brief which is the white brief, and the — the first statute, the preamble, identifies the organization, the Communist Movement in such language as to indicate that it condemns any organization whose purpose is to overthrow by revolution, force or violence the organization of the State of Louisiana.

The definitions are contained in Section 359 and the important ones of course are Communist-front organization which is in Section 3 of 359 and Section 5 of 359 which is subversive organization.

Now, of course the penal parts, the things that really reach us and that is because those are the ones that use the language which have been condemned in Bullitt versus Baggett as being too vague to these statutes or to stand up against the test of free speech in this country.

As a matter of fact, the pitch of our argument is that in Louisiana today, even a lawyer has to run this risk.

He can remain still and that’s really the only safe thing for him to do or he can take a chance and he can take a chance of having to rebut a presumption which is created by Section 3 in defining a Communist-front organization and we have been indicted for belonging to the Communist-front organization or the state says that “Well, it’s easy enough.

All we have to do is rebut this presumption because it’s not conclusive.”

And of course, what they’re saying is to us, “All you have to do is to rebut it in a criminal prosecution.”

But we are suggesting that free speech means more than that.

You don’t have to run the risk of having to rebut a presumption in a criminal prosecution and you ought to be able to invoke the aid of a three-judge court to stop even that burden.

Now —

Does the statute cover the (Inaudible)?

Leon Hubert, Jr.:

No sir, they have not been, except in one instance.

In the case of State versus Jenkins right after the Nelson case.

As a matter of fact, I was the district attorney then instituted prosecution and the state declared that Nelson was controlling and therefore threw it out to the Louisiana statute out but it was reenacted in the light of the Uphaus case to eliminate all reference to the United States of America and to direct its pitch to protecting the State of Louisiana alone which it is claimed that it was roomed for under the decision of Uphaus versus Wyman.

That is another point really in the — before this Court too in which Mr. Kinoy will handle.

I know that my time is going.

Let me say this.

We rely upon Bullitt versus Baggett.

We see — do not see that the case is — are indistinguishable.

The same words that we attack here were under attack there.

There was such a word as subversive, such a word as counsel, aid and if that such word as knowledge.

I think Mr. Justice White asked, “What knowledge must a man have?”

What must he anticipate or he can do or in other words, there is a matter here that the words themselves even the lawyers, what is subversive?

You see, it defined here as a threat to overthrow by a revolution or anyone who teaches or advocates, abets, advices, the overthrow by revolution, force, violence or unlawful means, that was dealt with too in Bullitt versus Baggett because there this Court said that revolution — peaceful revolution is not prohibited and that any statute which leave some doubt as to whether peaceful revolution change as it were.

The advocacy of peaceful change, of peaceful constitutional amendments of a radical nature could even be forbidden under these circumstances.

We think the same words are involved.

Leon Hubert, Jr.:

We think the same philosophy is involved.

We think that the same distinctions which the Bullitt case made as to other cases.

Thus, the Gerende case was distinguished by Mr. Justice White and also the Dennis case was distinguished.

It seems to me that those distinctions apply here too.

Furthermore, there is involved the question of association that is prohibited in violation of Aptheker which was decided last June.

There is the question of self-incrimination because this statute requires that you register and when you register, you’re saying that you’re a member of a subversive organization.

And when you say you’re a member of a subversive organization, you are confessing to a crime of felony punishable by six years in the penitentiary.

We say also that the presumption itself is irrational and that there is no — there is not sufficient connection between the — our organization and the Communist or Communist-front organizations that are involved.

Now, to make the point again, these are not fanciful matters at all.

I would like to invite the Court’s attention to the brief of the State in which it says this.

Earl Warren:

What page?

Leon Hubert, Jr.:

It’s at page 40 and 41, the bottom of 40 and top of 41.

This is the Attorney General of Louisiana who is stating what he thinks has happened in this case.

What he thinks our clients have done and what he thinks the statute does.

It says, legislative inquiry in Louisiana is led to a determination that appellants are in fact operating a Communist-front organization which is clearly within the provisions of this Act.

Therefore, when the state tells you that being a member of a Communist-front organization is not a violation of the statute, that’s contrary to their own analysis and understanding of the statute.

Furthermore, to go on, Congress and legislative investigation to this organization both before and after the action had come to the conclusion that these were pure Communist functions that the — our plans were doing purely Communistic things “such as defending the 12 Communist convicted under the Smith Act petitioning for clemency — well, Communist, and open cooperation with several well other identified Communist-front organizations.”

So there’s no doubt about it that so far as the Attorney General is concerned, these statutes are subversive statutes that is to say that — that SCEF is a subversive organization.

As a matter of fact, we’ve been indicted for it as such.

The point we make, therefore, is that we have been indicted on the statutes which fall within the scope and breadth and ambit of Baggett versus Bullitt.

We’ve seen no distinctions between the two and we respectfully ask the Court that the constitutional grounds of free speech, freedom from arrest and the due process aspects are identical in both cases, and that analysis of the statutes, the application of the statutes and particular the fact of being actually indicted would show that the statutes do suppress free speech, free association, free trial, all of which have been upheld by this Court.

And actually, the fact of the matter is as I have said earlier that I respectfully suggest that a lawyer in Louisiana, and were lawyers to as to run a terrible risk even to defend clients, and that’s the very best way to get at organizations that you wish to suppress for duty purposes is to get at the lawyers who represent these men, because there, the freedom of speech is of a specialized thought.

If an organization cannot have a lawyer who can speak freely, I suggest to the Court that that is more of a violation of the free speech and if it was simply an individual as something about that that is insidious even more than a plain suppression of speech by an ordinary individual getting at the person who can possibly — and the only person who can possibly represent you if you wish to urge civil rights in Louisiana, getting a lawyer is the very best way to get at the organization and we suggest respectfully that the cases fall within the full ambit of Bullitt versus Baggett.

Mr. Wisdom — Judge Wisdom thought so and what I considered to be a brilliant dissent which I’m sure the Court will take into account which he argued all of these points more reluctantly, I will assure you that I have been able to.

Earl Warren:

Mr. Kinoy.

Arthur Kinoy:

Mr. Chief Justice may it please the Court.

Mr. Hubert has discussed the first branch of our position which is that Baggett against Bullitt is clearly dispositive here in respect to the unconstitutional breadth of the statute.

I think it would be important to point out to the Court that the Washington statute involved in Baggett is in essence the same statute, paragraph by paragraph, word for word with the Louisiana statutes here involved.

There were no pending criminal prosecutions standing there.

Arthur Kinoy:

No sir.

Arthur Kinoy:

No pending criminal prosecution but I would suggest to the question of Mr. Justice Goldberg and yourself, Justice Harlan, that Baggett also gives us the answer to the conceptual problem of abstention and power of this Court because Baggett says that the vice in these statutes, the vice in this statute, the essence of the vice is the deterrent effect upon the immediate exercise of First Amendment rights which an unconstitutionally broad and vague statute creates.

Now, abstention which is as Judge Wisdom points out, one finds it rather difficult to figure out exactly what the rationale of the majority of the District Court was.

But as Judge Wisdom points out, it was probably a visceral reaction of some sort that to grant relief at this point would impinge upon state’s rights.

But Justice White in Baggett dealt squarely with that problem.

Because there, the problem of abstention was also involved, strongly argued and ruled upon by the lower court.

And there, in meeting the problem of abstention, Justice White for the Court last June said that there is no question of the duty of a Federal District Court to abstain from litigating the fundamental constitutional issue involved where the challenge is to unconstitutional vagueness in the area of the First Amendment which creates an immediate deterrents to the exercise of First Amendment rights.

What is the clear, the immediate, the irreparable injury which this action in equity asks the federal court to release.

It is —

Byron R. White:

Would you be — would you be quite satisfied in this case with declaratory judgment?

Arthur Kinoy:

If the declaratory judgment declared the statutes were unconstitutional, certainly Justice White because then the whole thing falls.

Byron R. White:

The relief you ask for and the relief you seek here is an injunction.

Arthur Kinoy:

Yes, because the State is proceeding to enforce the statute therefore, it’s necessary in the classic terms of an equity court where there is clear, present, immediate irreparable injury to fundamental rights.

The concept of the power of a federal court of equity which the Fifth Circuit has over the last three or four years were gone to wrestle with and develop a concept which is essential in the civil rights cases now developing in the south.

Because where state action regardless of the form it takes, criminal or civil, where state action has the immediate impact of casting a poll upon the exercise of First Amendment rights particularly in an area where those rights are essential to enforce and implement the struggle to bring into reality, the rights granted under the Fifteenth Amendment, the voting rights, in a situation like that where First Amendment rights are essential to bring about an enforcement of voting rights, there particularly the Fifth Circuit.

And Judge Wisdom points this out though sharply in his dissenting opinion.

There, the Fifth Circuit has said, “It is the duty of a federal court of equity of Federal District Court not to refuse to litigate and adjudicate this fundamental constitutional federal question”.

