Nostrand v. Little – Oral Argument – March 31, 1960 (Part 1)

Media for Nostrand v. Little

Audio Transcription for Oral Argument – March 30, 1960 in Nostrand v. Little
Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Earl Warren:

Number 342, Howard L. Nostrand et al., Appellants, versus Thomas Balmer et al.

Mr. Hoague, you may continue.

Francis Hoague:

Mr. Chief Justice, may it please the Court.

The Court will remember that, in this case, we are challenging the constitutionality of a Washington state statute which requires, in this case, two professors to take an oath that they do not belong to any subversive organization on pains of being immediately fired in the event they don’t take the oath.

Potter Stewart:

The statute, of course, was not restricted to faculty members of the university, is it?

Francis Hoague:

Not of it, no, I was referring in this case only.

Potter Stewart:

In this case, that’s — is it (Voice Overlap) —

Francis Hoague:

The statute covers all state, county and city employees.

Potter Stewart:

Throughout the State?

Francis Hoague:

Unless they are exempted by — throughout the State, unless they are exempted by special act of — action on the part of the — a board or agency.

Potter Stewart:

Now, is there not a statutory exemption or regulatory exemption as to non-sensitive employment or some sort of thing?

Francis Hoague:

No.

Potter Stewart:

There is not?

Francis Hoague:

No.

Earl Warren:

So what did you say, Mr. Hoague, about the exemption some of them are not required to do it?

Francis Hoague:

Section 2 of the 1955 Act provides that an agency —

William O. Douglas:

Where that appears?

Francis Hoague:

That appears on page 6 of the appendix to our brief.

That an agency may — well, in some excused certain people, if it is — if they — if the agency finds that their — the employment of such persons will not be dangerous to the health of the citizens and the security of the Government of the United States.

Earl Warren:

Now, does that refer to the agency for which a particular person works?

Francis Hoague:

Is employed.

Earl Warren:

Not — not a special agency to set up —

Francis Hoague:

Not a special agency.

Earl Warren:

— or all employees in the state service.

Francis Hoague:

No, Mr. Chief Justice.

Earl Warren:

Yes.

Francis Hoague:

With the Court’s leave, it is our intention that I will address the Court particularly on a due process aspects of our argument and Mr. Ringold will deal with the bill of attainder and First Amendment aspects.

Of the — statute under inquiry here, provides that — I think I’d better read it rather than quote it, that refusal to answer on any grounds shall be cause for immediate termination of such employee’s employment.

And this, the no provision is for hearing is afforded by the statute.

There’s no opportunity for the employee to explain his reason for failing to or refusing to sign the oath.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Francis Hoague:

Now, we submit that we concede that a State may inquire into the fitness of any employee and into the loyalty of any employee.

But that inquiry must accord with fair procedure.

There must be a hearing and an opportunity to defend himself or to explain.

This requirement was first acknowledged in the Adler case, Adler against the Board, but in that case, the Court found that the Feinberg Act of New York provided an adequate hearing opportunity to explain and in the — even found that the Feinberg Act only gave rise to a prima facie presumption of disloyalty which would be overcome by any testimony.

In the Slochower case, the Court recognized that when a person is — well, the Slochower case was decide — appears to have been decided on two issues.

One was that the — the claiming needs — protection of the Fifth Amendment cannot give rise to a presumption of guilt.

And on the further that since there was no hearing afforded the employee that the summary dismissal of him was a denial of due process of law.

We submit that that case is — the reasoning of that case is directly applicable to this Act.

Now, of course, the reasoning back of this is that a hearing is necessary to render this firing process or discharge process an inquiry into the fitness of the employee in any real sense, otherwise, the firing procedure bares only a broad sort of dragnet relationship to fitness or security of the employee.

It is an — because there, it is — well, it is an arbitrary classification of the fit with the unfit and firing of all of them in order to get at the lesser number who may — who may be unfit or disloyal.

And insofar as it is — is an arbitrary classification, it comes in conflict with the — this Court’s decision in Wieman against Updegraff, the signing — the refusal of — to sign the oath by itself bares no reasonable relationship to disloyalty.

It is certainly a ground for suspicion of disloyalty.

And that would give rise to maybe inquiry as to whether their suspicions were well founded.

But in and of itself, the — it is improper for the legislature to say a refusal to take an oath means that the person shall be immediately discharged.

So, the court below —

Felix Frankfurter:

Is this an oath like the Wieman and Updegraff oath?

Francis Hoague:

No, Your Honor, the — it’s — it will — it is like, you’d accepted — I think in Wieman and Updegraff, it implied retroactively, if it —

Potter Stewart:

The oath appears on page 9 of the appendix to your brief.

Francis Hoague:

Yes, the oath — oath is on page 9 of the brief.

I’m — I’m — I — my memory is that, and it maybe wrong, that in Wieman against Updegraff, it required and just whether they had not belong to a subversive organization.

And this only requires that they swear that they do not, at the time they’re signing the oath, belong to a subversive organization.

Hugo L. Black:

May I —

Felix Frankfurter:

Suppose it is broad as that, it appears subversive organization without defining it?

Francis Hoague:

No it’s subversive organization as defined in the Act.

Felix Frankfurter:

And how is it defined?

Francis Hoague:

It’s defined in the more or less usual very common form, subversive organization, this is — I’m reading from page 1 of Appendix A, “Subversive organization means an organization which engages in, advocates, abets, advises, teaches or a purpose of which is to engage in, advocate, abet, advise or teach activities intended to overthrow, destroy or alter or to assist in the overthrow, destruction or alteration of any — of the constitutional form of the United States by,” and I will skip, if I may, “revolution force or violence”.

Felix Frankfurter:

There was — was there a definition in the Wieman and Updegraff as to what is subversive there?

Francis Hoague:

That was a — I do not advocate that I am a member of any organization that now advocates the overthrow of the Government by force or violence.

It describes in the oath what is here described in the statute and not —

Felix Frankfurter:

Was there also included that belonging to any organization of the Attorney General’s list?

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Francis Hoague:

That is correct.

Felix Frankfurter:

Well, that’s a very good opinion.

Francis Hoague:

That is a different thing at this stage of the — of our — of our case.

Felix Frankfurter:

Suppose we — we — this Court has held that the so-called “out glory” or the condemnation of the inclusion on the Attorney General’s list was in the joint anti-fascist in this case.

Francis Hoague:

Yes.

Felix Frankfurter:

But that was too — too undefined and unlimited.

Francis Hoague:

But, Your Honor, that was not the basis of the Wieman against Updegraff decision which knocked out the entire oath as applied to any organizations as subversive organization.

Felix Frankfurter:

That’s because it — it had — it included organizations that might be of innocence as the Republican or Democratic Party.

I don’t how innocent they are but as much as —

Francis Hoague:

[Laughs]

Felix Frankfurter:

— innocent as they are.

Francis Hoague:

Not — not if they — if they were involved in — add for their purpose to overthrow the Government.

Felix Frankfurter:

Yes, but the Attorney General’s list wasn’t restricted to such organization.

Besides, I have nothing to bind what the Attorney General could put on his list.

Francis Hoague:

Yes, but this is also —

Tom C. Clark:

Oh, that would be a —

Francis Hoague:

— it was the —

Tom C. Clark:

(Inaudible)

Francis Hoague:

Excuse me.

Tom C. Clark:

So that would (Inaudible)

Francis Hoague:

Yes, that was, that was the scienter and — and —

Felix Frankfurter:

I think you had to know that one of these — I don’t know how many years, 100 odd organizations.

You had to know that one of these organizations was pursuing the purposes that in your statute is defined.

Francis Hoague:

And also in the other organization, Your Honor, that says “I’m — I am a member of any organization that now advocates the overthrow of the Government,” and then further goes on to the Attorney General’s list.

Felix Frankfurter:

Yes.

Well, because — but that was inclusive.

Therefore, for all you know, he might be a member of a — of an organization that philosophically discussed all sorts of (Inaudible)

Francis Hoague:

This is correct, this is correct.

And certainly, scienter would be more — more simple as to the Attorney General’s list because the list could be obtained at least whereas when it’s left in its general form, it puts a very difficult — in certain cases a, an impossible burden on the person to know whether they have a revolutionary purpose.

Tom C. Clark:

(Inaudible) in the organization to whom — which he belongs on the list —

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Francis Hoague:

Right.

Tom C. Clark:

— and it didn’t take that into accounts.

I remember I read the case —

Francis Hoague:

That — that is correct.

But that is not the only — that is not the complete holding.

The — the complete holding applied to more than just the Attorney General’s list.

It applied to — it said that there had to a be a knowledge of the revolutionary — revolutionary purpose of the organization.

Now, we submit that the — well, I — I will get a little later to the scienter problem.

Nevertheless, the reason is — reasoning of this is that a person might be very innocently a member of an organization.

We submit here that a person even knowing of that an organization has a revolutionary purpose, he can be an innocent member.

This statute is not confined to active membership or to membership for the purpose — for the revolutionary purposes.

It’s very possible for a person to be a member of an organization which is masterminded by revolutionaries which engages in no revolutionary activity actually and devotes itself to other purposes.

I — I just suggest that a person in the State of Washington who was devoted to old age — to advancing the cost of old age pensions, might very well belong to the Washington Pension Union.

There is no other organization out there that works on old — works to favor old age pensions, and yet, this would have — have no revolutionary import belonging to this — this organization which has been declared a subversive organization by the Subversive Activities Control Board.

William J. Brennan, Jr.:

Well, this also requires an affirmation that one is not both a subversive person.

Francis Hoague:

And that comes right back to the same thing, a subversive person is a person who either intends or teaches or advocates the violent overthrow of the Government or is a member of an organization or a member of the Communist Party.

So that — that really doesn’t —

William J. Brennan, Jr.:

It isn’t brought by — by statutory definition.

Francis Hoague:

By — by statutory definition.

That doesn’t add a great deal.

It —

Hugo L. Black:

Where did you say the exact form of the oath here?

Francis Hoague:

Right on the last page of our brief, Your Honor, in appendix —

Appendix —

Hugo L. Black:

Thank you.

Francis Hoague:

Yes, sir, I have it here.

Appendix C, in page 9, Your Honor.

Now, the —

Hugo L. Black:

Is that the only one?

Francis Hoague:

This — no.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Francis Hoague:

This is the one that was presented to the university professors.

I have to go out of the record to discuss what the — the — state that there are other oaths — other forms of oaths that were presented to other types of employees but that is not in the record.

Potter Stewart:

Was it — was the formerly oath left up to the employing agency in each case or what?

Francis Hoague:

It was — I — I believe it was left up — actually the oaths were drawn up by the Attorney General and send out.

Again, I’m not entirely sure of that, but that — that’s my impression, and that again is not on the record.

Hugo L. Black:

Is there any statement any — anywhere that does require knowledge or the exempts that you do not have knowledge of the purpose?

Francis Hoague:

The — yes.

