Stanford v. Texas

PETITIONER:Stanford
RESPONDENT:Texas
LOCATION:Longshore and Warehouse Union

DOCKET NO.: 40
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: State trial court

CITATION: 379 US 476 (1965)
ARGUED: Nov 12, 1964
DECIDED: Jan 18, 1965

Facts of the case

Question

Audio Transcription for Oral Argument – November 12, 1964 in Stanford v. Texas

Earl Warren:

Number 40, John W. Stanford Jr., Petitioner versus State of Texas.

Mr. Maverick.

Maury Maverick, Jr.:

Mr. Chief Justice, may it please the Court.

This case pertains to the application — issuance and execution of a search warrant on the two Texas anti-Communist laws and at a time subsequent, subsequent to the time when the Federal Government had first entered the field of prohibited activities and had ordered the petitioner in this case John Stanford to register under the Subversive Activities Control Act of 1954.

The search took place in his home private residence where he conducted a mail order bookstore called All Points of View, over 2000 books, pamphlets, lists, and letters were taken from the petitioner’s home.

Now the two Texas sedition laws at question is first the Texas Communist Control Law that says in its preamble that Texas is a place where there are many vital military installations and Texas is a place where there are many products for national defense and it sets out — then it sets out the criminal acts.

If you remain in Texas five days, you must be — if you’re a Communist you must register.

If you’re engage in sabotage against the United States or the — or of Texas you’re then subject to criminal punishment.

The next Texas law involved is the Texas Suppression Act of 1954.

Section 1 in the form of the preamble describes the international conspiracy of Communism as directed against the United States and the “several states” and then finally against the State of Texas.

And this makes it prime to attempt to overthrow the United States or Texas, to advocate such doctrine, to conspire, to commit such acts, to support or be a member of an organization which engages in such act.

The law so states that the Communist Party cannot be on the ballot in the Communist Party is outlawed in the State of Texas.

Now, then we get to Section 9 of the Texas Suppression Act and this in — the most vital part of this case.

It says Section 9 that a search warrant maybe issued showing to describe premises as they please where some specified — some specified phase or phases are being violated or are violated in showing — in repeating this phase, were showing a violation of some phase or phases of this Act.

The affidavit who is supporting the search warrant were signed by Mr. V. Murray Jordan and Lonny F. Zwiener both of whom are Assistant Attorney Generals of Texas.

After naming Stanford in their affidavit, they stated that his home poses a place where books etcetera concerning the Communist Party, books concerning the Communist Party of Texas and the operation in the Communist Party of Texas are unlawfully possessed in the violation of these two Texas statutes.

Now here it should be noted that not one phase of either of these two Texas laws was mentioned that this man allegedly was violated.

They based their beliefs they said on this case, “Recent mailings by Stanford on 12, December 1963 a material from his home.

Such material being identified as pro-Communist and they did not define what this norm — they did not provide a norm or standards on what is pro-Communist.”

They said what he was mailing out of his home was pro-Communist.

Then they had the application for the search warrant signed by Mr. Barlow who carried along the language of the affidavit and then he stated to Mr. Barlow the District Attorney who will speak to you shortly, stated that his belief was founded on the following information, “That this officer had received information from two credible persons that the party named above has such books and records in his possession which are books and records of the Communist Party that such information as recent or again has been confirmed by recent mailings by Stanford on December the 12, 1963, a pro-Communist material.”

Again they do not describe or set out any norm or standard as to what they mean by the term pro-Communist.

Then District Judge Solomon Casseb Jr. issued his order whom in — to pick up the books, records, pamphlets “concerning the Communist Party of Texas and the operations of the Communist Party of Texas.”

Now on December 26th, Your Honors, 1963 which is a day before this Texas warrant was issued and acted upon a U.S. Marshall Jessie Dobb served an order on Mr. Stanford to register under the U.S. Subversive Activities Control Act.

By this time — by the time Stanford had been served with this Texas warrant he had already had a hearing before the federal authority.

The next day and this is in the record because we moved it in the evidence.

It had been the headlines in the San Antonio paper.

The screaming headline in the San Antonio News, Admit Red Ties, San Antonio Man Ordered, and so there wasn’t many secret about the fact that the Federal Government had first entered the field of prohibited activity.

Now Your Honors if I may I would like to refer some of the testimony that took place at the hearings to determine to the validity of this search warrant.

First of all, I would bring your attention the testimony of John Good Jr. — Mr. John Good Jr., he was first Assistant District Attorney in 1949 and 1950.

Maury Maverick, Jr.:

He said that either in 1949 or 1950, at the request of then Governor Allan Shivers of Texas.

They called Stanford into the Office of District — to the Office of District Attorney and they asked him about his activities.

They didn’t do anything about it.

Mr. Good in his testimony said to Mr. Barlow, “You have a file on him Mr. Barlow”.

But 13 years later and several weeks after the Federal Government enacted and one day after the U.S. Marshal had served this man a process then and only then that the State of Texas moved against this man.

Now we get to the witness E.L. Ritchie, the Assistant County Clerk in charge of “Assumed Name” section.

He got on and testified that Mr. Stanford operated the business in his home.

It qualified with all the local laws within his All Points Of View and then at that particular time, in time of the hearing time — the time of the search warrant, he was acting in accordance with “Assumed Name” statute of Barrett County.

Now as to the search itself I would like to quote something from the witness Charles Neil.

Mr. Neil is a retired FBI agent and he states that on December the 27th about 3 PM they went into Mr. Stanford’s home and stayed about five hours.

He testified that the Office of Attorney General of Texas alone not the District Attorney but the Attorney General alone decided what books would be taken out, his office, his representatives that a number of items were taken from Stanford’s home which was not listed on the — under the inventory, but under the Texas Code of Criminal Procedures they must be listed under the inventory.

That nothing was found in Stanford’s home that was capable of committing any act of physical violence.

That private correspondence between Stanford and his American Civil Liberties Union Attorney in Houston Texas was seized and taken away by the police.

Potter Stewart:

Mr. Stanford was there during the time, (Voice Overlap) —

Maury Maverick, Jr.:

He — his wife was there at beginning.

She called her husband and then he came out.

He was there, the press was there, the T.V. was there — well — it’s well represented Your Honor, the — many people are in the house.

Potter Stewart:

And this lasted for five hours?

Maury Maverick, Jr.:

Five hours, yes sir.

Has he been prosecuted into (Inaudible)?

Maury Maverick, Jr.:

No sir, I will get on to that.

The — I will — I’m going to quote to you later on if I may the statement of the District Attorney that they’re waiting to see what this Court does, they want to take him back and get him indicted and put him in the Texas penitentiary if they can.

This is what — this one of the things that’s being held in advance at the moment.

They then picked up the private correspondents between Stanford and his defense committee in New York City, which is representing him on the Subversive Activities Control Act.

They took his correspondents the way that he — with his committee.

They took away Stanford’s marriage license.

They took away his Blue Shield policy, they took away his automobile license, they took away his honorable discharge from the navy and the titled papers to his home.

Alright, now the inventory that was going on to this inventory reflected that hundreds of allegedly seditious books and pamphlets were taken out and let us see the spread of books that were taken out, there’s a few examples, “Soviet Power” by Hewlett Johnson, “What is to be Done?”

by V.I. Lenin, “Letters from Prison” by Eugene Dennis, this was supposed to show that he was a man committing a law against — a violation of the Texas Sedition Laws, “Cuba and the ‘Kennedy Plan’” Che Guevara, “A Visit To Cuba” by I.F. Stone, “Let Man Prevail” by Eric Fromm, “A Faithful Moment in our History” a dissenting opinion by Justice Hugo Black, 19 copies of “Pacem in Terris” by Pope John with editorial comment.

He used the word of a good Texan who passed away a few days ago, a few weeks ago, Professor J. Frank Dobie.

Maury Maverick, Jr.:

When you read his astounding and astonishing inventory that they — of things that they took away, when you read that, you can see the elephant and you can hear, do you know that — you can hear the owl hoot because there just isn’t any questions at all if they have taken away things like letters, marriage license, judicial opinions, all as an example of fact that this man is disloyal to the State of Texas.

Potter Stewart:

I can’t quite understand the quotation from Mr. Dobie.

Maury Maverick, Jr.:

Well, Mr. Dobie says — when he sees something like this, this is bad as this, you can see the elephant and hear the owl hoot.

That’s a colloquial —

Potter Stewart:

Owl?

Maury Maverick, Jr.:

— expression in my part of the country that when something’s really bad, you can see the elephant and hear the owl hoot, maybe I’m being a little to provincial but Mr. Dobie is an old hero of mine and I wanted to quote him before this Court.

Now from the witness Lonny Zwiener, Assistant Attorney General, he was on the stand.

He said that Mr. V. Murray Jordan, Assistant Attorney General made the choice of books to be took — taken out.

And then this exchange took place, question, “Alright Mr. Zwiener, do you recall any single object taken from the Stanford home under search warrant issued by Judge Casseb which could be used as a physical object of violence to overthrow the United States of America?”

Answer, “Not Mr. Maverick, unless you can consider throwing hard backs books — hardback books to the people — at people like a weapon”.

Now then came on the young Assistant Attorney General of Texas, V. Murray Jordan in 1959, graduate of the University of Texas.

He stated that he saw books and publications hostile to Communism in the Stanford home but refused to take them out.

Now this exchange took place, question, “Did you see any books unsympathetic to the Communist?”

Answer, “Yes, sir”.

“Why didn’t you take those out?”

Answer, “I felt my position there wasn’t making selection as to what comes under the affidavit”.

Question, “The affidavit said you were to pick up books concerning Communism.

That’s all it said pick up books concerning Communism”.

Answer, “Well, used by the Communist”.

Question, “It says concerning the Communist Party, why wasn’t the speech by the late John F. Kennedy denouncing the Communist Party taken?”

Answer, “Denouncing the Communist Party doesn’t file — fall into mind the idea the definition as in the affidavit”.

Question, “What does the title of the bookstore, All Points of View mean to you Mr. Jordan?”

Then Mr. Jordan was questioned as to his expertise on the question of Communism.

“Did you have any studied — any experience in the University of Texas on Communism?”

“Did you have any experience in law school on the study of Communism?”

“Did you have any extensive formal training in the Navy on the study of Communism?”

