Sugden et ux. v. United States

PETITIONER:Robert Sugden and Jean Sugden
RESPONDENT:United States
LOCATION:

DOCKET NO.: 555
DECIDED BY: Warren Court (1955-1956)
LOWER COURT:

ARGUED: Apr 25, 1956
DECIDED: Apr 30, 1956

Facts of the case

Question

  • Oral Argument – April 25, 1956 (Part 1)
  • Audio Transcription for Oral Argument – April 25, 1956 (Part 1) in Sugden et ux. v. United States

    Audio Transcription for Oral Argument – April 25, 1956 (Part 2) in Sugden et ux. v. United States

    Earl Warren:

    Mr. Wilmer, you may proceed.

    Mark Wilmer:

    May it please the Court.

    I think I would like to make it plain at the outset that the only reference to monitoring which is found in the statute is that provision which authorizes the Commission to spend money to acquire stations for monitoring purposes.

    That ends the reference to the authority of the Commission to monitor the extent of that authority and the purposes for which it may monitor.

    Now, from that the Commission draws a broad power to supervise all communications.

    From that, it would draw the broad the power to listen in on every conversation for any purpose.

    We say it is just as reasonable because in that same statute, which gives the Commission the authority to buy stations or to maintain monitoring stations that gives them the authority to employ lawyers and buy law books.

    If the mere authority to buy something means that it is to be used without limitation.

    We say that by like analogy since it has the authority to buy law books and employ lawyers, it can go into a business of running a Court or it can go into a business of practicing law because, simply, the authority to buy law book and to employ a lawyer, there you have a physical setup for a full blown court.

    By like analogy, we say that in our part of the country anyway we have what we call “junior patrols” who are at schools for the purpose of slowing down speeders and so on, they are — a nature of a public relations matter of — of controlling traffic.

    They are authorized to use police whistles.

    So, we say that if the legislature gives them the authority to use the police whistle by like analogy, they have the authority to become a complete police officer.

    So, it is our position, if it please the Court, that before — before such an abrupt and far reaching departure should be read into the Communications Act as it is here contended for the Government, it should clearly appear in there.

    It should appear that the Congress had that in mind to give them this general broad supervision which they are claiming.

    And I say, if it please the Court, that you can read the Communications Act from one end to the other and all you can find in it is a negativing of that authority.

    As I have previously demonstrated, the only reports which they are supposed to give a better investigations are to the parties infected.

    In the statute which does for what purposes they may revoke a license, it specifically limits that authority to violation of a act treaty or convention binding upon the United States and which

    Sherman Minton:

    You take —

    Mark Wilmer:

    — the Commission is authorized.

    Sherman Minton:

    You take the position that the Federal Communications Commission is got to have authority of Congress before it could monitor?

    Mark Wilmer:

    I say this, Your Honor, that in the face of Section 605, it’s got to have some pretty specific —

    Sherman Minton:

    That’s the question of divulging what it learns.

    Mark Wilmer:

    Oh, I — I tried to go that —

    Sherman Minton:

    I’m talking about the — the monitoring, listening in.

    Mark Wilmer:

    Well, Your Honor —

    Sherman Minton:

    You wouldn’t have to have any authority for Congress to do that, would be?

    Mark Wilmer:

    No one would have — to have any authority from Congress to do that.

    No one has to have any authority to listen in.

    The sole prohibition is against divulgence and I assume that when the Congress drew the statute, they do it thoughtfully and carefully and I assume it employed words for a specific purpose and have a specific meaning so that for the purpose of monitoring and I assume that it is for the sole purpose of testing frequencies and of testing power and of ascertaining if there are unlicensed stations because the Congress specifically forbad to the Commission the authority to censor, specifically spelled out that nothing in the act should be construed to give the Commission the authority to censor.

    Felix Frankfurter:

    May I go back to Justice Minton’s question in your answer?

    Mark Wilmer:

    Yes, Your Honor.