On the Communist Party, on — on subversive organizations other than the Communist Party, knowledge of the subversive purpose is — is specifically required by statute and that is —

Hugo L. Black:

Which one is that?

Francis Hoague:

And that appears in the definition of subversive person.

Hugo L. Black:

On subversive person.

Francis Hoague:

And that is on page 2 of the appendix to our brief, Section 5.

A subversive person means any person, and I will jump to where it says Section — no.

Section — I’m wrong on this —

Hugo L. Black:

Section 3, makes the —

Francis Hoague:

Section 3.

Hugo L. Black:

— appellant remain or become a member of one knowing.

Francis Hoague:

Yes, but there is —

Hugo L. Black:

Is there anything about that in the oath they have to take?

Francis Hoague:

No, no.

I am under the impression that the 1953 Act provided as to — yes.

In the 1953 Act, I’m sure, provided as to this oath that as to all — all subversive organizations other than the Communist Party was not named specifically in — at that time as a subversive organization.

That scienter was required, and I’ll read this from the —

(Inaudible)

Francis Hoague:

Thank you.

On page 64 of the appellees’ brief, starting at the bottom of Section 5, and that’s — yes.

This is the 1953 amendment.

And it says, “Subversive person means any person who commits,” and so forth, “or who with knowledge that the organization is an organization as described in paragraphs (2) or (3) becomes or remains a member of a subversive organization or foreign,” and so on, “subversive organization”.

So that as to all subversive organizations other than the Communist Party scienter is required.

As to the Communist Party in 1955, Section 4 says that, “Membership in the Communist Party is a subversive activity.”

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Francis Hoague:

And this did a way with scienter vis-à-vis the Communist Party.

Hugo L. Black:

This is a definition of a subversive person that you just read.

Where is in the — where is that in the oath that a man has to swear as I still —

Francis Hoague:

The oath —

Hugo L. Black:

— does not belong to one that he knows to be subversive.

Francis Hoague:

Nothing in the oath, Your Honor.

Well, hasn’t your Supreme Court interpreted the oath as including the element of scienter?

Francis Hoague:

The Supreme Court said that they implied scienter in every portion of the oath and of the statute.

But you —

Francis Hoague:

They —

Hugo L. Black:

But — but is it — is it put in the oath that the man is asked to sign?

Francis Hoague:

No, it is not — it does not read.

There’s nothing in the — yes.

It — it does not state knowingly in the oath.

It does by reference to the statute.

Hugo L. Black:

Because if — he knows the law and —

Francis Hoague:

If he knows the law.

Hugo L. Black:

— knows that the Court, you said, that he swear and he belong — he doesn’t belong to anything that’s knowing it to be so.

Francis Hoague:

If he knows the law or —

Hugo L. Black:

(Voice Overlap) but does there anything in any oath that shows then that he is doing it?

Francis Hoague:

No, Your Honor.

Felix Frankfurter:

Does your Supreme — did you — has your Supreme Court held that there must be scienter, you’re coming to that, you can argue that later.

Francis Hoague:

Well, I’ll argue —

Felix Frankfurter:

All right.

Francis Hoague:

— it right now, Mr. —

Felix Frankfurter:

But you — suit yourself.I just —

Francis Hoague:

All right.

Felix Frankfurter:

— want to know whether your Supreme Court has held that scienter is a requisite.

Francis Hoague:

The — the Supreme Court has not held that it’s a requisite.

They say that it is implied in every part of the oath in the statute.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Francis Hoague:

And then they go on to —

Felix Frankfurter:

Does that mean it’s implied?

Does that mean that there must be — that if a fellow can say, “I didn’t have knowledge,” that would be a good defense and he couldn’t be dismissed then?

If it’s a requisite and if it’s implied, legally speaking, it’s no different than if it’s written there, but what is it means?

Francis Hoague:

I — I’m not too sure what it does mean, Mr. Justice Frankfurter.

I really not.

It — I think it means that except as to the Communist Party, he cannot be discharged for belonging to a subversive organization unless he knows of the subversive purpose of the organization.

Felix Frankfurter:

That is required to other statute as you conceive it.

Francis Hoague:

Yes.

Hugo L. Black:

That’s not in the oath that he didn’t.

Francis Hoague:

Not — excuse me.

No, it is not, Mr. Justice Black.

It — but —

Felix Frankfurter:

So that in a particular case, suppose Professor Jones is now sought to be dismissed under this statute, which you tell me requires scienter, could you attack his discharge by saying that he did not have scienter?

I’m not talking about attacking the statute, the — the particular case of professor Jones, and if the Supreme Court followed its ruling and conversely admits that he didn’t have scienter, wouldn’t your Supreme Court have to say that they — he could not be dismissed?

Francis Hoague:

We will concede that except as to the Communist Party.And as to the Communist —

Felix Frankfurter:

I understand that.

Francis Hoague:

Yes.

Felix Frankfurter:

Yes.

Francis Hoague:

Yes.

Felix Frankfurter:

As a Communist Party, a fellow knowingly belongs to the Communist Party, that’s all you have to show.

Francis Hoague:

That’s correct.

And —

Felix Frankfurter:

But he must knowingly belong to that party.

He couldn’t have been — he couldn’t have — he — he could’ve join as, well, in some (Inaudible) could he?

Francis Hoague:

That’s correct.

Hugo L. Black:

It seems to me you’re conceding more than the oath shows.

Francis Hoague:

Than the oath shows, Your Honor, I am conceding more.

Hugo L. Black:

A man was — a man was given a paper to sign a note, and he doesn’t say anything about that, “I do — I have not drawn to one knowing it to such —

Francis Hoague:

This — this is correct.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Hugo L. Black:

— that I’m not belong to any.”

Francis Hoague:

This is correct.

Hugo L. Black:

(Voice Overlap) some organization it does.

But it puts on him the responsibility, doesn’t he?

Francis Hoague:

There’s no question about that.

That’s — that’s correct.

I — we — we decided to handle this on the assumption that the statute was incorporated into the oath and that everybody is presumed to know the law because we still think that’s it’s —

Hugo L. Black:

Well, I assume we have to handle it each one of us for ourselves, on the basis of whether the oath that he is required to sign is constitutional without that regard that what you think might happen later by your court if they prosecute him on a charge.

Francis Hoague:

Yes, Your Honor.

The opinion in the Court —

Felix Frankfurter:

A person may know something not merely on the tag that everybody is supposed to know the law, but it maybe such a common — maybe it’s a matter of common knowledge particular by a professor as to what have been declared on this subject by a court.

I’m not saying that — that necessarily follows but it isn’t excluded because it isn’t written in words and lots of things we know that aren’t written in words because, as you say, it’s implied.

That’s why the problem of scienter is so important in this case.

Francis Hoague:

Yes, Your Honor.

Yes.

Potter Stewart:

Now — now, this case began as an action for declaratory judgment, didn’t it?

Francis Hoague:

That’s correct.

Potter Stewart:

These people, of course, have not been discharged.

There is an —

Francis Hoague:

That’s correct.

Potter Stewart:

— injunction against their being discharged.

Francis Hoague:

That’s — that’s right.

Potter Stewart:

And of course, if — and — and these people have, in fact, personally been told and advised by the Supreme Court of Washington that scienter is required in this very case if they know.

Francis Hoague:

In this very case, except as to the Communist Party.

Potter Stewart:

Yes.

Francis Hoague:

And as to the Communist Party, scienter isn’t required because the Court says it is common knowledge that the Communist Party is a subversive organization.

Hugo L. Black:

Well, who wrote up this oath?

Francis Hoague:

If I’m correct, that it’s the Attorney General who wrote the oath.

Hugo L. Black:

The Attorney General?

Francis Hoague:

Yes, Your Honor —

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Hugo L. Black:

Well, I —

Francis Hoague:

— former Attorney General.

Hugo L. Black:

— I assume that we would have to assume that he also knows what the courts decided.But the oath that he wrote and to which he — which is on trial before us does not contain any statement that the man has to know that the organization is subversive.

Francis Hoague:

Yes.

The appellees equate and the court below equate their failure to sign the loyalty oath with disloyalty and unfitness, and this is the error that we submit they fall in to, because it is not a true equation, it is only grounds for suspicion.

And in the absence of hearings or some sort of inquiry to show that the suspicious are well founded, there is a denial of due process of law.

I want to quickly refer to two cases that superficially might be considered applicable but we submit are different.

One is the Gerende case, Gerende against the Board of Election Supervisors.

In the first place, Gerende was a candidate, was not an office holder and with the thought of the Nelson case as applied to Mr. Globe, the appellant Globe or petitioner, it appears that a person who is an applicant for a job and here a — a candidate for office is more remote from the property concept, I suppose, of the Due Process Clause.

Furthermore, in the Gerende case, the briefs and the court below made no reference to procedural due process.

This was not presented to this Court in that — as far as the briefs are concerned and since —

William J. Brennan, Jr.:

What case is that?

Francis Hoague:

Gerende.

And since it was per curiam opinion, I — we don’t know whether it was considered by the Court.

But it — it at least was not argued.

The other is American Communications Association against Douds.

And there are number of grounds for distinguishing this case.

I think the most important is that the separation from the employment there was indirect rather than direct.

A union official who did not take the oath wasn’t fired from his job, it merely — some pressure was put or — or some benefits were taken away from the union.

And this would might normally have the result of his losing his job but the law did not remove him from office.

Are the court decisions in — are the court decisions in Washington clear that a man who refuses to sign one of these oaths does not get a hearing?

I didn’t see anything in either brief or in the Court’s opinion that — indicating one way or another whether the statute had been interpreted either to exclude a hearing or to include.

Francis Hoague:

The statute, of course, says shall because —

Yes.

Francis Hoague:

— immediate dismissal which does not imply a hearing.

There is nothing in the opinion of the court below which opinion is most unsatisfactorily in a great many respects and not only — but — this respect, but there is — this is the only holding with regard to this portion of the statute.

So there is nothing in — to show it except this plain wording of it, and the fact that the appellees have not made any such claim.

I think that —

Your — your clients have actually refused to take the oath, the officers on (Voice Overlap) —

Francis Hoague:

Yes, they have that.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Well, have they?

Francis Hoague:

Yes, they have.

And they — they have not —

William J. Brennan, Jr.:

Well, did they get notice —

I thought they were asking for a declaratory judgment —

Francis Hoague:

Yes.

— so that the —

Francis Hoague:

It’s all done.

But they have — they have not refused.Does the record shows they have refused to —

Francis Hoague:

They — demand has been made upon them to sign the oath and they were told that they — they refused that they would be fired.

They did not refuse.

They brought a declaratory judgement, a petition for declaratory judgment, I was wrong.

I see.

William J. Brennan, Jr.:

Where — where is the notice that they received in the records?

