Silber v. United States

PETITIONER:Silber
RESPONDENT:United States
LOCATION:The Borden Company – Chicago Milk Division

DOCKET NO.: 454
DECIDED BY: Warren Court (1962)
LOWER COURT: United States Court of Appeals for the District of Columbia Circuit

CITATION: 370 US 717 (1962)
ARGUED: Apr 19, 1962
DECIDED: Jun 25, 1962

Facts of the case

Question

Audio Transcription for Oral Argument – April 19, 1962 in Silber v. United States

Earl Warren:

Number 454 Bernard Silber, Petitioner, versus United States.

Mr. Rabinowitz.

Victor Rabinowitz:

May it please the Court.

Mr. Silber is another one of those cases that came between the decisions in Wilkinson and Barenblatt.

He was called in the same inquiry, same investigation as Mr. Grumman in the immediate preceding case.

He was represented by me at the congressional committee hearing and at his trial.

He was tried a week or two after the Allen case, although his testimony before the Committee was some months before Allen’s testimony.

He was convicted for violation of Section 192 on three Counts for refusal to answer three questions and received a sentence of four months.

The subject under inquiry as announced by the Committee was communist penetration into the communications industry.

It has been discussed by previous counsel on the previous case and I might add that this was the fourth hearing held by congressional committees on this very same subject.

The petitioner appeared subject to the subpoena.

He said that he had been employed by Western Union for 41 years.

He said that he had been a member of the Communist Party, that he had joined the Communist Party in 1948, that he had — that hearing was in 1957, that he had been a member for about a year, that he had attended meetings he said rarely during that period of time and then he dropped out because he found that he wasn’t much interested and that he was interested in other things.

Now, one would have thought that if this Committee was interested in sabotage, espionage, communist control of the communications industry, this man would have been affined.

He was a man who admitted having been a member of the Communist Party for a period of a year in the communications industry, employed by Western Union presumably in a position to give the very kind of information that the Committee was interested at.

No questions with relation to espionage, sabotage, communist control were asked.

Instead, the Committee following its incessant and unremitting quest for names moved immediately into that area.

The first question which is the subject of the indictment here Count 1 was, “Was the person who recruited you a communications’ worker?”

And Mr. Silber had answered the questions up to that time but at least he bought and he said he must decline to answer this question.

I might say that Mr. Silber was an elderly gentleman, now on pension, not very articulate.

And when he said I must decline, the Committee counsel asked him why.

And he said on the basis of the Watkins and Sweezy decisions and also that Mr. Grumman who had testified two weeks before had filed a long statement with the Committee and he said, “I want to rely on all of the grounds that was stated by Mr. Grumman in his testimony which include the lack of jurisdiction of the Committee, rights under the First Amendment of vagueness of the resolution setting up the Committee, the lack of a Pertinency of the question.”

All of those grounds which had been suggested by the Watkins decision which is I say, had come down six weeks before.

And counsel at this point said to him, counsel for the Committee said to him, asked leave to — “Explain to the witness why this question was pertinent.”

And he said, “This Committee is considering legislation to safeguard this nation from possible espionage or sabotage facilities by Congress.”

If the person who enlisted you which of the Communist Party was engaged in the communications field, that person undoubtedly would have some information which will be of used to this Committee in developing facts and respecting communist penetration of the communications facilities of this country.

And the witness was directed to answer the question again and I mean — and witness said, “I’m very sorry.

My conscience prohibits me from answering this.”

And on three or four other occasions during the course of the hearing when other questions of a similar nature were asked, he repeated the grounds that had previously been given summarizing in a layman’s fashion when he conceived to be the hauling for the Watkins case, conceived I regret to say incorrectly.

He said, “I’m sorry but I have a conscience.”

Victor Rabinowitz:

As a matter of fact, he said the same thing at sentence that his conscience prohibited from — him from naming other person.

Count 2 was stricken.

Count 3 was, “Were there any officers of your union, members of the Communist Party at the time you were a member of the Communist Party?

And 3, “Were any of the present officers of your union, members of the Communist Party at the time you were in the party?”

Although, there was an explanation of pertinency with respect to Count 1, there was no explanation of pertinency with respect to Counts 2 and 4 except that after he had answered the question and had — after he’d refused to answer the question and had been directed to do so by the Committee and he had refused to do so, Mr. Shera, a member of the Committee said, “And these questions were asked you for the same reason that Mr. Arens, our counsel gave you for asking the other questions.

They are pertinent for the same reasons that he advanced, namely that it would give the Committee an opportunity to cost deal other people.

Now, this is an illustration I think of the Committee’s never ending quest for names.

The witness was not asked about his activities in the Communist Party.

He was not asked about espionage or sabotage or any of the other subjects the Committee is allegedly interested in.

All he was asked for was the names of other persons and although he expressed a perfect willingness and said, “I am perfectly willing to tell you everything about myself.

My conscience does not permit me to give the names of other persons.”

The name of other persons was the only subject that the Committee was interested in.

John M. Harlan II:

Was that objection (Inaudible) witness before a grand jury (Inaudible)

Victor Rabinowitz:

I suppose not sir.

John M. Harlan II:

(Inaudible)

Victor Rabinowitz:

Well, I think there are many reasons in the first place and one of the considerations is that a grand jury investigation is by law subject to secrecy.

What a witness says at a grand jury investigation is not a matter of public knowledge.

I think further that well I — perhaps I was wrong in saying that the question would not have been — the objection would not necessarily have been relevant — have been improper — the objection were not necessarily have been proper before a grand jury.

I suppose —

John M. Harlan II:

What about the time of the lawsuit (Inaudible) do you object on that ground?

Victor Rabinowitz:

If it were —

John M. Harlan II:

In his conscience.

Victor Rabinowitz:

If it were sufficiently relevant to lawsuit, perhaps — if it were relevant, perhaps he could not have answered on these grounds or he would be more accurate, have had the opportunity of taking risks of not answering and answering.

But this was not a lawsuit, this was a legislative investigation.

John M. Harlan II:

(Inaudible)

Victor Rabinowitz:

Because the purpose of a congressional committee had always understood was to secure information for legislative purposes, and not to engage in a program of exposure for exposures sake if I may quote language from — I am sure some decisions of this Court either majority or minority.