Otherwise, there is no road to the federal court.

Otherwise, the federal court is saying as was suggested by this Court in England, Justice Brennan’s opinion.

This — the Federal District Court is saying, the Federal District Court is secondary in the federal-state system.

And what has happened here is the warning in England and the warning in Justice Douglas’ opinion, concurring opinion.

What has happened here is that this concept of deference to the state court of abstention which started in the Pullman decision has now turned into a nightmare in the south, had now turned in to it’s — on its head.

And what has happened here is an extraordinary thing as Judge Wisdom points out.

Certainly, the Federal District Court, like the majority in this case, seem to believe that what abstention means is that you differ to a state court in matters of federal law that a Federal District Court may not rule on fundamental federal questions, that it must first turn to the state court and the state court will adjudicate it.

Well, the answer of that is clearly in England.

The answer to that is Baggett and Bullitt.

If — yes, Justice Goldberg.

Arthur J. Goldberg:

Is there an argument (Inaudible) how do the abstention of the defendant (Inaudible)?

Arthur Kinoy:

I believe it’s not sir, and I believe the distinction is the distinction that Judge Wisdom makes in the dissenting opinion.

Because that injury to the constitutional right is not an injury, it’s that a deterrent upon the exercise of fundamental First Amendment freedom.

Now, where the injury in the state action, the threatened injury is to deter people from meeting together, from speaking, from going to a voter registration place in Louisiana because they’re afraid that the person who is asking him to go to the voter registration place is a SCEF representative.

Arthur Kinoy:

And if you are seen with the SCEF representative in Louisiana, you may well be indicted for violation of these laws.

Worst than that, this committee which is the primary source of the enforcement of these laws as Judge Wisdom points out, not three months after the institution of this action against the Southern Conference Educational Fund — Dr. Dombrowski the executive director and again, its lawyers, not three months after that they issued a report in which they told us what the next step of the selective enforcement of these laws are going to be.

They issued a report which are adversaries are brought before Your Honors as an exhibit to their brief.

A report which says that now that they have found that Southern Conference is within the meaning of the statute, a Communist organization, a subversive organization, they now find that the Southern Christian Leadership Conference, Dr. Martin Luther King’s organization, and the Student Nonviolent Coordinating Committee are also Communist dominated, infiltrated organizations within the meaning of the Act.

That is an extraordinary conclusion but what it points out is the deterrent impact of the possibility of selective enforcement which —

Arthur J. Goldberg:

Does your — does your argument also carry to a case where a statute may be alright on its face but it’s being applied and in unconstitutional facts here?

Arthur Kinoy:

Absolutely Your Honor.

That’s United States against Woods which is an extremely interesting opinion of Judge Reed in the Fifth Circuit, certiorari denied by this Court.

That’s exactly that situation.

There you had a constitutional statute.

I believe it was an assault and battery case involved.

There, Judge Reed said for the majority of the court, “The important thing is not what the label that the State puts on the statute but the state is using this clearly to harass and intimidate a voter registration movement in Mississippi.

Therefore, we’re going to restrain this criminal prosecution.

Now, I should make one point on that which I think disposes totally of this question of whether we have to awake the courses of the normal criminal law in Louisiana.

First place, the clear answer to that is that that’s no relief to the deterrent effect of these statutes on the thousands and thousands of people who are about to engage in a voter registration activity movement in the State of Louisiana, no relief whatsoever but more than that very simply.

This Court is disposed of that problem again and again in Ex parte Young, in Fenner against Boykin.

The federal proceeding was instituted here before the state criminal indictments.

Only last term, this Court disposed of an abstention argument and I believe a Virginia reapportionment case by saying that we don’t even reach that question because if you’re going to apply concepts of committee then clearly, the Federal District Court which had jurisdiction although our District Court judges below work to know it seems they’ve had difficulty in discovering a ground for federal jurisdiction here.

Where the Federal District Court clearly had jurisdiction and we think not even our opponents argue that the Court didn’t have jurisdiction and it starts its action, we started our action.

The indictments were then after the complaint was filed.

Ex parte Young is dispositive on that question.

The federal court is seized with jurisdiction, has the duty and obligation to proceed.

Now, if I may turn to a moment for another side of the coin of this problem because this appeal brings before the Court, it calls for a reexamination and reaffirmation of the principles of supersedure which this Court laid down 11 years ago in Pennsylvania against Nelson.

Now, these statutes and the case before the Court at this moment, I would suggest a classic example of the wisdom of the Court’s ruling in Nelson and the importance of a strict enforcement of this rule because what we are dealing with here are statutes which are expressly and openly designed by the state legislature to proscribe the same conduct, the very same conduct as conduct proscribe by a complex of federal statute.

Now, Louisiana leaves nothing to our imagination on this question because we’re openly informed both in the preambles and in the body of the statute that the conduct to be regulated is identical.

Identical to the conduct to be regulated in the Internal Security Act and the Communist Control Act, and what is it?

It’s conduct which flows from what the legislature here describes as activities of the World Communist Movement.

It’s not local state maneuvering that they’re talking about.

They describe what they call the world Communist conspiracy, exactly word for word the preamble from the McCarran Act, and they say that’s the conduct we are going to regulate.

And as a matter of fact, they justify it in an interesting way which the Court will observe in the preambles.

Arthur Kinoy:

Not because there’s something concerning local affairs but because in their opinion, Louisiana is different from other states in the union.

Of course, Louisiana had special international and national concerns because they say there is a location of many vital military establishments of the nation in Louisiana, therefore, we have to enact this law.

Now, if the statutes did not openly, I mean, were — we don’t have a situation where we have to have analogy here or we have to infer anything.

The legislatures told us what they’re doing even if they didn’t.

We have an extraordinary statutory scheme.

What does Louisiana want to do?

It wants to punish conduct which federal agencies have designated as subversive or what you will, whatever that word means.

So that here, our state has set up a structure and it says, when the Subversive Activities Control Board or when a committee of Congress said something about an organization, that’s the conduct we want to do something about because that’s the presumption that the organization is subversive.

Now, I suggest to the Court.

This is a frank effort to regulate conduct more than in a field occupied by Congress.

But more than that, what is astounding about it is that they want to put penalties.

They want to send people to prison for six years because they belong to an organization named by the House Committee on Un-American Activities.

Well, Congress itself has never reached that level.

Congress itself, I would suggest, would not dream of enacting legislation like that that says nothing of the constitutional problems that are involved.

But what’s the heart of the matter.

The heart is that they don’t really argue.

That these statutes do not move into an area occupied by Congress.

The heart of their position is a plea to overrule Nelson.

And they put it quite just bluntly in their brief.

They say, even if the Louisiana legislation was directed at the same conduct, the same conduct, the words of this Court governed by the congressional legislation, no — there is no valid reason why there could not be concurrent jurisdiction in this field as there is in so many other criminal matters.

That’s their real argument.

But Nelson has settled down.

The Congress has occupied this field.

There is no concurrent state jurisdiction in areas occupied by the Internal Security Act and the Communist Control Act, the essence of the problem.

Where is the Uphaus rule?

Arthur Kinoy:

I think that we can — we could leave Your Honor directly within the Uphaus rule because in Uphaus, Mr. Justice Clark, while there maybe some restrictions on the breadth of Nelson which are not involved in this situation, Mr. Justice Clark says “In reaffirming Nelson, Uphaus does not overrule Nelson as certain of the District Court judges seem to believe and some of our adversaries believe, not at all.

In Uphaus, the test is the same conduct test.

Is the same conduct proscribe by the state legislation as the federal legislation, we say, there can be no argument on that here, all one has to do is read the statutes and the conduct is precisely the same conduct which is proscribed.

So we don’t have to reach the question here Your Honor as to the farther reaches of Uphaus or the farther reaches of Nelson.

Here, this is a — I would suggest a direct open in the chart situation.

Arthur Kinoy:

Now, the essence of the problem and the reason why we suggest that it is so important for this Court to reaffirm Nelson is that in fact, what is involved here is that Louisiana opposes and is dissatisfied with the policies underlying federal enforcement of the federal statutes occupying this area.

Now, they’re open about that, they’re open.

They openly disagree with national policies of enforcement in this area and there are two very sharp examples.

I would suggest that never before the statute come before this Court in which the legislature says openly as they do in this preamble.

The reason they’re passing their law is that federal legislation on this subject matter is either inadequate in scope or not being effectively enforced.

They make no bones about it.

They don’t believe that the federal anti-subversive legislation is being effectively enforced and this came out in a most dramatic way when as the day after the raids in New Orleans when the committee said, “Why, didn’t you go to the FBI?

You say there is a question of subversion.

Why didn’t you go to the federal authority?”

They said and this is in the record, “We knew that if we told the FBI about this raid, they would have to tell Bobby Kennedy.

We cannot trust him and we expect him to tell his friend Martin Luther King.”

Now what do we have here?

You put that together with the preamble.

It’s a fundamental disagreement with federal enforcement policy and it’s illustrated here.