    Felix Frankfurter:

    Section 605 said, “To have no person not being authorized by (Inaudible) shall intercept any communication (Inaudible)

    Now, no person, I think, as far as the rule means includes official of the (Inaudible)

    Mark Wilmer:

    It does, Your Honor.

    No, I — I don’t believe Your Honors that —

    Felix Frankfurter:

    — officers.

    Mark Wilmer:

    It — it has rule with respect to federal officers.

    It does not rule with respect to communications officers, specifically.

    Felix Frankfurter:

    No person not be authorized, does that imply to — must derive some authority from something?

    Mark Wilmer:

    They’re being authorized by the sender.

    Felix Frankfurter:

    By the sender (Inaudible).

    Now, they are to be implied (Inaudible) Communications Commission and listen — everything goes over the radio?

    From the (Inaudible)

    Mark Wilmer:

    Well, let me go —

    Felix Frankfurter:

    — anything about it (Inaudible)

    Mark Wilmer:

    Let me go further, Your Honor, in the government’s brief.

    It takes the position that because this is a crowded frequency.

    Now, where they get the information that the radio (Inaudible) is so crowded, I don’t know.

    I assume that several members of this Court including Mr. Justice Douglas probably would be a little reluctant to believe that the either ways around (Inaudible) are jammed with anything.

    But be that as it may, they take the position that because they say this is a crowded frequency, therefore it is necessary that the Government supervised carefully, not only, not only the use of it in the sense of assigning the frequencies, but apparently they go further and say that they’re also to listen in to see if the communications made are necessary.

    In other words, they say that the access that you shall keep your communications to a minimum.

    So, I supposed that the position of the Government is correct here, we will have the revision of that slogan we heard during the war, “is this script necessary” to “is this speech necessary”?

    It seems to be their feeling that not only are they authorized to listen in but having listened in, they’re authorized to punch a button and say, “You’re talking too much.”

    Well now, if it please the Court, I know it is not unusual for federal agencies to reach out and grasp for power, grasp for additional employees and additional authority.

    But I say this, that before what this Court has denounced as morally wrong, should be read into the Communications Act the right to intercept, to spy, to put their key to the — their eye to the keyhole, there should be some clear language from the Congress in there which indicates that.

    There should be something from the Congress here which shows an intent that the Federal Communications Commission should be given this authority to read — I mean to listen in to every private communication that is by radio.

    And I say that that can’t be found there, if we go, if it please the Court, back to the — the conditions under which a station license maybe revoked.

    As I have said, we have one if it operate in violation of a treaty or act which the Commission is authorized to enforce.

    Now, if the Congress thought that they were going to be listening in and picking up a lot of monkey business go along in a criminal way.

    Certainly, the Congress would have given the authority to revoke a license if it was engaged in any criminal activity and yet they limit it specifically to a specific violation of a specific limited type of statute.

    Mark Wilmer:

    They go on as failed to carry out a lawful order of the master or person lawfully in charge of the ship, willfully damaged to a permitted radio operators to be damaged, transmitted superfluous radio communications or signals or communications containing profane or obscene words, language or meaning or has knowingly transmitted volts of deceptive signals, wrong call letters interfered with the communications that attempted to obtain or obtain and assist another maintaining a license by fraud.

    Well now, this goes right back to what I said a minute ago, if it please the Court.

    They may revoke if you have transmitted a superfluous communication.

    So, I suppose that the Federal Communications Commission is going to tell us that that gives them the authority to listen in on every use of the radio and decided whether the communication is superfluous or not.

    And I say that when that authority is granted, you have indeed opened up the Pandora’s box for the Commission to pry into the private affairs and to set about the business of regulating what everyone is saying and everyone is doing.

    Now, if we turn to the provisions which relate to the revocation of an operator’s license.

    We find the same complete dirt of any intent on the part of Congress that this — the Commissions had supervised and in the sense of spying and determine whether in every instance the use of the radio is lawful.