This Committee asked this witness no questions about his activities in the Communist Party.

It was apparently not interested in anything that he did as a member of the Communist Party.

It said nothing to him about espionage, sabotage, or anything else.

All that was interested in was the never ending quest for names and names and more names.

Victor Rabinowitz:

And I submit that the purpose of this Committee and this is not the first time that this has been called, I am sure for the attention of this Court is not in my opinion, although I regret to say not the opinion of the Court, a true legislative purpose but as a purpose of exposure, a purpose of publishing as many names and more names and more names.

This matter has been considered by the Court.

It was considered by the Court in many of these decisions and this is a perfect illustration.

He was a witness who admitted membership in the Communist Party, was asked no questions at all about his activities in the Communist Party, was asked no questions about espionage or sabotage or all of those other things that we are told are the subject matter of the inquiry here.

All he was asked for are what are the names of other persons?

He even indicated their willingness and said, “I’m willing to tell you anything about myself, my conscience does not permit me to tell you about other persons.”

This it seems to me is a perfect illustration of the lack of true legislative purpose of this Committee.

Now, I realize that this Court has — majority of this Court at least, has passed on this subject before and I’m not going to repeat the argument that I made in the Yellin case because among other reasons, I don’t have the time for it and I don’t want to go through the same the thing twice.

But here is a perfect illustration as I say of the Committee’s never ending quest for names and names and names and more names.

And when it does get a witness who is prepared to say, “Yes, I was a member of the Communist Party, I’ll tell you everything I want to know about myself but I cannot in good conscience answer about others,” they don’t ask him about himself but they only ask about others.

At the close of the hearing, Mr. Doyle who was chairing a meeting complemented the petitioner on his frankness in admitting his membership in the Communist Party.

He complemented him on his good sense and getting out of the Communist Party when he did and he invited him to help the Committee and the witness said, “I’m sorry, I have a conscience to protect.”

The case was tried a few weeks after the Yellin case and it likewise resulted in the conviction this time in the sentence of only four months, the Yellin conviction had been for a year.

The petitioner urges several grounds for reversal here, and I am not going to — oh incidentally, let me add one more thing.

At the close of the case, I offered the same testimony that Professor Emerson had given in the Yellin case as an offer of proof in this case for the purpose of proving that the — well, the same purposes I had — as I had in the Yellin case namely, issue that went to the question of just a cause for a congressional investigation and a balance of — a balance of — and the matter of whether there was balance of the interest involved in the situation.

The Court refused to accept the offer of proof, however, it is — it is printed in the record as it is in the Yellin record that was submitted in writing and the same issues are raised here as were raised in the Yellin — in the Yellin case.

I’m not going to reargue those.

We do contend, however, as we did in the —

William J. Brennan, Jr.:

Are you going to get to the probable cause questions?

Victor Rabinowitz:

Probable cause —

William J. Brennan, Jr.:

Is that an argument in this case, don’t you?

This is Silber, isn’t it?

Victor Rabinowitz:

Yes.

William J. Brennan, Jr.:

That’s your Point 3, are you going to argue on that?

You better look and see.

Victor Rabinowitz:

Oh yes, of course sir.

That relates really to the question that was discussed to some extent in the previous case.

William J. Brennan, Jr.:

Yes.

Victor Rabinowitz:

I’ll get to that very shortly.

My first argument is that the questions here were not pertinent.

Victor Rabinowitz:

This man had been out of the Communist Party for nine years at the time he was testifying.

He could offer no testimony as to the relevance of any matter that had been before Congress at the time that he was testifying.

He had no contact with the Communist Party for eight or nine years.

The only questions he was asked were questions which related to the membership of other persons.

The Committee showed a complete disinterest in his own activities in the Communist Party and asked him no questions concerning him.

And it is our contention that because of the remoteness of his membership and because mere listing of names cannot be pertinent, it’s a sort of a discovery proceeding and not a legislative investigation that the questions were not pertinent to the subject matter under inquiry.

On the question that Judge Brennan asked namely the probable cause for the issuing of a subpoena to the witness.

Now in the Barenblatt case, you will recall that the Court said, and this was referred to in the previous case, nor did petitioner’s appearance as a witness followed from indiscriminate dragnet procedures lacking in probable cause for belief that he possessed information which might be — might be helpful to the subcommittee.

Now, it is my contention that the words probable cause have a meaning.

They have a meaning in our law and it’s a meaning which is found in many Fourth Amendment cases and the meaning which is found in our criminal law —

William J. Brennan, Jr.:

I gathered the Government’s position as whatever meaning it had does not have the meaning it has in Fourth Amendment cases or in arrest.

Victor Rabinowitz:

That’s true.

I can attend —

William J. Brennan, Jr.:

Did you say it does?

Victor Rabinowitz:

I contend that it does.

I can send — contend that the Court used the words probable cause.

It didn’t use other words.

These are words of art and they have a meaning.

Now, let us see what the “probable cause” was in this case.

They did not ask — Mr. Justice Stewart had suggested a little while ago, pick up every tenth — tenth men off the street, that is true.

But we inquired at the trial at some length as to why Mr. Silber was called and we found that the following were the reasons that were given for calling him.

In the first place, he had access to the messages and facilities of Western Union which would present sabotage and espionage possibilities.

His position would be considered important.

He signed Communist Party petitions on behalf of Israel Amter and Benjamin Davis.

Now, there’s no indication in the record as to when he signed those petitions for Benjamin Davis and Israel Amter.

Amter had a last run for political office as far as I can make out in the year 1939, so that was the last time he could have signed the petition for Israel Amter, 1939 would have been 20 years prior to his testimony.

Davis had run for Attorney General of the United States on a Communist Party ticket and had run for other offices on the Communist Party ticket in New York.

But the last time, he ran was 1946, so that was 12 years prior to the date that he ran for office.

The next reason was that —

William J. Brennan, Jr.:

I take it when you say he ran for office on the Communist party ticket, this —

Victor Rabinowitz:

Mr. Davis ran, not the witness.

The witness had signed anonymity.

William J. Brennan, Jr.:

Yes I know, both Mr. Davis and Amter.

Victor Rabinowitz:

Yes.