Louisiana acted to enforce these laws precisely because federal policy was not to enforce the anti-subversive laws against civil rights organizations or very specifically Your Honors, against the Southern Conference Educational Fund or against the National Lawyers Guild.

There’s no federal proceeding under the SCAB against Southern Conference Educational Fund.

It’s never been named on the Attorney General’s list.

It’s never been called before the federal agency which is supposed to regulate conduct in this area.

And as the Court knows the only time there was the slightest development in respect to National Lawyers Guild was when the Attorney General once started a proceeding and quickly dropped that proceeding informing the organization, there was no evidence to proceed.

National Federal Policy in the last several years has been clear in administering the federal anti-subversive laws not to permit them to be “to interfere with the southern civil rights movement with the activities of Negro and White organizations trying to implement the Fourteenth Amendment and the Fifteenth.”

But what is the conflict here?

Judge Wisdom put his finger on it in a dissenting opinion.

The conflict is one in fundamental policies underlying the enforcement of laws in this area.

Judge Wisdom says, “The Louisiana legislature regards the movement to increase Negro voting in that state as part of the Communist conspiracy”.

Well, that’s the knub of the matter.

They want to use this concurrent jurisdiction.

They ask this Court to give them in reversing Nelson.

They want to use this to proceed selectively against the most active civil rights organizations in that state.

Now, we don’t have to speculate against that.

They have indictments against Southern Conference Educational Fund against its lawyers who represent them, southern White lawyers.

Arthur Kinoy:

I ask this Court to consider from the deterrent point of view.

You’re going to ask southern White lawyers to stand up and be counted, to make the responsibility of the bar when you permit state statutes of this kind to be used to arrest them, to take files out of their offices, to harass them because they’re lawyers to Southern Conference Educational Fund, because they represent civil rights organizations, because of the ACLU lawyer in Louisiana.

Well, there is the deterrence which is no longer speculative in this Court.

This Court doesn’t have to ask hypothetical questions it asked in Baggett against Bullitt.

Those questions are real and they’re in this record.

Byron R. White:

Well, what if the White lawyer is a Communist?

Arthur Kinoy:

What was that Your Honor?

What White –?

Byron R. White:

What if the White — what if the White lawyer is a Communist, does the state not — not entitled to enforce its subversive laws against that person because he is actually representing civil rights organization?

Arthur Kinoy:

Well, this state — this Court faced that problem I would suggest Your Honor in Nelson.

There are federal statutes which are on the books.

Byron R. White:

What’s the only answer though to that?

Arthur Kinoy:

Oh yes, I think it’s clear.

The Congress has occupied this particular field and that law is clear and the principles are clear in Nelson.

More than that, if this lawyer who is a Communist and it’s hypothetical, engages and then it overreacts against the state.

If he’s going to engage in a conspiracy as Judge Wisdom points out to occupy the state house or to bomb the state house or if he is going to engage in assault and battery or any — or for that matter, there is a serious question as to whether or not he might be involved in a prosecution under criminal anarchy law.

This is not a criminal anarchy law.

Louisiana has separate criminal anarchy laws and we don’t reach that problem here.

This is a little McCarran Act.

This is an anti-subversive organization act and I think clearly preempted and occupied by Congress in the federal legislation.

But what we have here then is an illustration, I would suggest to the Court of the importance from a national point of view.

The importance from a national point of view of the policies laid down in Nelson, because the wisdom of Nelson was never more apparent.

If Nelson is undermined, if a concurrent jurisdiction is permitted to Louisiana, not only in Louisiana, in Mississippi and Alabama, this Court had a similar statute up and forward in Stanford from Texas all through the deep southeast statutes are there.

Now, if the selective enforcement which Louisiana proposes, which they tell us, they tell us they’re going to do.

Next is Martin Luther King’s Southern Christian Leadership Conference and the students of the Student Nonviolent Coordinating Committee.

Now, if these statutes are permitted to be used because Louisiana believes their voting movement is a Communist conspiracy.

It’s permitted to be used against, against the civil rights movement then you have the sharpest conflict with national policy and I would suggest the sharpest danger to the national interest because if the national security lines in any one thing at this moment this Court has said, the president has said, the Congress has said and it lies in the full and fair and pre-enforcement of the voting provisions in the south.

Now, this Court will face tomorrow, United States against Louisiana which I suggest is the other side of the coin of this situation.

Because what is the good of striking down unconstitutional voting laws in Louisiana, if you permit the people who in light must enforce these laws, who must go to the post to register, who must take the courage in their hands and it takes courage in the south today.

And the headline showed that area to area.

Arthur Kinoy:

What good does it do to strike the laws down if on the other hand we are to permit the harassment, the intimidation, the deterring of the utilization of the First Amendment liberties which are so essential to enforce these laws.

Now, I would suggest that this problem, we don’t have a series of conceptual problems here or preemption of abstention of equity jurisdiction.

They all boil down to one thing because the key to the solution of the conceptual problems, I suggest to the Court on abstention on federal power lies in the nature of the right involved.

The nature of the fact that what is here before the Court is the protection of First Amendment liberties, the deterrent impact of an overly broad statute or a statute including in a field occupied by Congress.

Now, as Judge Wisdom points out in his dissenting opinion, it’s extraordinary to suggest that a Federal District Court doesn’t have power in a situation like this.

It’s extraordinary to dismiss this complaint out of hand and it’s interesting in this respect.

At one point, the entire rationale of the majority breaks down.

They have no difficulty whatsoever in ruling on preemption as Judge Wisdom points out the contradiction in their rationale.

But it was clear when it got to the question of preemption, you could not argue that there was any point to deferring to a state court in ruling on the question of preemption or classic federal question governed by the Supremacy Clause, therefore, there was no at the slightest shred of reason.

And without explaining it — without explaining it they rule on preemption.

They had to.

Our opponents don’t even suggest.

It wasn’t proper for them to rule on preemption.

The Nelson case is squarely before the Court.

Nobody argues that anybody should have deferred on that.

But I suggest that the precisely same principle applies to the question of the First Amendment vagueness.

This is a federal issue.

In our federal, abstention means nothing unless it’s treated as a principle of committee which is governing federal-state relationships.

If there is anything that is essential in federal-state relationships, it’s the primacy of the federal court, of the national court in protecting the essential, fundamental national right which makes the whole system work and I suggest to the Court that the First Amendment rights, the protection of these rights, the striking down of these statutes are essential to the preservation of state rights.

They’re essential to the preservation of the system of federal-state relationships because the answer to that, I think, was given to us by Chief Justice Stone in discussing, in suggesting that the very special character of the First Amendment right flows from the fact that it is the fundamental guarantee of the people of its control over institutions.

Now, if you’re going to give a state autonomy within a federal-state system there must be the fundamental controls over that state which our system of government calls for.

And those fundamental controls are the pre-exercise of First Amendment rights.

That’s the ultimate guarantee that the people will control the state, federal — the federal government of the state.

And when a state clogs up the channels by deterring the exercise of these rights by what I suggest is the most incredibly broad statute this Court has ever faced, then it is the duty of a Federal District Court, the duty of a Federal District Court to intervene under the system of federal-state relationships because the preservation of these rights are the first obligation of the Federal District Court.

Now, we ask this Court, we ask this Court to reaffirm the duty and obligation of the Federal District Courts.

Otherwise, we say to the Court, we will face an extraordinarily serious situation in the south today.

We will face the closing down of the only available tribunals left to us to reaffirm and protect fundamental federal rights.

This Court knows that.

The Fifth Circuit has been struggling with that for the last three years.

Judge Wisdom states it in the most eloquent terms to this Court, if the Federal District Courts are permitted to turn abstention on its head, if they are permitted to take comment into a license to advocate federal responsibility, if they are permitted to take Douglas against Jeannette and turn it into a total application of federal equity jurisdiction.

Arthur Kinoy:

If they are permitted to take Nelson and put it on the shelf, then they are saying that the doors of the Federal District Courts in the south are closed — are closed for protection, are closed for relief.

Now, if we say to the Negro people in the south, if we say this is a system of law and you will obtain your objectives through the processes of law, we, the bar, the courts, have our own special obligation and that is to see that the tribunals remain open because I suggest to the Court that if — if the approach taken by west and now it’s below and other federal district judges that this Court is well aware out of Mississippi, out of Alabama, out of Louisiana, if these approaches permitted to stand then the federal tribunal in the most critical of cases is closed, and what do we say?

Where do you turn?

Where do you go?

Where do you find the relief which a system of law is designed to protect us?

We ask the Court for relief in this case.

Earl Warren:

Mr. Jackson.

John E. Jackson, Jr.:

Mr. Chief Justice, may it please the Court.

It’s unfortunate that other members of the bar involved in this state criminal proceeding and I sympathize with this particular situation how it does not in any way, manner, shape or form change the nature of the issue which is before this Court today.

And this is a question of jurisdiction of federal courts.

