In re Sawyer

PETITIONER:In Re Sawyer
LOCATION:Fargo, North Dakota

DOCKET NO.: 326
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Ninth Circuit

CITATION: 360 US 622 (1959)
ARGUED: May 19, 1959 / May 20, 1959
DECIDED: Jun 29, 1959

Facts of the case

Question

  • Oral Argument – May 20, 1959
  • Audio Transcription for Oral Argument – May 20, 1959 in In re Sawyer

    Audio Transcription for Oral Argument – May 19, 1959 in In re Sawyer

    Earl Warren:

    Number 326, in the matter of disciplinary proceedings against Harriet Bouslog Sawyer, Petitioner.

    Mr. McTernan.

    John T. McTernan:

    Mr. Chief Justice, may it please the Court.

    We are hereby in certiorari to the Ninth Circuit which affirmed a judgment of the Territorial Supreme Court of Hawaii suspending petitioner, a lawyer, from the practice of law for a period of one year, by virtue of the rules of the local court that suspension is tantamount to disbarment because she cannot get back without taking another examination and passing the character test and I quote from the rule, “As an applicant for admission”.

    The conduct upon which the matter was tried in the Territorial Court involved two incidents, one was a public speech given in a little hamlet called Honokaa over on the Island of Hawaii.

    And the second was a series of interviews of a trial juror after the case in which that juror had served — had closed and the jury had been dismissed.

    Let me — I will discuss the facts in each of those —

    How long — how long after the trial jurors (Inaudible) would take place?

    John T. McTernan:

    Five or six days, Your Honor.

    (Inaudible)

    John T. McTernan:

    Approximately that.

    We contend that the findings of gross misconduct —

    William J. Brennan, Jr.:

    What I ask is that — there’s no question the jury has been discharged.

    John T. McTernan:

    There is no question about that, Your Honor.

    William J. Brennan, Jr.:

    Not waiting service with another — another case.

    John T. McTernan:

    This juror had served 10 months, Your Honor, in one case and he was dismissed for good.

    We contend that the findings with reference to the Honokaa speech are arbitrary and that the discipline imposed upon her involves an infringement of her rights under the First Amendment.

    She was found to have impugned the integrity of the trial judge in the remarks that where attributed to her.

    Before getting into the details of our argument on that, let me just give you this much background.

    Counsel and her firm — I mean petitioner and her firm were counsel for the ILWU, the dominant labor force in the island.

    And the regional director of that organization along with six others was indicted for conspiracy to violate the Smith Act in a case called United States against Fujimoto.

    Petitioner was a counsel of record in that case and had been from a day or two after the indictment had been returned.

    She was counsel for this regional director whose name was Jack Hall.

    The trial had been under way for approximately six weeks at the time of the speech.

    And during those six weeks, the Court had her testimony from a witness named Paul Crouch, one of the three perjurious witnesses referred to in an opinion of this Court in Communist Party against SACB.

    This man had told a story about galloping over the Russian steppes in 1927 at a time when defendant in the Fujimoto case, Jack Hall, was 14 years old and another defendant was four years old.

    And there had been a series of objections and motions to strike with reference to that testimony, and the testimony had been admitted subject to connection and subject to later a motion.

    They had also been contentions made to the Court in Fujimoto that the trial should not be held because of the adverse climate of public opinion and similar matters.

    Now, the union had set out a defense committee which was doing the job of raising money for the defense, Jack Hall and other people who might be caught in the then political prosecutions that where going on both in Hawaii and elsewhere.

    And this Committee called the Union Defense Committee sponsored the meeting at Honokaa at which petitioner gave her speech.

    John T. McTernan:

    And it says in the record that this was kind of rapport back to this — this union membership and some of their friends from the public who attended this meeting.

    It should be pointed out that — as I think I’ve indicated already, that Honokaa is a small rural hamlet over on another island about 182 air miles from Hawaii over open ocean.

    It’s a little town in the rural section there, the sugar plantation area.

    Now, we — as I say, we attacked the findings that in this speech, petitioner impugned the integrity of the trial judge as arbitrary.

    The issue obviously is from the finding of the Court, and that will be found at page 117 of the record or rather at page 118, the paragraph beginning at the top of — the continued paragraph at the top of the page.

    Issue is, did the language, which he used, impugn the integrity of Judge Wiig?

    Now, we concede at the outset, because much of it has made of this in appellant’s brief, that this speech was largely all then concerning the Fujimoto trial.

    Indeed, the speech was critical of the conduct of the Fujimoto trial.

    And in one or two passages, it may reasonably be said that petitioner was critical of Judge Wiig.

    Felix Frankfurter:

    What was the stage of the trial?

    John T. McTernan:

    It was in progress, Mr. Justice Frankfurter.

    Felix Frankfurter:

    I mean what — yes —

    John T. McTernan:

    There was taking evidence.

    Felix Frankfurter:

    — I understand that, but — but how far was the trial gotten?

    What kind of issues was put?

    John T. McTernan:

    Well, the trial had been in progress for about six weeks.

    The Government was putting on its case.

    It was tendering the issue the Communist Party or at least some group within the party was engaged in the conspiracy to overthrow the Government by force and violence.

    And as I recall the Fujimoto record, the evidence of this man, Crouch, was put on, remote as it was, back in 1927, speaking as of that date, to show the nature of the Communist Party and then apparently, the — the burden still remained upon the Government to connect this up with the particular defendants who were standing trial there.

    There was a —

    Felix Frankfurter:

    Was the case-in-chief of the —

    John T. McTernan:

    This was the Government’s case-in-chief, yes —

    Felix Frankfurter:

    I understand.

    John T. McTernan:

    — which went on for many months after.

    Felix Frankfurter:

    Cross-examination of Crouch had not yet began, is that it?

    John T. McTernan:

    Well, I think, the cross-examination of Crouch had — may have been concluded by that time.

    In any event, I’m — I’m quite sure that there had been cross-examination of him by the time that this speech was given.

    What would Mrs. Sawyer’s position in the —

    John T. McTernan:

    She was —

    (Inaudible) chief counsel or she —

    John T. McTernan:

    She was one of counsel, Your Honor.

    — a principal counsel or what?

    John T. McTernan:

    The — various of the defendants were represented by different counsels.

    She and her partner, Mr. Simons, were of record for the defendant, Jack Hall.

    Did she take a lead in the trial?

    John T. McTernan:

    No, she was one of counsel.

    She was in the trial court much of the time, much — some of the time, she was out of court because she had, among the division of labors among counsel, a large responsibility for research work in the preparation of papers and motions, various things of that kind.

    But she was an active counsel of record, there’s no question about that.

    William J. Brennan, Jr.:

    Well, but did she actually participate in the examination — cross-examination of witnesses?

    John T. McTernan:

    Yes, sir.

    Now, we say that the mere fact, and — and this is an important aspect of appellants — of — if respondent’s case, as I understand.

    The mere fact that she spoke about this trial, the fact that she was critical of the conduct of the trial or that she was critical of Judge Wiig, do not, of themselves, prove that she impugned the integrity of Judge Wiig more than that is necessary to make out the findings which the trial court asserted at the place of the record I’ve already indicated.

    Let me say and I will review the evidence in some detail in a moment by I do want to make the general observations about it, that I find and I think that the Court will look at that speech inveighed upon any direct or explicit evidence that petitioner impugned the — the judge’s integrity.

    There was no casting of any reflection upon his honesty, no charge of corruption or political motivation or abuse of power or willful partiality nor is there any evidence of direct and explicit attack upon the District Court or upon the judiciary generally.

    Indeed, the general burden of her — of her talk is in quite a different direction.

    The main thesis of her talk where that the Fujimoto trial was a trial of doctrine involving books and ideas, and that this was bad.