William J. Brennan, Jr.:

I gather in those days, it was quite legal for the —

Victor Rabinowitz:

Oh yes.

William J. Brennan, Jr.:

Communist Party.

Victor Rabinowitz:

Yes indeed.

And as a matter of fact both Amter and Davis ran for office and Davis was for a number of years, a member of the City Council of New York on the Communist Party ticket.

The next reason was that in 1940, the New York Times had listed his name as the name of a person whom someone had called a Red in the course of inter — a factional dispute in the American Labor Party that was the other — another reason for calling this witness.

And finally, his son whose first name is unknown, was also identified as a member of the Communist Party by a confidential source.

This, I suppose is the reverse of the sins of the father being visited on the son.

We contended and still contend that this was not within the meaning of the Barenblatt decision, probable cause for calling this witness.

The words “probable cause” have a meaning in the law, and I cannot believe that the Court used the words probable cause merely to mean that there was some sort of a reason.

It seems to me on the contrary that this was precisely and indiscriminate dragnet proceeding.

Thousands of people had signed Communist Party nominating petitions on behalf of Amter and Davis.

William J. Brennan, Jr.:

Tell me Mr. Rabinowitz, I gather you’re not arguing or perhaps you are when I ask the question.

Are you arguing that whatever their information was, they had to make known that — make that information known to the petitioner before they question?

Victor Rabinowitz:

No, I am arguing that this was the indiscriminate dragnet procedure.

William J. Brennan, Jr.:

Well now, what you’re saying is that if they subpoenaed him, they must in fact have had information which would constitute whatever probable cause is —

Victor Rabinowitz:

Right.

William J. Brennan, Jr.:

— before they could —

Victor Rabinowitz:

Exactly.

William J. Brennan, Jr.:

— follow.

Victor Rabinowitz:

And let me make a distinction between this case and almost every other case that has come before the Court.

I think that Whitman maybe an exception.

There is an exception of one of the cases that was argued this year.

In almost every other case that has come before the Court, there has been from somebody, sworn testimony that the man was a member of the Communist Party.

This was true in Braden.

You may not have thought much of the testimony but there was by somebody, sworn testimony that he’d been a member of the Communist Party.

Victor Rabinowitz:

There had been sworn testimony by — in Wilkinson, there had been sworn testimony as to Barenblatt.

There had been sworn testimony as to Yellin.

There had been sworn testimony as to Grumman.

There had been sworn testimony as to almost all of these persons.

William J. Brennan, Jr.:

Well, I think Shelton may have been —

Victor Rabinowitz:

It may have been —

William J. Brennan, Jr.:

— Shelton who has just been anonymous letter in the file.

Victor Rabinowitz:

That may have been the case.

I don’t remember which one of the ones who were heard earlier this term in which there seemed to be a, “indiscriminate dragnet procedure.”

Now so far as the signing of the petition for Davis and Amter were concerned, under the New York State law, a nominating petition for Davis would have required 12,000 signatures.

That means that if the Government is right, anyone of those 12,000 persons could have been called before the Committee and questioned or can be called before the Committee and questioned as to whether he is a member of the Communist Party.

And if this is not indiscriminate dragnet procedure, it is difficult for me to understand what those words could have meant.

I will not repeat here the constitutional issues that I argued a little earlier in the — in the Yellin case, I think all of those constitutional issues are equally relevant in this case and —

Potter Stewart:

I think — are you now arguing within the corners of the Barenblatt opinion or are you asking us to overrule that?

Victor Rabinowitz:

Well with respect to the constitutional issues, I am asking you to overrule the Barenblatt and Wilkinson and Braden decision.

Potter Stewart:

Aren’t you — are you also making an argument that within the framework, within the context —

Victor Rabinowitz:

Yes, I —

Potter Stewart:

— of that opinion that applying the — your concept of the balancing test, that the balance here should be struck to favor the petition?

Victor Rabinowitz:

Yes sir.

Potter Stewart:

Also in — in that sense, you’re not asking us to —

Victor Rabinowitz:

No, in that sense, I am asking you follow what I conceived to be the ruling in the Barenblatt and Wilkinson and Braden cases.

The testimony of Professor Emerson which was incorporated in the Yellin case in which I’ve discussed this morning was relevant in this case as well.

And was as I say, admitted in the — or it’s in the record in this case.

Furthermore, what was the testimony which petitioner was being called on to give?

There had been four or five investigations over a period of years into so called Communist activity in the communications industry.

There had been several hundred pages of testimony taken over this subject and the naming of over a hundred persons in the industry who were alleged to have been Communists.

Many names were repeated over and over and over again.

The petitioner’s membership in the Communist Party had been nine years before.

It had been casual in significance and remote in time.

Suppose he’s been able to name two or three more people, suppose he had been able to say that instead of there having been a hundred persons in the communications industry who are members of the Communist Party, there had been 106 who had been members of the Communist Party of what legislative significance would this conceivably have had to the Congressional Committee which has been investigating this union now for a period of I think 11 years.

Victor Rabinowitz:

We have, on the other hand I think, very substantial rights of the petitioner and I’ve discussed this in the petitioner and also very substantial rights on the part of the public to — well as I said in the Yellin case this morning, substantial rights on the part of the public to hear issues discussed and to engage in this public debate which is a debate that is proceeding throughout the world.

The petitioner here was in effect being asked to be an informant.

He was not being asked — he was asked as to any of his own activities and in our opinion, the remoteness of the testimony being at best nine years old, the lack of probable cause here within the Barenblatt decision and the balancing problem which I have referred to a few moments ago all add up to the same thing.

There had been three prior hearings held by congressional committees on the problem of so called communism in the communications industry.

Hundreds of names had been recited, dozens of witnesses have been testified, this thing has been going on for 11 years, Congress still hasn’t passed any legislation on the subject and there must be a time when Congress — it seems to me and this Committee must be told that enough is enough.

Potter Stewart:

Do you — do you construe these questions as requesting the names of people?

Victor Rabinowitz:

So the counsel at the — the pertinency that was explained to him at the hearing was that he — the pertinency that was explained by counsel was, “We want to know so that we can call these people and they may be able to give us information.”

Potter Stewart:

Certainly.

Victor Rabinowitz:

I will concede that these questions do not, on their face, call for names.