Did it say they would be discharged with — without hearing or —

Francis Hoague:

No, Your Honor —

William J. Brennan, Jr.:

Is there anything at all about —

Francis Hoague:

— this is in — as far as the record is concerned, this is in the findings of fact, page 9 of the printed record, paragraph (6) pursuant to the Act, “Defendants have demanded that the plaintiff sign, swear and oath,” and I’m skipping, “I have stated that unless the plaintiff comply with such demands their employment contracts with the university would be terminated by the defendants.”

William J. Brennan, Jr.:

Do you say that the Attorney General does not deny that that was performed for the notice given?

Francis Hoague:

The — no, but this is defined.

This is the basis of —

William J. Brennan, Jr.:

Oh, we have findings of facts.

I see.

Francis Hoague:

These are the findings of facts —

William J. Brennan, Jr.:

Oh, yes.

Francis Hoague:

— Your Honor.

William J. Brennan, Jr.:

I see.

Francis Hoague:

And actually, in the record, if you want to find the exact notice that was sent out, it is in the unprinted record.

Hugo L. Black:

Not in the printed record?

Francis Hoague:

I beg your pardon?

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Hugo L. Black:

Not in the printed record?

Francis Hoague:

Not in the printed record.

In the unprinted record, the notice that went out is in the request — request for admissions of fact, pages 16 to 26 in the original record, and that shows the letter —

Hugo L. Black:

The original record is here.

Francis Hoague:

Yes, Your —

William J. Brennan, Jr.:

It is the record which —

Francis Hoague:

Yes.

William J. Brennan, Jr.:

— is filed with our clerk?

Francis Hoague:

Yes Your Honor, yes.

I — I state at pages 16 to 27 is —

William O. Douglas:

And that shows what?

Francis Hoague:

That shows the letter that went out from the university to the defendants.

But we don’t — to — to the appellants, we don’t believe that it is necessary, actually, to do that — to go to that portion of the unprinted record because the findings of fact which are final, which are not challenged, state that the defendants or there, the appellees here have stated that unless the plaintiffs comply with their demands, their employment contracts with the university would be terminated by the defendants.

And that — that is certainly can’t be challenged in this case.

William J. Brennan, Jr.:

What do you mean it can’t be challenged so that means it would be terminated without hearing?

Francis Hoague:

I’m sorry, Your Honor, I — I —

William J. Brennan, Jr.:

This says, “would be terminated”.

You’re reading into that would be terminated without hearing, aren’t you?

Francis Hoague:

Yes, yes.

Tom C. Clark:

Did you attack it because of lack of a hearing?

Francis Hoague:

Yes, Your Honor.

Tom C. Clark:

Did your court —

Francis Hoague:

This is — this is the — this is a — this is a — a reason in and out itself why the statute is unconstitutional.

I thought you didn’t raise that point below.

Francis Hoague:

This is claimed by the appellees.

We contradict.

We are actually, Your Honor, at a lost to understand it.

I would like to wait until he explains it a little more here in — in reply and rebuttal.

Now, with the Court’s leave, Mr. Ringold —

Earl Warren:

You may.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Earl Warren:

Mr. Ringold.

Solie M. Ringold:

Mr. Chief Justice —

Earl Warren:

Mr. Ringold.

Solie M. Ringold:

— may it please the Court.

In the few minutes remaining, I must(Inaudible)my argument considerably.

The argument with respect to bill of attainder and with respect to the freedoms under the First Amendment, it had been stated much more eloquently than I could state them by Your Honors in the various cases.

I think, however, that there are one or two implications in each of these matters, which I would like to call to the Court’s attention.

Dealing with the question of the bill of attainder, if this Court will not reexamine the basis of Douds, we must confess the bill of attainder argument goes out the window.

We submit, however, that the bill of attainder argument which would dispose of in Douds was disposed of upon an erroneous basis.

If we look at the purpose of the proscription of the Communist Party in this particular case, I think it becomes quite apparent that the purpose is to punish that which we cannot otherwise be constitutionally punished.

Its purpose is to discourage ideas, to discourage associations.

There is no real rational relationship to fitness of the individual who may be a member of the Communist Party.

It is an inference drawn that by virtue of the fact that he is a member of the Communist Party, he is a fortiori unfit to teach in the universities.

Now, the — as I read Douds, it seems to say that the oath requirement in Douds would have been considered a bill of attainder except for the fact that it had present and prospective application only.

And therefore, it should not be deemed a bill of attainder.

We submit that the constitutional provision prohibiting bills of attainder and ex post facto laws being in the disjunctive intended to exclude two separate categories of laws which the founders of the Constitution deem to be improper.

There were at least three historic examples of bills of attainder which were prospective in application which were before the constitutional convention, these matters are cited in our brief.

And undoubtedly, there must have been a reason for including the bill of attainder along with the ex post facto provision in our Constitution.

It — I think it’s significant that there was no discussion at all in the constitutional convention with respect to the acceptance of the prohibition against a bill of attainder.

There was some discussion about the inclusion of the prohibition against ex post facto laws.

And there was some colloquy where it was said, there is no reason to include ex post facto laws because every lawyer, every civilian knows obviously those are illegal and unlawful.

But bills of attainder were not deemed to be unlawful.

They were passed by the Georgia legislature, they have been passed by Pennsylvania legislature, and they have been passed by the New York legislature.

We found though that there were bills of attainder which were — which were prospective.

And I think that the greatest example of that was the great bill of attainder act was passed by the Dublin parliament under James II.

Now, with respect to the First Amendment and the freedoms guaranteed thereunder, it is our position that the language in Adler has been tempered by Your Honors’ holding in the Sweezy case.

And this, I think, is as it should be.

I think that we must consider the necessity for controversy.

We must consider the necessity for decent at a university when it is unrelated to the fitness of the individual teacher.

The clear and present danger, I assume, that we are talking about which the legislature may — may legislate against is that of having incompetent teachers.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Solie M. Ringold:

Now, let us assume this example.

Let us assume we have a perfectly competent teacher at a university, and he comes to the regions of the university, and he said, “Gentlemen, I have become a neo-fascist.

I believe that we should engage in a change in our constitutional form of government so that we have a neo-fascist dictatorship in this country.

I am not going to do anything about this in my classroom.

I intend to devote, however, my free time outside of the classroom to my political activity in this party.”

Now, to me, there is very little difference, very little distinction between that and, for example, the teacher who may be a member of the NAACP.

The question must be what relationship — what danger is there to his views and beliefs being injected into his teaching, into his competency as a teacher.

Felix Frankfurter:

I thought that our case is regarding whether any — if he was involved.

I think the case involving that we said that their purpose was to enforce of his legal aid to promote the enforcement of a — of the Constitution to wit the Fourteenth Amendment, isn’t that we’ve held?

Solie M. Ringold:

I believe, Your Honor, it’s so held, yes.

Felix Frankfurter:

And that’s the same, they belong to an organization that seeks to overturn the Government by force and violence?

Solie M. Ringold:

The only — the only determination, and this, of course, brings us back, Mr. Justice Frankfurter, to the bill of attainder argument.

The only determination that has ever been made that the Communist Party seeks to overthrow the Government by force and violence is the determination that has been made by the various legislatures just as an example of that.

Felix Frankfurter:

I can understand that argument, that’s a different argument, namely, the — to characterize the Communist Party as a force or violence party is — is an intrusion into whatever (Inaudible) person may have because you say that’s an arbitrary determination which the legislature can’t make, that’s your argument —

Solie M. Ringold:

Yes.

Felix Frankfurter:

— in this point.

But that’s a very different thing of — of assuming that what is outlawed is knowing membership in a force or violence party, I just — I just — when you (Inaudible) that’s just like (Inaudible) I just thought that black isn’t white and white isn’t black.

Solie M. Ringold:

Except — should not, Your — Mr. Justice Frankfurter, should not the guilt be that of the individual not derived at by virtue of his association.

If this individual is a member of the Communist Party and he individually subscribes to the overthrow of the Government by force and violence, I have no quarrel, sir.

But it must be individual.

And it occurs to me, it occurs to —

Felix Frankfurter:

And in each case, in each case, although the — although the man is affiliated in a knowing way with an enterprise which seems to overthrow the — this Government by force and violence as something in our Constitution which prevent a State from saying, “I need to keep such a person employed until I examined each persons whether he understands thoroughly the catechism according to Karl Marx and Lenin, whether he believes in it,” etcetera, etcetera, that’s your position, is it?

Solie M. Ringold:

That is my position, Your Honor, and I think that perhaps Your Honor himself stated this in the Douds case when you said, Your Honor, that the cargo article, the faith of our civilization is the inviolate character of the individual, and this, I firmly believe.

Felix Frankfurter:

Do you think that proves that’s — that bars me from saying that if I voluntarily belong in a — to an organization, the purposes of which I know and I belong and by my joining add strength to that organization but I must be put on the witness stand and then have a right constitutionally to be — be searched to what extent I adopt that catechism, is that right?

Solie M. Ringold:

That is my position.

Felix Frankfurter:

That’s your position.

Solie M. Ringold:

I’d like to make one more point with respect to that.

Your Honor now is assuming that the Communist Party is bad and therefore any membership —

Felix Frankfurter:

I’m not assuming anything, I’m putting question.

I’m just assuming the question I put.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Solie M. Ringold:

Very well.

Now, if — is there not a possibility, is there not a possibility that the character, the Communist Party will change and it will revert to the — to the good old Communist Party of Earl Browder before the Duclos letter as Mr. Browder referred to in the Harper, a month or so ago.

Now, if this is the case, and this is conceivable, the statute and the oath proscribe membership in the Communist Party, but is this not a prior restraint upon association because until such time as the legislature has concluded that the Communist Party has changed it’s purpose or is now a lawful organization and has become the Browder Party rather than the Foster Party.

Until such time, one is taking a risk under our statute and under our oath of associating with that party.

Thank you.

I’ll reserve my few moments left.

Earl Warren:

Mr. Fuller.

Herbert H. Fuller:

Mr. Chief Justice, may it please the Court.

In this declaratory judgment action, the question before the Court is whether the provisions of Chapter 377, Laws of 1955, State of Washington append the United States Constitution.

As counsel has pointed out —

Hugo L. Black:

Is that — is that altogether in it or is it as applied here, alleged to be applied here?

Herbert H. Fuller:

Perhaps that could be added, Your Honor.

I think the —

Hugo L. Black:

I — I’m just wondering, I didn’t know.

Herbert H. Fuller:

The —

Hugo L. Black:

Is this a broad side attack on the entire acts or is it an attack on the Act as applied here?

Herbert H. Fuller:

Your Honor, I think the only way to answer that would be to refer to the record and to examine the prayer of the complaint.

And in the complaint, the appellants asked for an adjudication, and I’m reading from page 4 of the printed record, “For an adjudication by this Court that Chapter 377, Laws of 1955 violates the Constitution of the United States and the Constitution of the State of Washington and is therefore void and have no effect.”

It’s on page 4 of the printed record.