“No”.

“Have you ever had any training extensively in the field of Communism?”

To which he said no.

So here was the person that the State of Texas had selected to protect itself against this international conspiracy.

Maury Maverick, Jr.:

Now, Mr. Stanford then filed a motion to declare the search warrant invalid under both the const — on the both the constitution of Texas and the United States of America.

Potter Stewart:

Just before you leave the factual context, was this his home or was it a store or what’s involved here?

Maury Maverick, Jr.:

It was his home and in his home he had a private library and he had a mail-order bookstore and in the transcript of the record you’ll see in the back where transcripts of the record, you’ll see in the back where he would mail from his home Your Honor various books.

He’s on a mail-order basis.

Potter Stewart:

It wasn’t a retail bookstore.

Maury Maverick, Jr.:

It was not a retail —

Potter Stewart:

The public —

Maury Maverick, Jr.:

— bookstore.

Potter Stewart:

— wasn’t invited in throughout?

Maury Maverick, Jr.:

No, sir.

Mail order bookstore, there isn’t any question about that.

Now we file this motion to set aside quashing whole for naught the search warrant and we had a hearing, an extensive hearing.

This motion was denied.

Mr. Barlow, the District Attorney, the Criminal District Attorney of Barrett County now entered into a stipulation in the Courts of Criminal Appeal of Texas and so declared that there is no appeal to any state court in Texas from a motion of this kind.

And so it’s on that basis that we are here today.

Now, by way of advanced summary so to speak, I would like if I may go through these and then come back and expound on them.

It is our contention in this case that this Stanford matter should be reversed for the following reasons because the two Texas sedition laws have been superseded by the federal legislation.

Because the two Texas sedition laws as applied in this case violated petitioner’s rights for free speech as protected by the First and Fourteenth Amendment, because the two Texas sedition laws the petitioner was denied the right to be secured in his home against unreasonable search.

Fourth, because the petitioner was forced to give evidence against himself in violation of the Fifth Amendment, because there was no probable cause shown, because the application for the search warrant, the warrant itself failed to specify the crime charged and seventh, because the warrant failed to particularly describe the things to be seized and finally because of the two Texas statutes are unconstitutionally vague.

Now, I want to quote something to you if I may from the brief of Mr. Barlow and this is — as I see it as a part as an advocate for this man Stanford before this Court.

This is the moment of truth in this case as I view it.

Let me quote Mr. Barlow’s brief, the State of — and this is in his brief at page 9, “The Criminal District Attorney of Barrett County has held up presentment of this matter to the grand jury for indictment of this petitioner because the challenge — because of the challenge made in this appeal, and because of the important questions that have arisen.”

At page 9 of its brief of the State of Texas, it is stated, “The Criminal District Attorney of Barrett County, Texas has held up the presentment of this matter to the grand jury because of the challenge made in this case.

If the Communist control and suppression acts are valid enactments and their provisions are unconstitutional, this petitioner should be prosecuted under them.

It is the opinion of the officers representing the state statutes that these acts are valid and constitutional.

Then finally one more quote.

(Inaudible)

Maury Maverick, Jr.:

Yes, sir.

Page 9 —

(Inaudible)

Maury Maverick, Jr.:

Of the brief of the State of Texas.

(Inaudible)

Maury Maverick, Jr.:

Respondents?

Potter Stewart:

The sentence beginning if, this — about eight lines from the bottom of the (Voice Overlap) —

Maury Maverick, Jr.:

And now perhaps the most important quotation of all from that brief, at page 16 of the brief of the State of Texas, what the problem then boils down to is this, if the Texas statute is invalid because it is preempted by the Action of the Smith and McCarran Acts then the search in this case is illegal.

This is so because there was no valid statute upon which it could be based.

If the — if this is a case and otherwise and any — if this is the case, the action of the trial court should be reversed.

Now, I want to —

Byron R. White:

Mr. Maverick, could I —

Maury Maverick, Jr.:

Yes sir.

Byron R. White:

— interrupt you just a moment please.

I — you listed off the — these contentions which you’re going to expound us on in a minute, but do those include an attack on the statute, on its face other than Section 9?

Maury Maverick, Jr.:

Oh yes, sir, throughout, I’ll go into it.

Byron R. White:

Other than as applied in the —

Maury Maverick, Jr.:

Well, it’s attacked on it on the basis of preemption and attacked on it on the basis of violation of First Amendment.

Byron R. White:

Just by the issuance of the warrant?

Maury Maverick, Jr.:

Yes sir.

Byron R. White:

But not that — I suppose that you’d be — assuming that the statutes on their face are constitutional I would think you can imagine the situation which a search warrant might be valid.

But if the statutes are just unconstitutional themselves on their face, well no search warrants would be valid.

Maury Maverick, Jr.:

Agreed and not —

Byron R. White:

Now which do you — which contention are you making here?

Maury Maverick, Jr.:

I think that the — I think first that the statutes are unconstitutional or preempted into that even assuming that the statutes were constitutional and are properly written from — as turned out by the legislature that a local official in this particular instance didn’t even follow their own law because of Section 9 of those two laws assuming that they’re constitutional, say that you must specify the crime that he committed, they didn’t do it.

And so assuming your position that they maybe constitutional they didn’t even comply with their own law but first we say it’s unconstitutional.

Byron R. White:

But aside from the statute in operation of this case, I take it your constitutional attack on the statute is of — is one of preemption?

Maury Maverick, Jr.:

Yes sir, that and others.

Now may I — I want to go into that now if I may.

I think also —

William J. Brennan, Jr.:

Well you’ve distinguished, I gather Mr. Maverick that — Mr. Maverick, your preemption argument started in the Nelson point, is —

Maury Maverick, Jr.:

Yes.

William J. Brennan, Jr.:

And — but you also suggested a First Amendment argument.

Maury Maverick, Jr.:

That’s correct.

William J. Brennan, Jr.:

What goes to the constitutionality (Voice Overlap) —

Maury Maverick, Jr.:

That’s right.

William J. Brennan, Jr.:

— (Inaudible) on its face as well.

Maury Maverick, Jr.:

Yes sir, that’s correct.

Hugo L. Black:

As defined?

Maury Maverick, Jr.:

Sir?

(Inaudible)

Hugo L. Black:

(Inaudible)

Maury Maverick, Jr.:

Yes sir, yes sir, both ways.

And this is a thing Your Honors that I want to particularly — I’m pressing on.

This is what I said earlier that perhaps the most important point in this case and Mr. Barlow had joined in with me on this, he hasn’t invoked any technicality — was the Court that would keep us from facing up to the constitutionality of this law.

He had joined then.

He has said, “Well, tell me whether or not this law is constitutional?”

The State of Texas has is asked for this in their brief.

And so for example I think under the Aguilara — Aguilar case which this case instantly falls under the Aguilar case because of the affidavit, two credible persons does not even — it even falls under the dissent under Aguilar because in Aguilar the dissent, the parties there making the affidavit had some personal surveillance, some personal contact with the crime at hand.

But in this case, there was nothing.

It can’t even stand under the dissent in Aguilar but the important thing we think, the important thing about this is that if we think it has been superseded, we think that the federal acts do control and I want to say this, that if this Court is silent on constitutionality and if this Court are on preemption, the effect of it will be back and this is an opinion on my part, the effect of it will be back in San Antonio as if not having spoken on constitutionality or not having spoken on preemption, then we will go back to San Antonio.

They will say, “Well, the Supreme Court didn’t say it was unconstitutional.

They didn’t say it was preempted, so that’s a signal to get this man indicted”.

Now if this man, if this law is unconstitutional and if he is indicted, we’ll be back in two or three years and so, the status, the State of Texas has joined in with me on asking for a ruling on constitutionality or preemption.

Now we say that there is a preemption because of the Smith Act, Internal Security Act, the Communist Control Act.

And in the Nelson versus Pennsylvania case this Court found preempion by the mere availability of these federal statutes.

As I recall it in that decision, no man have been indicted, no man had been — there was a — simply a mere availability whereas in this case, Stanford has already had hearing for the U.S. Communist Control Act of 1954.

He’s already been served by the U.S. Marshal and told to register or suffer a penalty of $5000 a day or imprisonment for five days — four to five years for each day of —

(Inaudible) violating the statutes is against the State of Texas — to overthrow the State of Texas or against the United States Government or both?

Maury Maverick, Jr.:

It said that he was violating the Texas Communist Control Law and the Texas Communist Suppression Laws Your Honors, which by necessity includes the Government of United States of America, the several — or the several states or of Texas.

It was not isolated.

It was not carved out and set aside just for the State of Texas.

Now, Congress also has acted in addition of the three Acts that this mentioned, the Immigration Nationality Act, the Defense Dedication Act, Internal Revenue Code, Postal Service, Temporary (Inaudible) — Temporary Unemployment Compensation Act, the National Science Foundation Act on this question of Communism.

Maury Maverick, Jr.:

Now, let’s — keeping in mind the International Conspiracy of Communism as defined by the Congress of the United States of America and by this Court on another decision, it is our opinion that it is impossible.

It is impossible than those in sedition by the Communist — International Communist Conspiracy against the State of Texas, be it in Zapata County along the Rio Grande where there are not many people or in San Antonio.

Now, let’s take Barrett County for example, let’s assume the purpose of argument that the International Communist Conspiracy desired — decides to take over Barrett County, a county in Texas, is a part of the State of Texas.

Alright, they just take over Barrett County, not the whole State of Texas or the government, but they take over the geographical limits of Barrett County and they announced it’s all they want at the county courthouse in this county.

It’d take over Randolph Air Force base.

They’d take over Lackland Air Force Base.

They’d take over Fort Sam Houston.

They’d take over Kelly Air Force Base.

They’d take over the Atomic Energy Commission and they’d take over the Aerial Medical — Outer Space Medical Center.

This goes on and on and it’s inconceivable that the International Communist Conspiracy to takeover even Barrett County without affecting the paramount rights of the government of the United States of America.

Now this Court hasspoken of the need for a uniform system of regulation in Hines versus Davidowitz, 312 U.S. 53.

In the Pennsylvania Law, requiring aliens to register were superseded by the Federal Immigration Law.