    Then in a conspiracy case like Fujimoto, the prosecution is predicated upon an alleged agreement to do something not the actual doing of it that in a conspiracy case there is — like Fujimoto, there is great latitude in the receipt of evidence of third party declarations and third party conduct, that this latitude was necessary for the Government to make its case, and that the Government was constantly pressing for greater latitude in these respects.

    And these characteristics of Fujimoto are not found in prosecutions for the substantive offense and they raise grave questions of vicarious guilt and finally, the thesis that the Government’s pretrial propaganda in the FBI methods of recruiting witnesses had cast a — a heavy cloud of unfairness upon the trial.

    Am I right in thinking that the actual test of what you said in this meeting is not in the record but a dictated brief, in my recollection, is that it?

    John T. McTernan:

    Your Honor, I — I’m hopefully happy you mentioned that.

    I intended to mention that in my preliminary statement.

    There is no verbatim account of this speech.

    She spoke extemporaneously.

    There was a newspaper reporter present who took longhand notes from which he wrote the news article which led to all the fuzz over this.

    And there is a — an enlarged version of his note, which I will come to in a moment.

    In addition to that, there is petitioner’s own version of what she had said which she gave to Judge Wiig when he asked her thereto after the event.

    We — we rest our position here upon an analysis of the notes of the newspaper reporter and the testimony of the witnesses because we feel that our attack here has to be predicated upon the evidence against us, and we don’t ask this Court to resolve conflicts in the evidence.

    So that this — essentially, what I’m giving you now and what I will rest my argument on is the notes of this newspaper reporter which were appended to the opinion of the majority clause, Appendix B and begin at page 573 of the record.

    Felix Frankfurter:

    Well, were there accounts, news accounts of the — this speech —

    John T. McTernan:

    There was —

    Felix Frankfurter:

    — contemporaneously?

    John T. McTernan:

    — there was a news account, Your Honor, given in the newspaper in Hilo, Hawaii the following day.

    Felix Frankfurter:

    Is that in the record?

    John T. McTernan:

    Well, the newspaper account is in the — set out in the opinion of the court below.

    It begins at page 559.

    Felix Frankfurter:

    Thank you.

    John T. McTernan:

    Incidentally, we attempted to — to offer an analysis of the — of the Matsuoka, that’s the newspaper reporter’s name, notes in our statement of the case and that being is at page 8 of our — of our opening brief.

    William J. Brennan, Jr.:

    (Inaudible)

    John T. McTernan:

    Yes.

    William J. Brennan, Jr.:

    Is it not?

    John T. McTernan:

    That’s right.

    William J. Brennan, Jr.:

    I mean that’s his newspaper account made up from his notes.

    John T. McTernan:

    That’s his news story made up from his notes.

    William J. Brennan, Jr.:

    Because —

    John T. McTernan:

    Yes.

    William J. Brennan, Jr.:

    — I understand that you’re argument is going to be premised on accepting what’s said in the notes, not in the news articles.

    John T. McTernan:

    Not in the news articles.

    William J. Brennan, Jr.:

    Yes.

    John T. McTernan:

    We think that the news article had no place in the case as a matter of evidence.

    Felix Frankfurter:

    You think — you think a contemporaneous news article by a lawyer in the case — about the case has no place in the case?

    John T. McTernan:

    Well, I think that it does — this is not evidence, Your Honor, of what she said.

    I think that this is — this is such a matter of interpretation and selection and it’s a matter of — of hearsay, it would seem to —

    Felix Frankfurter:

    I can well understand.

    You’re challenging the accuracy of that report, is that it?

    John T. McTernan:

    Indeed, we are because his own note show that she said many other things and then —

    Felix Frankfurter:

    Well, in addition, you mean additional — that — what is — what is printed is what is printed.

    What I want to know is whether you think a speech by a lawyer in litigation in a criminal case then before the jury meets three, printed in a reliable — in a — in a newspaper which circulates currently among the population of the people in what Justice Holmes called the impregnating atmosphere, you think that it’s irrelevant?

    John T. McTernan:

    No, I think it’s irrelevant to this case because she was not charged, Your Honor, with interfering with the fair administration of justice, and she wasn’t found to have committed any such offense.

    Felix Frankfurter:

    I understand that.

    She’s up before the appropriate authorities whether she’s a fit person to continue to practice without some discipline.

    John T. McTernan:

    On a charge that she impugned to the integrity of the trial judge, not on a charge that he — said she interfered with the fair administration of justice.

    I think it’s a quite a difference.

    Felix Frankfurter:

    You mean the only — the pleading — we are restricted to the pleading that she impugned the integrity of the Court?

    John T. McTernan:

    Oh, Your Honor —

    Felix Frankfurter:

    Is that what she — is that why she was suspended for a year?

    John T. McTernan:

    Precisely, precisely.

    This is not only a matter of pleading, Your Honor, this is a matter of finding by the Territorial Court at page 118 of the record after looking at the remarks.

    Felix Frankfurter:

    But I — I can understand the Court’s finding that she was a lawyer who impugned the integrity of the Court is something — the matter of it.

    But I was wondering whether that was the charge, that is the complaint that there was any informal complaint against her on which — to which she had to answer before the appropriate —

    John T. McTernan:

    Yes.

    Felix Frankfurter:

    — bar committee.

    John T. McTernan:

    There was a complaint which charged her with impugning the integrity of the trial judge.

    This was heard before a illegal ethics committee appointed by the Territorial Court which submitted its report based upon the testimony.

    It found that she impugned the integrity of the trial judge.

    The Court then issued an order to show cause based upon that report, and she responded to that by filing a return.

    Felix Frankfurter:

    Well, on this branch of your case issued then a — a very simple one, namely — as I see it, namely, a charge of impugning the integrity of the Court based on the speech, the speech not prepared or extemporaneously expressed notes thereof taken by a reporter.

    Those notes are available.

    The notes — on the basis of the notes, she also printed something in the paper, and all — one has to do is to read those notes in that paper and see whether that fairly makes out charge of impugning the integrity of a court, isn’t that it?

    John T. McTernan:

    That’s — that’s true.

    Felix Frankfurter:

    Just simple as that.

    John T. McTernan:

    That — it’s just simple as that.

    Felix Frankfurter:

    Just meaning a few — a figure to a writing.

    John T. McTernan:

    Well, I — I think it is reading them very carefully and seeing to what she was saying.

    Felix Frankfurter:

    Well, I — I assume judges read carefully.

    Is that too unfair to you?

    John T. McTernan:

    Well, I don’t think its unfair assumption applied to this Court.

    I think, if I may say so [Laughs] it applies to the courts below because they disagreed with me.

    Felix Frankfurter:

    I’m talking about all responsibility —

    John T. McTernan:

    Yes.

    Yes, Your Honor.

    Felix Frankfurter:

    — on that branch —

    John T. McTernan:

    Correct.

    Felix Frankfurter:

    — of the case.

    John T. McTernan:

    Yes.

    Felix Frankfurter:

    A very simple one.

    John T. McTernan:

    I think so —

    Felix Frankfurter:

    And —

    John T. McTernan:

    That’s right.

    Felix Frankfurter:

    — reading these notes and as reported in the paper and comparing it whether it meets the test of the charge, namely, impugning the integrity —

    John T. McTernan:

    Well, Your — I would disagree with your statement so far as reading the account in the paper because I don’t think the account in the paper is fair evidence of what she said.

    Felix Frankfurter:

    Well, anyhow, for the — for the moment suspending that, for myself, when the lawyer in a case, a particular case enmeshed in such emotional fact of this case was makes a speech which is bound to be reported, I think, for myself, I cannot leave out of consideration how she’d be reported the next day unless you made a nice idyllic speech and is then reported in a sanguinary tone.

    I think the fact that a lawyer makes a speech, he must anticipate that he’ll be reported in the meats of a trial.

    John T. McTernan:

    I would agree with Your Honor.

    And I would say that we would have a different issue here if petitioner were charged with having interfered with the fair administration of justice in the District Court of Hawaii.

    This, she was not charged.