Hugo L. Black:

Do you think that that’s a surplus to consider it as an attack on the entire act?

Did — was that treated by the Supreme Court in that way or —

Herbert H. Fuller:

My understanding is that —

Hugo L. Black:

(Voice Overlap) —

Herbert H. Fuller:

— excuse me, Your Honor.

Hugo L. Black:

Well, was it — was it treated as a charge to the Act as applied to this — supposed to be applied to this people who violate the Constitution?

We don’t use to take it up on the whole statute unless we have here.

That’s what I’m talking about.

Herbert H. Fuller:

I understand that, Your Honor.

No, the Supreme Court of the States of Washington considered the Act vis-a-vis the two professors who were involved.

I think —

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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William J. Brennan, Jr.:

Mr. Fuller, may I ask you?

I’ve been going through this —

Herbert H. Fuller:

Yes, Your Honor.

William J. Brennan, Jr.:

— original record and I can’t find that any of these pages that your adversary referred to the copy of any notice to — either of these petitioners from anybody telling in if he didn’t sign, he’d be — the complaint will be terminated.Was there such notice?

Herbert H. Fuller:

Your Honor, I must be frank in saying that I do not know.

I think that some of the confusion of all parties in this case is due to the nature of the case, the fact that it’s a declaratory judgment action.

William J. Brennan, Jr.:

But didn’t —

Herbert H. Fuller:

Now —

William J. Brennan, Jr.:

— they allege that there had been such a notice.

Wasn’t that the basis so far which they secured the interim restraint against their termination?

Herbert H. Fuller:

They did so claim.

Tom C. Clark:

They didn’t alleged notice, did they?

And you said and done — have demanded that plaintiff’s son swore to an oath, than they have (Inaudible) and unless plaintiffs comply with what demands and (Inaudible)

Herbert H. Fuller:

That’s — it was to that that I’m referring —

Tom C. Clark:

(Voice Overlap) if they threatened with termination, they just, I guess, conclusion and they would be terminated —

Herbert H. Fuller:

It is —

Tom C. Clark:

— if they didn’t sign the oath.

Herbert H. Fuller:

Mr. Justice Clark, that’s precisely my point because of the nature of the action, because it’s a declaratory judgment action and these professors have not actually been dismissed, we can’t be certain just what would have happened, whether they would have demanded that they be given a right to rehearing and if they’ve been turn down, perhaps they could’ve taken it on appeal to the court below.

A part of our case, as you will see as I attempt to develop, is that the fact that in the court below, we claim that the appellants did not raise the question of a lack of any hearing.

The reason for the confusion, I believe, is because this issue has sprung full-grown upon the Court on appeal for the first time.

William J. Brennan, Jr.:

On appeal where?

In the Supreme Court of —

Herbert H. Fuller:

On appeal to the Supreme Court of the United States.

Tom C. Clark:

They never amended any hearing.

Yes, that could be.

Herbert H. Fuller:

I believe I’m correcting in saying that they did not, Mr. Justice Clark.

Hugo L. Black:

Are they entitled to any?

Herbert H. Fuller:

I can only answer that we can’t be sure.

Our Court did not pass upon on that question —

Hugo L. Black:

I understand —

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

— because it was not squarely before it, Mr. Justice Black

Hugo L. Black:

If — if they are entitled to any, where does the Act show it?

Herbert H. Fuller:

It is not in black and white.

It would be a matter of judicial construction by our highest court but our Court did not have an opportunity to pass upon that because the question was not squarely presented.

Tom C. Clark:

Do you have a civil service act that require the hearing before they can be discharged, the general citizens?

Herbert H. Fuller:

We have no act that would apply to these professors, Mr. Justice Clark.

Felix Frankfurter:

Is there any provision in the — in any laws, what are they called, bylaws, is there any provision in the matter that govern the intramural life of the University of Washington regarding disciplinary action against nothing of the fact?

Herbert H. Fuller:

My understanding is, Your Honor, that there are intramural rules that the President and the Board of Regents do follow certain rules as far as dismissing a professor but these rules are not binding upon the Board of Regents.

Felix Frankfurter:

Are they inviting?

Are they — are they just subtracted or are they formulated by — in some document?

Herbert H. Fuller:

On that point, I’m not certain.

In any event, it’s not binding upon the Board of Regents.

Going outside the record —

Tom C. Clark:

Your court didn’t pass on the hearing, isn’t it, your Supreme Court?

Herbert H. Fuller:

Sorry, Mr. Justice Clark, I didn’t hear you.

Tom C. Clark:

And your Supreme Court did not pass on the hearing, did you?

Herbert H. Fuller:

No, they did not.

William J. Brennan, Jr.:

Well, Mr. Fuller, I notice in the brief that I had here that was filed in the Supreme Court, “On behalf of these petitioners,” set at page 13 of that brief, “who’d be observed under Section 15, Chapter 254, Laws of 1951, the employee may be discharged at reasonable grounds excitably if the person is subversive after notice of charges and hearing.

The amendatory language of the Laws of 1955 may confuse when they sign the oath for the answer of the question, grounds for mandatory discharge and denial of a permit without regard to whether the person is in fact subversive and without any notice of charges or hearing.”

This is in their brief in the Supreme Court of Washington.

Herbert H. Fuller:

That was on the page 15?

William J. Brennan, Jr.:

Page 13 of their — so it is in this record, I believe.

So this — this seems to be that they raise the question that while the 1951 statute originally required a hearing the 1955 amendment repealed that required and now makes discharge mandatory without regard to whether the person is in fact subversive and without any notice of charge or a hearing.

Herbert H. Fuller:

I can only answer —

William J. Brennan, Jr.:

Is there difference between your 1951 and 1955 statute?

Herbert H. Fuller:

I don’t believe that there is.

The principle difference between the 1951 statute and the 1955 statute is the fact that in the 1955 statute, the legislature has named the Communist Party as being a subversive organization.

I think —

William J. Brennan, Jr.:

Well, I refer to Section 15 of your 1951 statute.

Have you reproduced that anywhere or is it anywhere in this — in any of these briefs?

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

I don’t believe that we reproduce that section, Your Honor.

Excuse me —

Hugo L. Black:

I —

— we did reproduce it on page 67 of our brief.

William J. Brennan, Jr.:

Of your brief?

This is the 1951, is it?

Herbert H. Fuller:

Yes, Your Honor.

Hugo L. Black:

I don’t know how your facts were found by the judge but in Section 6 of the complaint —

Earl Warren:

67.

Hugo L. Black:

— it was alleged that they had — and demanded as they sign and swear to an oath, the copy which is Exhibit A unless they comply with the demands and form a contract with the university will be terminated by the defendant.

And your answer, you denied this.

I’m (Inaudible)

The Court found, however, that pursuant to the Act, defendants have demanded that plaintiff sign and swear to an oath.

The copy of which is attached to the complaint therein, Exhibit A, and have stated that unless the plaintiffs complied with such demand, their employment contract with the university would be terminated by the defendant.

Now, I’d suppose the State of Washington had intended at that time, say that they would not be terminated but they’d wait for a year and somebody would have said it.

The courts found that they have given limited term with the notice that unless they signed it, they would be — employment would be terminated.

Are you construing that as being anything less than what it seems to mean on its face?

Herbert H. Fuller:

I will say this, Your Honor, I think that is a lower court decision and the question is what did the — what did the State Supreme Court pass upon?

Hugo L. Black:

Well, did they overturn this finding?

Herbert H. Fuller:

I —

Hugo L. Black:

If so, where?

Herbert H. Fuller:

— I think again we have to reply that we can’t be certain because of the nature of the action.

Being a declaratory judgment action, the appellants have thrust a number of hypotheticals before the Court.

Hugo L. Black:

But this is not — this is not hypothetical, it was alleged in the complaint.

They had been delivered a notice and said if they didn’t sign it, they would be fired.

You denied in your answer.

The District Court found they did, but that was a fact they have done it.

Now, unless the Supreme Court has overturned that, are you challenging the accuracy of that finding?

Herbert H. Fuller:

I would say that it was not squarely before the State Supreme Court because the men where not actually fired.

They did not actually demand their hearing.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

They were sitting back —

Hugo L. Black:

Well, that — but there’s nothing said —

Herbert H. Fuller:

— and project them that.

Hugo L. Black:

— about a hearing.

The — the alligation was that they were told, if they didn’t sign this, they — employment would be terminated and I think you’d want to tie this on the issue of the phrase that the — it would be terminated, and number 6, if you denied it, the Court found that that was a fact.

They’d been told, if they didn’t sign, it would be terminated.

Now, what reason have you no to say that’s not correct?

I can — are you challenging it on the ground that it’s based on no evidence?

If so, when did you first challenged it?

Herbert H. Fuller:

I think, Your Honor, my only answer could be that we feel that that issue was not squarely before the State Supreme Court.

Hugo L. Black:

But — but why is it not squarely before that?

They — they allege it, and you deny it and the Court find it?

Herbert H. Fuller:

Your Honor, in our State, the only matter is — that would come before the Supreme Court would be the matters which have been squarely raised on appeal.

Hugo L. Black:

Well, if this —

Herbert H. Fuller:

Now —

Hugo L. Black:

— isn’t it squarely raised for year?

Felix Frankfurter:

How –how do you determine in your State, how a thing is squarely raised before the Supreme Court?

Is there some notice of appeal?

Is there some document by which the Supreme Court is appraised of what it is that bare to adjudicate?

Herbert H. Fuller:

Your Honor, the parts of a case which are on appeal are determined in two ways.

Number one, by the notice of the appeal but by ordinary and practice, the notice of appeal was very general.

Number two, by specific assignments of error in the brief.

Now, in our State, if you do not mean (Voice Overlap) —

Felix Frankfurter:

Is the latter — is the latter, assignments of error, is that a requirement — the rule of your Supreme Court?

Herbert H. Fuller:

It is.

And if you do not make a specific assignment of error, you’re not entitled to raise a point upon appeal.

Felix Frankfurter:

(Voice Overlap) specific assignment that there is in this case?

Herbert H. Fuller:

Your Honor, I do not have —

Felix Frankfurter:

(Voice Overlap)

Herbert H. Fuller:

— that information specifically before me.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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William J. Brennan, Jr.:

You mean by — in the Supreme Court brief?

Herbert H. Fuller:

Yes.

William O. Douglas:

They’re in the —

William J. Brennan, Jr.:

They’re all here.

William O. Douglas:

The notice of appeal gives it on page 51 to 53.

Herbert H. Fuller:

Of the record.

Felix Frankfurter:

That’s the notice of appeal coming to this Court.

Hugo L. Black:

Well, you’re asking us, as I gather it, the whole that the Court didn’t consider this although it’s been decided in the court below —

Herbert H. Fuller:

Your Honor —

Hugo L. Black:

(Inaudible)

Herbert H. Fuller:

I will say this.