This matter was pointed up in the decision of the lower court on page 74 where it said, “For the good of all, it is to be hoped that this case will reach the Supreme Court so that the matter of state-federal relations and the judicial field may be clarified.

What the appellants are asking you to do here today is to allow federal intrusion upon a state criminal proceeding in the face of a federal statute which expressly prohibits such intrusion.”

This is 28 United States Code 2283.

And it reads, “A court of the United States may not grant an injunction to state proceedings in a state court except as expressly authorized by Act of Congress or where a necessary in aid of its jurisdiction or to protect or effectuate its judgments.”

Now, there had been two cases, the office of both opinions was Mr. Justice Frankfurter in Toucey versus New York, 314 U.S. 118, in Amalgamated Clothing Workers versus Richman, a later case 348 U.S. 511.

In those two cases, there were several proceedings involved and not criminal state proceedings.

The only case which they cite in which this particular prohibition, statutory prohibition is not involved as Ex parte Young.

Ex parte Young was a matter in which an injunction from a federal court had issued.

A State Attorney General in the face of that injunction went and fall in a mandamus proceeding and they found them in contempt of that particular federal court.

In the light of the sequence of the events which have transpired in the matter, how could these appellants feel that there was no doubt that there were state criminal proceedings pending and initiated on October the 2nd, 1963 when search warrants and arrest warrants were issued by the courts, criminal courts.

As result of that, an execution of search warrants and the warrants of arrest, these were executed on October the 4th, 1963.

On October the 25th, these appellants went into the Criminal District Court within our state and asked that they not be bound over for trial, that there was no evidence justifying the issuance of the arrest warrants and the State District Court agreed with them and they were discharged.

On that same date, the District Attorney or his chief assistant told these particular appellants that these matters were going to be turned over to the grand jury for the state to continue its prosecution in these matters.

Then — and the appellants well — well aware of this because if you’ll notice in the record, the original injunction which Judge Wisdom issued by way of motion, they named in this particular motion as well as in the times of order of injunction which did formulated for the judge’s signature.

The judge of the division or section of the Criminal District Court, the foreman of the grand jury and each member of that grand jury.

And truth in fact, this is — this was a lawsuit in the federal court against — it’s truly against the State of Louisiana because this is what the desire the judge would — he struck the name of the judge, the Criminal District Judge in the State.

He struck the name of the foreman and the members of the grand jury but he allowed the injunction to issue against the governor and what I’m arguing now is pointed up by the motion to dismiss on jurisdictional grounds filed by the governor which the Court is considered to take up today with the other arguments presented.

Arthur J. Goldberg:

(Inaudible) Judge Wisdom setting out the order reaction against the deterring intervention.

John E. Jackson, Jr.:

Yes sir.

He enjoined — he did not enjoin the grand jury, it’s the foreman or the judge who was conducting that grand jury.

John E. Jackson, Jr.:

He enjoy — enjoined thoroughly every participation by any state official in connection with the — anything that might be presented to that grand jury.

So he — they — he effectively enjoined the state process of the proceeding which was pending within the State Criminal District Court, he effectively enjoin that.

Arthur J. Goldberg:

Except that they return to the fact.

John E. Jackson, Jr.:

Well, they could — nothing could be presented to the grand jury because of the District Attorney’s hands, he was enjoined.

Arthur J. Goldberg:

Am I wrong that the judge might thought that the indictment subsequent to the attorney.

John E. Jackson, Jr.:

Mr. Justice Goldberg, that’s completely correct.

When Judge Wisdom issued his temporary restraining order on November the 18th then the proceedings in the Federal District Court were taken on the way.

And then upon January 6th or 7th, they vacated the temporary restraining order and thereafter, the District Attorney took the evidence which he had down to the grand jury.

And that evidence is still with the District Attorney and it’s a part of the criminal proceeding which was instituted on October the 2nd, 1963 as a result of the search warrants which were signed by the judges and also as a consequence of the warrants of arrest which were vacated.

Arthur J. Goldberg:

Is it your statement in answer to that that you’re saying that they’re all practical purposes, criminal proceedings were under there that it has the power to enlist the — the government proceeding is brought in the federal court, is that it?

John E. Jackson, Jr.:

Yes, Mr. Justice Goldberg.

There’s not doubt about that.

These appellants are well aware that they went into the federal court to restrain exactly what restrain this proceeding.

They were well aware of that.

The District Attorney told them, “We’re taking this evidence and we’re going to put it before the grand jury and we’re going to continue with our proceeding.

And of course appellants want you to think that the indictment is the same thing.

Without an indictment, there’s no proceeding.”

But as in the Uphaus it would really be a race to the federal courthouse, between the federal courthouse and the state courthouse, if someone got to win that they are going to be prosecuted by the State and could beat the first person down to sign an affidavit of the State, beat him to the federal court before he got to the state courthouse.

But there is no doubt about this, they have accepted this.

The indictments came down and then Mr. Dombrowski went before Judge Flat and asked that the evidence which would have been seized in — on October 4th that would be suppressed as far as his proceeding was concerned and the judge granted that.

In the meanwhile, these other appellants filed certain motions in their particular cases.

They were allotted to different — various sections of the Criminal District Court.

So there’s no doubt that they were not aware of the proceedings that were actually filed on the record in the Criminal District Court in New Orleans.

Now, as soon as this Court, Judge Flat granted their motion to suppress or Mr. Dombrowski’s motion to suppress on June 12.

This Court on June 15th noted jurisdiction at that time, the Court has got to get a true copy of the mutual agreement and we said we’re just going to stay these things.

The State took an appeal from the judge’s decision to suppress the evidence but through comment and agreement — this — this will go to the state —

Potter Stewart:

The same court?

John E. Jackson, Jr.:

Yes sir.

Now in — of course I take serious objection to appellants saying in so many words and by innuendo that they’re not going to receive due process from the courts of Louisiana.

I’m not talking about any other state but Louisiana I’m very concerned with that.

John E. Jackson, Jr.:

The history of this type of litigation, in Communist control in State versus Jenkins, they followed the Nelson case and declared the state statute unconstitutional.

So that there’s no reason to suspect that but the main — the main issue in this case is that, these state criminal proceedings were on the way on October the 2nd.

The appellants knew it and they cannot — cannot overcome this because the statute is completely expressed.

And the two decisions by Mr. Justice Frankfurter and of course which some of the court did not go along with but these two of the latest decisions — the decisions they cite and this is not a question of the Court in its exercise of equitable relief of abstention.

This is a question of law expressed statute which says and forbids.

This is the way the Congress determined that our federal-state court relation should be set up.

They said expressly that no federal court shall stay state court proceedings.

And Toucey points that up, and Toucey was not even a criminal proceeding.

Toucey was a man in which there had been some preli — suit filed in the federal court on an insurance claim.

The court came down with a decision, it was a subsequent suit filed in the state court and they said we’re going to go back into the federal court and join the state court civil proceeding because it’s — it already has been adjudicated previously in the federal court.

In the second case, in Richman, there’s a question of Taft-Hartley.

And this — this was another civil proceeding and they tried to enjoin a state court civil proceeding trying to restrain the state court permission of an injunction and the Court in this case realized that the state court was totally without jurisdiction in an area in which they had no business operating whatsoever.

But regardless of that recognition, they said that under this statute as interpreted, this Court or no federal court has the right to come in and enjoin proceedings already on the way in view of what the Congress has said.

Arthur J. Goldberg:

What this Court has (Inaudible)?

John E. Jackson, Jr.:

The one you have — there they asked for a declaratory judgment but declaratory judgment does not add to anything with the jurisdiction.

They do not — they ask — this is one of the things they asked after having tried to established jurisdiction, they ask for declaratory judgment.

What they ask for and this — and this is another thing.

That jurisdiction is on the jurisdictional amount, monetary amount and the only relief they ask for is an injunction.

Arthur J. Goldberg:

But my question on declaratory judgment goes directly with this.

What about Baggett and Bullitt?

John E. Jackson, Jr.:

Baggett and Bullitt, Mr. Rogers is going to answer this further.

With Baggett and Bullitt, there was, I think an area although I disagree with the opinion Mr. Justice White.

I think there wasn’t any area of interpretation.

I think it meant active participation under the terms they’ve both — announced by this Court down from Scales and the rest of the cases.

But there’s no doubt in Louisiana statute.

It’s not a crime to be a Communist but you have to register if you are.

Arthur J. Goldberg:

(Voice Overlap) proceeding —

John E. Jackson, Jr.:

On a procedural part (Voice Overlap) there was no criminal — there was no criminal proceeding in Bullitt versus Baggett and simply the entire issue is over the signing of an oath and if you didn’t sign the oath perhaps there is a professor who will screw and you lose your job.

There was no criminal proceeding and I might add and I’m sure Mr. Rogers is going to point this out that the only way a criminal sanction maybe imposed under the Louisiana state statute is through a judicial process by a court of law in Louisiana, the court having found a state successful in his prosecution.

That’s the only way.