    Well then, she was not found guilty of, and she has not been suspended for that reason.

    And there is no hint so far as I can find that this entire record that this kind of conduct was ever evaluated by any court below.

    Felix Frankfurter:

    I’m not assuming that —

    John T. McTernan:

    Yes.

    Felix Frankfurter:

    — but I’m assuming that the — that the way a reporter reports a speech for people to read while a case is on trial itself may be relevant in determining whether what she said was susceptible of being interpreted one way rather than another.

    John T. McTernan:

    Well, Your Honor, it seems to me that that embraces so many unknowns as to involve as an extremely serious First Amendment problem.

    Felix Frankfurter:

    Let me ask you this.

    Is there a great discrepancy between what he reported in his notes?

    John T. McTernan:

    Oh, yes, there is.

    Indeed, there is because the report, the report picks out four to five remarks, this is a newspaper article now, picks out four to five remarks just as the Territorial Court did and indeed, just as the court below did and treats them as if they had no context.

    And by treating him that way gives them a meaning which, in the context, they do not have, and I want to get to that and — and discuss that as though this is the heart of our case.

    Felix Frankfurter:

    That happens everyday in the most respectable of newspapers, that the limitations of space, of a — of interpretation, of construction, of time lead to unsyncopated report of a long speech.

    That happens everyday.

    John T. McTernan:

    That I — that I understand but I don’t think of —

    Felix Frankfurter:

    You say a lawyer has no responsibility for taking that fact into account.

    John T. McTernan:

    I don’t think that a lawyer’s license hangs by that, Your Honor.

    When the charges that she called into question the judge’s integrity, I think again becomes —

    Felix Frankfurter:

    You’ve just said that he left out, not that he put in.

    He didn’t put it — did he — let me ask you this, did he put into a mouth things she didn’t say?

    John T. McTernan:

    I — she — I think that the treatment that her remarks got the picking of sentence here and picking of sentence there resulted in putting into her mouth things she did not say.

    Felix Frankfurter:

    I never thought I had a right to complain when — when responsible newspapermen have done that to me for a lifetime.

    John T. McTernan:

    Your Honor, she is not making a complaint against the newspaper, she is trying to defend her life in — on his evidentiary showing that’s insufficient.

    Felix Frankfurter:

    Yes, I know but I’m saying that’s — it is to be expected that he make an hour speech that a newspaper would print an hour worthy.

    John T. McTernan:

    Quite true.

    Felix Frankfurter:

    And that then —

    John T. McTernan:

    But if —

    Felix Frankfurter:

    — take out the hot stuff, that’s regulation thing.

    John T. McTernan:

    But — but if the finders of the fact are to determine what she did, they had to look at what she said not what the reporter selected from what she said in order to proof the offense charged against her.

    Going back to the general survey of her speech, in addition to the thesis draft, which I have already outlined, let me point out what the subject matter of most of her sentences where, and I used language in quote, “Men in power”, “The Government”, “FBI Agents”, “FBI”, “The Government witnesses, Crouch and Johnson”.

    Judge Wiig is not named and the District Court is not named.

    There is no express assertion of any particular misconduct on the part of — either the judge or the Court.

    Now, there is one statement, and I refer to page 577 of the record which is part of the — of the Matsuoka notes where she refers to a federal judge sitting on a federal bench permitting Crouch to testify about 27 years ago.

    But I submit that this compares the operation of the hearsay rule and the substantive offense cases as against the operation of the hearsay rule and the conspiracy cases.

    I think it maybe reasonable to criticize to — to construed that as criticizing Judge Wiig’s ruling, what it does not, it does not impugned his integrity.

    It does not go on the question his honesty.

    Therefore, in the absence of evidence directly or explicitly impugning Judge Wiig’s integrity, it becomes necessary for respondent to rest upon interpretation of the evidence of the remarks attributed to petitioner and the implication is to be drawn from them and therefore, becomes necessary to examine the nature and the quality of that evidence very carefully.

    And here, we come, I think, Mr. Justice Frankfurter, to the issue that we have just had.Wiig more and a thousand cases called attention to the untrustworthiness of oral evidence of oral declaration.

    This is what we are dealing with here.

    And Wiig more points out that the more complicated as the utterance, the more necessary is it to have the full context of what the speaker said and the remarks made with this great precision as possible.

    Felix Frankfurter:

    You don’t expect me to disagree with you here.

    John T. McTernan:

    Of course not.

    But I think that we have to understand the application of that to this case.

    Now, there are eight witnesses who testified about this speech.

    Their testimony is fragmentary.

    It is confined to the remarks charged, which, as I said, were only four or five taken out of this speech as a whole.

    John T. McTernan:

    They were given nearly two years after the event, and there is no evidence in that testimony to develop a remarkable position or in context.

    We have now the notes of Matsuoka, the newspaper reporter, as already been referred to.

    Remember if you will that he took original longhand notes from which he wrote his news story.

    The news story called cause — what he called a “to do in court”.

    And his city editor then asked him to type up his notes which he did in a slightly expanded form.

    Now, he says the slightly expanded form means that he was spelling out ellipses which crept in to his handwriting when he was writing in a hurry.

    I do think, however, that the notes have a certain post litem motam quality about them and in any event, they are not verbatim.

    Incidentally, the original note that was testified, they were turned over to the FBI when it conducted an investigation which Judge Wiig ordered, and the original notes were never produced in the hearing and the FBI certified that it couldn’t find them.

    These notes which are in evidence then are sort of two steps removed from the original event having been put together after the to do was (Inaudible) in court, they are not verbatim and they were — reflect a layman’s understanding of fairly complex legal subject matter.

    Earl Warren:

    But these that we do have are the ones of the Bar Association used, is that correct?

    John T. McTernan:

    That’s correct, Your Honor.

    They are in evidence as far as — so far as the Bar Association’s case.

    Earl Warren:

    Yes.

    And the one that the FBI did not return were not used by the Association either?

    John T. McTernan:

    That’s right.

    They are gone.

    Earl Warren:

    Yes.

    John T. McTernan:

    They — they disappear.

    Let me just say this one more thing about those notes.

    On their face, they are not petitioner’s words.

    They are an interpretation, if you will, a rendering of petitioner’s words.

    In any attempt to determine what petitioner actually said, the words which she used is in turn an interpretation of an interpretation and therefore, constitutes a weak basis for extending very far beyond what appears on the face of the document.

    Now, we get down to those notes themselves.

    The core of respondent’s case turns on four sentences which it is taken out of context, out of a 30-minute speech and hatch together as if they where a single excerpt.

    If the Court will follow me on page 577 of the record, we find that the first paragraph breaks the words “There is no such thing as a fair trial in a Smith Act case.

    All rules of evidence have to be scrapped or the Government can make a case.”

    Then we go down what represents the page in the original document to another paragraph that says, “There is no fair trial in the case, they just make up the rules as they go along.”

    Now, those four sentences do not belong together, they are separated by important contextual material.

    They are preceded and they are followed by important contextual material.

    Let’s take the first sentence, “There is no such thing as a fair trial in a Smith Act case.”

    John T. McTernan:

    The whole page of the notes preceding that deals with what the — the notes refer to as a barrage of Government propaganda carried on by the Government prior to this trial making the climate of public opinion unfair to these defendants.

    It talks about FBI tactics in recruiting and coercing witnesses not only the service witnesses but to say what the Government once said.

    It seems to me, if the Court please, that this constitutes a rational explanation of her statement, “There is no fair trial in a Smith Act case.”

    And it doesn’t — and it, at least, is rational as — saying that she is charging Judge Wiig with deliberately and perhaps dishonestly causing the trial to be unfair.

    Could I ask you a question?

    What is the (Inaudible) notes with reference to the constitutional question (Inaudible) findings of fact —

    John T. McTernan:

    We’re raising two constitutional questions.

    (Inaudible)

    John T. McTernan:

    We’re — we’re raising two constitutional questions, Your Honor.