    Why will they revoke an operator’s license?

    Fault statements knowingly made in the application because of conditions coming to the attention of the Commission which would want it in refusing to grant a license or permit on an original application.

    Now, that is the closest the entire statute comes to giving them the authority to revoke a license of an operator for improper use, illegal use and yet, thus it not see —

    Hugo L. Black:

    What is that language?

    Mark Wilmer:

    It is — it’s in our brief, Your Honor, it is “Any station license or construction permit maybe revoked because of conditions coming to the attention of the Commission which would warrant it in refusing to grant a license or permit on an original application.”

    Now, that is the closest, if it please the Court, that you can search this whole Act through and find any intimation whatever that the Congress regard the Federal Communications Commission as another adjunct of the Department of Justice or as a potential adjunct or arm of the Department of Justice.

    Now, certainly, if this business of spying as they’re talking about had been carried on for so many years and was so well known to the Congress and was so calmly, certainly the Congress in enacting this statute would have given some recognition to that and would have given some recognition to whether or not they can divulge that information and yet it did not do so.

    Now, I may make one more point.

    The language of the statute with respect to what inspection rights they have is the following.

    Have authority to inspect all radio instillations associated with stations required to be licensed by any Act or which are subject to the provisions of any act, treaty or convention binding on the United States to ascertain whether in the construction, instillation and operation, they conform to the requirements to the rules and regulations of the Commission, the provisions of any act, the terms of any three-year convention binding on the United States and the conditions of the license or other instrument or authorization under which they are constructed, installed or operated.

    I said initially that inspect an installation means simply that a physical inspection and while I do not pretend to stand here as an expert in radio, I do know that you can go into a radio station and you can tell what frequency is operating on, you can tell what power output it is using and you can tell everything else that is required to conform with this.

    By operation?

    Mark Wilmer:

    In operation, Your Honor, I assume that it means physical operation.

    I have to read that into it because nowhere in the Act thus the Congress seemed to intend that the Commission is to supervise the use which is made of it.

    It seems very significant to me, if it please the Court, and I frankly know no way to explain it why the Congress did not see fit to give that authority that is here sought by — at your hands.

    I see no reason why the Congress shouldn’t perhaps had done so.

    But our position is that Congress did not do so and since the Congress plainly did not intend to give it to them, they are not here in very good — in asking.

    Now, the license which is involved here and mind you now, this — this authority is to inspect to see if we’re operating pursuant to the license which we get.

    The Government has quoted the permissible operations, speech or the regulations.

    Stations license under this part may transmit the following types of communications.

    I’m reading from page 14 of the Government’s brief.

    “Any communication related directly to the safety of life or the protection property and communications considered essential to the efficient conduct to that portion of the enterprise which the licensee is eligible to hold a station license under this part, subject to the condition that harmful interference is not cause to safety communications of license — station license under this part.

    In other words, their authority to inspect is spelled out here, this is what they can inspect for to see if, one, if it is being operated so that the condition — (Inaudible) condition harmful — that harmful interference is caused the safety communications of others.

    Mark Wilmer:

    Now, I would like to save a few minutes.

    I’d like to say just one thing in closing.

    I believe that there is involved here regardless of Your Honor’s decision unless you of course decide that the Communications Commission is a super — a detective agency and authorized to freely monitor and freely divulge if that is not your conclusion.

    And you do conclude that because of the absence of the operator’s license during the time of the first two interceptions, then we say that we complied with the rule which this Court laid down the first Nardone case and which the Second Circuit adopted in the Kaplan case and that is this and incidentally it was known to the Government because the Ninth Circuit had already ruled as they did in this case.

    We clearly showed that the Government used the interception which was made on the 18th of September in securing the indictment that they used it in questioning witnesses and they proposed to use it on the trial of the case.