John E. Jackson, Jr.:

It’s not something of — there is no crime to be a Communist.

Now, if you are a Communist or a member of — you must register but the Court has approved that in — in the Communist case.

But it’s based on overt, active —

Arthur J. Goldberg:

An overt — overt law.

John E. Jackson, Jr.:

Yes, originally it was in the Gerende case.

It was based but Louisiana statute is actually three enactments, the 1952 statute and 1954 statute.

They were declared unconstitutional by the state court in the verse of Nelson from this Court.

Then in 1962, in view of all of the decisions of this Court, the statute was revamped and it complied with all of the announcements of this Court until that time and then went through and directed the — with Uphaus in mind, Scales and the penal section of the Louisiana statute itself says, you must know knowingly and willingly do these things.

There’s no measure of vagueness as to what a person will — what is conduct.

The — the penalized conduct under the statute is.

There’s no area for him to say that if I just teach in the common definition of it then I’m going to be condemned under the statute.

It’s very clear, it’s expressed.

The statute is being applied to the indictments themselves and what must be proven in those indictments, reading of those indictments, they’re supplied in the appendix of the appellants brief.

But it’s very clear.

It’s willful, active, knowing conduct which has been approved by this Court.

There is no area of peaceful revolution.

It must be forced, unlawful force for the overthrow of the state government, the state government alone.

Now, if Your Honors please, the —

(Inaudible) the prosecution of the statute.

John E. Jackson, Jr.:

Yes sir.

Yes Mr. Justice Harlan, we have prepared —

William J. Brennan, Jr.:

But that’s rather dependent was it or not on the success of your appeal on the motion to suppress?

John E. Jackson, Jr.:

Oh, yes — oh, yes Mr. Justice Brennan, that was only in one case as I recall and that was filed and the decision of the Court was made in Mr. Dombrowski’s case and of course it does unless he’s taken, supply other evidence to go home with its prosecution and yet —

William J. Brennan, Jr.:

But it’s actually the appeal fail.

John E. Jackson, Jr.:

If the appeal fail (Voice Overlap) because now, the evidence which was seized in that October 4th raid can be used.

William J. Brennan, Jr.:

Well then, would there be a prosecution nevertheless of Dombrowski under the indictment.

John E. Jackson, Jr.:

Well, I think that’s all up to the District Attorney.

He’d have to weigh this case and see what — what chances he thought he have without this evidence as a basis of the state’s prosecution.

William J. Brennan, Jr.:

(Voice Overlap) evidence of the prosecution.

John E. Jackson, Jr.:

Yes sir.

William J. Brennan, Jr.:

What’s the position of that State of Louisiana towards it, on principle?

John E. Jackson, Jr.:

Your Honor, nothing has been done under this so-called gentlemen’s agreement.

The appeal is there, it has not been lodged and nothing has been — in fact, when this Court know the jurisdiction on June the 15th, no further action was taken by the State in this matters pending in state courts.

No further action was taken by the appellants in those cases as far as defense.

No defense, all the prosecutive action has taken whatsoever.

Earl Warren:

Now, does this include a motion to suppress also?

John E. Jackson, Jr.:

Yes sir.

Well, the motion to suppress came down and was granted.

Earl Warren:

Yes, I understand that.

John E. Jackson, Jr.:

And then the state took an appeal and then this Court noted jurisdiction and then that is stated right where it was.

Earl Warren:

Because as I understand Mr. Hubert to say that that was argued in the Supreme Court.

John E. Jackson, Jr.:

No sir, it hasn’t.

The appeal had been lodged.

It has not been perfected and it has not been heard.

Earl Warren:

Absolutely.

John E. Jackson, Jr.:

In other words, the decision of the judge came down in the District Court.

The notices of appeal were filed there and it just — that was held in advance until this Court finally disposes.

William J. Brennan, Jr.:

Well, I take it, Mr. Jackson that the state has an appeal of right from the grants of a motion to suppress?

John E. Jackson, Jr.:

Yes sir.

William J. Brennan, Jr.:

It’s not discretionary for the Supreme Court to understand.

John E. Jackson, Jr.:

No sir.

Byron R. White:

Can you tell me what a — can you tell me what a — the Communist-front organization is in Louisiana?

John E. Jackson, Jr.:

Well, sir, the Communist-front organization is declined by the statute itself.

The definitions of the statute only do not impinge upon the penal provisions.

Byron R. White:

So just tell me what a Communist-front organization is here.

John E. Jackson, Jr.:

A Communist-front organization show for the purpose of this Act to include any Communist action.

Byron R. White:

Where is this quoted?

John E. Jackson, Jr.:

This is on page 2 (a).

It’s the appendix of the appellant’s brief.

It is the printing of the Louisiana statutes involved.

Earl Warren:

Yes, on what page?

John E. Jackson, Jr.:

This is on page 2 (a).

It’s page 2 of Appendix A.

Earl Warren:

Yes.

John E. Jackson, Jr.:

A Communist-front organization shall for the purpose of this Act include any Communist action organization (Voice Overlap).

Byron R. White:

What’s that?

John E. Jackson, Jr.:

Sir?

Byron R. White:

What’s a Communist action organization?

John E. Jackson, Jr.:

This is — of course, the action organization is a Communist action organization —

Byron R. White:

Do you have any definition of that in the statute?

John E. Jackson, Jr.:

No, there is not Mr. Justice White.

Byron R. White:

Has there ever been any court in Louisiana ever said what it is?

John E. Jackson, Jr.:

No, Mr. Justice White.

Byron R. White:

The Attorney General overruled what it is?

John E. Jackson, Jr.:

No, it never had —

Byron R. White:

Well, how would anybody know what it is?

John E. Jackson, Jr.:

Well, people that are in this —

Byron R. White:

Do you know what it is?

John E. Jackson, Jr.:

My definition of a Communist action organization is one dedicated to world communism by action and force.

Byron R. White:

By force.

John E. Jackson, Jr.:

By force —

Byron R. White:

Any kind of forceful action.

John E. Jackson, Jr.:

— illegal.

Byron R. White:

— any kind of forceful action.

John E. Jackson, Jr.:

Any unlawful action against constituted government whether it would be in the sense as the state.

Byron R. White:

What’s a Communist infiltrated organization?

John E. Jackson, Jr.:

A Communist infiltrated organization is — is an organization in which opponent surface is not communistic but it has been infiltrated by a Communist so as to control that organization’s actions and dictate action by force and are bound to overthrow the government.

Byron R. White:

But a Communist infiltrated organization isn’t defined in the statute either.

John E. Jackson, Jr.:

No sir, it’s not defined.

Byron R. White:

Nor a Communist controlled organization?Is there any difference between an infiltrated and a controlled organization?

John E. Jackson, Jr.:

You just have my personal opinion, Mr. Justice White (Voice Overlap) like all of the — like of the terms —

Byron R. White:

They didn’t know whether to register or not.

John E. Jackson, Jr.:

Well, these people, if there were —

Byron R. White:

This is what they’ve been indicted for, isn’t it, failing to register two counts for being a member of a Communist-front organization.

John E. Jackson, Jr.:

Well, this matter in Courts is not decisive of this Court’s action but in the reason — the recent regimen of Lincoln, a case of the District — Court of Appeals of Washington.

You approve — they approved certiorari which was denied the same similar definition of Communist-front and this people had failed to register.

The Attorney General of the United States sought to have them raised and he was successful.

This is the recent case and I will give you the citation of the Court later but —

William J. Brennan, Jr.:

That was under the federal statute, was it?

John E. Jackson, Jr.:

That was under the federal statute and this is — this is modeled after the federal statute.

William J. Brennan, Jr.:

It may be modeled but —

John E. Jackson, Jr.:

In the terminology.

William J. Brennan, Jr.:

It was stated that the — there are expressed definitions on the federal statute of a Communist action organization, Communist-front organization and Communist infiltrated organization.

As I read your statute, you lump them all together.

They were all Communist-front —

John E. Jackson, Jr.:

Yes sir.

William J. Brennan, Jr.:

— you don’t tell us what Communist-front is except that —

John E. Jackson, Jr.:

Well, a Communist-front organization includes all of these other various organizations.

It is true that the statute does not define of its own terms.

The Communist still — infiltrated a Communist control.

William J. Brennan, Jr.:

Don’t you think that’s rather a vital distinction between the federal statute and this one.

John E. Jackson, Jr.:

It’s a — it’s a line of distinction and that the statutes differed and not to further define those.

But the claims are clearly under the statute directed toward the active participation and it’s not a crime —

Byron R. White:

Let me ask you also about a subversive organization.

You say that in Louisiana, you — that — that anyone would know that the acts which are directed against the State of Louisiana must be aimed at overthrowing the State by force or violence.

John E. Jackson, Jr.:

Yes Mr. Justice White, that’s correct.

Byron R. White:

And I mean that — and not just some vague or remote threat but an active threat.

John E. Jackson, Jr.:

Active?