And that this Court there saying that there’s the — this was a problem that affected the interest of America, of immigrants coming to all parts of America, and therefore it shouldn’t — there’s shouldn’t be 50 different immigration law.

Now, let’s suppose we have 50 different sedition laws in America.

Who is then seditious under this?

They’ve picked up — when you read the inventory what they picked up here, and this is an example of what happens when you have 50 different sedition laws in the United States of America, who will be seditious next on the 50 different laws.

Chella Negro in Mississippi reaching out for a polity under the law, is he going to be seditious.

Shall a Texas oilman complaining about the Supreme Court of the United States, will he if the pendulum swing become seditious under the law?

It’s this type of thing.

It could be — we can have 50 different steps, 50 different norms, 50 different standards.

Now, we think Section 9 of the Texas Suppression Law is — this is — is unconstitutional because on its face and as applied in this case it violates the First and Fourteenth Amendment.

Section 9 of the Suppression Law says that a warrant may issue to seize books, records, pamphlets, recordings, books showing a violation of the Act.

Now how do books show a violation on the Act?

Now, the — this is not question obscene books, it’s not a question obscene books.

They picked up — they — what they’re saying is that if you read Mr. I.F. Stone’s newsletter you have seditious literature in your home so it isn’t a question at all about obscenity here.

In Marcus versus Property Search Warrant, this Court said that a statute permitting seizure of books before a hearing was had — would be declared invalid.

Well, look what has happened here in this case where a particularly — particularly there’s no question of obscenity at all.

Potter Stewart:

Was any of this material returned by the state after it was seized?

Maury Maverick, Jr.:

At — in the hearing they offered to return his marriage license and the title to his home and the title to his car and I as his attorney would not accept it at that time for fear that it might constitute some waiver of the rights of my client.

Potter Stewart:

That’s all it was offered?

Maury Maverick, Jr.:

Sir?

Potter Stewart:

Is that all that was offered?

It was all —

Maury Maverick, Jr.:

But I think —

Potter Stewart:

— offered to be returned.

Maury Maverick, Jr.:

That — approximately, that was all.

His marriage license I think and his title to his home, title to his car and his Blue Cross Policy.

Mr. Barlow will get up a little bit and I — he will know what he offered but principally that was it.

Principally that was all that was offered to be returned.

Potter Stewart:

What was the time element between the time of seizure and the time of that offer, whatever the offer was?

Maury Maverick, Jr.:

In the — at the trial, at the hearing?

Potter Stewart:

What was it?

How long was it?

What was the time on?

Maury Maverick, Jr.:

I don’t follow you.

Potter Stewart:

Was it weeks or months between the time of seizure and the time of the hearing —

Maury Maverick, Jr.:

Oh!

Potter Stewart:

— when this offer was made?

Maury Maverick, Jr.:

About 10 days.

Potter Stewart:

10 days.

Maury Maverick, Jr.:

Approximately that because I think we have to get people — the opposite side 10 days notice to and set it down on a hearing on a motion.

So it was approximately that.

There was no disagreement between Mr. Barlow and myself on that.

Now, we think that Section 9 of the Suppression Law is unconstitutional in both of these laws as applied in this case they’re unconstitutional because it forced Mr. Stanford to give evidence against himself.

And no question, I don’t — it gets down to a question of evidence of course and instrumentality but if they picked up correspondence between Mr. Stanford and his local counsel or a counsel of the American Civil Liberties Union in Houston discussing his difficulties, telling him to come to San Antonio and see me, they picked up correspondents where this man discussed his case with his defense committee in New York City on the federal charge against him.

William J. Brennan, Jr.:

Mr. Maverick, I think — or perhaps you’ve already said and I’m sorry to ask you to repeat it, did you say what it was they offered to give back at — within that —

Maury Maverick, Jr.:

Marriage license, his Blue Cross policies, title to his house, title to his car, such things as that.

William J. Brennan, Jr.:

That’s all?

Maury Maverick, Jr.:

That’s all.

William J. Brennan, Jr.:

Just personal items of that kind?

Maury Maverick, Jr.:

Sir?

William J. Brennan, Jr.:

None of these so-called seditious books?

Maury Maverick, Jr.:

No, those are not — those are not —

William J. Brennan, Jr.:

Correspondence, I think —

Maury Maverick, Jr.:

— offered —

William J. Brennan, Jr.:

Dissenting opinions or anything else?

Maury Maverick, Jr.:

That they — the dissenting opinion is still there and I have high hopes that the Office of the Attorney General will read that opinion in (Inaudible) statute, I hope very much that they will.

Now —

William J. Brennan, Jr.:

It said, it’s just a matter of interest, was it, the opinion when — which others joined (Voice Overlap) —

Maury Maverick, Jr.:

I don’t know now, not yet — not — all it said was, “The Dissenting Opinion of Justice Hugo Black” and I don’t know what the opinion was and it’s not the record what it was and so I’m not at liberty to talk about it.

I actually know, but I’ll check on it later on but it’s not in the record.

William J. Brennan, Jr.:

Right.

Maury Maverick, Jr.:

Sir.

William J. Brennan, Jr.:

Can I find it in the books, to get the citation to it?

Maury Maverick, Jr.:

I’ll find out about that.

William J. Brennan, Jr.:

Do you have it printed?

(Inaudible)

Maury Maverick, Jr.:

I don’t know.

He doesn’t need to read it as badly as some others do in this case Your Honor, he — but now —

William O. Douglas:

There’s only seized things, seized books, dissenting opinions (Inaudible)?

Maury Maverick, Jr.:

Just the opinion, it was just the opinion.

Hugo L. Black:

Well, I understand, but who has all those opinions, District Attorney or the —

Maury Maverick, Jr.:

The last time I read there was a story in the San Antonio newspaper that the FBI were cuffing them all down in reading it and so I don’t know where they are now Your Honor

William O. Douglas:

Was the FBI in on this?

Maury Maverick, Jr.:

No, no, but they — just that the Attorney General and the Office of District Attorney (Inaudible) and let them write them all down, the list of it so it maybe over there and maybe Mr. Barlow, he can tell you later on, I don’t know.

William O. Douglas:

But not available to you?

Maury Maverick, Jr.:

Not — well, he was there.

The District Attorney is very generous in giving me a list of the inventory and he was very generous in letting me have records and letters, that the receipt to put in the evidence, anything I want to put in the evidence, he let me put in the evidence.

He was completely generous and thoughtful in that regard.

I have no complaint about the way Mr. Barlow treated me once we got in the court.

Maury Maverick, Jr.:

Now —

(Inaudible)

Maury Maverick, Jr.:

Now, the letter in which he wrote after the assassination to message Kennedy, it’s in the transcript.

On page 110?

Maury Maverick, Jr.:

Page 110 and that was seized — you see what — I don’t think in fairness to the state, I don’t think they deliberately picked out a letter to Mrs. Kennedy.

But what — they went in — they went in and we went in Court.

They were just filing cabinets all over.

They just can — and this was one of the many hundreds and hundreds of letters of this man, they took them.

(Inaudible)

Maury Maverick, Jr.:

They did not take out — well, they didn’t think — they didn’t — they didn’t think they had.

I didn’t know at the time when I was going into this subject at the trial that they had taken out Justice Black’s opinion in “Pacem in Terris” because there’s a long — it was written in handwriting, it’s hard to read with just one (Inaudible) on my side and four on the others, and we were moving fast and I didn’t know what they’d take.

They thought the only thing that had taken out was seditious letter therein.

And they did.

I repeatedly, for example, I hand him a book and say, “The book — Castro, the Bearded Despot, the Danger and Menace to the United States of America,” say why wouldn’t you take that out and they would say, “Well, that didn’t conform with the affidavit”.

So this was — and this was — he may not have had his well-balanced library that I would like him to have, but he did have —

(Inaudible)

Maury Maverick, Jr.:

But he did have.

He did have considerable, “Any Communist” literature in his home and it wasn’t taken out.

And in the affidavit it said — affidavit said, “Take out all books concerning Communism”.

Now that’s just the standard.

Well, then you’ll going to empty a lot of libraries, personal libraries in Texas.

It will play havoc with our virtues back home.

Oh, now, the — there was no probable cause.

We don’t think it was shown in this case under Aguilar you — in Aguilar, it said the — affiance have received reliable information from a credible person and do believe that heroine etcetera kept at above described premises.

In the Stanford affidavit, it is the same thing except as I said earlier, it goes a step further in violating concepts of what constitutes probable cause because in — at least as pointed out in the dissent in Aguilar the two policemen had had inducted personal surveillance of this — of the narcotics situation.

Whereas in this situation Mr. Zweiner and Mr. V. Murray Jordan had no personal — at least, there’s none in the record.

No personal surveillance, no first hand information of this case whatsoever.

Now the — Mr. Jordan did say that people came to his office and someone told me that Stanford was mailing out Communist literature and he showed me Communist literature.

But then Mr. — then later on of course Mr. Jordan in court said that he had no polities or background or information to pass on this and so we think this is what was hearsay.

We think that his case should also be — could be reversed on the fact it failed to specify the crime charged.

Maury Maverick, Jr.:

And I said earlier, Section 9 of the Suppression Law requires that the warrant specify what phase or phases of this Act was violated.

And the only thing —

Potter Stewart:

That would be a question of state law, not federal law wouldn’t it?

Maury Maverick, Jr.:

No I don’t —

Potter Stewart:

What Section 9 requires it doesn’t require — what were listed here is what the constitution of the United States Constitution requires?

Maury Maverick, Jr.:

Well, under the Constitution of the United States of America, before a man’s home is broken into and his books in the library taken away under the idea of being charged with a crime, it couldn’t seem that the constitution protects a man’s home to the extent that he had at least ought to have some charge against him before his home has broken into and they didn’t do it here.

They didn’t do it and it was a scattergun type of allegation.

William J. Brennan, Jr.:

Yes.

Potter Stewart:

I’m simply suggesting that what you’ve just said should be your argument rather than what Section 9 of the Texas statute —

Maury Maverick, Jr.:

Yes.

Potter Stewart:

— defined?

Maury Maverick, Jr.:

Now —

(Inaudible)

Maury Maverick, Jr.:

Where it — where do you —

(Inaudible)

Maury Maverick, Jr.:

That’s right, he did testify that someone told him that Mr. Stanford is an official of the Communist Party that’s what he said, on a hearsay basis.