    We claim that the findings that she impugned the integrity of the trial judge are so arbitrary that it constitute a violation of due process.

    (Inaudible) to review the evidence.

    John T. McTernan:

    In — in the way that that’s required, yes, and secondly, that — to discipline her for this speech infringes her rights under the First Amendment.

    Assuming that what — the finding supported (Inaudible)

    John T. McTernan:

    Taking this evidence, there is no clear danger to a public respect for the courts made out.

    That’s our — that’s our position, on — on the First Amendment, that’s our position.

    (Inaudible)

    John T. McTernan:

    I — I think that — I — I think that when we deal with — well, that I — I think that — that we — we deal here with the — with the social interest in free speech.

    We deal with the social interest in respect for the Court.

    We have two weigh this competing interest.

    And I think that given this evidence, the balance does not make out a — a case of interference or — or reflection upon the public respect and confidence in the Court.

    Potter Stewart:

    Mr. McTernan, I understood you say that your claim is to discipline her for this speech violates her First Amendment freedom.

    John T. McTernan:

    Yes, sir.

    Potter Stewart:

    Is your claim as broad as that?

    What if the discipline had been imposed because she interfered with the fair administration of justice by getting this speech?

    John T. McTernan:

    Well, the — of course the issue is not here.

    Potter Stewart:

    I know it’s not.

    John T. McTernan:

    And if I were to argue that issue, I would say that — that this speech does not constitute an interference with the fair administration of justice and nothing that flowed from it could be reasonably said to what appear with the fair administration of justice.

    Potter Stewart:

    Surely, your lawyer can’t — he’s not protected by the First Amendment, is he, from unfairly and improperly and unethically trying his case in the newspapers?

    John T. McTernan:

    Well, the question is someone weighted by those adverbs.

    Let me —

    Potter Stewart:

    I know — I know the issue isn’t here but —

    John T. McTernan:

    But I — it presents a problem which the case at least suggest if it doesn’t actually raised.

    I — I think this, Mr. Justice Stewart, that — that there are two categories of limitations on the lawyer’s right of free speech.

    I think that he operates under the same restriction or lay down or indicated in Bridges, Pennekamp and Craig as applicable to laymen as a whole.

    I think that in addition, he must — he must not indulge in speech which causes loss of public respect and confidence in the court, the so-called Canon 1 offense that we referred to the — the Code of Ethics prescribed by the American Bar Association.

    There is another canon that might be involved, Canon 20 which is actually a fair administration of justice situation, the so-called leaking of essential information to the newspaper.

    Now, so far as I can find in — in my research and we’ve given a considerable attention to this and we wrote our brief in such a way that — to challenge our adversary to find authorities.

    We could find no authorities which say that the limitations imposed upon the lawyer are any greater than this.

    Now, I recognize that in weighing all the factors in either one of those situations, there would be additional factors operating where the lawyer’s speeches involved on the fair administration of justice cases for example.

    It would mean a lot more in the public principles, the lawyer in the case to say that the witness testifying on the stand is a lair.

    And that we’re prepared to show that he has committed to all kinds of public events and so on.

    But I — I think that we have essentially the same question of law although, the — the questions of fact could be weighed would be somewhat difficult.

    So also, in the — in the public respect and confidence in the Court, the case has recognized and when a lawyer speaks, casting reflections upon a judge or upon a court, his words weigh more than those of the laymen’s.

    But again, we’re dealing with the — the same question of law that is slightly different questions of fact.

    Now, getting back to this — to this analysis of the evidence because I think context is all important here with reference to that first sentence about no such thing is a fair trial in a Smith Act case.

    Let me suggest also that the paragraphing in those notes is of significant.

    If the — the statement, “There is no such thing as a fair trial on a Smith Act case” were written in Matsuoka’s notes as a part of the paragraphs that preceded it, its relationship to that context and the meaning it gets from it would be considerably different.

    And this paragraphing is Matsuoka’s paragraphing not petitioners.

    Now, we come to the second sentence, “All rules of evidence have to be scrapped or the Government can make a case.”

    Incidentally, the court below did not find that that remark had been made.

    But in any event, the context that follows shows that what she was talking about was the disuse, if you will, of the hearsay rule in conspiracy cases as compared with substantive offense cases.

    And therefore, I think that while this may have been in exact language, it may have been fully chosen language, what she was saying is that the conspiracy technique results in depriving people of the protection of the hearsay rule.

    And if you go back early in the speech, you’ll find that this is the theme that she’s struck in various forms through out the speech.

    Now, we go down to the next two sentences, “There’s no fair trial in the case, they just make up the rules as they go along.”

    The context which precedes that, that which I have discussed and the context which follows it again refers to the hearsay rule in the conspiracy cases and also to the problem of remoteness and the Government’s pressure in these Smith Act cases to enlarge this scope particularly with reference to remote evidence from case to case.

    And this again strikes the theme struck earlier with reference to Crouch in Russia in 1927 when Paul was 13 and Fujimoto was four.

    It also, it seems to me, indicates or finds support from or my reading of evidence in this respect finds support in the testimony of one of the witnesses, he was a labor relations manager for one of the plantations who said that the way he understood the significance of the speech, he had tied in to any Smith Act case whether in New York or Honolulu or whatever.

    Now, if the Court please, we get down by virtue of the treatment of the evidence in the court below to a pretty fine hair, that pronoun “they”.

    The court below, if you’ll look at page 561, in setting forth its findings as to what she said puts — as to paragraph 3, puts the pronoun “they” in quotation mark.

    Potter Stewart:

    What page you on now?

    John T. McTernan:

    561, Your Honor.

    Potter Stewart:

    561.

    John T. McTernan:

    And respondent in its brief says that they meant Judge Wiig because who else was applying the rules of evidence?

    Who else was deciding admissibility?

    But again, if the Court please, let us look at the context.

    We’re back at page 577 now.

    The context about making up the rules as they go along is one in which he is talking about the pressure of government lawyers in successive Smith Act cases to expand the limits of remoteness in the — in the receipt of evidence.

    And the subject of the next sentence is the word “attorney” and the subject of the sentence which follows is “government” and she’s talking about exactly the same subject matter.

    But even more, if the Court please, let us look at the testimony of the witnesses who dealt with this remark.

    And these were the witnesses now whose testimony was focused just on the remark and not on the context as a whole.

    Six witnesses dealt with this remark in their testimony.

    Four of them said that the subject of the sentence about scrapping the rules was government, and two of them said “they”.

    And I submit that respondent’s position and the position of the court below that “they” equals Judge Wiig is bad grammar torn out of context, contrary to the evidence.

    Now, respondent’s case next rest upon an excerpt which appears on the same page 577, the next paragraph which reads, “Unless we stop this mistrial trial in its tracks here, there will be a new crime.

    People will be charged with knowing what is included in books’ idea.”

    Now, I think that the meaning of this is perfectly obvious that what she was saying is that Smith Act prosecutions continue.

    We’re going to define as a crime of reading books and having ideas.

    The Smith Act will be so applied.

    And as a matter of fact, I don’t think that’s too remote from the conclusion to which these courts reach in the Yates case.

    But in any event, I think that it — this is the only reasonable, rational conclusion that can be drawn from the sentence.

    And I think that respondent’s construction of it is utterly tortured and unsound.

    They say that this sentence means or these two sentences mean that Judge Wiig’s conduct of the trial was a crime.

    Now, the only way, if the Court please, that that construction could possibly be supported.

    It’s in the excerpt with the words “unless we stop the Smith trial in its tracks here, there will be a new crime.

    And that’s cropping the evidence, if the Court please.

    Somewhat similar to the irresponsible cropping of the evidence that is conducted by a certain late senator in a hearing conducted across the street a few years ago.

    This evidence, if the Court please, does not rationally justify the finding that petitioner impugned Judge Wiig’s integrity.

    Neither the lower court in its opinion nor the Territorial Court in its opinion attempted to examine these remarks in context or try to ascertain precisely what petitioner said.