    The indictment specified that on the 18th of September, we did an overt act in furtherance of the conspiracy and therefore, we must conclude that testimony was transmitted to the grand jury which resulted in that indictment because otherwise it couldn’t have indicted on that point.

    On the other indictment, a count was laid on the 18th of September.

    So, clearly, a testimony on that was — was given to the grand jury and Mr. — the gentleman from the FCC who testified said that he gave them a full account of what he done.

    It is our position that when we have brought back to the trial court’s attention, we had clearly tied as this Court expressed it, the taint of the wrongful evidence to the Government’s case had clearly showed that it was embodied in any part of the Government’s case.

    The burden then shifted to the Government to demonstrate to the Court that it had a case which was free of that taint which demonstrated that it could go forward and manifest in this case, it couldn’t go forward with the indictment because they were tied to the fact that they used the illegally intercepted information in obtaining the indictment.

    So, we say that if the interpretation in the Kaplan case of the language of this first Nardone case is accurate that the trial court in any event was correct because the Government made no effort to (Inaudible) the good from the bad, made no effort to show that he had a case without the illegally intercepted information.

    No effort to show that the indictment was not the fruit of the illegally intercepted communication.

    Earl Warren:

    Mr. Davis.

    Mr. Attorney General:

    If the Court please.

    In a rather restrained way, Mr. Wilmer is used to volley unpleasant language about the actions of the Federal Communications engineer, morally wrong eavesdropping either the keyhole.

    This is a kind of language which has been used with respect to wire tapping and I think it is rather important, right at the beginning of this case, that we make it clear that this is not a wire tapping situation.

    The — the petitioners were sending out messages from their antenna like spokes from the hub of a wheel that extended 70 miles in each direction.

    They were operating on a frequency which had been — which they were authorized to use by the Federal — Federal Communications Commission as being in the public interest, convenience and necessity and they were subject to the regulation of the Federal Communications Commission.

    They didn’t have a right to be left alone.

    They were required to be regulated.

    They did not have privacy.

    They were shouting from their rooftops.

    Now, the reason that I — the reason that I emphasize this is that seems to me important that we should realize that this is not a case like the illegal searches and seizures cases like the wire tapping cases.

    This is not a case of invasion of privacy.

    And I say that because I would like to argue this case against Mr. Wilmer and not to have to argue against Mr. Justice Brandeis and Mr. Justice Holmes.

    It seems to me that it is easier to take this case in its own setting than to take it in the setting in which Mr. Wilmer is trying to put it.

    Now, I must also note a — a slight disagreement with Mr. Wilmer with respect to the facts as to the purpose which the record shows was being followed by the engineer in undertaking this monitoring.

    Now, I agree with him that the engineer went from Los Angeles to — to Arizona for the specific purpose of monitoring the — the transmission of this station.

    But he testified in this very case that his purpose was to discover whether or not radio facilities were being used for an unauthorized purpose.

    I read those words from page 35 of the record where Mr. Stratton was testifying.

    Mr. Attorney General:

    The reason I — the reason I emphasized that is that whether or not it is essential to this case, I do not know, but I think that the case is easier if we understand that here, the engineer was carrying out Federal Communications Commission purposes.

    That’s what he was doing.

    There is no dispute that his — his testimony wasn’t shaken in anyway in — in the course of the hearing and in fact, it is supported by the fact that the Commission itself instituted administrative proceedings which led to the surrender of the station license and operate its permits on the basis of the things which Mr. Stratton heard and also that there are these indictments for violations of the Communications Act itself.

    So, it seems clear that we do not have the Communications Commission being used as a cat’s paw by somebody else.

    We have a situation where they were carrying out their authorized duties and in the course of that, came across evidence which was — which showed a violation of another criminal act.

    Before I get to the law and I also like to mention a word about the nature — the nature of this station license.

    This was called a special industrial service station.

    It was a license to be used in connection with the Sugden’s farm operations.

    They operated a cotton farm in Arizona.