And insofar as I know it, it’s the only — it is the only evidence in there on the basis of what somebody told him.

Now, we think also that this law — these two laws fall by virtue of the fact that they fail to particularly describe the things to be seen.

It talks — it said in here that the mandate of the warrant said pick up books and records and pamphlets and cards and the list in memoranda concerning the Communist Party.

Now, it’s our contention that when books are taken especially non-obscene ones, they cannot generally be described as a class.

In earlier cases Marcus versus United States here 11,000 so called obscene publications were carried off and the warrants here were held to be improper because they were based on a conclusory assertions of a single police officer without any scrutiny by the judge.

We’ll there wasn’t on here either.

Now finally as to the final grounds we present, that I will appeal to Mr. Barlow and later Mr. McAvoy I suppose will reply on the question of vagueness in this case NAACP versus Button, 371 U.S. 415, “The objectionable quality of vagueness depends upon the danger of tolerating the existence of a penal statute susceptible of slipping an improper application”, also the Baggett versus Bullitt case which calls for objective measurements in defining a subversive person.

Now the Texas Communist Control Act, Section 1 defines a Communist as a person who is, “Is a member of the Communist Party notwithstanding that he may not pay dues or hold a car”.

And here under the Communist — under this Communist Control Law, a nominal membership in this first part Section has a made a crime without reference to whether or not there is any knowing or active participation.

Byron R. White:

Mr. Maverick did you make this argument in the state court — in the State Supreme Court?

Maury Maverick, Jr.:

On the vagueness, I did not make it in — on vagueness in the Supreme Court.

I made all the others in the Supreme Court.

Secondly, a Communist is a person who knowingly contributes funds or any character or property to the Communist Party.

Thus, here alone mere contribution alone is conclusive evidence of being a member of the Communist Party.

Maury Maverick, Jr.:

Third, the Communist is defined as a person who commits or advocates the commission of any act, “Reasonably calculated” to further the overthrow the government of the United States of America or Texas.

And of course we don’t know what they mean by the term reasonably calculated.

Finally, they say a person is a Communist — it makes a person a Communist who acts to overthrow the United States of Texas by “Unlawful or unconstitutional means”, and generally when this type of language is used you hear the phrase by force and violence and of course what is meant by the phrase unlawful or unconstitutional means.

Now, finally the Texas Communist Control Law, Section 2 defines the Communist Party as being controlled by the Union of (Inaudible) — Soviet Socialist Republics are full — its satellites.

In other words, if you’re with an organization which as controlled by satellite of Russia then you come under a definition of a Communist and you’re a member of the Communist Party.

Well now — what it — who are the satellites of Russia?

Well, who are the satellites of Russia today and what are the satellites of Russia 60 days from now.

This is a vague we think, a vagueness of unconstitutionality.

(Inaudible)

Maury Maverick, Jr.:

No.

(Inaudible)

Maury Maverick, Jr.:

I don’t think we do.

(Inaudible)

Maury Maverick, Jr.:

We did not.

There is a Texas Suppression Act, it makes illegal the Communist Party, “And all other organizations which advocate etcetera –”

Pages 942?

Maury Maverick, Jr.:

Any —

(Inaudible)

Maury Maverick, Jr.:

Any activities intended to alter the constitutional form of government of the United States or Texas by violence is virtually the identical language we think was struck down by this Court in Baggett versus Bullitt.

Now, I — I’m going to conclude now and yield to Mr. Barlow or the other gentleman representing the State of Texas.

I do though won’t very much as much as can urge upon this Court to point out that the State of Texas has joined in in calling for a ruling on preemption.

Or has called, has joined in in calling for a ruling of constitutionality.

Often times pieces come up to this Honorable Court after a great deal of harm and injury and mischief has been done.

But this is a splendid opportunity that these laws are unconstitutional or if they are — or if they have been preempted to stop a harm in advance because the District Attorney is going back and indict this man, I think, if the court is silent on this subject.

Potter Stewart:

You haven’t mentioned (Inaudible) — Uphaus against Wyman in connection with your preemption argument.

That rather cuts back the — of what some of the things that were said in Nelson against Pennsylvania, didn’t it?

Maury Maverick, Jr.:

You’re talking — Uphaus versus —

Potter Stewart:

Yes.

Maury Maverick, Jr.:

Well now, the — in the first place, the Uphaus case involved legislative investigation.

The second place, they’re waiting to carry this man in the courthouse and get him indicted.

Maury Maverick, Jr.:

This isn’t any simple legislative investigation.

The District Attorney says in his brief, “We’re waiting to take him to the grand jury”, so we think there’s an instant distinction can be made between the two cases.

Earl Warren:

Mr. Barlow.

James E. Barlow:

If it please the Court.

I think to begin with before I get into the merits of it, there are two or three things I would like to cover as side issues.

First, I would like to answer Justice Stewart’s question.

The Uphaus case is precisely the problem that is involved here.

This case — the — if the Nels — common worth — Commonwealth of Pennsylvania versus Nelson had remained a law unin — unfettered by the Uphaus case, there wouldn’t be any question but that these series of statutes, a series of statutes under the term that sets up a system for control of Communist on the statewide would have been preempted by the federal government.

But Up —

William O. Douglas:

But the Nelson case was a state prosecution?

James E. Barlow:

Under?

William O. Douglas:

(Inaudible)

James E. Barlow:

For —

William O. Douglas:

Or by — for sedition against the federal government?

James E. Barlow:

Yes sir.

And that (Voice Overlap) —

William O. Douglas:

Isn’t that right?

James E. Barlow:

That was made clear in Uphaus when they said, the opinion made clear — this is Uphaus, that a state could proceed with prosecutions for sedition against the state itself.

That it can legitimately investigate in this area follows in Sweezy versus State of New Hampshire, then they go on to say that if the state could protect itself from actual or threat of sabotage or attempted violence of all kinds, it had full power to deal with internal civil disturbances and that registration statutes which this is virtually is, were a field of consideration for state legislative enactment.

Now if the state has the authority to have a legislative investigation to determine whether it wants to have a registration statute, then does it not have the authority to pass such registration statute?

What would be the purpose of investigating under Uphaus for registration statute for Communist if you had no authority under Nelson to pass such a statute to begin with?

Now that — that’s what this is all about and what we are doing here.

Now, I feel kind of like a villain in the plot.

William O. Douglas:

Except you do have here some federal statute that purport to cover sedition against the nation, sedition against the state, and sedition against the units of state government.

James E. Barlow:

Yes sir, but this statute, both of these Texas statutes attempt to cover both the United States and Texas and its subdivisions.

Now the problem is of course Commonwealth of Pennsylvania versus Nelson taking care of the United States.

But the problem is whether or not you can still have a valid sedition statute against Texas, that’s what it boils down to.

Arthur J. Goldberg:

Mr. Barlow, does the — now this statute — sedition (Inaudible)?

James E. Barlow:

No, sir.

But in running this search warrant, a portion of this statute stated that if these goods were used, if these items were used in the violation of this particular Act, we had a party to run a search warrant and if — even though I feel somewhat like a villain in the case of the legislatures, it said you could run it against books, papers, periodicals and everything else and names all of these things specifically in the statute.

Potter Stewart:

And since there you get in — there you get into an area that wasn’t covered by Uphaus against Wyman at all, that is the First Amendment area.

James E. Barlow:

Yes, but he has challenged the statute — the search on the general invalidity of the whole scheme.

Potter Stewart:

I understand it now you’re addressing yourself to preemption.

James E. Barlow:

Yes sir.

Potter Stewart:

But there are other issues in this case.

James E. Barlow:

Yes, sir.

There are a lot of other issues in this case.

But I think it would be a shame to myself if this case were decided on the narrow issues such as probable cause for the issuance of the search warrant without being addressed with overall issue, that’s the way I feel about it because ultimate — Uphaus leaves a big question mark that hangs over Nelson as to the validity of the state to operate in this area.

Now let’s see what probable cause consisted of so that we can get on to the search.

The affidavits of the two parties that gave the — for the search appeared at page 70 in the record and Mr. Maverick covered that pretty well.

The application in warrant appear at 71 and 72.

Lonny Zwiener one of the people who (Inaudible) the warrant testified before magistrate as follows.

Question, “You stated you had information as to the use of the books but never did describe what the information was and what, would you describe what that was?”

Mr. Barlow, from certain confidential sources being credible citizens of the State of Texas we learned the following that John Stanford was and as a Communist.

Secondly, has for many years distributed literature which has been described to us by credible persons as Communistic literature which follows a Communist line and designed to foreign aids and purposes of the Communist Party.

These credible persons also informed us that this type of literature, pamphlets and so forth were located on the premises of John Stanford and has recently as disclosed by the affidavit, December 12th that this of this type of literature have been previously indicated and described in (Inaudible) thereto was mailed from the home address of John Stanford, two separate things, one, the information that they have that he has the literature, and the mailing which is a separate thing altogether.

It’s made a little clear in the testimony of Jordan that based —

Earl Warren:

But that — was that information given to the magistrate at the time —

James E. Barlow:

Yes sir.

Earl Warren:

— the search warrant was issued?

That the —

James E. Barlow:

Yes sir, it was.

Now —

Earl Warren:

Is that in the record —

James E. Barlow:

As to the —

Earl Warren:

— as to the facts?

Where do we find that in the record?

James E. Barlow:

This is a magistrate’s hearing.

This is a record of magistrate’s hearing after the warrant was issued.

Earl Warren:

Well, that’s —

James E. Barlow:

Now, I’ll —

Earl Warren:

What is it (Voice Overlap) —

James E. Barlow:

I’ll tell you this sir.

Earl Warren:

Where could we find —

James E. Barlow:

This was —

Earl Warren:

Where can we find in the record where that was known to the magistrate before you issued the warrant?

James E. Barlow:

The only thing in the record is the affidavit at 70, the application at 71, and the warrant at 72.

Earl Warren:

Alright now, any of those things that you’ve just been reading is in those documents?

James E. Barlow:

Yes sir.

Earl Warren:

But — read it.

James E. Barlow:

Alright sir.

That they have good reason and do believe this is the affidavit.