It’s quite correct.

Potter Stewart:

How else can you look at the question?

Victor Rabinowitz:

Well, you can look at the question by examining the reason for pertinency given by the — by counsel at the time that the question was asked and the Government is bound by its explanation of pertinency.

The reason given by counsel was if the person who enlists — the first question was who recruited you?

If the person who enlisted you into the Communist Party was engaged in the communications field, that person undoubtedly would have some information which would be of used of this Committee in developing facts, respecting communist penetration of the communication’s facilities of this country.

Potter Stewart:

The question was it wasn’t who recruited him but just whether the person who have had recruited him was a communications person?

Victor Rabinowitz:

Yes, but the explanation of pertinency was that this would supply the Committee with the names of persons.

I assumed that the next question was — would have been who and the witness must have assumed that too.

Otherwise, there is no sense to counsel’s explanation of pertinency.

And I submit that as I have been pointed before, the Committee is bound by its own explanation of pertinency and I read again, and this appears at page 28 of the record.

If the person who enlisted you in the Communist Party was engaged in the communications field, that person undoubtedly would have some information which would be of used to this Committee in developing facts, respecting communist penetration of the communications facility of this country.

Now, it’s true that the Government now claims that in addition to the naming of names, in addition to asking him to be an informant —

(Inaudible)

Victor Rabinowitz:

They didn’t yet.

I will concede that they didn’t yet but I also submit that counsel in explaining pertinency had pointed out that that was going to be the next question.

William O. Douglas:

Well, assume — well, assume that it wasn’t the next question though and you really would make a different argument, would you, meaning if the name thing was really out of it —

Victor Rabinowitz:

If the person who enlisted you —

William O. Douglas:

— (Voice Overlap) — the same argument.

Victor Rabinowitz:

If the person who enlisted you into to the Communist Party was engaged in the communications field.

Well I’m sorry, the question was, was the person who recruited you a communications worker?

If there had been another explanation of pertinency, I don’t know what the other explanation of pertinency — pertinency might have been.

William O. Douglas:

Well —

Victor Rabinowitz:

It is quite possible if the witness would have answered.

The witness has said over and over again that his conscience prohibited him from naming names.

William O. Douglas:

Oh I understand that so you would make — but you would make the same kind of an argument.

Victor Rabinowitz:

No.

William O. Douglas:

Well, assume we said — assume that the question was like one of the other questions was, were there any other Communists in your establishment (Voice Overlap) —

Victor Rabinowitz:

The question could have been answered yes or no without naming names.

William O. Douglas:

Yes.

Victor Rabinowitz:

I suspect that if that had been the explanation of pertinency — touch me to go back now —

William O. Douglas:

How many communists?

Were there questions like that?

Were there of your officers communists?

How many of them?

Victor Rabinowitz:

I can’t say what would have happened if that had happened.

All I can say is that if Mr. Arens, who was conducting this — this examination had said, “I’m not asking you for the names.

I just want to know whether he was a communications worker.”

I, who was his counsel at the time, might very well have advised him to answer the question but that isn’t what Mr. Arens said when he explained pertinency.

What Mr. Arens said was, “If the person who enlisted you in the Communist Party was engaged in the communications field, we could call him too” and this would be possible only if he were — if their names were to be given.

Apparently, Silber so understood the question because he said, “I can’t do this because it’s against my conscience” and at the close of the testimony likewise, he said, “I cannot name the names of other people because it’s against my conscience.”

It’s true that now the Government says, possibly there would have been other relevance.

It doesn’t say what that other relevance would have been.

But at the hearing, the relevance urged was that, “If you answer this question, we can call that person because he maybe able to give you the names of — he may be able to give you information” and I quote “which would be of used to the Committee in developing facts to respecting communist penetration of communications facilities of the country.”

Now since Mr. Arens wanted these people, wanted this question answered so that he could call witnesses, it must have been for the — it must’ve one of their names.

Otherwise, the explanation of relevancy is totally meaningless.

Earl Warren:

Mr. Terris.

Bruce J. Terris:

Mr. Chief Justice, may it please the Court.

I think that at the start, I’d like to turn to just what the questions were, which petitioner refused to answer because they’re almost identical with the kind of questions which Mr. Justice White suggested with the kind, it could be answered yes or no.

The first question, and this is our page 3 of the record, was he, and now that you have brackets, [the person who recruited defendant in the Communist Party] of communications worker.

The answer to that is yes or no.

It’s not the name of a person.

Bruce J. Terris:

Now the fact that the next question might have asked the name of the person, he should’ve — if he was going object to identifying people, that was the time to object.

You can’t start at the beginning of the hearing and say, “Well, I know what you’re aiming at ultimately and that therefore, I’m not going to answer any questions even though the objection I’ve raised doesn’t have anything to do with the questions you’re now asking.”

In Count 3, where any of the officers of their union, members of the Communist Party at the time you were a member of the Communist Party?

Answer that yes or no.

It’s not — nobody’s name could possibly be a direct answer unless you’re going to elucidate the answer.

In Count 4 it’s the same thing where any of the present officers of your union, members of the Communist Party at the time that you were in the party.

So none of these — none of these questions involved the naming of names.

Now, it’s true for pertinency purposes, it’s arguable that we’re bound by the explanation.

We have an argument that we’re not bound.

But for First Amendment purposes at least, we’re bound by what the questions asked for.

The questions did not ask for names.

The First Amendment issue here is whether a Committee can ask a witness concerning other persons after all, they’re barely few questions that don’t concern other persons unless you’re going to ask the man, are you a Communist?

That’s just about the only question you could ask him.

If you ask him, “What group you were a member of in the Communist Party?”

If you ask him, “What are the plans of the Communist Party?”

That concerns other persons.

It’s almost impossible to think of any questions other than his personal membership.

And that kind of a question if it were the only thing that the Committee was interested in might well be just exposure for the sake of exposure.

Now, the context of petitioner Silber’s refusal to answer is the same as that of petitioner Grumman.

And therefore, I will not repeat it.

The Committee was investigating Communist activities in the communications industry at large amounts of evidence seduced at this hearing about the danger from this kind of — from Communist in the industry.

Petitioner Silber’s contentions concerning the First Amendment are extremely similar to those of Petitioner Grumman and Petitioner Yellin.