Byron R. White:

And the statute, however, says that in defining subversive organization not only says by revolution of force or violence.

It says or any other organization which seeks by unconstitutional or illegal means to overthrow or destroy the government of the State of Louisiana.

Byron R. White:

It doesn’t say anything at all about force or violence.

Now, this has brought any kind of an illegal — a subversive organization is any organization which seeks to overthrow the government of Louisiana by any illegal means and to — and to substitute a form of government not responsive with people.

Now, that is a good deal broader than what you suggested to us was the construction that would be placed upon this.

John E. Jackson, Jr.:

Subversive organization, this is — this is — the language itself talks of violence and unlawful means of active participation.

Byron R. White:

Yes.

Well, it says yes, violence or unlawful means.

It doesn’t require violence at all.

John E. Jackson, Jr.:

Unlawful means doesn’t require violence in this and —

Byron R. White:

Can — can you think of a single unlawful — can’t you think of any unlawful means which doesn’t — don’t involve violence?

How about fraud?

John E. Jackson, Jr.:

Well, of course but unlawful meaning (Voice Overlap) that against the constituted law and government of the state and whether it’s by design or lack of —

Byron R. White:

But if it is by violence or any other thing you would mean the same.

John E. Jackson, Jr.:

But it’s an active moving thing.

It’s not just peaceful discussion or peaceful revolution of that type of thing.

Byron R. White:

That doesn’t have to be violent, does it?

John E. Jackson, Jr.:

It doesn’t have to be violent, no Mr. Justice White.

Byron R. White:

Or forceful?

John E. Jackson, Jr.:

It has to —

Although the state will ensure us that they don’t (Inaudible).

John E. Jackson, Jr.:

No, Mr. Justice Harlan.

We know and all of these are tied down to the facts of each case and to prove which is necessary to obtain a conviction and all of these take the willful and knowing knowledge of the person and commit, attempt to commit or aid in the commission of any act intended to overthrow or destroy by their search and they overthrow a destruction of the constitutional form of government of the State of Louisiana or any political subdivision there by revolution, force, violence or other unlawful means.

Byron R. White:

Well, would — could you tell me what sections of Louisiana law you think are involved here?

I gather from your brief you — do you think we should limit any —

John E. Jackson, Jr.:

Well, this won’t —

Byron R. White:

— any examination to 359, 3, 5 and then 360 and 364, 4, 6 and 7, is that right?

John E. Jackson, Jr.:

Mr. — Mr. Rogers will get into this again but —

Byron R. White:

Oh, alright.

John E. Jackson, Jr.:

But the indictments or the things which — which I feel present the issues or the sections of the law involved in this case.

And they all — those sections are on the back.

It’s found on page 5A and 6A of the appellant’s brief and it’s Section 364 (4).

John E. Jackson, Jr.:

This is the — and then 7.

Byron R. White:

And 6.

John E. Jackson, Jr.:

And 6.

And those are the sections we have.

One thing that should be pointed out, we do have a Severability Clause as it was present before the Court in the Communist case.

It should be corrected and referring to this, it says, its 376, it’s found on 11A of the appellant’s brief and it says “deleted” but this doesn’t mean to repeal but we still have a plea to Severability Clause as far as the Act is concerned.

Earl Warren:

How many — how many Communists, would it be necessary for the — the State to find in this Southern Conference to make it in an infiltrated Communist organization.

John E. Jackson, Jr.:

How many members of this organization?

Earl Warren:

Yes, if you just —

John E. Jackson, Jr.:

— could be found?

Earl Warren:

Yes, if you just — if you just happen to find one in there, I don’t suppose this would be an infiltrated organization, would it?

John E. Jackson, Jr.:

Unless — unless he himself was charged as being a subversive person or dedicated himself —

Earl Warren:

No, but we’re talking about — I’m talking about the definition of a com — infiltrated — Communist infiltrated organization.

Now, what do you have to prove — to prove that it is an infiltrated Communist organization?

John E. Jackson, Jr.:

How many people would —

Earl Warren:

Would you have to show where (Voice Overlap) for that purpose?

John E. Jackson, Jr.:

Well, I think in this particular case filed, I think in — in any case, it could be limited to one.

If he was strong enough in his leadership of that particular organization to be able to control it to the extent that he could forcibly and effectively advocate and teach forcible overthrow the government, if he was wealthy enough to use his funds to — to have people print literature and other devices so that these things would be used for the forceful overthrow of the government could be — be one.

Earl Warren:

But where does your — where does your definition say that — that they must infiltrate to the — to the point where they control the organization?

John E. Jackson, Jr.:

Well, I think that’s the conclusion, Mr. Chief Justice, that you have to take from a statute that the evidence would show it to the degree, the operations of the particular organization just what they were engaged in and how effective they were and just put the control they had over the people that were considered themselves members.

Earl Warren:

You mean that must be inferred from the statute?

John E. Jackson, Jr.:

Well, I think it’s — it would be a question of conclusion of the law after the evidence was presented whether or not they were in fact subversive or Communist controlled or Communist-front.

Earl Warren:

But it doesn’t say Communist controlled.

You make the distinction between Communist infiltrated organization and Communist controlled organization because your Act says a Communist-front organization, a Communist infiltrated organization or Communist controlled organization.

John E. Jackson, Jr.:

Yes sir and this is —

Earl Warren:

What is the difference between a Communist controlled organization and Communist infiltrated corporation if —

John E. Jackson, Jr.:

Well, Mr. Chief Justice —

Earl Warren:

— if both of them go to the question of control.

John E. Jackson, Jr.:

Well, they’re overlapping as I said I gave you my personal opinion or the thing where the statute is solid as said by Mr. Justice White.

It’s solid as to the definition of these particular name type organizations which are included on the definition of Communist-front organization.

Earl Warren:

Do you feel that you’re — you’re certain enough in your opinion to — to say that the — that the Supreme Court of Louisiana would hold that infiltrated Communist organization meant one infiltrated to the point where the Communist have control over the organization?

John E. Jackson, Jr.:

Mr. Chief Justice, I really don’t know what —

Earl Warren:

Well, I’ve (Voice Overlap) that’s what I was finding out.

And a man who is looking at this statute might have the same difficulty, might he not?

John E. Jackson, Jr.:

He would — he would register.

Now, the only — only crime —

Earl Warren:

He would register whether he knew or not — whether he was required under the act to do it?

John E. Jackson, Jr.:

If he was a member of a Communist-front organization, he knew that organization to be engaged in a forceful overthrow of the state government and this could be proven and he had also proven and he had failed to register, he would be guilty of one of the prohibited acts of this state law.

Byron R. White:

Well, even if he had to know what the organization is engaged, would he?

John E. Jackson, Jr.:

He would — he would know that, Mr. Justice White.

Byron R. White:

How does he know that?

You said you wouldn’t know?

John E. Jackson, Jr.:

Well, he would know that the people he was dealing with were actively engaged in the forceful overthrow of the state government.

This would have to be proven.

His knowledge and willful — willfully and knowingly, this would — this is a — a very severe burden of proof upon any state prosecutor, it’s very true and I don’t know what —

Byron R. White:

(Voice Overlap) he might have infiltrated this why no one knows what it means.

John E. Jackson, Jr.:

Well, infiltrated under — by the state law of interpretation has a common meaning unless otherwise announced by the courts.

Thank you.

Earl Warren:

Mr. Rogers.

Jack N. Rogers:

Mr. Chief Justice and may it please the Court.

I’ll try to answer a little further, if I may, the questions that the Court asked Mr. Jackson, in answer to your question Mr. Chief Justice about the question of Communist-front.

The statute lumps together, intentionally, these different classifications of organizations under the “Communist-front organization,” for the very purpose of eliminating confusion about this point.

There is a rule of presumptive evidence in this particular section of the statute, it’s on number 3 on page 2 (a) of appellant’s brief.

And the purpose of this simply was to eliminate the confusion in the minds of people who belong to these different types of organizations so that if they know and actually have knowledge that the organization has been so cited as commented here under this presumptive evidence rule which had been put in that they should go and register.

We feel like that this is an adequate definition for the main reason that it requires knowledge on the part of the defendant.

If he doesn’t know it’s not a Communist-front organization within the meaning of this definition, he can never be convicted for failure to register.

Now, this is a strong burden of proof on the state to prove his knowledge and we think this is an adequate protection for him.

Earl Warren:

What is your definition of Communist infiltrated organization.

Jack N. Rogers:

Well, a Communist infiltrated organization has been discussed at some length in the federal statutes and litigation on this matter and —

Earl Warren:

Yes, but we don’t — we don’t judge your statute by what the federal statute says, do we?

Jack N. Rogers:

No, of course not, Mr. Chief Justice.

But a Communist infiltrated organization under this particular section of the statute to eliminate the question of this definition being vital to a case has been lumped under Communist-front organization to which, this presumptive evidence rule does apply.

The purpose of this —

Earl Warren:

Then tell me what a Communist-front organization is.