In the lower court, we were the ones who did the appeal and they were responding party, so it wouldn’t — the specific points raised on appeal would not be Germane.

Hugo L. Black:

So the — did you make any assignment of errors?

Herbert H. Fuller:

I think we assign —

Hugo L. Black:

Well, did you?

Herbert H. Fuller:

I’m sure that would —

Hugo L. Black:

Did you make any assignments of errors and where are they?

And did you assign as an error the fact that the Court had made a — the finding was not supported by evidence?

Herbert H. Fuller:

I can only answer that I’m not sure with that, Your Honor.

William O. Douglas:

So that would — would that be in the unprinted record that is here?

In notice of appeal?

Herbert H. Fuller:

It would be — it would be in our brief in our notice — in our notice of appeal, I believe, to the State Supreme Court.

William J. Brennan, Jr.:

Well, I find here you have (Inaudible)2 brief in your Supreme Court but I don’t see any brief reviews here in this — in this unprinted record.

William O. Douglas:

The thing that puzzles me about this point we’re talking about, Mr. Fuller, is every provision of this — every section of this statute that I read has in it a phrase or clause “shall immediately be discharged”.

I mean there’s nothing that I find it here about a hearing, “shall, after hearing, be discharged.”

This is all —

Herbert H. Fuller:

No.s

William O. Douglas:

— we show “immediately be discharged”.

Herbert H. Fuller:

I think on the hearing point, I will rest my case with what I have said.

I can go no further than that if the Court concludes that the appellants are entitled to raise this issue of being denied a fair hearing and dismissal being automatic, I will have to let it go —

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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William J. Brennan, Jr.:

But may I just ask you this, Mr. Fuller?

Herbert H. Fuller:

Yes, Your Honor.

William O. Douglas:

May I just — before you leave that.

Herbert H. Fuller:

Yes, Your Honor.

William O. Douglas:

Let me say that again.

I — I still don’t understand what your position is.

Herbert H. Fuller:

Well, I will say this, that one of arguments was that this Court should not consider the argument of whether a dismissal should be — of whether the appellants had a right to rehiring before dismissal because the argument was not made before the State Supreme Court.

Now, the appellants brief is before this Court.

And the Court can look at it as well as I can and I think I will rest my case on that point (Voice Overlap) —

William J. Brennan, Jr.:

Well, just let me ask you this.

Herbert H. Fuller:

— brief.

William J. Brennan, Jr.:

Are the — the professors won in your trial court?

Herbert H. Fuller:

That is correct.

William J. Brennan, Jr.:

And the State or the agencies of the State took the appeal to your Supreme Court.

Herbert H. Fuller:

That is correct.

William J. Brennan, Jr.:

Now, is it your practice in the State of Washington that they may defend their judgment below on any ground available to them whether or not they successfully contest the point you raised on appeal?

Herbert H. Fuller:

That is correct, Your Honor.

That is the practice in the State of Washington.

William J. Brennan, Jr.:

Well, now, didn’t they, in this brief, then attempt to defend the judgment below on this — at the hearing point in that section, that page I read to you?

Felix Frankfurter:

I don’t think they did.

Herbert H. Fuller:

My reaction is that they did not.

No — I confess that I’m not familiar with that particular page, but I’ve read the brief a number of times in considering the whole brief.

My reaction is that they have not raise a lack of hearing point before the State Supreme Court.

Felix Frankfurter:

They raised — they raised a hearing point but not this one.

Their first point was that no hearing was afforded employee as to character of the listed organization.

William J. Brennan, Jr.:

Just look at page 13, look at the argument at page 13 that I’ve read before, that this is this point.

Felix Frankfurter:

Well, their argument begins, they say argument in support of judgement.

William J. Brennan, Jr.:

At the bottom of page 13.

Felix Frankfurter:

Well, I haven’t got 13, but I go to the points they make and they begin argument in support of judgments, the Attorney General’s list and the first argument under the heading “Argument in support of judgment”.

There is no hearing afforded employee as to character of this organization.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Felix Frankfurter:

And they then have 50 more pages, 49 to 50 more pages.

And that argument, I do not think, is made and I do not find it in the summary, summary and conclusions on page 85, 86.

There are eight points in the parenthesized paragraph form.

I do not find that unless oversight skips it.

Herbert H. Fuller:

In the State of Washington —

Hugo L. Black:

When appellant takes the case, is it his duty to show that the judgment is bad or that the other men’s duty affirmative to show that the judgment is good?

Herbert H. Fuller:

In the State of Washington, an appellant has an affirmative duty to show that a judgment is bad.

Hugo L. Black:

If — if a case goes up and facts are found, and if appellant wishes to challenge those — that finding of facts, whose duty is it to do that?

The appellant or the appellee?

Herbert H. Fuller:

It would be the appellant, Your Honor.

Hugo L. Black:

Whose duty was it to attack the finding 6 if it was bad?

Herbert H. Fuller:

It was the appellant, Your Honor, but —

Hugo L. Black:

As to the State?

Herbert H. Fuller:

That is right.

The State was the appellant in the lower court.

I think that at this point, it might be well to consider this entire statutory system.

We’re considering three different statutes.

And I think part of the confusion comes from that fact.

We originally had a 1951 statute which was fairly comprehensive.

It was patterned after Maryland’s Ober Act.

Now, in 1953, an amendment was made to this 1951 statute which changed the definition of subversive person so that only a person who had knowledge of the aims of an organization would be considered as subversive person.

Hugo L. Black:

Did it also take out of the other act, all the provisions for rehearings?

Herbert H. Fuller:

Which — which particular provision did Your Honor refer to?

Hugo L. Black:

Did the — did the 1953 Act eliminate provisions for rehearing that had previously existed in the other acts?

Herbert H. Fuller:

I think that Section 15 which Your Honor refers —

Hugo L. Black:

I don’t — I just want to know if the new amendment eliminates the provisions in the prior act which had authorize — which had required a hearing.

Herbert H. Fuller:

Mr. Justice Black, a short answer to that is no.

Hugo L. Black:

No.

All right.

Herbert H. Fuller:

The 1953 amendment did not do that.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Hugo L. Black:

What did it do about hearing?

Herbert H. Fuller:

It had no effect upon any sort of a hearing for the reason as I understand it.

Hugo L. Black:

Did it take out any part of the language of the prior act that had authorized the hearing?

Herbert H. Fuller:

None that I know of, Your Honor.

It did not affect the 1951 Act in any way as far as the hearing is concerned.

It’s my understanding.

The only thing that the 1953 Amendment did, it’s very short, was to bring the 1951 Act into conformity with this Court’s decision in the case of Wieman against Updegraff.

That’s all with the 1953 Act did, as I understand it.

Now —

Hugo L. Black:

In what way?

Herbert H. Fuller:

By changing the definition of a subversive person by requiring that a person could not be defined as a subversive person unless he had actual knowledge of the subversive nature and purposes of an organization.

Hugo L. Black:

Was it amendment again after that?

Herbert H. Fuller:

Yes, it was, Your Honor, by the — the Act which is in question, the 1955 Act.

The 1955 Act consists of four sections.

Now —

Hugo L. Black:

What changes did it make?

Herbert H. Fuller:

I will show, Your Honor.

Your Honor, we’ll turn to —

William O. Douglas:

On page 70.

Herbert H. Fuller:

— page 70 of my brief.

I think it might be well at this point to read the entire Act, it’s very short and it might clear up some questions.

Section 1, “Every person, every board, commission, counsel, department, court or other agency of the State of Washington, or any political subdivision thereof who or which appoints or employs or supervises in any matter, the appointment or employment of public employees or employes shall establish by rules, regulations or otherwise, procedures designed to ascertain whether any person is a subversive person.”

That would be as defined in the 1951 Act.

“In securing any facts necessary to ascertain the information herein required, the applicant shall be required to assign a written statement containing answers to such inquiries as may be material which statement shall contain notice that it is subject to the penalties of perjury.”

Now, the new provision, I believe, starts with the word “every”.

“Every such person, board, commission, counsel, department, court or rather agency shall require every employee or applicant for employment to state under oath whether or not he or she is,” and I emphasis the word “is”, “is a member of the Communist Party or other subversive organization.

In refusal to answer on any grounds shall be cause for immediate termination of such employees, employment or for refusal to accept his or her application for employment.”

Hugo L. Black:

Did the prior act contain that provision required immediate termination?

Tom C. Clark:

That the charge shall be caused by immediate.

It didn’t say “immediate”.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Hugo L. Black:

Did it rehab this language to require immediate termination whatever effect it required?

Herbert H. Fuller:

It — it had the language up to the word “every”.

Now, see —

William O. Douglas:

Well, at — on page 67 of the — if that was the earlier one, was it?

It said, “He shall immediately be discharged.”

Herbert H. Fuller:

Yes, that is correct.

This —

William O. Douglas:

That was in relation to the oath, that was in relation to the execution of the statement.

Herbert H. Fuller:

Mr. Justice Black, Section 12, before it was amended, can be found on page 65 of our brief at the bottom of page 65.

Hugo L. Black:

I see it.

Thank you.

Herbert H. Fuller:

Yes, Your Honor.

I think it’s not necessary to spend anytime with Section 2 of the 1955 Act because that merely provides that the Act shall not be applicable to positions which are found to be non-sensitive positions.

Could I ask you a question?

Herbert H. Fuller:

Yes, Your Honor.

Have there been numerous decisions of your court construing this 1950 Act or is this the first one or have there been any decision?

Herbert H. Fuller:

I can think of no decisions, Your Honor.

Now, the third section of 1955 Act is not before —

William J. Brennan, Jr.:

Mr. Fuller, is — is the Section 2 of the 1955 Act at page 67?

Herbert H. Fuller:

Page 71 of our brief, Your Honor.

William J. Brennan, Jr.:

What — what’s this one at, this is your brief, at page 67, what’s that Section 2?

This section amended by this Section 2.

It has the last sentence in it, “Any person failing to execute such a statement shall immediately discharged”?

Do you notice that at the end of —

William O. Douglas:

That was the 1953 Act, doesn’t it?

Hugo L. Black:

Is that the 1953?

Herbert H. Fuller:

That was the 1951 Act, Your Honor.

William J. Brennan, Jr.:

Well —

Herbert H. Fuller:

And —

William J. Brennan, Jr.:

— is that sentence still part of the laws now in effect?

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

Yes, it is.

That particular provision referred to employees who were employed by the State at the time the 1951 Act took effect.

First of all, let me be sure, and I’m reading on the same —

William J. Brennan, Jr.:

I’m looking at page 67 of your brief.

Herbert H. Fuller:

At the top of our brief or starting at —

William J. Brennan, Jr.:

At the bottom.

Herbert H. Fuller:

— Section 15?

William J. Brennan, Jr.:

At the bottom.

The last sentence of — it starts at Section 14 on page 66 —

Herbert H. Fuller:

Yes.

William J. Brennan, Jr.:

— and it’s the last sentence of that section which appears at page 67.