There are certain place and premises described as a two-frame houses and one garage located in an address and being the premises under control in charge of John William Stanford is a place where books, records, pamphlets cards etcetera listing everything to the statute list concerning the Communist Party of Texas and the operations of the Communist Party in Texas are unlawfully possessed in use and violation of these articles.

Such belief is based on the following information.

Recent mailings by Stanford on the 12th of December 1963 of material from his home address.

Such material being identified as pro-Communist material and other information received in the course of investigation that Stanford has in his possession the books and records of the Texas Communist Party.

Now, this warrant was run prior to this Court’s decision in Aguilar.

So the elements of the credible portion and the fact that the — the facts upon which the credibility of the person were based were something which were not included other than what has been stated here.

Then in the testimony, they testified as to the fact that they had received from these informants and they were credible as information.

Then, in the application for the search warrant which is the next document it is stated in slightly different language.

It is the same thing.

It says that this author has information from two credible persons that the party named above as such books and records in his possession which are the books and records of the Communist Party including the party list and dues payments and in addition to other items listed above, that such information is of recent origin and has been confirmed by recent mailings of Stanford on the 12th of December 1963.

Then of course the warrant doesn’t include any of the information upon which it is based.

It was merely a formal warrant.

Earl Warren:

Did they find the records of the party there?

James E. Barlow:

No sir.

They found all sorts of things but not the records of the party.

Not the dues list or dues payments, there were no lists of dues payments or actual records that we could ascertain the records with the party themselves.

Now, another narrow —

Potter Stewart:

Well, outside of this man’s personal property and records such as his Blue Shield and Blue Cross, and his marriage certificate and his driver’s license and the title to his home and so on, outside of that, all that was seized there — and you tell me if I’m wrong, were commercially published literature (Inaudible) — published commercially and —

James E. Barlow:

No.

Potter Stewart:

— available in most bookstores everywhere?

No.

Am I correct or am I wrong?

James E. Barlow:

His personal items were seized with the file cabinet which contained records which began with a record of the Gus-Hall Benjamin Davis Defense Committee.

Now, this — the — and this was seized along with — these were not commercial, in fact records.

This — that this — most of this type of material was correspondence in a file cabinet which was seized and at the end of the file cabinet were these personal items which were tendered back to him including a great deal more than just what we have discussed.

Everything that is personal was tendered back to him.

But it was listed on the front the Gus-Hall Benjamin Davis Defense Committee and the file — and that was what was seized with that particular file cabinet and it is listed in here as a file cabinet beginning with the Gus-Hall Benjamin Davis Defense Committee.

But that and index cards in the cabinets showing the names and addresses of various people were included which were not — which were seized and then everything else would I assume be commercial publications to the various sources.

Earl Warren:

What significance do the cards have —

James E. Barlow:

It was just —

Earl Warren:

— the names of people?

James E. Barlow:

Just index cards with names of people.

The — so far as I could tell from looking at them, they’re just index cards with names of people.

I mean they don’t —

Earl Warren:

They’re just names of people.

James E. Barlow:

Yes sir, just names of people around the United States that don’t have any particular significance.

William J. Brennan, Jr.:

Were they tendered back?

James E. Barlow:

Sir?

William J. Brennan, Jr.:

Were they tendered back?

James E. Barlow:

No sir.

I have tendered back his personal items.

Arthur J. Goldberg:

(Inaudible)

James E. Barlow:

Yes sir.

Arthur J. Goldberg:

(Inaudible)

James E. Barlow:

Nearly all of it —

Arthur J. Goldberg:

(Inaudible)

James E. Barlow:

That’s right.

That is correct.

Arthur J. Goldberg:

(Inaudible)

James E. Barlow:

At least 24 copies.

Practically many of these items were — most of them were in multiple copies.

Byron R. White:

Now these — the warrant authorized seizing publications concerning the Communist Party —

James E. Barlow:

Yes sir, that which are —

Byron R. White:

— that were possessed or unlawfully used in violation of the Act?

James E. Barlow:

Yes sir.

Byron R. White:

Now, how was they — could you tell me with reference to which Section of the Act the officers were —

James E. Barlow:

The officers were —

Byron R. White:

(Inaudible)

James E. Barlow:

— operating under Section 9.

Byron R. White:

Well, I know what Section 9 but all that — that refers again to a violation of the Act.

And in looking over — to live up to the warrant, a fellow was making the search would have to say, “Well, here is a book written by C. Wright Mills”.

Now, it’s — I first have to determine whether it’s pro-Communist or know whether it concerns the Communist Party and secondly whether it’s being used in violation of the Act.

Now, he looks at the book and he’s determined this — its — concerns the Communist Party.

But then how does he determine its being used in violation of the Act?

What part of the Act?

James E. Barlow:

I do not know sir.

Byron R. White:

Well, how could he live up to the search warrant —

James E. Barlow:

I do —

Byron R. White:

— without knowing what violation he is talking about?

James E. Barlow:

The Assistant (Voice Overlap) —

Byron R. White:

I’m not saying it has to be in the search warrant (Inaudible) but I — I would think that before you could seize a book by C. Wright Mills —

James E. Barlow:

He stated in the — he stated in his testimony that his information was that when they had an official meeting of the Communist Party, that this man would bring certain books and items from that he would tell them what they — that he used this as material and demonstrate to them the Communist Party line.

This was the information he had.

So he showed — and he — and the Assistant Attorney General testified that he had been shown by his informant this material and allowed to look at it but not allowed to keep any of it.

He had been brought and he had been shown this particular type of material and that he knew what he was selecting from that particular situation, he knew what he was looking for from that.

And that was (Voice Overlap) —

Byron R. White:

He was just looking — were there any saying that the Communist Party have used in this operation?

James E. Barlow:

He was looking for a material which was similar to the fact material that he said that he had been shown by informants as being used in these session (Voice Overlap) —

Byron R. White:

Why was that seizable?

Why was the material that has been used in these meetings seizable?

James E. Barlow:

There’s a Texas statute sir that makes it seizable under Section 9 if that statute is valid.

Byron R. White:

Well, I know.

But it — that all that section says is you may seize things that are in violation of the Act.

Now, why is the material used at a — at an alleged Communist meeting — why is that material itself and its distribution in violation of the Act?

That’s my question, I mean the — all Section 9 does says is that you may seize things in connection with violation to the Act.

James E. Barlow:

But it specifically points out books and materials (Voice Overlap) —

Byron R. White:

Used in violation of the Act.

James E. Barlow:

— used in violation of the Act.

Byron R. White:

Alright, what’s the violation of the Act in materials that are passed out of the Communist Party brief?

James E. Barlow:

Well, any — well, the Act prohibits the — the Act prohibits everything from membership on (Voice Overlap) —

Byron R. White:

It prohibits the actual existence in operation.

James E. Barlow:

It actually prohibits the existence and operation of the party data print — it prohibits membership, advocacy, assistance of it, and on and on.

Byron R. White:

So, if they handed out —

James E. Barlow:

It prohibits —

Byron R. White:

If they handed out — your position is that if a Communist Party meeting in connection with its proceedings, they handed out copies of the New York Times or the Washington Post or the Washington Star for its members to read and call the attention to certain items in it, those papers are seizeable as part of the operations of the Party, that’s your position.

James E. Barlow:

I realized that sounds like a ridiculous conclusion but the —

Byron R. White:

Well, the search warrant just says concerning the Communist Party.

It doesn’t say pro-Communist or anti-Communist, just says concerning.

James E. Barlow:

Yes.

That’s true.

Byron R. White:

Then, do you had any — that the officers had just that kind of authority to seize, didn’t they under the (Voice Overlap) —

James E. Barlow:

Yes sir.

Byron R. White:

The —

James E. Barlow:

Yes sir, they did.

Earl Warren:

On what theory did you seize — Mr. Justice Black’s dissenting opinion?

James E. Barlow:

Well, I wasn’t in charge of the seizure —

Earl Warren:

No, I did not —

James E. Barlow:

— Your Honor, and I don’t —

Earl Warren:

I didn’t asked you (Voice Overlap) —

James E. Barlow:

I didn’t even know Mr. Justice Black’s dissenting opinion was in there, in fact —

Earl Warren:

I know —

James E. Barlow:

— I don’t even know —

Earl Warren:

— but you didn’t —

James E. Barlow:

— what it concerns, the —

Earl Warren:

You did take it and it was a part of the process, now under what theory —

William J. Brennan, Jr.:

And you still have it, I understand.

James E. Barlow:

Yes sir, I have —

Earl Warren:

What — under what theory?

James E. Barlow:

— all of the items that was —

Earl Warren:

Under what theory do you support that?

James E. Barlow:

I don’t have any theory from which I can support that Your Honor, as you can (Voice Overlap) —

Earl Warren:

Alright.

Well, now let me ask you this, are all of these — is it illegal for anyone to own these books that are — that were taken?

James E. Barlow:

Certainly not.

Earl Warren:

Are there any of it that would be illegal to — for an individual to possess?

James E. Barlow:

I don’t think so sir.

I am not that well acquainted with international law to be able to tell the — I don’t really know what a lot of these books are.

If you want to know —

Earl Warren:

Alright, would a man — would he make —

James E. Barlow:

But I assume if their books printed in any area of the world are distributed in the United States, they’re not illegal to own under ordinary circumstances.

Earl Warren:

Would you say you’re not familiar with this material, how about the men who executed this part?

Are they familiar with the — with this?

James E. Barlow:

They testified that they had been shown the material that was used in the Communist Party who made this — their informants.

Their informant had been given by the Communist Party these items (Voice Overlap) —

Earl Warren:

What items?

James E. Barlow:

Samples of this type of literature —

Earl Warren:

I know types but what —

James E. Barlow:

Yes.

Earl Warren:

What items have they seen?

James E. Barlow:

I do not know sir, the record does not reflect.

Earl Warren:

How do you know then that it’s the same type?

James E. Barlow:

I do not know sir.

Earl Warren:

Did they read all —

James E. Barlow:

The man who had seen it made the seizure, sir.

Earl Warren:

Did they read all these books?

James E. Barlow:

Sir, I assumed that they didn’t read all the books.

They couldn’t have possibly read that many, many.

Earl Warren:

But how would they know then?

Would they take it by the titles?

James E. Barlow:

I assume they took it by the titles and by whoever wrote the items, I assume.