    Neither evaluated the remarks in the context of the trial in which she was speaking.

    Those courts and especially respondent here gloss on to the remarks, words and ideas which are not found in the evidence and which are contrary to the evidence.

    John T. McTernan:

    And if I may pick out what I think is a — an agriedous example of this, I refer the Court to pages 57 and 58 of respondent’s brief, where these very words, not put in quotes, are treated this way, right from the bottom of page 57 that there could be no fair trial in the Smith Act case because all of the rules of evidence have to be scrapped so the Government can make its case and so on.

    Now, there is nothing in the evidence from which the word “because” can reasonably be interpolated in to her remark.

    It’s not there in the Matsuoka notes, it’s not there in the testimony of the witnesses and it’s contrary to the context in which she made the statement.

    There is nothing in the evidence which says or attributes to her the remark that the scrapping of the rules was so, that is for the purpose of enabling the Government to make its case.

    And it’s simply a — a matter of interpretation by interpolation, if you will, which constitutes, it seems to me, an evidentiary force.It’s just not there and it — and it doesn’t belong.

    I submit that here, the burden upon petitioners’ accuses was to establish the charges by clear and convincing evidence, the charge that she had impugned the integrity of the judge.

    I submit that under the evidence here, the remarks are at best dubious as an attack upon integrity and in context there as an obvious and rational construction of them quite the other way.

    And I submit that the free speech aspect of this case alone require the acceptance of the rational explanation of her remarks when the evidence afford such (Inaudible).

    Now, addressing myself to the First Amendment aspect of the case for the moment and again, we’re dealing only with the Honokaa speech.

    Central to the lower court’s disposition of this aspect of the case were these two factors, first, that the speech was given during the pendency of the trial and secondly, by a lawyer of record in the trial.

    And our positions for reasons which I’ve indicated to Mr. Justice Stewart earlier are that these two considerations have no application.

    The value of public discussion during the course of the trial has been pretty well spelled out by this Court in the Bridges, Pennekamp and Craig cases.

    I would think that a lawyer, given his training and his ability to articulate and to expound, could be a particularly valuable contributor to public discussion when the discussion deals with law and the operation of law, law enforcement technique and so on.

    Now, I recognize that there are risks here, and I think Mr. Justice Frankfurter has already indicated them that what is done with the speech in public, in the public prints may resolve in their being some impact upon the fair administration of justice.

    But I think that this calls for an even nicer discrimination of the evidence, if the Court please.

    That it become —

    Potter Stewart:

    Bridges and — the Bridges and the Pennekamp cases both involved contempt, didn’t they?

    John T. McTernan:

    That’s right.

    Potter Stewart:

    This case —

    John T. McTernan:

    Involving —

    Potter Stewart:

    — involves a disciplinary procedure —

    John T. McTernan:

    Yes.

    Potter Stewart:

    — of a lawyer, of a —

    John T. McTernan:

    Of a lawyer.

    Potter Stewart:

    — or professional.

    John T. McTernan:

    And I don’t — I don’t contend that the cases apply foursquare.

    I think that they have important lessons to be drawn for purposes of this case that by no means control.

    But I think that we should, in — in approaching this — the First Amendment aspect of this case, have fully in mind the importance to public enlightenment of discussion during the pendency of the case and the contribution which a lawyer was his — inform the judgment can make to this public discussion.

    Felix Frankfurter:

    (Voice Overlap) just a lawyer.

    This is an informed lawyer during the things that lawyers have done in this country over the beginning, namely, try to enlighten the public.

    Felix Frankfurter:

    This is a fellow in a case —

    John T. McTernan:

    I understand —

    Felix Frankfurter:

    — trying a case.

    John T. McTernan:

    — I understand that.

    Felix Frankfurter:

    (Inaudible) of assuming he is just a citizen

    John T. McTernan:

    I — I never assume that in this —

    Felix Frankfurter:

    No, but I —

    John T. McTernan:

    — argument, Mr. Justice Frankfurter.

    I —

    Felix Frankfurter:

    (Voice Overlap) you said it.

    When I think of this dissenting opinion, the lawyer is just a citizen, and free speech had been formed —

    John T. McTernan:

    Well, Judge Pope —

    Felix Frankfurter:

    — dead files are also important.

    They are the basis of our civilization.

    John T. McTernan:

    I — I agree with that, but I don’t think that that consideration embargoes the trial lawyer in — who is in the case from public comment upon the case in which he is engaged.

    Felix Frankfurter:

    All — so far as I’m concerned, in making features affecting the credibility, the words, the weight, the reliability of what is going on in court while it’s going, almost, for me.

    John T. McTernan:

    Well, I — I can understand why lawyers’ comment could — the — the comment of the — of the lawyer of record in the pending case could have the kind of impact upon the administration of justice which you described.

    Felix Frankfurter:

    I know in regards to trial by newspapers as an inherent ingredient, as an important course in this country that said the American way of life, for myself, I repudiate it completely and regretfully and sadly that it should be said but that’s a part of the American way of life.

    John T. McTernan:

    Well, I don’t — I don’t find my — necessary to reach that proposition at all here because I think that a lawyer has the right to go out and talk to members of the public about a case in which he is engaged to point out the serious, social and legal problems which that case posses to —

    Felix Frankfurter:

    And deal the witnesses and their reliability as the weight to be attached and the way the context of the trial is going?

    That’s what the court rule is for.

    John T. McTernan:

    Your Honor, in that, as the evidence clearly shows, whatever he said in those respects were things which he had already been said to the Court were matters which had already been urged to the Court.

    Felix Frankfurter:

    The courtroom is a place from her urging.

    John T. McTernan:

    But in any event, as I — as I said before —

    Felix Frankfurter:

    (Inaudible)

    John T. McTernan:

    — this is not the issue here.

    Felix Frankfurter:

    What is possibly issue here because you go about speaking just speech apart the way answering fixed apart, the way one who speak apart answering speech in the sum total would be that he said some very nice thing about Bouslog.

    John T. McTernan:

    Your Honor, I have not fixed the speech apart.

    What has been done by my opponents is to pick the speech apart, they take five sentences out of 30-minute speech and say that she attack the — the integrity of the trial judge.

    If you put those five sentences in the context, she didn’t attack any judge.

    Felix Frankfurter:

    She didn’t say I attack him neither did — neither did answer the happen in word.

    There is skill in speech that may convey the — the intent as much though as explicit and literal language.

    John T. McTernan:

    Your Honor, I think it relies within the right of the lawyer to say that certain rules operate badly and certain rules caused unjust results.

    Felix Frankfurter:

    I think it’s his duty to do so far as the public is concerned but not on lawyer in a case, while case is on.

    John T. McTernan:

    Well, I — I understand that position.

    All I can say to you is what I have said before that we would face a different case here if that issue had ever been tendered in this case.

    It has never been —

    Felix Frankfurter:

    But the complaint isn’t as restricted as you say it is.

    I’ve just read the complaint.

    John T. McTernan:

    Well, the findings of the court below are — are as restricted as I say they were.

    Felix Frankfurter:

    The findings of the Committee aren’t even as restricted as to that.

    I looked at the complaint.

    One would suppose the complaint was she impugned the integrity of the Court.

    That is not the complaint.

    John T. McTernan:

    Well, there’s another — there’s another element to the case, this jury — juror —

    Felix Frankfurter:

    Well, I’m talking about — I’m talking about this matter, page 3, the complaint doesn’t — isn’t restricted of that.

    John T. McTernan:

    Well, as Your Honor look at page 118, the findings of the Territorial Court, beginning at the top of the page, the finding is she engaged and participated in a willful oral attack upon the administration of justice in and by the said United States District Court for the District of Hawaii and by direct statement and implication impugned the integrity of the judge presiding therein.

    There’s other formal language but that’s the essence of the finding and that is all that she was suspended for.