Therefore, the Government’s answer is virtually the same.

The facts are virtually the same as those in Barenblatt and Braden and Wilkinson and therefore, we submit that those three cases are controlling.

Government is obviously an important, vitally important interest of protecting the communications’ network of this country from Communist subversion.

Petitioner Silber was not pillory.

The questions are clearly relevant.

Now, petitioner Silber’s main contention and it’s hard to say whether it’s under the First or under the Fourth Amendments is that he was called as the result of indiscriminate dragnet procedures, lacking in probable cause to put — to put his argument into the terms of the Barenblatt case, and I assume that means in the terms of the First Amendment and not of the Fourth Amendment.

I may say at the start, the petitioner, I believe, is wrong when he says that no other case which is been decided by this Court involves the witness which who had not been identified before a committee and sworn testimony as a Communist.

My reading of the Braden case, both the — and I don’t have the record here but the Government’s brief certainly relied on no explicit testimony before the Committee stating that the witness was a Communist and there’s nothing in the opinion which says that there was any such testimony.

Bruce J. Terris:

Nevertheless, this Court stated the Subcommittee had reason to believe that the petitioner was a member of the Communist Party and that he even actively engaged in propaganda efforts.

As far as I can ascertain now, that statement is based on the sworn testimony of Committee counsel after witness’s trial.

And we not only have that testimony here but we have additional corroborative documents which —

Potter Stewart:

I don’t — this is perhaps a collateral issue but I had in some witness in California identified — was that — that was the Wilkinson’s case.

Bruce J. Terris:

I — Wilkinson I think was —

Potter Stewart:

Whether they’re having at the committee a witness in California (Voice Overlap) —

Bruce J. Terris:

I believe that so Your Honor.

Potter Stewart:

— had identified at Wilkinson (Voice Overlap) —

Bruce J. Terris:

I believe that so.

I don’t think that this is to (Inaudible).

Now, that would have in the record — I can’t positive but certainly the Government didn’t rely at any sworn testimony.

Now, I would like to address myself very briefly, First to the Fourth Amendment contention.

Now, this is argued very extensively in our brief just as it was in the Shelton case.

The Government’s contentions are essentially and very briefly three-fold.

First of all, the petitioner did not raise the Fourth Amendment before the Committee and therefore, we submit that he cannot raise it in this Court anymore than he raise the First Amendment issues, pertinency issues, quorum issues, any of the other kinds of issues which he may might have made before the Committee.

He did raise the First Amendment issue and therefore, if he was summoned as the result of indiscriminate dragnet procedures lacking in probable cause, I’m willing to assume that that would be a violation of the First Amendment —

William J. Brennan, Jr.:

Well, may I ask Mr. Terris, if — I’m starting this with if the Fourth Amendment standards for probable cause were applicable here, if they were, is the Government’s position that the information in this memorandum will satisfy those standards of probable cause?

Bruce J. Terris:

Your Honor, my answer to that is the last two of the three arguments that we have.

Our second argument is that the Fourth Amendment doesn’t apply to subpoenas to testify at all —

William J. Brennan, Jr.:

Why?

Bruce J. Terris:

— and if it does apply.

William J. Brennan, Jr.:

That’s why —

Bruce J. Terris:

Okay.

William J. Brennan, Jr.:

— if it could start with if, I would say, if they were.

Bruce J. Terris:

Well, it’s hard to know what if you say that it applies but doesn’t have any content.

Well, I’m going to —

William J. Brennan, Jr.:

Well, I’m not trying (Voice Overlap) —

Bruce J. Terris:

The third — the third argument.

William J. Brennan, Jr.:

Yes.

Bruce J. Terris:

If it applies, we submit that the standard is the same as subpoena duces tecum.

Bruce J. Terris:

This Court has held in the Oklahoma Press Publishing Company case versus Walling, not too long ago in 327 United States that the requirement of probable cause supported by ought to reformation literally applicable in the case of a warrant is satisfied in that of an order for production by the Court’s determination if the investigation is authorized by Congress is for a purpose Congress can order, and the document sought are relevant to the inquiry.

Now, we can think of no reason why Congress is to be treated worse than executive agencies or that the standard should be stricter for subpoenas to testify the subpoena duces tecum.

Now, applying that standard here, it could be almost — it almost seems that’s beyond argument that it says so.

William O. Douglas:

Go ahead and apply it to that person.

Bruce J. Terris:

Pardon me?

William O. Douglas:

Go ahead and apply it to that person.

Bruce J. Terris:

Okay, investigation is authorized by Congress.

William O. Douglas:

Okay.

Bruce J. Terris:

That was the decision in Barenblatt, Braden and Wilkinson is for a purpose Congress can order, that’s again satisfied by Barenblatt, Braden and Wilkinson.

The document sought a relevance to inquiry.

Now, I have to substitute it for documents of course that the testimony sought is relevant to the inquiry and that of course means — that means pertinency.

William O. Douglas:

Well now, wait a minute.

The testimony sought is relevant (Inaudible) I believe that you put it to forge the documents —

Bruce J. Terris:

Right.

William O. Douglas:

— irrelevant to the inquiry.

And that we need it for a substitution for this person what he knows is definitely relevant to the inquiry.

Bruce J. Terris:

Okay well, I’m going to —

William O. Douglas:

Well, you should — you should have some reasonable cause to believe that he knows something relevant to the inquiry that you can see that.

Bruce J. Terris:

Well, that isn’t what the sentence — that isn’t what the sentence says in (Voice Overlap) —

William J. Brennan, Jr.:

Well, I know, but the (Voice Overlap) — documents, the sentence.

Bruce J. Terris:

No wait.

No, it doesn’t say that he has reason to believe that the person has documents which are relevant to the inquiry.

It says the documents sought are relevant.

William O. Douglas:

Oh yes, but the document sought — they believe that the reasonable cause with the documents, the contents of the document relevant to the inquiry.

Bruce J. Terris:

Well I — I think I cannot agree but I’m not sure — I’m not sure that it makes a difference because as I’ve said, I’m going to accept under the First Amendment, and a witness can’t be subpoenaed if that is the result of indiscriminate dragnet procedures lacking a probable cause.