Tom C. Clark:

Were there any dissenting opinions that were not seized.

James E. Barlow:

I don’t know sir.

But what is reflected in the inventory was what was we seized.

It appears to me that in this particular case that I am hoping as Mr. Maverick told you that the Court will go beyond the mere search on this case and take a look at the underlying foundation of statute on this particular case.

This is an appeal from a magistrate’s hearing.

It has been appealed by the fact that we have stipulated that it was final and we have brought it up before you for consideration.

Byron R. White:

Well, you don’t — I gather that in the court below, the big argument was raised —

James E. Barlow:

No sir.

Byron R. White:

— nor was the validity of the underlying statute.

James E. Barlow:

Yes sir, the validity of the statute was raised.

That was —

Byron R. White:

What’s raised up here (Inaudible) was it?

James E. Barlow:

Sir?

Byron R. White:

I mean the validity of Section 9 was raised but not the validity of the —

James E. Barlow:

They raised by conditional supplement — they filed a supplementary brief yesterday or the day before and challenged the validity of our Act.

Byron R. White:

Here?

James E. Barlow:

Yes sir.

Byron R. White:

Should not under — the type of matters (Inaudible)?

James E. Barlow:

No sir but I think if you will look at the application they made for the return of the documents, they challenged the validity of the entire Act should be (Voice Overlap) —

Byron R. White:

The — that they — and would that (Inaudible) by the Texas Supreme Court?

James E. Barlow:

Yes sir, yes sir.

The — he overruled all of the challenges to the search and all of the challenges to the validity of the statute.

Byron R. White:

And the Texas Supreme Court just said —

James E. Barlow:

This case has never been in the Texas Supreme Court.

This case — they never passed on this case one way or the other.

William J. Brennan, Jr.:

You mean the only judicial determination was by a single judge —

James E. Barlow:

Yes sir.

William J. Brennan, Jr.:

— in Barrett County?

James E. Barlow:

By a single judge in Barrett County.

William J. Brennan, Jr.:

Yes.

James E. Barlow:

And from that — under the Texas law that judgment is final.

William J. Brennan, Jr.:

Yes.

James E. Barlow:

It cannot be appealed.

Potter Stewart:

Do you think the validity of both the state statutes are properly an issue here?

James E. Barlow:

Well I think certainly the validity of the second state statute and no doubt the validity of Section 9 and probably the validity of the first because they constitute one scheme of legislation covering one particular phase that they both have to be read together.

One was passed in 1951 and was passed in 1954.

The 51st statute is almost verbatim to the Smith Act.

The 54th statute is almost verbatim in the Internal Securities Act of the United States with some additions made to it.

It has some additions made to it.

Potter Stewart:

Both the statutes are referred to in the affidavit?

James E. Barlow:

Yes sir.

Both the statutes are —

Potter Stewart:

Oh, I see.

James E. Barlow:

— referred to in the affidavit as the grounds from the search warrant and both were considered by the court who made the determination.

That’s true.

Potter Stewart:

So you say they made it both here.

The validity —

James E. Barlow:

Yes sir.

Potter Stewart:

— of both of them —

James E. Barlow:

Yes sir, I think —

Potter Stewart:

— is properly —

James E. Barlow:

— that both of — I think both of them are properly before you for consideration.

Thank you.

Earl Warren:

Mr. Phillips.

Hawthorne Phillips:

May it Please the Court.

I might attempt to answer the Chief Justice question concerning these various books that are not in themselves possibly illegal if they were found in the library of the university.

This would depend and it would certainly depend on the evidence produced on the trial as whether or not these books were actually used as an instrumentality of crime.

In other words the Communist manifesto is just a document.

Something that might be read, something of interest something to be studied as a document in history would be one thing.

But the Communist manifesto being taught as a document or as a theory to influence those who were hearing the teaching to adopt that is a theory with the idea of subsequently at perpetuous time overthrowing the government of the city or the state, or the United States, would cause these documents to be instruments of crime.

The same with the books themselves, books advocating particular lines of Communist spirit, it would be necessary to prove that in evidence on the trial, the other portions, the other testimony would have to do that, testimony of people who were present — possibly at meetings where these books were used.

Now, that goes of course to the burden of proof that would be on the state before there could be a conviction.

As was pointed out —

Potter Stewart:

Well, what you’re saying in effect is that what was seized here was evidence to be used at a criminal trial, is it?

Hawthorne Phillips:

No sir, I’m saying that it can be —

Potter Stewart:

The law has been clear.

Hawthorne Phillips:

— an instrumentality of the crime itself if it’s used in that manner because part of Communism is not all action.

A good portion of it is the teaching of thought and doctrine and indoctrinating people to be willing to overthrow the government of the United States by force and violence.

Now, these books were used as a part of that scheme.

They would be more than mere evidence.

They would be an instrumentality itself.

Potter Stewart:

Generally, when we talk about instrumentality as we talk about dynamite and firearms and narcotics, contraband.

Hawthorne Phillips:

That is correct.

There are some things that are contraband of themselves.

Potter Stewart:

Yes.

Hawthorne Phillips:

There are other things that depend on the manner in which they are used.

I believe the Court has recognized that in even holding that a book and record that was seized in a prohibition case that it was seized at the time when it showed the operation and that was an instrumentality of the business of a crime.

William J. Brennan, Jr.:

On the records of an illegal business or something else again that the profit and loss ledger of a gambler violating the Federal Wagering Stamp Act or something, that’s something else.

William J. Brennan, Jr.:

We’re here talking though about books by leftwing and Communist authors largely which is sold generally around in the bookstores around the country.

Hawthorne Phillips:

That’s correct in themselves.

Certainly, they would not be an instrumentality of crime.

They would be mere evidence.

It would depend on the use to which they were put and how they were used.

Potter Stewart:

And the law is pretty clear, the constitutional law is pretty clear isn’t it that you can under constitution seize mere evidence (Voice Overlap) —

Hawthorne Phillips:

That is correct.

I agree with you entirely there.

That there’s no question, the use to which the books are put and how they are used will determine whether or not the seizure was good.

Now that would have to be brought out at the time of the trial if they were all put in evidence.

Byron R. White:

Why wouldn’t — I gather your point.

Is it that — wholly aside from the contents of the book — with your — with the — the content, is it — is irrelevant, wholly aside from that, you may seize any book because its an instrumentality no matter what it says?

Hawthorne Phillips:

I think — I wouldn’t go that far.

Certainly, the book would have to be on the subject.

William J. Brennan, Jr.:

In other words, the book has to be one that has ideas?

Hawthorne Phillips:

That is correct.

Byron R. White:

And that is the —

William J. Brennan, Jr.:

Well, then you’re in real trouble.

Byron R. White:

Why shouldn’t there have to be — why shouldn’t there have to be some kind of a judicial hearing as to the (Inaudible) these books in order to take out the circulation a book with ideas in it?

Hawthorne Phillips:

Because ideas such as abstract ideas this Court has held can be expressed and it is not in violation of the First — it would be in violation of the First Amendment to suppress it.

But if that book was used, the book would express the idea.

The idea would have to be furthered.

It would be only a part of the scheme or part of the pattern.

That would have to be — stating now this is the theory and along with this theory which is correctly stated in this book, in this work, we’re urging you to further go forward with the theory of overthrowing the government of United States, or of the state, or of the political subdivision by force and violence.

Byron R. White:

Well, you might be able to make that — take that thing after a trial, but why should we able to take books out of circulation just on probable cause?

You might be able take it then out of circulation on probable cause but maybe not a book.

Hawthorne Phillips:

Could be a question as to what he was using and how he was using it.

In other words these books being passed out to members in a class teaching them Communist theory with the idea as a part of the overall plan of the Communist Party would be instruments themselves.

If they’re so, they are distributed to the general public not necessarily.

William J. Brennan, Jr.:

Well, was there any proof of that kind.

Hawthorne Phillips:

There has — there is none in —

William J. Brennan, Jr.:

I mean at the — then he — of the — at the magistrate’s hearing after the warrant issuance.

Hawthorne Phillips:

I do not know that the record reflects anything definitely in that regard.

Byron R. White:

Well then — then aren’t you — seriously, aren’t you up against the propositions that markets and quantity of books do.

I take you, how can you —

Hawthorne Phillips:

And in that case —

Byron R. White:

— take out of circulation without some connection with something that — within — the kind of what you’re talking about assuming —

Hawthorne Phillips:

Other —

Byron R. White:

— that would give it justification.

Hawthorne Phillips:

Our —

William J. Brennan, Jr.:

How can you do this; how can you issue a warrant, for instance, some showing of something like that —

Hawthorne Phillips:

Well other than —

William J. Brennan, Jr.:

(Inaudible) with ideas embodied in books?

Hawthorne Phillips:

Other than the information from the informants to the effect that were — that these books were used in the teaching of Communist place.

Byron R. White:

Well, yes.

But they all have said that there were recent mailings of materials from this house and there’s no indication that any specific books was mailed or handed out.

It’s just sort of this — the type of thing that was handed out but there’s nothing in this record.

Nothing in the application or in the affidavit to indicate that any single one of these books that were seized was handed out at a Communist Party meeting?

Hawthorne Phillips:

I believe the record will reflect that the informants say that they were used in that —

Byron R. White:

With these particular books by name?

Hawthorne Phillips:

Not by name, no sir.

Byron R. White:

Well, how do you know what they were — the informant was talking about?

Hawthorne Phillips:

Other than that the man — or the man who made the search were exhibited — stated that they were exhibited copies of certain books that were used and they have picked purportedly that type book up or that book up.

Byron R. White:

Type of book.

Hawthorne Phillips:

Other than that —

William J. Brennan, Jr.:

How do you (Inaudible) distinguish this from the quantity of books or they had seven books before the magistrate and the basis of that as I recall it, he said they could pick up 52 other titles, and we said that wasn’t enough, the First Amendment wouldn’t allow that kind of thing in a seizure procedure, now how does this —

Hawthorne Phillips:

Certainly in a situation regarding pornographic books, the test of course would be the book itself what it contained.

The matters expressed in it.

William J. Brennan, Jr.:

I know, but as I recall it, what the element there is that even on the basis of seven published by the same publisher which couldn’t have the —

Hawthorne Phillips:

You mean —

William J. Brennan, Jr.:

— which would pick up about 39 other titles.