Jack N. Rogers:

A Communist-front organization under the rule of presumptive evidence in the statute is one which has been cited or otherwise identified by a committee of Congress.

There are several other things set forth here, the Attorney General of the United States, Subversive Activities Control Board or any Subcommittee of Congress as a Communist-front organization.

Now, this is not a rule of law, it’s a rule of evidence and we’ve got it in here because it is rebuttable and if an accused can prove either that he didn’t — did not have knowledge that his membership was in an organization which had been so cited or that the organization had not been so cited then he could initiate any charges which were pending against him.

Earl Warren:

But what organization was it that cited or identified that the Southern Conference has a —

Jack N. Rogers:

The Senate Internal Security Subcommittee of United States Senate.

Earl Warren:

Subcommittee?

Jack N. Rogers:

Yes, Your Honor.

They were identified as the same organization as the Southern Conference for human welfare which had been twice cited by the House Committee on Un-American Activities as a Communist-front.

William J. Brennan, Jr.:

(Voice Overlap) or the same as.

Jack N. Rogers:

The same as.

William J. Brennan, Jr.:

The same as.

They’re the same.

Jack N. Rogers:

Yes.

Well, it says, substantially the same.

William J. Brennan, Jr.:

I know but not the same, the same edge.

Jack N. Rogers:

This is a question of the exact statement in the finding of the Senate Internal Security Subcommittee.

William J. Brennan, Jr.:

Well, was it — it was the one that named — just another name for this organization?

Jack N. Rogers:

Precisely.

William J. Brennan, Jr.:

Is that what the holding was?

Jack N. Rogers:

That’s exactly what it was.

They operated the same business at the same address with the same telephone number with the same executive director with practically the same Board of Directors and they simply changed the name because the old name had been cited and had become — had become known throughout the country as a Communist-front.

Now, this brings me to another point I want to make that this organization has held themselves out even before this Court today to be a civil rights organization when they in fact are not.

They’re simply a Communist-front organization.

They’ve been well identified as such and they’re well known as such.

Arthur J. Goldberg:

(Inaudible) before the State of Louisiana and that included the Southern Christian Leadership Conference?

Jack N. Rogers:

The Southern Christian Leadership Conference has been cited so far as we know by no congressional committee and no federal authority.

Arthur J. Goldberg:

What about the rule from the statute?

Jack N. Rogers:

Our committee found that there were substantial influence on this group through the Southern Conference Educational Fund and we have what we think is adequate evidence of it in these exhibits that had been offered to the Court.

Byron R. White:

What does that make it?

Jack N. Rogers:

I beg your pardon, Your Honor.

Byron R. White:

What does that make it?

Jack N. Rogers:

We don’t define it at this time.We have made no effort to define.

Byron R. White:

(Voice Overlap) substantially influence upon.

Jack N. Rogers:

This is correct.

Byron R. White:

But that means nothing under the statute I gather.

Jack N. Rogers:

No, Mr. Justice and it doesn’t really mean anything after this case because these people are not charged with being part of that particular group.

Byron R. White:

But they might be under the statute.

Jack N. Rogers:

I don’t think so, no sir.

Byron R. White:

You don’t think it is.

Jack N. Rogers:

Because it does not fit this presumptive evidence rule which we’ve set forth in the statute.

Byron R. White:

Well, those are — are those the only organizations that are — that are going to be a subject in the statute, just the ones that had been decided by some federal authority?

Jack N. Rogers:

This is true in regard to the registration portion of the statute.

Byron R. White:

Well, that’s the way it reads —

Jack N. Rogers:

I’m sorry, I can’t —

Byron R. White:

That isn’t the way the statute reads.

It does pre — in the presumptive evidence rule but that wouldn’t need to be the only evidence you relied on for enforcing for failure to register provisions on those.

Jack N. Rogers:

Well, that’s the only thing — the only criteria set forth in the statute.

Byron R. White:

At least you say when some organization has been cited that then there should no longer be any doubt in anybody’s mind (Voice Overlap)

Jack N. Rogers:

Correct.

This is precisely our position.

Byron R. White:

If there were some vagueness or uncertainties before the citation, there isn’t afterwards.

Jack N. Rogers:

Correct, Mr. Justice.

Now, we would add this in regard to the statute that counsel for the appellants here have persistently confused the two sections, Communist-front organization and subversive organization.

Now, these are different things or in different sections of the statute and when the counsel suggest to the Court —

Byron R. White:

They’re both involved in the case.

Jack N. Rogers:

They are, yes sir.

Byron R. White:

Okay.

Jack N. Rogers:

When counsel suggest to the Court that a man can be put in prison for six years for belonging to a Communist-front organization, this is simply not so.

He can be put in jail for six years if he fails to register or if he is engaged in the management of a subversive organization which is a different thing entirely and to find it was substantially more detail in the statute.

I would refer the Court to Section 5 of the statute which appears on 3 (a) of appellants’ brief.

Byron R. White:

Well, does that mean Mr. Rogers that something might be a Communist-front organization and not be a subversive organization or vice versa?

Jack N. Rogers:

That is correct.

The two things are not in any way dependent upon each other.

Subversive organization is described with substantial detail and there’s no requirement in the statute incidentally to register as a member of a subversive organization only as a member of a Communist-front organization.

Now, these — these people, the prime defendant in the case, Mr. Dombrowski is charged with the management of a subversive organization and this is fixed in detail here exactly what a subversive organization is.

It depends upon doing an act or aiding and abiding in acts that tend towards the overthrow the government of the state.

Byron R. White:

Then — but not necessarily by force or violence?

Jack N. Rogers:

Not necessarily, no.

However, an overt act by the defendant is required and would be necessarily proven before he could be convicted.

We’d have to prove some degree of management to something that he did as an overt act.

Arthur J. Goldberg:

(Inaudible)

Jack N. Rogers:

There were two counts against defendant Dombrowski and three counts against defendant Smith and one count only on failure to register against defendant Waltzer.

Byron R. White:

So that in this instance, the indictment suggest that this organization is both a Communist-front and subversive organization.

Jack N. Rogers:

That is correct, Mr. Justice.

Byron R. White:

But you suggest that one maybe one without being the other.

Jack N. Rogers:

It may but in this case, that’s not so.

In this case, this organization is both.

Byron R. White:

Well, if it does provide the application, what do you suppose the difference is — it might be?

Jack N. Rogers:

Well, I would think that most Communist-fronts, if their work has led to the degree of overt act against the State would be a subversive organization.

Now, there are some that are just more or less study groups that don’t engage in anything beyond this and they conceivably could not be a subversive organization.

But — excuse me.

But the other direction —

Byron R. White:

Your law would catch those as far as registration is concerned.

Jack N. Rogers:

It would.

Byron R. White:

You would be required to register even though you’re a member of this study group.

Jack N. Rogers:

If it were a Communist-front study group provable under the statute with the knowledge of the defendant that it was such.

Byron R. White:

But it — but it could be a — it could be a Communist-front study group that fell far short of satisfying the definitions of a subversive organization.

Jack N. Rogers:

It could — this is possible, yes.

Now, working on the other direction, we have other subversive organizations that are not Communist-fronts, for instance, Black Muslims, very active in Louisiana (Voice Overlap).

Byron R. White:

Do you suppose anybody would really or to really — or to really expect anybody to know the difference between a subversive organization and a Communist-front organization just from reading the statute?

Jack N. Rogers:

Well, Mr. Justice —

Byron R. White:

Or that doesn’t make any difference.

Jack N. Rogers:

I would suggest that when you get into some of the delicacies of the law in regard to self defense and things like this, we expect them to know it and we put them to the test in the Criminal Court and we apply the evidence to the case and submit it to the jury and let the jury decide whether or not they knew it.

This is the only answer I can give you to it, that the statute is here and we must presume that these people have read it.

The statute in no way interferes with the federal statutes, it deals only with acts against the State itself and it so specifies.

The statute is not uncertain because it prohibits only knowing overt acts.

It’s fair because it condemns no one without full due process go in the Court being tried in aligning defense of themselves.

Now the statute —

How long does the statute have been on its present form?

Jack N. Rogers:

In its present form, since 1962, Mr. Justice.

The statute was drawn with a specific purpose of complying with the rulings of this Court in the cases of Nelson and Uphaus.

In fact, one of the judges of the three-judge District Court commented from the bench that when counsel who drew the statute did the job, he must have had the Uphaus decision opened before and I can tell the Court that this is a fact, that this was the situation.

It was designed particularly to comply with those decisions.

The statute meets the test set forth in the Nelson and Uphaus cases.

I would like to read to the Court a brief quote from Uphaus.

This Court said that a state could proceed with prosecutions for sedation against the state itself.

The state had full power to deal with internal civil disturbances, thus, registration statute’s full warrant to all proceedings as to subversive corporations, the subversive instigation of rights and a host of other subjects, directly affecting state security furnished grips for the State’s legislative mill.

And we feel like that the statute is valid under that particular language.