It seems to be the most you can read into Oklahoma Press case is that sentence that it seems to me that is the most.

I don’t think that that’s what Oklahoma Press stands for.

It’s certainly if the whole opinion is taken instead of just the sentence that I read, that it doesn’t — there’s no indication there that you have to have any elements of proof.

After all, you could — you could have had a requirement there of proof.

You could’ve required some kind of a showing that this particular man and after all subpoena runs to a man, just like it runs to a man here doesn’t run the documents that you could’ve require proof —

William J. Brennan, Jr.:

Yes, but what you’ve just read from Oklahoma case that you have reasons to (Inaudible) reasonable cause for belief that the contents of the documents are relevant.

Now, if you’re going to apply that test in the case of a person whose testimony you want then you ought, I would suppose, also we required to have reasonable cause to believe that he can tell you something, is that as —

Bruce J. Terris:

As I see —

William J. Brennan, Jr.:

— upon the inquiry.

And what’s the test of whether he may have reason to believe he can testify in a way which will be relevant to the inquiry.

Bruce J. Terris:

As I see Your Honor, I want to get into a sterile argument because in the sense that I’m not sure that what you’ve said is any different than what really the Court was saying in the Barenblatt case but I don’t think —

William J. Brennan, Jr.:

I don’t know what —

Bruce J. Terris:

— that is the wording of —

William J. Brennan, Jr.:

I don’t know what the Court was saying in the Barenblatt case but what I was trying to find out —

Bruce J. Terris:

Well, let me say this sentence, the very wording of the Barenblatt case is not too far from what you said.

But it doesn’t seem to me that what you said came out of Oklahoma Press.

After all, when you’re asking for documents, you’re specifying particular documents.

Those documents are relevant to the inquiry.

You don’t know that that guy has the documents, why do you ask him without any reasonable ground for believing he has some.

Oklahoma Press doesn’t say that the executive branch has to have that kind of cause to ask —

William O. Douglas:

— (Voice Overlap) — if you don’t produce it in the response to the subpoena.

Bruce J. Terris:

And if he — and if a witness doesn’t have the information he says, “I can’t answer.”

The response Your Honor is precisely the same.

The question is do you bother somebody?

That’s really the argument not —

William J. Brennan, Jr.:

Well, I — I thought what we were discussing Mr. Terris is, what is if the Committee has to know about a prospective witness before properly, they may subpoena him under that testimony of the Barenblatt case that you’ve been repeating to it over and over all day.

Bruce J. Terris:

Right, I’m — preliminary, all I’ve meant to say is that Oklahoma Press establishes that under the Fourth Amendment the Committee doesn’t have to know very much.

Under Barenblatt, however, I would — as I’d indicated before, they could not call somebody else off the street and therefore, I would like to get to the specific information which the Committee had.

I might say the start that this issue comes before this Court with the finding by the District Court on all the evidence that there was good cause to issue the subpoena had call the witness before the Committee and this finding was approved by the Court of Appeals.

And it seems to us that all we have to establish in this Court is if that finding wasn’t so erroneous, that there was enough evidence in this record for our Committee to reasonably believe that the petitioner had information to contribute to the Committee’s investigation.

Now, Committee counsel testified at the petitioner’s trial.

If the Committee had information, the petitioner had been a member of the Communist Party engaged in the communications field.

That is the kind of statement with somewhat more detailed which this Court said in the Braden case, be sufficient to call a witness.

And it seems to us that the Braden case stands squarely in the way petitioner’s argument.

I might say it also — another case which stands in a ways is Uphause and Wyman.

William J. Brennan, Jr.:

Well, may I ask you Mr. Terris what Mr. Arens testified too that it had information and it’s filed as to the Communist Party of membership petitioner, is that which later will develop in cross-examination, is it not the information?

Bruce J. Terris:

I would assume that so I — in Braden what happened —

William J. Brennan, Jr.:

In other words, the (Inaudible) from the New York Times in this report of Mr. Russell —

Bruce J. Terris:

Yes sir —

William J. Brennan, Jr.:

And all that — that’s all he was referring to, was it at the trial?

Bruce J. Terris:

Well there — there are four things Your Honor —

William J. Brennan, Jr.:

Yes.

Bruce J. Terris:

I assume that’s right.

In Braden — the reason I say in Braden, there was less, is that in Braden all you have is the conclusion.

You had no idea where it came from.

Here, you have the conclusion and I assume most if not all of the underlying information if I might say Uphause and Wyman which this Court upheld a conviction under First and Fourteenth Amendment attack that there, there was many information that Mr. Uphause was a Communist at all.

All there was, is an indication and I don’t think even that — and there’s assuming that from the opinion one cannot tell that this was sworn before committees, but there was information that Communist or people that were involved in Communist fun activities, well of course may not even be Communist, had been guest at the Summer Camp.

Yet, this Court held that there was ground to call Mr. Uphause to say who these people were.

I may say that there, they were asking — they were asking for names which they were not asking for here.

The Government doesn’t think there’s any difference.

We’ve argued that both in Whitman and in — in the Whitman case but I don’t — but in any event —

William J. Brennan, Jr.:

Well maybe, my memory doesn’t serve me but I thought what they were after there where the — in effect the registry of the hotel.

Bruce J. Terris:

That’s right.

William J. Brennan, Jr.:

Now, all with the background of much correspondents between Dr. Uphause and the other people.

Bruce J. Terris:

I think that’s right Your Honor.

I will say that’s a much broader kind of inquiry than is involved here.

Particularly of a man who wasn’t — that nobody has even charged this far as I know at least and nothing in the — in the case indicates with being a Communist himself.

Mr. Silber is not only charged but he admitted that he was a Communist.

William O. Douglas:

Mr. Terris, do you think this whole issue is eliminated by the fact this gentleman sort of a trial or sort of the hearing then everyone’s a communist?

Bruce J. Terris:

I don’t think — I think probably it’s a technical matter that it is not eliminated, that the essential inquiry is what the Committee knew prior to the time.

Just as in the Fourth Amendment search and seizure case, the fact that you find narcotics, it doesn’t prove that you have probable cause to search the premises.

William O. Douglas:

Yes, but the issue is different here.

The question is whether (Voice Overlap) —

Bruce J. Terris:

Yes, yes.