Hawthorne Phillips:

There, the other titles.

William J. Brennan, Jr.:

And this one, how this was different?

Hawthorne Phillips:

Back in — only again say — that only insofar as they are used as instrumentalities otherwise I could give no answer.

Earl Warren:

Oh, I noticed here that you took the book entitled, “A Catholic Speaks on Cuba” by the Fair Play for Cuba Committee.

I suppose that they also have the Holy Bible there for the Catholics to use excerpts from to establish his position about Fair Play to Cuba, would the Bible then become an instrument of crime?

Hawthorne Phillips:

No sir.

Earl Warren:

Well, what — how do you distinguish that from any other books?

Hawthorne Phillips:

There again, I think —

Earl Warren:

If it’s used for that purpose as you say, that’s the principal thing that enables you to take these things, so how do you distinguish the Bible from this document itself, “A Catholic Speaks on Cuba” and obviously he speaks as a Catholic in favor of the Cuba situation?

Hawthorne Phillips:

Other that in — in the particular book, favoring the Cuban situation which I have not read and can’t speak on with authority, I would state it again it would be in the manner and the doctrine stated anything how it was used in relation to the Communist Party as a whole and the advancement of the party.

Earl Warren:

Well, had anybody read these books before they were taken?

Hawthorne Phillips:

I can’t answer that sir.

Earl Warren:

Did the people who took them ever vouched for the Communist character of them after they were taken as a result of their reading?

Hawthorne Phillips:

Other than what appears on the record before the Court, they have been Mr. —

Earl Warren:

(Voice Overpal)

Hawthorne Phillips:

They have been in Mr. Barlow’s possession.

Earl Warren:

Well, he read that somebody had told him and showed them these were books that were pro-Communist and then they take all of these.

Now has anybody read these books and determined that they were subversive and that they were instruments of crime or could be used as instruments of crime?

Hawthorne Phillips:

I do not believe that issue was tried in the court below or that they did go in to that matter, because normally in the State of Texas, those matters are raised at the time of the trial if should a criminal charge be filed.

Potter Stewart:

I suppose under the logic of your argument, at least as I understand it, the Holy — the Bible could have been seized if there were reasonable ground to believe that that was being used as a instrument of Communist meetings to advocate the overthrow of the government of Texas by force and violence.

After all, the Bible has been used for a good many causes including slavery and various other things.

So if I understand your argument, the Bible could have been seized just as the — as —

Hawthorne Phillips:

Well —

Potter Stewart:

I quote — my Brother White, the Washington Post and the Washington Star, if subject to a showing that this is being used for this criminal purpose.

Hawthorne Phillips:

In the manner which it was being used, a ledger — if a ledger, an innocent ledger from the publishing house that anyone can buy in a bookstore could be considered an instrumentality of crime I think there again it would go to the method of use.

Now —

(Inaudible)

Hawthorne Phillips:

Not for the — not the —

Hugo L. Black:

(Inaudible)

Hawthorne Phillips:

I wouldn’t’ think so, not until there was a determination of it (Voice Overlap) —

Hugo L. Black:

But (Inaudible) if you concede as contraband, as I understand it, you concede, simply because that they’ve been used by somebody in order to persuade somebody else to do the crime (Inaudible).

Hawthorne Phillips:

No sir, that’s certainly not the point I’m trying to make.

Let’s go in a good bit farther in the fact.

Hugo L. Black:

Well, was there anything here that you know of that couldn’t be used, sold in a bookstore without violation of a law?

Hawthorne Phillips:

Not — if it was used — depending again on use.

Hugo L. Black:

That’s it, you distinguish it, to say that the books — as I understand it — maybe I’m wrong (Inaudible) right to seize books can be sold to the public without violating the law.

The books, same books can be sold to the public without violating the laws depending upon whether they have been used in accomplishing unlawful subject?

Hawthorne Phillips:

That is correct.

I think basically, what I’m contending that if the book itself is used or a portion of the book is used in connection with other crimes, not of itself, but it would have to be in connection with the scheme or a plan.

Assume —

Hugo L. Black:

You had to prove (Inaudible) in effect, giving the warrant to this (Inaudible) giving the officer the right to seize any book, that is to his judgment, that were used — that violate the law?

Hawthorne Phillips:

Now that are actually being used.

Hugo L. Black:

Well, if the (Inaudible) —

Hawthorne Phillips:

The particular books only.

Hugo L. Black:

Give him any right —

Hawthorne Phillips:

Not any book.

Hugo L. Black:

— to seize any book that he (Inaudible) his judgment that it could be used or acts of being used to violate the law?

Hawthorne Phillips:

A book that is being actually used by a particular individual.

Hugo L. Black:

(Inaudible) — that is — does the record say not to seize a particular book by name, a particular book supply, to seize any book that he thinks are being used to violate the law.

Hawthorne Phillips:

On which there is definite information.

Hugo L. Black:

Right, definite — but even if he gets — he has to decide, why is that (Inaudible) decide that it (Inaudible) the Fourth Amendment (Inaudible) leaving it up to the officer?

Hawthorne Phillips:

I think, we go a little bit farther in this particular instance in describing those relating to the Communist Party.

Now I will admit to the court that in picking up file cabinets and things of that nature, certainly other matters were in those file cabinets as they did not discover.

There was —

How were the books (Inaudible)?

Hawthorne Phillips:

What?

I didn’t —

(Inaudible)

Hawthorne Phillips:

I can’t answer that.

Was this one (Inaudible)

Byron R. White:

(Inaudible)

(Inaudible)

Hawthorne Phillips:

I’m not familiar with that word.

Arthur J. Goldberg:

My question was directed (Inaudible) what Justice Black (Inaudible), this was the (Inaudible) there’s no question the book, “concerned in the affirmation of the Communist party affect — based upon the interest (Inaudible).

At least it doesn’t have to (Inaudible).

And that don’t shift your answer to what Justice Black (Inaudible) in this area, (Inaudible) that this law concerns (Inaudible) and other things.

But then that the books (Inaudible) of others, will he — would he (Inaudible)?

Hawthorne Phillips:

Theoretically, the officer was supposed to seize books relating to the Communist Party and his doctrines set out in the search warrant.

Earl Warren:

Whether they were for or against the Party?

Hawthorne Phillips:

I do not believe that the document made a particular —

Earl Warren:

I beg your pardon.

Hawthorne Phillips:

— distinction.

I do not believe that the document made a particular distinction.

Abe Fortas:

So even if they were used as against the Communist Party, this seizure was appropriate?

Hawthorne Phillips:

They —

Byron R. White:

Well, the warrant said they had to be used in violation of the Act.

Hawthorne Phillips:

In violation of the Act.

Byron R. White:

Not only did they have the concern the Communist Party, but in the officers.

The opinion I gather they had to be used in violation of the Act, they’re possessed or used in violation of the Act.

Hawthorne Phillips:

That is the language I believe of the warrant.

Byron R. White:

It was up to the officers for himself to determine whether (a), they are concerned with the party or (b), they violated the Act.

Hawthorne Phillips:

I would say under the terms of the warrant that’s probably correct.

Earl Warren:

Do you think that can be sustained?

Hawthorne Phillips:

There — it’s a question as to whether or not the officer did go too far, I think under the instructions coupled with the information that had been had from informants to the two lawyers that accompanied the officer, they were supposed to have picked out only the books that had been used or had been exhibited by an informant together with records of the Communist Party and I assume those were picked out.

Hugo L. Black:

(Inaudible) that search warrant was issued (Inaudible) selecting officers (Inaudible) to rummage the library (Inaudible), there were cons — books that (Inaudible) they had something to do with the terms of the Communist Party, (Inaudible) and he would be given the responsibility (Inaudible) the books as I understand it, (Inaudible).

Hawthorne Phillips:

Well, Mr. Justice Black, the particular facts on the case where — that the parties accompanying the officer had been exhibited certain books by the informant.

Hugo L. Black:

Well, I suppose the informant has said that (Inaudible)his home, have seen a number of books pertaining the Communist Party, he has reason to believe that (Inaudible) Communist and under that affidavit, that would not be enough to (Inaudible).

But it’s going to be (Inaudible).

Hawthorne Phillips:

Possibly as a general measure.

Hawthorne Phillips:

In the particular case, the officer was accompanied by the persons to whom the books had been exhibit or similar books had been exhibited by the informant, point out and to pick out the books.

Hugo L. Black:

But you have suggested (Inaudible), that general term of the law.

Hawthorne Phillips:

The warrant?

Hugo L. Black:

(Inaudible)

Hawthorne Phillips:

The warrant is general in nature to be in that regard.

William J. Brennan, Jr.:

Now, I gather that someone used a copy of the Bible to beat someone else over the head and killed him, a seizure of that copy of the Bible as an instrumentality of the crime, no question about that.

Now I understand what you’re telling us to do as in effect you’re saying, these books, as they want to proceed, were used in that same sense.

There were contraband in the same sense that these were being used in connection with the violation of the Act, but where is — there any showing of that, because an officer went into the magistrate and said — given a copy of the Bible in Stanford’s house and it was used to kill somebody, I warrant — want a warrant to go and get it.

(Inaudible)

Do we have anything like that here?

Hawthorne Phillips:

I do not believe that they went into that in the court below on the hearing —

William J. Brennan, Jr.:

Well how — (Inaudible) —

Hawthorne Phillips:

Because normally —

William J. Brennan, Jr.:

Then I don’t see how you have an answer to Mr. Justice Black’s question if you have to concede.

There’s no determination of that.

It was justified, the characterization of these as being used in connection with a violation of the Act.

Hawthorne Phillips:

Normally, under Texas procedure the objection is made at the time that they’re offered out of trial.

I did want to talk with the Court and had not prepared a particular talk on the question we’ve just been discussing but on the constitutionality of the Acts themselves.

This case of course presents some important and very basic problems in the field of state federal relations and namely — or the constitutionality of sedition laws of Texas and whether or not that these laws have been preempted or that the Federal Government has preempted this field.

As we stated that no criminal proceedings have yet been commenced in connection with this case, whether or not the search warrant was held to be invalid and the particular evidence seized there under was eliminated, we still have a question of the constitutionality of these statures.