    Felix Frankfurter:

    But she certainly attacked the administration of justice in and by the District Court, didn’t she?

    John T. McTernan:

    No, sir.

    I don’t think she did.

    Felix Frankfurter:

    You don’t think she did.

    John T. McTernan:

    No, sir.

    I —

    Felix Frankfurter:

    She talked about this case — she talked about what was going on but that was having an attack upon the administration of justice in that case.

    I don’t see how you make that up.

    John T. McTernan:

    Your Honor —

    Felix Frankfurter:

    What was she talking about, Mr. McTernan?

    John T. McTernan:

    I am trying to outline to you —

    Felix Frankfurter:

    Is she talking about this case?

    John T. McTernan:

    She was talking about this case and she was saying that there were things about this case that were unfair.

    There were things about this case that were contrary to our constitutional guarantees, and I think this, she had a right to say including her comments upon operation and conspiracy hearsay rule.

    Felix Frankfurter:

    (Voice Overlap) right to.

    I don’t see how you can say when a lawyer in a case said, “I’m talking about the case against Commonwealth — in Commonwealth against Jones.

    And I say that the conduct of that face is unfair, unjust, violates the law of the Constitution.”

    If that is an attack on the administration of justice, please tell me what it is.

    John T. McTernan:

    I think it lies within the right of the lawyer to say that a trial or doctrine violates the First Amendment.

    Felix Frankfurter:

    I understand.

    John T. McTernan:

    It lies in the mouth of the lawyer to say that the judges’ honest straight forward interpretation and application to the conspiracy rules result in injustice in a — in a given case.

    Felix Frankfurter:

    I understand —

    John T. McTernan:

    It has been said many times by higher authority, Your Honor.

    Felix Frankfurter:

    I understand that, and relucent mutation and scrupulous attention and care to what you’re saying impending that prohibition of law, what I cannot understand is that the charge of the Committee of a trial now going on as violative of law and fairness and justice in the Constitution is not being an attack on administration of justice in that court.

    John T. McTernan:

    Because —

    Felix Frankfurter:

    That I cannot understand.

    John T. McTernan:

    — I don’t think, Your Honor, that the administration of justice is no tender issue that it cannot accept criticism even while the trial is going on.

    Felix Frankfurter:

    I will listen to your proposition of law if that’s allowable indeed, authorize — required by the Constitution.

    That’s the proposition of law.

    But let’s agree what you’ve started with the discussing.

    We are discussing now whether she did in fact impugn the fairness and justice of the administration of justice in that case.

    John T. McTernan:

    And I would submit to you that the problems of the administration of justice in a given case are broader than what occurs in a courtroom and these are legitimate subject to comment by lawyers including the lawyer in the case so long as she does not dosing with or he does not dosing which interfere with the fair administration of justice, add to the scale’s weight to don’t belong in the interlocutory process.

    Felix Frankfurter:

    (Inaudible) simply that we will make a distinction.

    I make a distinction between what she did and whether a right under the Constitution to be allowed to do it.

    The latter, I can see is a serious question of law to which I shall I attend, I hope, for an open and eager mind.

    But the other thing, what it is she did is, to me, just a question of fact.Did she talk about this case?

    You said she did.

    Did she talk about it condemnatorily?

    She did.

    John T. McTernan:

    Well, Your Honor, it — it seems to me that it — it’s proper to speak condemnatorily about a case where the responsibility of that pending case lies not with the trial judge but with the prosecutors in the case or where the responsibility lies with the law which the judge is peacefully administering, and I don’t see that how a lawyer looses his — his right to practice because he called these things to public attention while they are going on, what better time to have the public know in — in then — at the time the case is going on and particularly a case which is attracted so much public attention is one (Voice Overlap)

    Felix Frankfurter:

    My point is — my conviction is it’s none of the public’s business to hear it out of the lawyer’s mouth who’s contemporaneously engaged in trying a case before a jury and before a judge.

    John T. McTernan:

    Your Honor, I should think that it would certainly lie within the — within the power of an attorney who was not in the case and — to — to say these things during the pendency of the trial.

    Felix Frankfurter:

    That isn’t this case.

    John T. McTernan:

    That’s not this case.

    Now, therefore, we have to address ourselves to what it is about the lawyer’s connection with the case which — which places the disability upon him.

    This, I can find no authority here.

    Anything in the cases would say that his connection with the case disables him from saying this.

    Now, on — I — I do agree, as I told Mr. Justice Stewart before that I think his position creates an easier risk of interfering with the fair administration of justice but I find nothing which inhibits his right to speak in the case merely because of his — his connection with the case.

    And if you read Judge Pope’s opinion, he, too, addressed himself to this question —

    Felix Frankfurter:

    This is —

    John T. McTernan:

    — and he could bind those (Inaudible)

    Felix Frankfurter:

    This is a constitutional problem and I shall remain irreconcilable as long as I live to the notion that the right of talking by anybody under any circumstances is greater than the right and the duty and the necessity of conducting trials under the only conditions under which trials can fairly be conducted —

    John T. McTernan:

    But —

    Felix Frankfurter:

    I shall remain irreconcilable on that proposition.

    John T. McTernan:

    Your Honor —

    Felix Frankfurter:

    That’s the question of constitutional law.

    And on that, I do not have to (Inaudible)

    John T. McTernan:

    Your Honor, it doesn’t — doesn’t your last statement assume that the lawyer in making this comment ipso facto by his very position has an effect upon the administration of justice?

    It seems to me that it does.

    And I — I would say to you that I think that the lawyer in the case, and this is a problem which is indicated in the opinion below that the lawyer in the case does not owe a duty to protect that court.

    He owes a duty to see one that his clients are protected and he owes a duty to see that there is public enlightenment on matters of public concern.

    And —

    Felix Frankfurter:

    (Voice Overlap) —

    John T. McTernan:

    — I cannot remove from the area of public concern attention to the specific evils which a particular trial may — may illustrate.

    Felix Frankfurter:

    I think I’ve taken up of your time, Mr. McTernan.

    John T. McTernan:

    Sir, excuse me.

    Perhaps, I’ve taken all of my time.

    How about that, Mr. Chief Justice?

    Earl Warren:

    No, I think — I think he left you little.[Laughter]

    John T. McTernan:

    Oh, I — I intended to reserve a few —

    Earl Warren:

    You —

    John T. McTernan:

    — moments.

    Earl Warren:

    — you may take —

    John T. McTernan:

    May I reserve the rest of my time?

    Earl Warren:

    Yes, you may reserve the rest.

    Mr. Barlow.

    A. William Barlow:

    Mr. Chief Justice, may it please the Court.

    I think that Mr. McTernan has lost over the evidence very lightly.

    I —

    Hugo L. Black:

    May I ask if you are asking us to overrule the Bridges and Pennekamp cases?t

    A. William Barlow:

    Am I asking you to overrule it, sir?

    Hugo L. Black:

    Yes.

    A. William Barlow:

    No, sir, because I don’t think it hasn’t any application here.

    I subscribed to Justice Frankfurter’s remarks about how a lawyer should conduct himself during the pendency of a case in which he is advocating day in and day out before court.

    Potter Stewart:

    Now, was he — was this lawyer — was this lawyer charged with any such impropriety as that as — as interfering with the fair trial that was going on?

    A. William Barlow:

    This lawyer was charged, may it please, Justice, with conducting a willful and oral attack upon the administration of justice in a federal court.

    She was charged with having made these statements and she was also charged contrary to Mr. McTernan’s statement to the Court.

    She was charged with impugning the integrity of the Court, and I think that if the Court will read Matsuoka’s notes, if the Court will read the story that appeared in the newspaper, the Court will come to the conclusion and you can’t come into any other conclusion but that the Government and Judge Wiig were conspiring to frame the clients that she was representing in a courtroom.

    She started out her what —

    Hugo L. Black:

    What was the date of the speech?

    A. William Barlow:

    Sir?