I don’t think its — put it way, let’s say they just talk — walk up to a guy in the street and they said, “We’d like to talk to you, you come in” and they announce to, “We don’t have a slightest idea you’re a Communist, are you?”

Bruce J. Terris:

He said “Yes, I’m a Communist.”

I would think that in that case under what Barenblatt says that there was an indiscriminate dragnet procedure.

William O. Douglas:

All you would do then — all you would then is letting — according to your idea was (Inaudible)

Bruce J. Terris:

Well, that’s of course a difficulty which in the Fourth Amendment area you don’t have because in the Fourth Amendment area, you can say that the evidence can’t be — can’t be admitted.

Here, you are not out for the admission unless you’re trying to find out what the facts are, right?

I agree Your Honor that it would be hard to draw a rule of what then the Committee would be expected to do.

Potter Stewart:

And do you say that you’ve got a probable cause rule or some kind or simply some question about raising it in some — based in the hearing?

Bruce J. Terris:

Not — insofar as this is under the First Amendment and it’s very — it’s a little bit hard for me to know exactly what the petitioner is raising in his brief.

He doesn’t mention in the Amendment.

He doesn’t mention what legal provision he’s relying on.

His case has seemed to go both First and Fourth Amendment —

William J. Brennan, Jr.:

I thought he was relying on what — on that same statement from Barenblatt.

Bruce J. Terris:

Well, it’s not quite that clear from the brief.

I think now he’s relying both on the Fourth Amendment and Barenblatt which I read is the First Amendment.

It’s not slightest mentioned in Barenblatt of the Fourth.

If that’s what he’s relying at, we don’t argue this without standing to raise the First Amendment issue.

He raised it before the Committee.

And we don’t think that you could require a witness to raise all the particulars of your First Amendment issues.

So insofar, if this is the First Amendment contention, it’s — we believe that it’s properly before the court.

We do not think his Fourth Amendment contention if that’s what he’s making is before the Court since he never told the Committee about this.

William J. Brennan, Jr.:

Well, I — as I recall the Shelton argument, I think the Government’s position there was that even an anonymous letter he said somebody by the name of Shelton at the New York Times we think as a Communist, was sufficient test — to support subpoenaing Shelton to come down and testify.

Bruce J. Terris:

But one additional fact Your Honor, and that is that the letter came from an informant who’ve been previously found to be reliable.

William J. Brennan, Jr.:

We don’t have — we don’t have reliable informant here, do we?

Bruce J. Terris:

We don’t know whether he’s reliable.

On the other hand, we have collaboration which we did not have —

Potter Stewart:

What is the —

Bruce J. Terris:

Collaboration —

Potter Stewart:

— (Voice Overlap) — of the New York Times?

Bruce J. Terris:

Well, the two things that he —

Potter Stewart:

Or one of the other is one collaboration of it?

Bruce J. Terris:

Well, let me tell the Fourth state, the four documents in which we rely.

The first is the petitioner handled the Government including secret government messages.

That means that if he was a Communist, certainly some reason to call, that doesn’t help as some whether he was a Communist.

Second, the second one was the petitioner — document showing the petitioner he participated in the nominating process of a person on the Communist Party ticket.

Now, we did it — the Committee didn’t call 12000 people.

He called a person that had participated in the nominee in process of which it had other information that he was a Communist.

The third or the second document which goes to whether he was a Communist was this news article from New York Times stating, I assume nobody has challenged its correctness so I’d rather not deal with the — we’re dealing with the New York Times.

I assume we’re dealing with the fact that a lawsuit was filed by the American Labor Party against petitioner and others to oust them from the American Labor Party on the ground that they were allied, that they were affiliated with the Communist Party.

William J. Brennan, Jr.:

I gather you don’t rely on the one but his son whose first name was unknown was also identified at New York Times.

Bruce J. Terris:

Well, I don’t rely on the fact that his son was a member of the Communist Party but I rely in the fact that the —

William J. Brennan, Jr.:

If that’s all there was, you wouldn’t think he was a member?

Bruce J. Terris:

Well that — I mean if his son was a member, that isn’t of course what it might — the emphasis Your Honor of the sentence that you read, I would put rather differently, it was also identified.

I assumed that means for the confidential source, it also identified Mr. Silber as well as the — as well as the son Your Honor.

I don’t — if it just said his son was identified as a Communist then I wouldn’t rely at all of that —

William J. Brennan, Jr.:

Do you think that was enough?

Bruce J. Terris:

No, I wouldn’t even rely in there for collaboration.

William J. Brennan, Jr.:

But now let’s see, we know that if they pick him up off the street that isn’t enough and that if they merely say that the son was a member, that is —

Bruce J. Terris:

Yes Your Honor, I don’t think —

William J. Brennan, Jr.:

Well now, we’re getting somewhere.

Bruce J. Terris:

Well, Your Honor with all — with all respect, I don’t think that there ever has been a case in which the Committee has done either one of those two things.

John M. Harlan II:

Do you find (Inaudible)

Bruce J. Terris:

I find nothing in Barenblatt, Wilkinson or Braden.

However, I understood Mr. Rabinowitz, if I’m correct to say that, that isn’t his contention that the Committee did not err in failing to state its grounds to him.

John M. Harlan II:

(Inaudible)

Bruce J. Terris:

I’d like to state —

John M. Harlan II:

(Inaudible)

Bruce J. Terris:

In our view, the Committee has reasonable ground to believe that either the petitioner was a member of the Communist Party or that he was closely allied to the Communist Party and we think it would’ve certainly been enough if he’d even been closely affiliate with the Communist Party, surely likely he would had information about Communist activities.

The Government has its second contention.

We believe that even if the Committee did not have a reasonable basis to believe the petitioner was a Communist, it certainly could reasonably believe that he had information to contribute to its investigation, which is all that Barenblatt, Braden and Wilkinson required.

The petitioner was admitted a long time member of the American Communications Association and a long time communications worker, 41 years.

Bruce J. Terris:

The Committee had overwhelming evidence that the president, secretary treasurer, vice president, newspaper editor and other high officials of the American Communications Association were members of the Communist Party.