Certainly the —

Arthur J. Goldberg:

(Inaudible) basic difference that you really (Inaudible) the character (Inaudible), if you think that (Inaudible) you have to appoint your defendant’s advisory (Inaudible).

Now, why would you give a different proceeding (Inaudible) because this (Inaudible)?

Hawthorne Phillips:

I don’t believe I understand —

Arthur J. Goldberg:

Whether that we could have here (Inaudible) on a search warrant for the (Inaudible) constitution now it have, and apparently, you say that the search warrant was very important to the (Inaudible).

Apparently, its in the record (Inaudible) so find in the record.

And what (Inaudible) and I don’t follow why both sides are urging us to do — ignore the search warrant (Inaudible) constitutional showing where (Inaudible)?

Isn’t that (Inaudible)?

Hawthorne Phillips:

Certainly, we would be entitled to present other evidence other than that received under cert.

Arthur J. Goldberg:

I don’t see frankly.

Arthur J. Goldberg:

I don’t see it frankly (Inaudible) for the books (Inaudible) to the state and in the public library (Inaudible)?

Hawthorne Phillips:

Some of the materials are certainly true, others — other portions of it, it isn’t true.

Well, I don’t (Inaudible) but I know the (Inaudible) really represented this (Inaudible).

Hawthorne Phillips:

Quite a number, quite a number.

But in connection with the question of preemption, I believe that we can safely state that this Court has found on several occasions the nature of the Communist Party.

That certainly in that connection, in the field again of preemption, we might state that the government of a state or a city of the United States isn’t overthrown by a single act.

It would have to be a series of acts and I believe this Court has recognized that doctrine.

The one they stated in the Dennis case that — but to have a clear and present danger it was not necessary that there actually be a push but that certainly an attempt to overthrow the government by force even though doomed from the outset because inadequate numbers or powers of the revolutionist is a sufficient evil for Congress to prevent.

The damage with such attempt creates both physically and politically into a nation makes it impossible to measure the validity in terms of probable success.

Now, certainly the Acts that I’ll state — might go into, might consider to be seditious, could be a situation I think — I can think of a number of inciting a riot possibly as part of a design or scheme to eventually probably overthrow the national government but immediately to create a condition of chaos on a local level.

Certainly if you have a riot and the breaking down of law order as a part of a scheme to overthrow the government of the state or to go away with the government of the city and that riot does for a time being cause a breakdown in law enforcement, you have had a temporary breakdown or an overthrow of the government of that particular city.

Now certainly the one instance is cert — it’s soon overcome.

But you might likened it to water dripping on a stone.

Certainly one drop doesn’t do any appreciable damage, but a series of events conducted over a period of time in different localities creates a disrespect for law and for order in the minds of the people and as the court has said it’s hard to exactly measure the effector the danger of these particular things.

Certainly the regulation of those things should be left of these immediate problems, the protection of the individual in his own community should be left to the state, historically, it has been.

(Inaudible)

Hawthorne Phillips:

Protection — no sir the protection of the health and we might say his property and things of that nature.

It’s been recognized, but generally and broadly speaking, against physical entry, matters of public safety this Court has recognized even in the case of interstate commerce which the Federal Government has completely preempted that the states still historically retain police power in certain fields such — in that connection, we might say in regulating traffic, speed laws, weight limits.

Although they might be some burden on interstate commerce indirectly, the state still has that right to conduct that regulation.

Now in the field of sedition we do have damage to the individuals in a local area.

In the case of riot or the other disorders, we have said — just take for example in the City of Austin, probably 150 policemen and 15 or 20 deputy sheriffs, while there are only three FBI agents.

Now certainly the Federal Government is not intending to protect the local citizens and Congress I do not believe has intended to protect the local citizen in the area that could be covered by the states in that particular field.

To do so, they would have to of course either station troops or increase the size of the FBI by 50 times.

And I do not believe that Congress would do either of those things.

So —

Earl Warren:

The purpose of this — with this case (Inaudible) of the search warrant, the (Inaudible).

This is a violation against the complete order (Inaudible).

Hawthorne Phillips:

For two reasons whether statutes were unconstitutional on which it is — or it was improper — it was an illegal warrant because it was improperly executed or improperly issued.

If — I would state if I may to the Chief Justice that the court before which it was tried was the highest trial court in the state.

It was not our State Supreme Court or our Court of Criminal Appeals.

Hawthorne Phillips:

Thank you.

Earl Warren:

Mr. McAvoy.

Mr. McAvoy, Your Honor.

Earl Warren:

Oh, Mr. McAvoy.

John J. McAvoy:

Mr. Chief Justice and members of the Court.

There’s a story told about Lincoln that after he had been subjected to an over long argument by opposing counsel that he was reminded and told the court that he was reminded of the lazy preacher who used to get up and give sermon — very long sermons.

And he just got started talking and was too lazy to stop.

I’m not going to do that I hope.

There are some errors that were stated along the way that are purely factual, but I think it would be well to straighten them out now.

A reply as was mentioned was filed this morning which deals with the First Amendment questions of vagueness and that question was raised in the trial court and specifically mentioned in paragraphs which are in both the motion and the application for rehearing on pages 5 and 14 of the record.

So the issue of vagueness is not being presented to this Court for the first — as an issue which has never been before — judicially considered before.

The court has shown a certain interest in the knowledge of the Attorney General and that is the affiance about information they had about the books and their content, about the position of Mr. — of the petitioner Mr. Stanford and this suggests that in some way, a hearing upon return of the warrant can cure the warrant in some nunc pro tunc fashion.

Now I think this Court has in — complete agreement that that isn’t really possible.

The warrant will have to — and its issuance will have to be judged in the light of the evidence, the facts and circumstances before the magistrate and in this case it was hearsay evidence only.

The sources of that hearsay evidence are still not known to anyone but the affiance.

The magistrate as far as we know does not know who provided the information, nor their reliability.

Now addressing — and just —

(Inaudible)

John J. McAvoy:

Indeed, if the source of the hearsay is shown to the magistrate to be a credible source of information and not merely asserted to be a credible source.

One thing which it seems to have been I think distorted or misstated in discussing preempts — in discussing preemption is a characterization of the Texas statutes as seditious — sedition statutes.

I think it would be well to note that the statutes by name and by constant reiteration by legist — the statement of legislative purpose in the preamble are concerned not with sedition generally which make under Pennsylvania versus Nelson be an appropriate area for state action today, tomorrow but it was an attempt to control the activities of the Communist Party.

This is not some San Antonio Anarchy Society.

This is — it is asserted, the activities of the Texas Communist Party an affiliate or the branch of the United States Communist Party which this Court has found to be — have as its purpose the overthrow of the United States Government.

Counsel made a reference to — I thought they were arguing our side of the case when they said that a series of acts directed against Texas would be the normal way of overthrowing the United States Government.

Indeed, I think that so, and that is the very reason these Texas statutes and other state statutes which are directed as I say, not at sedition generally but at control of Communist activities should be declared unconstitutional by reason of preemption.

I could illustrate that perhaps by talking about Communist blowing up things or inciting riots as was illustrated.

There is no argument made here that the states can’t, in the normal exercise of their police power, break up riots.

There isn’t — there is — if someone is killed in a bombing by a Communist, he is guilty of murder and should be prosecuted for it.

But if he’s activities as a Communist are the — in other words if the — if he — if the state seeks to punish him not for the murder, not for the violence, not for the destruction of property, but ecause of Communist activities, we say that the state has acted beyond the limits of its authority and power.

And finally, I would say that —

(Inaudible)

John J. McAvoy:

I would say that that statute without knowing its application would withstand constitutional challenge as applied in this case and certainly with the legislative history in the various terms of the statute in considering the statutes of Texas as a whole, that’s a different case.

You’re arguing with the (Inaudible)?

John J. McAvoy:

Yes, that is it exactly.

And I would say that I’m not familiar with all of the material that was taken.

I am familiar with this Court’s interpretation of the First Amendment.

It has been suggested that somehow these books have used by Communists would become the subject of some kind of sanction — seizure for evidence purposes, for some other reason.

I think that that is just plain not so.

DeJonge against Oregon I think is a case in point.

There, the free speech activities of the defendant in that case were guaranteed by this Court though it was almost conceited throughout that he was a known Communist, but has to be protected in his First Amendment — in the exercise of his First Amendment rights.

The analogy to books of account or bed sheets or beer bottles which are mentioned in the brief I think are most inapposite.

Books as was mentioned can be used as sources of — as an instrumentality of violence just as a pencil can be.

A microphone or a record, any such items but they have within them two qualities both a physical one and the content of ideas.

They are — when seized by reason of their physical characteristics not protected by the First Amendment, but the ideas of minorities or others even if they are directed to and intended to resort — result in an interest in — overthrow of the government is protected by the First Amendment.

Potter Stewart:

What if the book is actually used or misused, misused if you will to promote actual criminal (Inaudible) — violent criminal conduct as indeed the Holy Bible has been.

It’s been used to support persecution of these murder of the Jews and the — and human slavery and the Spanish inquisition and a good many other things probably that don’t come into my mind now.

What if you could show that this was the instrumental on which the — these cabal was influencing these ignorant and easily influenced people to commit these terribly violent illegal acts?

John J. McAvoy:

I haven’t the slightest doubts that that book is protected by the First Amendment.

Potter Stewart:

No, I could be probably right.

John J. McAvoy:

Finally, Mr. Chief Justice, you have asked the question why should this Court concern itself with a statute which hasn’t been interpreted, restricted, refined and defined by the Texas Court.

In 1940, in Thornhill against Alabama, a statement was made which I think is at least appropriate and worthy of your consideration.

That objection was made at that time in that case and this Court responded by saying there’s a further reason for testing the Section on its face.

Proof of an abusive power in the particular case has never been deemed a requisite for attack on the constitutionality of a statute purporting to license, and if I might inject or otherwise sanction the dissemination of ideas.

A life threat is inherent in the penal statutes of this nature which does not aim specifically at an evil within the allowable area of state control, not allowable area of state control but on the contrary sweeps within its ambit other activities that in ordinary circumstances constitute an exercise of freedom of speech or of the press.

For these reasons we submit that on the grounds of preemption in the First Amendment, this Court should reverse the decision of the court below.

Thank you.