Now, as to reasoning behind this, what reason is there why the state shouldn’t use their police power control subversive activities?

The Uphaus decision clearly recognizes the State’s right to self protection.

This is a key point in Uphaus.

It affirms Nelson on this even.

The Nelson case itself recognizes this.

The Constitution guarantees to the State a republican form of government and there is no reason why the State should not be carrying this function out particularly when the guidelines of how to do it are so clearly set forth in Nelson and Uphaus.

If they were not and if there were no decisions on this, I could see some justification for the point of view that the State should not be into this business.

But as long as the Court has clearly defined the realm wherein the State might proceed, I think the State’s not only have a right but an obligation to do what they can for their own self protection.

Earl Warren:

We’ll recess now.

Jack N. Rogers:

— the recess started was that in theory, there is no reason why the State should not be allowed to enter into the field of regulation of subversive activities particularly when the guidelines are so clearly fixed in the cases of Uphaus and Nelson.

Appellants in the case want to overrule both the doctrines, both Nelson and Uphaus and set up a new doctrine which would simply destroy the police power of the states to regulate at all.

Why would they do this?

Well, there are two full reasons.

If the federal government under such a doctrine did enter into regulation, the only way they could do it would be by a federal police force and what would amount ultimately to a police state that none of us want.

If they didn’t effectively do it, this case would simply open the floodgates to any amount of Communist-front activity.

It would not be effectively regulated.

There would be no way possible than it could be effectively regulated.

Now, as to the question of a case of Baggett versus Bullitt, we see six separate distinguishing factors between these cases.

First, the federal statute was not involved, Section 2283 of Title XXVIII in the Bullitt case.

Secondly, the prime issue in Baggett versus Bullitt was abstention not jurisdiction as it is here.

Next, our statute proscribes only knowing overt acts and this was not the case at all in the Washington statute.

Next, there is no required in our statute and this was not the case in the Washington statute.

Next, our statute was rewritten for the specific purpose of complying with the decisions in Nelson and Uphaus and this was not the case in the Washington statute.

It went clear back behind the rule of Nelson and our statute has been revised to a much, we think, more credible criteria of guilt.

And finally, in the Baggett case, there was no pending criminal prosecution, this relates back up to 2283.

This wasn’t involved in the case at all.

Now we think the case is clearly distinguishable on these six grounds.

Arthur J. Goldberg:

Did you ever consider the cases involving the federal court of the authorize position injunction with respect to the activity and to the subject to sue the man?

Jack N. Rogers:

Not if the proceeding is already pending, Mr. Justice and that’s the situation in this particular case.

I might comment on that but the 2283 was discussed in most recent case on the point, Clothing Workers versus Richman Brothers and this is about 10 years ago.

The Court said this, “The prohibition of 2283 is but continuing evidence of confidence in the state courts, reinforced by a desire to avoid direct conflicts between state and federal courts.”

And we think that this is a clear criterion of how and when the statute should be applied and it should apply on this particular case under that ruling.

(Inaudible) do you think this is a declaratory judgment?

Jack N. Rogers:

Well, if the effect of the declaratory judgment is the same as an injunction, it would make no difference whatsoever one way or the other.

The prohibition of the statute should still apply and in this case, that would be the effect of a declaratory judgment.

The same as if an injunction were issued.

We see no reason why these people can’t offer their constitutional defenses in the State Criminal Court.

And in the past, this has been done and it has been successfully done under the Nelson rule by a defendant in the case of State versus Jenkins in our Louisiana Supreme Court when the prior statute that we have before this one was thrown out on that basis.

Potter Stewart:

It got on the Nelson case itself, wasn’t it?

Jack N. Rogers:

Correct.

Potter Stewart:

And successfully — successfully in the courts of Pennsylvania.

Jack N. Rogers:

That’s correct.

I see no reason why it should not be done in this case.

In fact, everything points to the — to the application of the rule here.

I mentioned to the Court that we felt that this organization was in fact not a civil rights group but instead, a Communist-front group.

I like to further suggest to the Court that all subversive activities, all of them in the Southern United States depend upon one side or the other side of the racial issue as their cover story, all of them from all ranges.

You have the KKK, the Muslims, the Nazi party and then on the other side of the coin you have the Communist party itself.

This organization, the Student Nonviolent Coordinating Committee and some 200 other Communist-front organizations that Beauregard told us two years ago that this organization had under surveillance.

He testified to this in the congressional hearing on appropriations.

Now, we have offered in annexes to our brief to the Court what we think is adequate proof of this organization’s affiliation with the Communist Party and I would like with the permission of the Chief Justice to offer it further Annex — Annex E, a recent report of our committee dated January 19, 1965 for the same purpose, if I may Mr. Chief Justice.

Earl Warren:

Are there any objection to it?

William O. Douglas:

We have not seen each other —

Earl Warren:

I beg your pardon (Voice Overlap)

Can you give me a copy at full length?

Byron R. White:

Yes, exactly before lunch.

Earl Warren:

But it’s a purport of it, is it?

Jack N. Rogers:

The purport is a continuation and extension of the other two annexes which we have already filed.

Earl Warren:

(Voice Overlap) find the case on the merits here?

What should the evidence that you have against these people, is that what it is?

Jack N. Rogers:

No sir, Your Honor.

It is not at all that.

Earl Warren:

What — what —

Jack N. Rogers:

These people have raised the issue before this Court in their pleadings and in their offers of proof that they are a civil rights organization.

Now, this is factually and simply not so.

Earl Warren:

But you’re bound by their offer of proof, aren’t you?

Because shouldn’t they — didn’t they make an offer of proof and wasn’t it understood that that would be in lieu of offering evidence?

Jack N. Rogers:

This is correct, but in addition to that, they have also offered affidavits which we think are totally extraneous to the record dealing with their status and we think that these things are justified on that basis.

Earl Warren:

You may offer it for filing and we’ll — we’ll consider it, Mr. Rogers.

Jack N. Rogers:

Thank you Mr. Justice.

Now, I have one or two other points I want to make before concluding, if I may.

Counsel alleges that this statute is set up to bring about both restrictions.

Well, I would only suggest an answer to this that large numbers of new voters are in fact registering now to vote in Louisiana.

They’re in no way hampered by the statute.

It deals only with subversion and it is only been applied to such.

We believe that any legitimate civil rights group can work in Louisiana without violating the statute on subversive activities.

There’s no reason why they can’t do it because this thing deals with overt acts in a highly specific manner.

Now, I have one item to answer to Mr. Hubert’s argument, if I may.

He suggested that I was a defendant in this case.

I am not and have never been.

One other point I want to make an answer to Mr. Kinoy’s argument.

He suggests that there was an unconstitutional application of the statute in this case and I could only answer that by a question.

How could the State better get due process to these defendants than by preparing the evidence which they had in the form of affidavits and taking it to a Criminal Court judge, offering it to him and saying, Judge, here is our case against these people.

We think search warrants are the issue.

Will you consider this and give us your ruling as to whether there exists adequate cause in this case and if so, sign these search warrants for us.

Now, this is exactly what was done.

And by signing the search warrants, the judge ruled that there was adequate cause.

He had to, to sign to justify the signing of those search warrants.

Now, we have given these people due process all the way through this case.

There has been no unconstitutional application of this statute in any way, shape or form.

In conclusion, the sole issue as we see it legally before this Court is a question of whether the lower court had jurisdiction particularly under the statute, Section 2283.

There’s no decision or record from the court below to justify the Court at this time going any further into the case itself.

I’m sure the Court is aware that there has been some criticism on this point against the Court from outside sources on taking cases piecemeal and this is what this would amount to.

Eventually, by the process of criminal justice, this case will probably reach the Court.

And if the Court decides one issue today and the trial of these people continues and they are convicted, it will be back here again eventually.

Secondly, Title XXVIII, Section 2283 is highly specific.

It clearly and particularly prohibits exactly what the appellants want the Court to do in this case.

Can and should a federal court enjoin a pending state criminal procedure?

Well, the Congress says — it simply said no.

Jack N. Rogers:

That’s all it is to it.

They’ve said no.

Ours is a government basically of divided powers.Our overriding goal should be a principle constitutionalism of the doctrines of federalism and separation of powers are fundamental in the Constitution itself.

They’re even recognized in the Bill of Rights in Article X.

The Constitution in the Bill of Rights and in the Fourteenth Amendment, any construction of this which violates the basic principles of constitutionalism should be very strictly applied by the courts and it should be very seriously considered because however great the appeal this might be in a single case, the overall principles of the Constitution must stand fast and basically in the — inherent in them are the two things of federalism and separation of powers.

I would answer further by saying simply that the prime responsibility of any government, over and above and overriding that to even its individual citizens is maintenance of the government within the constitutional framework.

This is fundamental, the basic, single responsibility of any government to maintain itself within the constitutional framework and we urge that if these two sections of the Constitution are in fact in conflict in this case that the overriding of basic principle constitutionalism should prevail and we ask that the Court affirm the judgment of the lower court.