Herbert H. Fuller:

That section is still part of our law, Your Honor.

That was not amended by the 1955 Act.

It referred to persons who were in government service at the time the 1951 Act took effect.

William J. Brennan, Jr.:

Now, would that include these propositions?

Herbert H. Fuller:

That I cannot say, Your Honor, that’s not in the record.

I don’t know.

Tom C. Clark:

Did they allege they were employed?

They attack 1955 Act, is it not?

Herbert H. Fuller:

Yes.

Now, the third section of the 1955 Act is actually not before this Court for its consideration.

In that section, the state legislature purported to declare certain organizations which were on the Attorney General’s list as subversive organization.

This section was declared by our court to be unconstitutional.

And the fourth and final section of the 1955 Act added a new provision.

It did not amend any previous section except perhaps inferentially the 1951 Act.

Section 4 provided, “The Communist Party is a subversive organization within the purview of RCW 9.81,” that’s the Ober Act, the Washington’s counterpart of the Ober Act, “and membership in the Communist Party is a subversive activity hereunder.”

Now, the reason that I’ve taken this time to point out this system statutes is to show that the 1955 Act is not simply a one shot proposition.

It is a part of a pattern of acts noted by our legislature over a period years commencing in 1951.

The 1951 Act itself was passed pursuant to executive request in the wake of fact finding hearings by a legislative fact finding committee.

Then they amended the Act in 1953 to bring it into conformity with this Court’s decision in Wieman against Updegraff.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

The point is that the legislature passed the 1955 Act not of something completely new but in the light of its experience having worked for the 1951 Act with the previous amendments.

At this point, I wish to emphasize one thing.

The only thing that this Act prohibits is for a person who is presently a member of the Communist Party or other subversive organization from holding a sensitive position in state government.

If a person resigns from the Communist Party today, he can hold a sensitive position in government tomorrow.

If a person is a member of the Communist Party today, he can hold the position in state or local government which is declared non-sensitive.

Our position is that the Act sets forth only bare minimal requirements.

On the premise that the Act does not accord a hearing, the one who refuses to sign an affidavit is not a knowing member of the Communist Party.

Assuming that’s that premise, what’s your position as to the constitutionality of the Act in that basis?

Herbert H. Fuller:

Your Honor, my position is that even if the Act is construed, even assuming arguendo that the Act does not afford a hearing, the Act is constitutional.

We think that the Court should first look to determine whether there is a depravation of substantive due process.

And if the Court finds there is no depravation of substantive due process, that is that the legislature does have a right to make this requirement, we feel the Court should find that there is no depravation of procedural due process.

Charles E. Whittaker:

Mr. Fuller —

Hugo L. Black:

I gather these — I gather that these two men if they — are sensitive employers because they teach history and romance and language, is that what they teach?

Herbert H. Fuller:

That is correct.

One of them teaches romance languages and other teaches history.

Hugo L. Black:

(Voice Overlap) allege that either.

Herbert H. Fuller:

As far as —

Hugo L. Black:

Are those — are those considered sensitive (Voice Overlap) —

Herbert H. Fuller:

The way the Act has set up, all positions are considered sensitive unless they are specifically found to be non-sensitive.

These positions have not specifically been found to be non-sensitive.

Felix Frankfurter:

You mean that each might be taken in a special position, professor of — of history?

Herbert H. Fuller:

Your Honor, I don’t —

Felix Frankfurter:

I’m asking.

William O. Douglas:

Or the football coach?

Herbert H. Fuller:

I think that there are positions —

Felix Frankfurter:

Is the football coach a member of the faculty of Washington?

I hope not.

Herbert H. Fuller:

I don’t believe it is, Your Honor.

[Laughter]

I think we’ll have to just admit right at the start that there are positions which are non-sensitive.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

But I don’t think that the argument is made by the appellants that this position is non-sensitive, the position of a professor in university, professor of romance languages or professor of history.

Felix Frankfurter:

That’s the case that we have before us.

It doesn’t differentiate among professors according to the subject matter of their teaching or research, does it?

Herbert H. Fuller:

It does not.

The appellants’ argument regarding both procedural and substantive due process seems to hinge on five cases.

I think that we can approach the heart of the argument if we approach these five cases.

The appellants relied upon the Slochower case, the Schware case, the Konigsberg case, the Adler case and the case of Wieman against Updegraff.

Now, we submit that these cases can be distinguished that these cases are not authority for the proposition that the 1955 Act is unconstitutional.

In the Slochower case, the vice of that case was the fact that the investigation was not made by the school authority but the school authority drew a wrongful inference on the basis of an investigation made by the Federal Government.

There’s no need to deliver this point here because this point was made by the Court itself in the Beilan case and case of Globe against Los Angeles.

Now, in the Adler case, the appellants argue that because an administrative hearing was necessary in the Adler case, it would be a depravation of procedural due process not to afford a hearing in the present case.

And here, we come to one distinction which is perhaps the greatest distinction in the entire line of cases.

New York’s Feinberg Law referred not only to present membership in an organization but the Fienberg Law said that a person could be dismissed for having committed the act of joining a subversive organization.

Here, we are concerned only with present membership.

Now, it’s understandable that if a person can be dismissed for mere past membership, it might well be a constitutional requirement that this person be afforded a hearing.

But in the present case, where it is only present membership, it is not necessarily to inquire into the reasons why he resigned from the party because he didn’t resign, reasons why he joined, the Court was interested in seeing that a person did not wrongfully suffer.

If a person is knowingly, presently a member of a subversive organization, we submit they could not be held to be innocent.

Now, one of the most important cases bearing upon this case is the case of Wieman against Updegraff.

Mr. Justice Frankfurter asked a question earlier, he said, “Was the oath in the Wieman case similar to the oath in the present case?”

The answer to that is no.

The oath in the Wieman case was different because it referred not only to present membership in a subversive organization but it also went back, I believe, five years.

In other words, in the case of Wieman against Updegraff, if a young person were to join an organization, maybe even the Communist Party, were to learn of its true aims and were to resign from the party within a week, that fact which stand as a bar to his employment.

In this case, there is no such impediment.

Now, because the Oklahoma Act would bar a person from employment who innocently joined an organization which was actually subversive, this Court held that it violated — it was a deprivation without due process.

In the present case, it is difficult to see how a person could say that he is innocent, either he knows of the — the purposes of an organization or he does not.

If he does not know the purposes of an organization, he would automatically sign the oath.And it’s difficult to see how he could be held guilty of perjury.

Hugo L. Black:

Why?

Herbert H. Fuller:

Your Honor, I said that if a person —

Hugo L. Black:

I understand that by why?

He — this doesn’t say that he will not belong to oath that they gave him, it doesn’t say that he will not belong to an organization which he knows to be subversive that he does not.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Hugo L. Black:

It says he does not belong to one.

Herbert H. Fuller:

That is correct.

And that has been construed by our court, Your Honor.

Hugo L. Black:

When — when has it been held by your court that a man is not responsible for — for it on the basis you suggest?

I’m talking about a holding of the Court.

Herbert H. Fuller:

There has been none because —

Hugo L. Black:

There has been none.

Herbert H. Fuller:

— this is a declaratory judgment action and that is part of the difficulty.

We are dealing with hypothetical situations.

There is no clear case before the lower court.

This Court is — we have to guess to what a situation maybe in the future.

The court has held (Voice Overlap) —

Hugo L. Black:

I suppose — I suppose the man has to sign his oath as against whether he — what will happen to him if he belongs to one if they may later turn out on the evidence to be subversive within the meaning of the statute.

Herbert H. Fuller:

Mr. Justice Black, getting down to cases, the oath says, “That I am not a subversive person or a member of the Communist Party or another subversive organization for another or otherwise, which engages in or advocates, abets, advises,” and then it goes from there.

“But the point is I am not a member of any subversive organization or a member of the Communist Party.”

If a person does not know that an organization is subversive and our court having held that scienter is implied in every part of the oath.

Hugo L. Black:

But when did it hold that in the case?

Which case is —

Herbert H. Fuller:

It’s —

Hugo L. Black:

— that that it holds?

Herbert H. Fuller:

— it’s in the decision, it’s in the record.

It’s — it was in this case, the present case.

Hugo L. Black:

You said that was a holding.

Herbert H. Fuller:

In this declaratory judgment.

Hugo L. Black:

That was a holding that these particular people had to sign this oath and they would know that they would not be held liable if they were innocent of the purposes of the organization.

Herbert H. Fuller:

The Court held that scienter was implied in each and every part of the oath.

Now, of course, as I’ve said before this is a declaratory judgment action that’s part of the difficulty.

The specific facts are not before this Court.

In a declaratory judgment action, the lower court held that scienter was implied in every part of this oath.

We submit that the difference between past membership and present membership is decisive.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

A person might well be inveigled into an organization innocently.

But it is different if he is presently a member of a subversive organization or of the Communist Party.

Charles E. Whittaker:

Could one, in your view, under the statute, resign today and then make this affidavit the next day, tomorrow?

Herbert H. Fuller:

Yes, Your Honor.

That is one of our most important points.

A person who is a member of the Communist Party or any other subversive organization could resign today and take the oath tomorrow.

Earl Warren:

Well, might he not fall then under the — under the portion of the Act which says, “I am not a subversive person”?

Is there question of whether he actually belongs or not determine whether he is subversive person?

Herbert H. Fuller:

Your Honor, as opposing counsel has said this again comes back to the question of whether he belongs to a subversive organization because the definition of a subversive person in our statute is one who belongs to a subversive organization.

So if he resigned from the subversive organization today, he would not be a subversive person tomorrow.

Earl Warren:

Oh, am I wrong that your — your statute provides that whether a person belongs to an organization or not if he — if he does advocate force and violence he’s a subversive person?

I thought —

Herbert H. Fuller:

No that —

Earl Warren:

— I would just read this very hastily, and I don’t know whether — whether I read it correctly or not, but I thought they made that distinction that if — that if an individual did advocate force and violence that he was a subversive person and that without regard to whether he belong to an organization or not because your Act says, I am not a subversive person or I do not belong to the Communist Party or any other organization.

And then there is a definition that I read some place in — in here of what a subversive person — what is a definition of a subversive person.

I thought —

William J. Brennan, Jr.:

(Voice Overlap) brief, Mr. Fuller.

Herbert H. Fuller:

I think —

Earl Warren:

Now, here it is, I — I think on page 63 of the — or 64 of the appendix to your brief.

This is the statute, it says, self — says — over on page 64 in the second full paragraph, “Subversive person means any person who commits, attempts to commit or aids in the commission or advocates, abets, advises or teaches by any means, any person to commit attempt to commit or aid in the commission of any act intended to overthrow, destroy or alter the — the Government or who is a member of a subversive organization or a foreign subversive organization.”