And therefore, we think he was reasonable for the Committee to subpoena petitioner even if he hadn’t been a Communist to testify about what he knew about communist control of the American Communications Association.

This isn’t an indiscriminate dragnet procedure.

I suppose if there’s any — that this man as much as anyone would know whether the Communist Party was directing and controlling the American Communications Association.

And it seems to us, that’s all that Barenblatt requires, that the person reasonably have information, so even if he hadn’t turned out to be a Communist, the Committee certainly was reasonable in subpoenaing him because of what he could expect was his knowledge of the American Communications Association and the industry.

Potter Stewart:

And as an officer of the —

Bruce J. Terris:

And he was not an officer, he was a long time member.

Potter Stewart:

Member, long time member.

Bruce J. Terris:

That’s right and there’s no — and there’s no indication that he — that he was ignorant of the affairs of the American Communications Association.

After all, the Committee had before it indications, well the CIO’s expulsion order for that matter, indications that the — American Communications Association followed the Communist line.

Its high officers were Communist.

Somebody who was long time in the association certainly would be likely to have something to contribute, that at least he might have — he might be able to answer the two questions involved in Counts Three and Four that he know of — essentially, that he know of any of the person officers of the association were — they’d been Communist.

I would now like to turn to petitioner’s contention that the First Amendment was violated because the Committee was seeking information concerning other persons.

I’ve indicated briefly at the start of my argument that we think this intention is without any merit at all.

In brief, our argument is that —

Potter Stewart:

This — and I don’t want to delay you for this question as to what indictments — indictment must contain, you say it’s not in this case.

It’s the same indictment as in the last case has tried in the District of Columbia and there is in the record of motion to —

Bruce J. Terris:

That’s right Your Honor —

Potter Stewart:

Right.

Bruce J. Terris:

— but it wasn’t raised in this Court.

So that I assume therefore the — the issue was not before the Court.

It wasn’t raised either in the petition or in the briefs in the merits.

Before the Court of Appeals.

Bruce J. Terris:

I don’t know Your Honor.

Potter Stewart:

And certainly for the trial court because —

Bruce J. Terris:

That’s right yes.

Potter Stewart:

— it’s in the record a motion striking it unless —

Bruce J. Terris:

That’s right.

Potter Stewart:

— you quash it.

Bruce J. Terris:

That’s right but it’s not before this Court.

Hugo L. Black:

And the indictment is the same?

Bruce J. Terris:

In form yes sir — yes Your Honor.

But in form, the indictment is the same with almost every other indictment in this field.

Hugo L. Black:

I’m not — if it in the same form, it has the same defects, it is a defect but the others have that you’ve argued previous.

Bruce J. Terris:

Not Yellin — not Yellin —

Hugo L. Black:

No, you referred to Silber.

Bruce J. Terris:

I think — I think the six and the four all have the same form.

Hugo L. Black:

Do you mean by that, if it’s a defect, they have the same defect, if it’s a defect.

Bruce J. Terris:

If it’s a defect, they have the same defect and it was properly raised unlike by petitioner Silber and it’s properly before the Court, yes Your Honor.

I think it isn’t only the District of Columbia.

I think that the indictment in the Wilkinson case is also substantially similar.

And in the Braden case, it was the same except for this other issue Your Honor about willfulness versus the refusal being unlawful.

Potter Stewart:

That was actually contrasting with the Yellin case which we have per se of the Seventh Circuit.

Bruce J. Terris:

Yes, yes.

And it made — well, I guess Watkins came (Inaudible).

The government’s position —

Earl Warren:

In this case, wasn’t the question of pertinency raised at all?

Bruce J. Terris:

Oh yes, Your Honor.

Earl Warren:

It does insert on our certain petitioner.

Bruce J. Terris:

Pertinency was raised.

Two issues as to pertinency are before the Court.

I haven’t got any dealt of that.

Earl Warren:

Wouldn’t that go to the indictment?

Bruce J. Terris:

Mr. Rabinowitz is a much more skillful counsel then that Your Honor.

In all these cases, we have seven clear issues raised as to having the requirement that you state the subject under inquiry in the indictment, this case, it is not raised.

I don’t know the reason why it isn’t raised, but it isn’t.

It’s hard to believe that Mr. Rabinowitz meant his contentions as to actual pertinency in a price of a pertinency to go to the indictment.

If he did it, it’s unusually unskillful such able counsel.

Petitioner Silber in our view has no special First Amendment rights because he was questioned about other persons, his rights are still freedom of speech and freedom of association which this Court held in Barenblatt, Braden and Wilkinson do not allow a witness to refuse to testify concerning Communist activities.

And in addition, petitioners own First Amendment rights could not have been infringed here, because he testified concerning his own activities.

Bruce J. Terris:

Therefore, petitioner Silber is candid in admitting that it’s essentially his argument rest on the fact that his self-respect and self-esteem require he claims that he not act as an informer.

The Government submits that this moral scruples worthy as they maybe in some circumstances, in some particular circumstances have never been recognized by this Court or as far as we’ve been able to ascertain by any other court as a legal defense under the First Amendment.

On the contrary, there’s a well-established part of our jurisprudence that a citizen has a legal and civic duty to testify before properly constituted authority as to matters within his knowledge even if the expense of his friends.

And we submit that it’s frivolous even to suggest that a witness whether it’s before a grand jury, in a criminal trial or before a congressional committee can simply refuse to discuss the activities of other persons because he does not want to be what he calls an informer.

Potter Stewart:

The principle would apply in a civil trial, wasn’t it?

Bruce J. Terris:

I would think so Your Honor —

Potter Stewart:

That all employer’s — liability act case if —

Bruce J. Terris:

I would —

Potter Stewart:

— if the plaintiff had been in a Communist meeting or something, that became relevant to the (Voice Overlap) —

Bruce J. Terris:

Well, I suppose that our argument that was broad — maybe broader than this.

If self-esteem we’re talking about and self-respect, I suppose that if you see a friend of yours commit murder and they asked you to testify at the trial you say, “I don’t pitcher my friends.

I don’t like being an informer.”

Well, a lot of us would think that there’s something hits this wrong about having to testify about our friends and sending under them into perhaps to his death but that isn’t — never been a legal right.

Thank you Your Honor.

Earl Warren:

Very well.

We’ll recess now.