    Hugo L. Black:

    What was the date of the speech?

    A. William Barlow:

    I think it was either December 14th or 15th.

    But it was on a Sunday morning.

    Hugo L. Black:

    Of what — of what year?

    A. William Barlow:

    1952.

    Hugo L. Black:

    What was the date of the charge?

    A. William Barlow:

    The charge —

    Hugo L. Black:

    Against the lawyer.

    A. William Barlow:

    I think it was either a year or two later, sir, but July 8, 1954 of the trial in which she was engaged at the time had not terminated until June of 1953.

    And subsequent to the trial, the federal judge had summoned the President of the Bar Association and asked the President of the Bar Association to look in, to the behavior of the petitioner in this case and that —

    Hugo L. Black:

    What about the Attorney General?

    A. William Barlow:

    Sir?

    Hugo L. Black:

    Did you ask the Attorney General?

    A. William Barlow:

    No, he asked the President of the Bar Association.

    The record so indicates, I think, with Mr. Sam King of which the President of the Bar Association at the time and Judge Wiig sent for the President of Bar Association and indicated to him that he would suggest to the President that the Bar Association investigate the behavior of Mrs. Bouslog during the Fujimoto trial.

    And at that time, this case started.

    Hugo L. Black:

    Did the Bar Association have authority to start the proceeding then?

    A. William Barlow:

    At that time, the Bar Association did not have an authority under the then existing court rules to file a complaint.

    The Attorney General did not file a complaint so that the Court —

    Hugo L. Black:

    Did he have — did he have authority?

    A. William Barlow:

    He had the authority, yes, sir.

    So that the Court amended its rules of procedure in order it allow the Bar Association to file a complaint.

    Earl Warren:

    As I understand, the judge asked the Bar Association sometime in July 1954 to make the investigation.

    A. William Barlow:

    Sometimes subsequent to the termination of the Smith Act which was in June of 1953.

    Earl Warren:

    And — then when — when was the report of the — when did they charge him?

    I’m speaking to the Bar Association.

    A. William Barlow:

    The complaint of the Bar Association is filed on July 8th, 1954 and the hearings had sometime in November and December of 1954.

    William O. Douglas:

    What is — what is the relevancy of this pamphlet in the back of your brief?

    A. William Barlow:

    The relevancy of the pamphlet in the back of the brief —

    William O. Douglas:

    That seems too technical.

    The speech — a speech three years before this episode, isn’t it?

    A. William Barlow:

    No.

    That speech was made two days after the indictment was returned in the Fujimoto case.

    And we offered that pamphlet —

    William O. Douglas:

    That’s on 1951.

    A. William Barlow:

    1951.

    The indictment was returned sometime in August of 1951.

    And two or three days after that, she made her a Labor Day speech which is incorporated into the pamphlet here.

    William O. Douglas:

    Was that part of the grounds for her disbarment here?

    A. William Barlow:

    The Court took in a consideration of fact that this was not a spontaneous utterance or a thought that probably was born at the moment that she was making her speech that this was part of a well-conceived plan on the part of the petitioner.

    William J. Brennan, Jr.:

    Well, was this — was this pamphlet in evidence before (Voice Overlap) —

    A. William Barlow:

    Yes, sir, that pamphlet was in evidence before the Hearing Committee, it was in evidence before the Supreme Court and it was in evidence before the Ninth Circuit Court of Appeal.

    And if the justices will read that pamphlet carefully, you’ll find out that she does attack judges.

    She makes a statement in there to the effect that judges to stay in power, join in the witch-hunt.

    Earl Warren:

    Do what?

    A. William Barlow:

    They joined in the witch-hunt.

    She had referred to the Smith Act trial at that time as a witch-hunter.

    And in that pamphlet, I might say to the Court that that speech was made, if you take into consideration the fact that a lawyer enters his appearance on a certain day that that speech also was made during the pendency of this course of action.

    It was made two days or three subsequent to the return of the indictment and it was made subsequent to the time that she entered her name, its counsel of record for Jack Hall in the trial.

    And this pamphlet was introduced to show to the Committee and also showed to the Supreme Court that this was not an accident on the part of the petitioner, that this was a well devised scheme, it was a well devised plan whereby she was going around making speeches.

    And if the Court will look at the record, the record will indicate that Jack Hall, who was on the stand, testifying in behalf of Mrs.Bouslog, stated that after she made this Honokaa speech, she no longer was part of the speaking entourage for the ILWU.

    Now, who saw the light of day?

    I don’t know, whether she did, whether the ILWU did, we have no information.

    Potter Stewart:

    Now, Mr. Barlow, it would you concede that apart from the pendency of this criminal litigation, the Smith Act’s trial, apart from that, apart from the pendency of that, wouldn’t you — wouldn’t you agree that Mrs. Sawyer, under the First Amendment, had all the freedom on the world to say that judges were engaging in a witch-hunt?

    A. William Barlow:

    I agree with Your Honor.

    Potter Stewart:

    That’s not impugning anybody.

    A. William Barlow:

    Oh —

    Potter Stewart:

    (Voice Overlap) isn’t it?

    That’s — that’s just ordinary criticism I — and a point of view shared by a good many people.

    As a matter of fact, whether or not it is, whether it was her sole point of view, doesn’t the First Amendment protect her in saying that?

    A. William Barlow:

    I’m sorry.

    I did not give to the Court the full tender of her speech when I say that she was impugning the integrity of the Court.

    As I see your question, you may — you are isolating that one remark.

    Potter Stewart:

    Because that’s the only — only thing you pointed out.

    A. William Barlow:

    And I — I had not intended to isolate that remark.

    I think if you read her speech, she started the speech, and I think that the Court should put itself in the climate, the atmosphere where this speech was being made.

    The speech had been advertised by the ILWU.

    We’re going to have a public discussion on Sunday morning in this theater.

    This is the town by 180 miles from Oahu.

    It has a population of approximately 1000 people.

    William J. Brennan, Jr.:

    You’re talking about the speech during the trial on this (Voice Overlap) —

    A. William Barlow:

    I’m not talking about that speech, no, sir.

    I’m talking about the speech that she was charged with, the Honokaa speech.

    She was advertised as one of the principal speakers.

    She came over there, and she made her speech.

    The reporter’s notes indicate what the tender of her speech was, to be —

    Potter Stewart:

    I —

    A. William Barlow:

    — started out —

    Potter Stewart:

    — may I ask you a factual question?

    I don’t know much about anything about the geography of Hawaii — the — of our new State except that it’s an archipelago and consisted of several islands.

    The trial was going on in Honolulu?

    A. William Barlow:

    The trial was going on in the Island of Oahu in Honolulu.

    Potter Stewart:

    And the speech was made on a different island.

    A. William Barlow:

    It was made on the Island of Hawaii which is approximately 180 miles over international waters.

    Potter Stewart:

    180 miles away.

    A. William Barlow:

    That’s right, sir.

    Potter Stewart:

    And the newspaper report of the speech, the contemporaneous newspaper report was published in Honolulu or not?

    A. William Barlow:

    It was published in Honolulu and it was also published in the Hilo Herald-Tribune or whatever they call it.

    Potter Stewart:

    On the — on the island on which the speech was given.

    A. William Barlow:

    On the Island of Oahu.

    And subsequent to the speech, Judge Wiig summoned Mrs. Bouslog and the colloquy that Judge Bouslog or Judge Wiig and Mrs. Bouslog had is part of the record.

    And if you look at that record, you will indicate that Mrs. Bouslog stated that the first half of the speech was devoted to a general discussion of Smith Act trials and that the second half of her speech was devoted to the then existing trial in Honolulu.

    And if you notice further in the colloquy, Judge Wiig indicated that he certainly was not satisfied with the right explanation, and he ordered me to make an investigation of the speech to find out whether he could properly charge her under Rule 42(b).

    William J. Brennan, Jr.:

    Were you connected with the file?

    A. William Barlow:

    I was the United States Attorney in charge of the case.