Now, suppose if he belong to — to the Communist Party and had scienter and then resigned as you say one day and took the oath, wouldn’t he be guilty of — wouldn’t he be guilty of perjury if he — if he actually fell under this definition?

Herbert H. Fuller:

That is correct.

Your Honor has asked me — asked me originally the question, “Could a person resign today and be considered a non-subversive person tomorrow?”

My answer was yes, based upon the organizational membership but that would have to be qualified by the section which Your Honor has just read —

Earl Warren:

Yes.

Herbert H. Fuller:

— regarding individual advocacy.

Earl Warren:

Yes.

Herbert H. Fuller:

I was referring to only the portion of the Act —

William O. Douglas:

He might — he might require (Inaudible) to make sure he was really non-subversive.

Herbert H. Fuller:

Sorry, Your Honor, I can’t answer that.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Tom C. Clark:

Of course, the other section (Inaudible)

Yes.

Tom C. Clark:

(Inaudible)

Herbert H. Fuller:

Yes, it is.

We submit that the legislature has been reasonable in passing such an act.

It’s true the — the Court must balance the effect upon the individual with the societal interest to do that in every case.

But here, the legislature has said that they do not want people who are presently members of the Communist Party or other subversive organization to hold sensitive positions in our government.

Now, there’s no need to dwell upon the communist danger.

I realized that point can be over dramatized.

I think this Court, itself, in the Adler case pointed out that there was a danger of communist propaganda to settle, to allow detection being disseminated in our classrooms.

This is the danger which the legislature was seeking to prevent.

And we submit that on the basis of the case law of this Court, the legislature had a right to do so.

There are two cases which are almost exactly in point both of them were referred to by counsel.

The first case is the case of the American Communications Association against Douds.

The second case is the Gerende against Board of Election case.

Now, we submit that the distinction made by counsel in the case of American Communications Association against Douds is a distinction without a meaning.

In the Douds case, this Court held that Congress had a right to have a non-communist affidavit and to demand that union leaders, who are members of union seeking to avail themselves in the provisions of the National Labor Relations Act, signed this non — this non-communist affidavit.

This is very similar to the present case.

In that case, the Court held that the danger of political strikes was sufficient to justify this abridgement of the right of the individual.

The Court held that the action that Congress had taken was reasonably related to the danger involved.

We submit that is true in the present case.

Now, the distinction that counsel pointed to by saying that it affected the individual only indirectly by providing that the labor union could not avail itself of the National Labor Relations Act is a distinction ought to mean because it had the effect of discouraging Communist Party membership.

It had the effect of affecting future action the same as the requirement — the affidavit requirement in the present case.

Now, it’s true, the — in the Gerende case, there was only a per curiam decision.

But on the other hand, the plain holding of that case is, the plain effect to that case is a that a person who is a member of the Communist Party was not able to sign the oath and to be elected to office in the guise of belonging to one of the major established parties.

There again, the Court inferentially at least held that the danger of this happening was sufficiently great to force a man to come forward and state his views.

Because of the limited time remaining, I will not spend much time on the bill of attainder argument especially since counsel concedes that under the law, this Court should hold that there is no bill of attainder in the present case.

He is asking that the Court overturn its holding in the Garner case and in the Douds case.

Our point would be this.

Since there is no penalty involved, since there is no penalty involved in the Douds case, there is no penalty involved in the present case.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

And if there is no penalty involved in the present case, it would constitute a mere advisory opinion for this Court to state that a bill of attainder could be prospective in operation as well as being retrospective in operation.

Hugo L. Black:

What was the penalty in that case, the Lovett case?

Herbert H. Fuller:

The penalty in the Lovett case was a previous act committed by Mr. Lovett and Mr. Douds and the other individual involved.

Hugo L. Black:

The penalty?

Herbert H. Fuller:

There is nothing —

Hugo L. Black:

What was —

Herbert H. Fuller:

There was a penalty.

Hugo L. Black:

What penalty?

Herbert H. Fuller:

The penalty was a writer attached to an appropriation act which had the effect of dismissing them from their jobs for past activities.

We submit that there’s no penalty involved in this case and therefore, the Court should not pass upon the bare question of whether there —

Felix Frankfurter:

If — the — in the loose sense of the term there’s a penalty but what you’re saying is that it isn’t for past conduct.

Herbert H. Fuller:

Mr. Justice Frankfurter, I think that —

Felix Frankfurter:

Is there penalty in — in the loose way in which this is used, namely, something that hurts?

Herbert H. Fuller:

In the loose sense, it’s something that hurts.

Now, in the Lovett case, you, yourself, Mr. Justice Frankfurter —

Felix Frankfurter:

Yes, but that was an individual opinion.

Herbert H. Fuller:

I understand that.

Felix Frankfurter:

(Voice Overlap) the whole concept of bill of attainder to question that opinion.

Herbert H. Fuller:

I understand that —

Felix Frankfurter:

(Voice Overlap) —

Herbert H. Fuller:

— Your Honor but I think that the language is particularly —

Hugo L. Black:

I suppose — I suppose the language would have provided that you lose your job, that it’d just be loose language but (Inaudible) you’d lose your job.

Herbert H. Fuller:

That is correct, Your Honor, but you have to measure the interest which is being protected.

If a person loses his job as a result of the Government trying to protect students in the schools from being a part of a captive audience where they would be subjected to communist propaganda, if a person inferentially loses his job, we submit that that would not be such sufficient penalty to constitute a bill of attainder.

Felix Frankfurter:

Well, is it your point really that — that this is post facto which tells you either consequence is not something in the past but something in — in the present, therefore in the future?

Herbert H. Fuller:

That is correct.

I think that as you, yourself, said —

Felix Frankfurter:

You seem to find more comfort from what I’ve said than I got from anybody else in saying [Laughter].

Herbert H. Fuller:

I think, Your Honor, said in the Lovett case, in an individual opinion, that if it is not an ex post facto law, the reasons it is not are persuasive that it cannot be a bill of attainder.

Hugo L. Black:

But you see, we frequently hear that the dissent is not the opinion and the — the majority (Voice Overlap) —

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Felix Frankfurter:

So that’s why I’ve been trying to stop you.

Herbert H. Fuller:

I am not —

Felix Frankfurter:

I’ve been trying to stop you.

Herbert H. Fuller:

I am not citing this as being authority.

Felix Frankfurter:

(Voice Overlap) it wasn’t the dissent.

Herbert H. Fuller:

I’m not citing this is case authority.

Hugo L. Black:

As I recall it, that was considered.

Herbert H. Fuller:

But I feel that the language is apt in this case.

Hugo L. Black:

May I ask you about the Gerende case.

Of — one of the sentences in this case was this, and I ask what you think it meant.

We read this decision the whole that to obtain a place on Maryland ballot, a candidate need only make oath that he is not a person who is engaged in, in one way or another, in the attempt to overthrow the Government by force or violence, and that he is not knowing a member of an organization engaged in such attempt.

What do you understand that in engaged in?

Herbert H. Fuller:

I would understand that to mean the present tense.

That he’s actually doing?

Yes.

Charles E. Whittaker:

Mr. Fuller —

Felix Frankfurter:

So do you think that’s (Inaudible) from (e) of your Act?

Herbert H. Fuller:

Section (e) of our Act?

Earl Warren:

Yes.

They’re on page 64 —

Felix Frankfurter:

Yes, page 64.

Earl Warren:

— of your brief.

Herbert H. Fuller:

Our Act also puts things in the present tense, if that is Your Honors’ point.

It should be notice that the language in the bottom of Section (e) on page 64 the language in brackets is no longer a part of that section.

That has been amended by the 1953 amendment which was made in the wake of the case of Wieman against Updegraff.

Hugo L. Black:

Well, your (e) goes a little further than that.

It may not be important, but the Court read that as only putting the penalty on actually engaging in or belonging to an organization that was actually engaging in an attempt to overthrow the Government by force or violence.

I’m just saying that —

Herbert H. Fuller:

Your — your point —

Hugo L. Black:

— because I don’t (Voice Overlap) —

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

— is that they’re not identical.

Hugo L. Black:

— to be read as meaning more than and I think it mean I agree to it and that — that sentence is very important in considering that particular case.

I do not mean to say if you do not have other cases that would support your argument.

Herbert H. Fuller:

I understand that, Your Honor.

Felix Frankfurter:

If you will read, that shall mean that a man must throw a bomb?

Herbert H. Fuller:

Do I read subsection (e)?

Felix Frankfurter:

No, the Gerende case.

Just the sentence that Justice Black read, does that mean the man must throw a bomb —

Hugo L. Black:

It might be (Voice Overlap) —

Felix Frankfurter:

— to be engaged in?

Hugo L. Black:

— axe or gun.

Felix Frankfurter:

Or he might write a — might write a powerful pamphlet.

We’ve heard again and again with a pamphlet, that idea is weapons.

Hugo L. Black:

Does this (Voice Overlap) —

Herbert H. Fuller:

That would be my personal reaction.

Hugo L. Black:

— does this opinion indicate that would base on any extent on Earth on that — that idea?Do you get —

Herbert H. Fuller:

Your Honor —

Hugo L. Black:

— that from it?

Herbert H. Fuller:

— it is the —

Hugo L. Black:

Do you get from the idea that a man actually engaged in doing something, engaging in an effort at the moment to overthrow the Government, does that refer to speech or writings?

Herbert H. Fuller:

I can only answer that I do not know.

Felix Frankfurter:

Well, but we held we’ve had cases in this Court in which people have been sent to jail for long years for spreading documents apart — among soldiers or officers and thereby, obstructing the war effort.

You have to throw bombs in order to be mischievous.

Hugo L. Black:

I — I stated to you that there were cases that might support it, but this one is limited to actually engaging in the conduct not the speaking or the writing.

Felix Frankfurter:

And I’m asking you whether — whether disseminating literature is engaged in something.

Herbert H. Fuller:

My reaction would be that it would be.

Now, Mr. Justice Black —

Hugo L. Black:

Well, I would say it’s —

Herbert H. Fuller:

I’m sorry.

Hugo L. Black:

— I would say it’s engaged in something it’s in free speech and free press, yes.

Audio Transcription for Oral Argument – March 31, 1960 (Part 2) in Nostrand v. Little

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Herbert H. Fuller:

I’ve given my reaction on it and I can do no more, Your Honor.

Turning just for one moment to the claim, the third argument of the appellants that the 1955 Act constitutes a violation of the First Amendment.

I think we will first point to the case upon which the appellants rely and then attempt to show that some of the cases which support our position.

Now, the principal case which was cited was the case of West Virginia State Board of Education against Barnette.

We submit that this case can be distinguished from the present case because in the case of West Virginia State Board Education against Barnette, this Court held that the Government could not force a man to profess something in which he did not believe.

In the present case, we are forcing a man to profess as to what he does belief.

Now, there is a difference in the interest of the government to be protected because in the West Virginia case, the Government could show no interest in forcing to a man to go through a ritual to say something which he did not believe.