    Earl Warren:

    What — what was your finding that he could or could not —

    A. William Barlow:

    He could not.

    Earl Warren:

    — charge her.

    A. William Barlow:

    And I also looked into the possibility of charging her under Title 18 Section 401 and because of the Court’s rulings on geographical nearness, we could not charge her under 401 either because his speech had been made 180 miles away.

    And because of those factors, Judge Wiig then referred this matter to the Hawaii Bar Association.

    And Hawaii Bar Association referred the matter to the Supreme Court.

    A. William Barlow:

    They filed a complaint against her.

    They had a hiring.

    And I might say, and Mr. McTernan talks about fragmentary evidence, prodding of witnesses, leading of witnesses, and Mrs. Bouslog had very capable counsel during the secret hearings.

    Mrs. Bouslog counsel was afforded at all times the opportunity of examination and cross-examination.

    And subsequent to the finding of the Committee and subsequent to the finding by the — subsequent to the finding of the Committee, Mrs. Bouslog was entitled to a trial de novo.

    If she wasn’t satisfied with the fragmentary evidence that was developed at the hearing before the Committee, she could have asked for a trial de novo before the Supreme Court.

    And right after the secret hearings had ended, Mr. Anthony, who was our counsel in the secret hearings, for — for reasons best known to himself withdrew and that was present counsel, Mr. McTernan who had the opportunity if he felt that the evidence was fragmentary, if he felt that there was any deficiency in the evidence, he had the opportunity of asking the Supreme Court for trial de novo, and I might say to the Court that it was the petitioner’s suggestion that the matter be submitted to the Supreme Court on a record made before the Committee in which the Bar Association acquiesced.

    We had no desire to air this thing in public.

    We were perfectly willing to submit the matter to the Supreme Court on the evidence that was developed at the hearing.

    Now —

    Hugo L. Black:

    Supposed a committee of lawyers — lawyers or judges had passed resolutions containing this precise language after the case was over, would you say they could be disbarred?

    A. William Barlow:

    After the case was over?

    Hugo L. Black:

    Yes.

    A. William Barlow:

    No.

    Hugo L. Black:

    Suppose —

    A. William Barlow:

    I —

    Hugo L. Black:

    — suppose she had made the same remarks at San Francisco instead of the — the island an 180 miles away?

    A. William Barlow:

    It was made during the course of the trial, I would say, that she —

    Hugo L. Black:

    It all depends on that.

    A. William Barlow:

    That’s right.

    I think that if a lawyer is appearing before a court, advocating certain proposition, she shouldn’t go out at night telling the public that I think that the Court is conspiring with the Government.

    No matter what we produce to the Court, we can’t seem to get in to the evidence.

    And if the Government is conspiring with the federal judge in order to widen, in order to give the Government more latitude, Mr. McTernan puts a very innocent gloss on the testimony.

    And the testimony, I might say, is not restricted to Matsuoka’s notes.It’s not restricted to the newspaper report.

    And while we are talking about Matsuoka’s notes, Mr. McTernan refers to him has being expanded.

    The reporter was asked what he meant by his expanded notes, and the reporter said, in answer to the committee member who asked him the question, and he says, “Well, do your name is Dodge?

    In — in my notes, I put down Dodge.”

    By expanding on the notes, when I write my story, I say, “Robert G. Dodge.”

    That’s the only way I expand.

    I do not add anything to it.

    A. William Barlow:

    So that there is no significance in McTernan’s statement that the — that the reporter indicated that he expanded on the notes.

    There was no expansion on the notes insofar as changing the meaning.

    Hugo L. Black:

    What was the — what was the difference in the space occupied by the printing?

    A. William Barlow:

    By the printer?

    Hugo L. Black:

    By — by the printing.

    I — I am interested as much as you say that.

    The notes were how long and how long was the newspaper article?

    A. William Barlow:

    Well, I honestly can’t say to the Court how many pages the notes took.

    The notes are in the record, may it please the Court.

    Hugo L. Black:

    And is the newspaper article in the record?

    A. William Barlow:

    The newspaper article in and of itself is not in exhibit but it is recited verbatim in the majority opinion of the Ninth Circuit Court.

    Potter Stewart:

    You say this meeting of which this speech was given was well advertised in advance or —

    A. William Barlow:

    According to the testimony of the witnesses, and according to Matsuoka, the reporter — they stated that the meeting was advertised in advance.

    Potter Stewart:

    Did the reporter say why he’d gone and he’d been —

    A. William Barlow:

    The reporter —

    Potter Stewart:

    (Voice Overlap) —

    A. William Barlow:

    — had been instructed to cover the meeting because they felt that something interesting might develop.

    Potter Stewart:

    Instructed by his paper, right?

    A. William Barlow:

    That’s right.

    Potter Stewart:

    Is there any — is there any showing when the — showing of facts in which an inference could be drawn that the — that the petitioner knew the reporter would be there and — and knew and have reason to believe that there would be a reporter of this in the — in the newspapers?

    A. William Barlow:

    Well, I’ll answer it this way, may it please the Court, that there is no doubt in my mind that the petitioner was aware of the fact that there was a reporter present.

    Potter Stewart:

    Was that shown in the record?

    A. William Barlow:

    I think it is.

    William J. Brennan, Jr.:

    Was that meeting open to the public?

    A. William Barlow:

    It was a public meeting.

    It was advertised in the public meeting.

    Earl Warren:

    Where was it advertised?

    In Honolulu or in Hilo or in this —

    A. William Barlow:

    No, it was advertised —

    Earl Warren:

    — or in this little town of 1000 people?

    A. William Barlow:

    It was advertised in a little town of 1000 people.

    It’s a small —

    Earl Warren:

    180 —

    A. William Barlow:

    Sir?

    Earl Warren:

    180 miles.

    That’s 180 —

    A. William Barlow:

    That’s right.

    Earl Warren:

    — miles away.

    A. William Barlow:

    It was not advertised in the City of Honolulu.

    Potter Stewart:

    Was there any showing during the trial that the members of the — of the jury in the Smith Act case had seen this newspaper article?

    A. William Barlow:

    There was no attempt made to show that anyone of the jurors had seen the article or read it or that they had been influenced by —

    Potter Stewart:

    No suggestion along those lines —

    A. William Barlow:

    No, sir.

    Potter Stewart:

    — during the trial.

    A. William Barlow:

    No, sir.

    Hugo L. Black:

    Was the meeting held under the auspices of any defense association or what was it?

    A. William Barlow:

    It was a meeting sponsored by the Defense Committee which was collecting money or had already collected money to deprave the cost of expenses of Smith Act trial especially the one that was been in progress in Honolulu.

    And she was making a report to the people that had, no doubt, contributed.

    And when she was making a report, they had contributed to the defense of Jack Hall who was their original ILWU Director, and I am certain they were not in to —

    Hugo L. Black:

    Regional — regional what director?

    A. William Barlow:

    He was Regional Director for the ILWU.

    Hugo L. Black:

    What is that?

    A. William Barlow:

    International Longshoremen’s and Warehousemen’s Union.

    Hugo L. Black:

    Was that the defense club?

    A. William Barlow:

    That was the Defense Committee, Jack Hall being part of the ILWU.

    They banded together and paid his legal expenses.

    And this was the Committee that was — sir?

    Charles E. Whittaker:

    She was his counsel?

    A. William Barlow:

    She was his counsel at the time.

    She was his counsel of record.

    A. William Barlow:

    He was there, and she was there, and they both made speech as critical of the typed evidence that was being introduced.

    And I think that the Court — all the Court has to do is look at Matsuoka’s notes, and the Court can easily come to the conclusion that Mrs. Bouslog had banded the Government into one little group, the Government being the federal judge, the prosecutors, the FBI.

    Everybody was part of the Government in a role engaged in a conspiracy to do no good for her clients.

    Earl Warren:

    We’ll recess now, Mr. —