But here, the interest in protecting the children and the students in the schools is sufficient, we submit, to warrant the restriction and the rights of an individual to force him to come forward and make a positive statement.

We submit that there is an entire line of cases which holds that the 1955 Act is valid.

We submit that Douds case is authority for that proposition.

In addition, there’s the case of United Public Workers against Mitchell involving the Hatch Act.

In that case, this Court held that the interest of the Government in maintaining a loyal civil service was sufficient to warrant the abridgement of the rights of those civil servants to the extent that they could not engage and I believe the words were actual — active political management.

Again, in the Garner case, the Court held that the City of Los Angeles had a right to force a man to come forward and make statement that the interest of the State in maintaining loyal employees was sufficient to justify that.

Now, finally, and this is the final case that I wish to mention to the Court.

There is the recent case of Speiser against Randall.

And at first blush, it maybe surprising that I would mention this case.

It will be noted that it is not cited in the appellant’s brief.

Even though the courts stuck down an oath this case and to my knowledge this and the case of Wieman against Updegraff are the only recent cases were an oath has been struck down.

Even though an oath was struck down in this case, there is still language in that case to the effect that where the requirement more limited, had the requirement applied to a more specific group such as perhaps school teachers or such as perhaps union leaders as in the — the Douds case require the — the Act may have been saved.

So the Court not only made the distinction by, in our opinion, reaffirm these previous acts.

In conclusion, let me say that it’s always difficult for a lawyer to ask for an abridgement to any sort of human liberty, to ask for restriction of that liberty.

But there are times when a restriction is necessary as is shown by the opinions of this Court, and we submit that this is one of those times.

Thank you.

Felix Frankfurter:

Well, the opinions of this Court don’t show that that which may have been sustained but necessary or even desirable.

All it shows it didn’t transgress constitutional limits.

Herbert H. Fuller:

That is correct, Your Honor.

Felix Frankfurter:

This Court is (Inaudible) in affirmative judgment on the wisdom or desirability or need of any legislation that makes a State.

Herbert H. Fuller:

That is correct, Your Honor.

This Court does not make any judgment as to the wisdom of the legislation and that is why arguments —

Felix Frankfurter:

Or as to its need.

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Herbert H. Fuller:

Or as to its need, that is correct.

The only thing that this Court will consider —

Felix Frankfurter:

I may think (Inaudible) legislation one does think (Inaudible) legislation that doesn’t seem to — it doesn’t offend the limits of constitutional authority of States (Inaudible)

Herbert H. Fuller:

We feel that is correct, Your Honor.

Thank you.

Charles E. Whittaker:

May I ask you please, sir?

Herbert H. Fuller:

Yes, Mr. Justice Whittaker.

Charles E. Whittaker:

Section 15 shown at page 67 of your brief still in — in the law, of your law?

Starting out reasonable grounds on all the evidence to believe that any person is a subversive person as defined in the Act shall be caused for discharge.

And it says, “The Attorney General and the Personnel Director etcetera shall, by appropriate rules, prescribe etcetera regulations and shall have the right on reasonable notice to a hearing after deferred by himself and witnesses.”

Now, are those rights accorded under the statute as it stands today?

Herbert H. Fuller:

My answer would be, Your Honor, that the 19 — the Section 15 was not affected by either of the 19 —

Charles E. Whittaker:

I don’t understand you.

Does not what?

Herbert H. Fuller:

Was not affected, not affected by either the 1953 or the 1955 Act and it would still be good today.

Charles E. Whittaker:

Well, then, what is your —

Herbert H. Fuller:

Except — I’m sorry, Your Honor.

Charles E. Whittaker:

Excuse me.

Herbert H. Fuller:

Except as to membership in the Communist Party.

Charles E. Whittaker:

Yes.

Herbert H. Fuller:

1955 Act proscribed that.

Charles E. Whittaker:

Then, do you understand this statute in terms to require a formal hearing?

Herbert H. Fuller:

That’s why we seem to provide, Your Honor.

Hugo L. Black:

Well, why didn’t you argue that in the beginning if that’s the case?

Herbert H. Fuller:

Because that point was not directly argued.

Hugo L. Black:

It’s been argued — it’s been argued here back and forth or (Inaudible)

Are you saying now that your law gives these people a chance to adhere in this section they cannot be immediately discharged as the Court found but because it would violate this section?

Herbert H. Fuller:

I’m saying that might well be one interpretation of it.

But my argument was even assuming arguendo —

Hugo L. Black:

Well, has — has it been so interpreted with reference to college professors or had you ever argued it in this case up to this moment?

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Herbert H. Fuller:

No, it has not been so interpreted because —

Hugo L. Black:

Had — had you ever argued it in this case up to this moment?

Herbert H. Fuller:

That is correct, I have not, but there has been no case coming before the Court under a specific set of facts.

Charles E. Whittaker:

Well, may I interrupt to ask you there?

Has the Washington Supreme Court held that these petitioners may be forth with discharge without a hearing in this case?

Herbert H. Fuller:

I have to ask a question before I can answer that, Mr. Justice Whittaker.

For a membership in the Communist Party or for a membership in another organization?

Charles E. Whittaker:

Well, for failing — let me just say it this way.

Has the Supreme Court of Washington held that these petitioners may be forth with discharge for failure to make this — assign this form of affidavit submitted?

Herbert H. Fuller:

I think the only answer would be that the Court has not pass squarely upon it.

The Court held that every part of the oath should contain scienter.

The — the Court — the Court did not make a specific holding regarding right to a hearing.

Hugo L. Black:

But it did say to reverse judgment, isn’t it?

Herbert H. Fuller:

That is correct.

It did reverse the judgement.

Hugo L. Black:

And it did so on — despite the fact that the there was a finding they had been told, they’d be (Inaudible)

Herbert H. Fuller:

That is correct, but we submit that in their briefs, the appellants here, the respondents below did not argue the point of fair hearing.

Thank you.

Earl Warren:

But, Mr. Fuller, on page 68, as — as Justice Whittaker read to you, the Attorney General, the Personnel Director and the Civil Service Commission of any county and so forth shall, by appropriate rules or regulations, prescribe that persons with — being subversive and so forth, have — has your office ever prescribe any such rules?

Herbert H. Fuller:

Your Honor, I know of no such rules.

Earl Warren:

Has the Personnel Director of the State ever done so?

Herbert H. Fuller:

I know of none.

Earl Warren:

Has — has anybody who is ever been discharged in your State been accorded any such hearing?

Herbert H. Fuller:

As to that, Your Honor, I would have to say that I do not know.

Potter Stewart:

Do you know if anybody ever has been discharged?

Herbert H. Fuller:

No I do not know of anybody who has actually been discharged.

Tom C. Clark:

Of course, if the —

Earl Warren:

Would — would you say that there had not been any discharge?

Herbert H. Fuller:

I would say I believe that to be the case, Your Honor.

I’m hesitant to be causative —

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Earl Warren:

Well, I — yes, yes.

Herbert H. Fuller:

— but I know of no case where anybody has been discharged for that reason.

Earl Warren:

Yes.

Charles E. Whittaker:

Do you know of any proceedings in which someone has actually sought a hearing?

Herbert H. Fuller:

No, I know of none.

Tom C. Clark:

I thought your contention was that the 1951 Act provides for a hearing.

It was still in effect and that the 1955 Act would afford a hearing.

The 1955 Act did not amend the — I mean did not repeal the hearing provisions of the 1951 Act.

Herbert H. Fuller:

We feel that it did not.

Earl Warren:

How could you give these people a hearing?

How could do they have had a hearing if you didn’t have any regulations as the Act proscribes?

Herbert H. Fuller:

I’m sorry.

I didn’t understand that.

How could you give them a hearing?

Earl Warren:

Well, you — the question we raise, whether they asked a hearing, you say they — you think they could — they should be given, they have to be given that hearing.

How can you give them a hearing if you don’t — if you never have any rules or regulations under this Act under which they could be heard?

Herbert H. Fuller:

Mr. Chief Justice, of course, you’re correct, if something came up, they would be necessary to start from the ground up and to have actual regulations and to — to hold a hearing.

But it couldn’t be done without the rules and regulations which you mentioned.

William J. Brennan, Jr.:

Well, Mr. Fuller, Section 15 deals with a person charged with being a subversive person.

There’s nothing to do, does it, with the person who refuses to take — sign the oath?

Aren’t they two very different things?

Herbert H. Fuller:

I think that is correct.

But again, I think —

Potter Stewart:

So that — so that the hearing provisions of Section 15 really don’t help us in the — on the question whether a hearing will be given to one who fails or refuses to sign an oath, isn’t that so?

Herbert H. Fuller:

It seems to me that there is some uncertainty here, Your Honor, because the Court has never passed upon this, we do not know.

Now, what you say sounds correct, I can only answer that our court has not passed upon that.

Tom C. Clark:

But the Attorney General or you think that the — would be entitled to a hearing, I believe, you said a few minutes ago?

Herbert H. Fuller:

I think that might well be the case.

Hugo L. Black:

Did you say then?

William J. Brennan, Jr.:

Are you —

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Hugo L. Black:

Did you say that in your (Inaudible) representing the Attorney General of the State of Washington, that you believe that these people are entitled to a hearing under any statute that now exist if they do not sign this, and if so, where is that statute?

Herbert H. Fuller:

I’ll make the statement for the Court on that very point.

Representing the Attorney General, it is my opinion that under Section 15, it has been referred to the individuals affected might well be entitled to a hearing.

Hugo L. Black:

Might well be.

Herbert H. Fuller:

Might well be.

Now, I can’t be certain because I’m not sure how our court would — I can’t guess what our court would say but I was —

Hugo L. Black:

You — you are guessing.

Herbert H. Fuller:

In a sense that is it.

My interpretation would be, they might well be entitled to a hearing.

Charles E. Whittaker:

As to whether or not they are a subversive person.

Herbert H. Fuller:

Yes.

Charles E. Whittaker:

Not as to whether they are members of the Communist Party.

Herbert H. Fuller:

No.

Now, I should make that provision there.

I — I will say this, that as far as membership in the Communist Party is concern —

Hugo L. Black:

You mean if they refused to sign that oath, they can get a hearing still on the ground that they are not a subversive.

Is that what you mean?

Herbert H. Fuller:

I’ll say this.

That might well be the case.

I can’t be certain.

Hugo L. Black:

Might — might well be.

Charles E. Whittaker:

Well, isn’t that the statute says?

Does it mean this thing, I don’t know, that’s the (Inaudible)

That is Section (Inaudible)

Felix Frankfurter:

But we’re all guessing as to what the Washington Supreme Court will say what its statute means.

That’s necessary the guess by everybody on this bench or off the bench.

Herbert H. Fuller:

I think that is correct, Your Honor.

My personal interpretation is that it would afford them a hearing.

That is my personal guess as to what the Supreme Court would do.

Earl Warren:

Thank you.