    Now, not only where they license under a law which imposes regulations including the right of inspection, so that one might say that they consented, if you please, to inspection but also, they were operating on what is known as a “shared frequency.”

    Industrial — industrial stations do not have any exclusive right to the frequency which they use in their operation.

    Other industrial stations in the same area and which would interfere with, actually with their — with their operations are authorized to use precisely the same frequency.

    There’s a common experience in riding in — in taxicabs which have radio facilities to hear communications coming in on the — on the taxicab radio, not only from the cab’s own station but from other stations which are sending messages to other cabs because they, like the industrial stations, share the use of a frequency.

    And the reason I — the reason I press this is that it seems obvious that the Sugdens must have known, they could not help but know, not only that their messages were subject to being heard by federal communications monitors but they were subject to being heard by other industrial users who are using the same — the same frequency as they were.

    They were in effect talking on — on a party line, on vast party line with any number of people listening in.

    And the question is whether in a situation like this when — when one of the persons listening in was a Federal Communication’s officer authorized to monitor whether he may lawfully turn the information over to other authorities for use in the criminal prosecution.

    The first issue in this case is really whether or not Congress authorized the Commission to monitor and this, I submit, is purely a question of statutory construction.

    There is no question here of an illegal searches and seizures whether the Olmstead decision is right or wrong, I take it that no one could doubt that Congress could if it decide in the course of it’s regulatory authority conditioned the grant of radio facilities on the condition that they be subjected to monitoring.

    And the question — and that that wouldn’t involve any Fourth — Fourth Amendment question, the question is did Congress in this case authorized the monitoring?

    We find the authority in section 303 of the Communications Act, which we have printed at pages 2 and 3 of our brief.

    We find it in the power to inspect radio facilities.

    To us it seems clear that to inspect radio facilities, one should use his ear as well as his eye.

    Inspectors of wine probably use the sense of taste.

    Inspectors of perfume would use the sense of smell.

    Inspectors of — of radio in order to know what is going on must use the sense of hearing and therefore we would read the — the term inspection, the right to inspect is giving them the right to listen to as well as the right to look at.

    Felix Frankfurter:

    It doesn’t — it doesn’t qualify to inspect for the purpose — inspect to ascertain whether it constructs an installation operation.

    Mr. Attorney General:

    An operation.

    And here if we would want to refer to this particular case, the question is whether the operation is a authorized operation.

    Felix Frankfurter:

    Well, that include the — if this language that naturally, obviously or appropriately covers this thing with a content of proof, as I understand?

    Mr. Attorney General:

    If — if the regulations dealing with operations, lawful operations deal with the content of the messages, then I would think that the inspection power to — to enforce that regulation would necessarily also cover the content.

    Felix Frankfurter:

    The inspection that authorized to — to have only a particular content you wanted to see whether it has some other facts.

    Mr. Attorney General:

    Well, for example in this particular case with a shared frequency, I don’t know whether it was in (Inaudible) Arizona or not but where you have fret — shared frequency and if they are not using it for an industrial purpose but are actually using it for communications purpose, for an entertainment purpose or something like that, they are taking a part of the spectrum from the other industrial users which they shouldn’t take and the Commission is in a position to monitor to find out whether they are doing what they have been authorized to do.

    Earl Warren:

    Mr Davis, you mentioned that they were broadcasting 70 miles away.

    Was there any significance to the distance that they were broadcasting or is that the normal — normal way this type of radio would operate or (Voice Overlap) —

    Mr. Attorney General:

    No.

    I think that — no —

    Earl Warren:

    — is it a farm, just a farm operation?

    Mr. Attorney General:

    No.

    The power of their station was such that it — the engineer said that it would give good reception for 70 miles.

    There’s nothing wrong with that and I didn’t mean to imply that they shouldn’t be broadcasting for 70 miles.

    Earl Warren:

    I see.

    Mr. Attorney General:

    Actually, it may — make clear the Federal Power a little — a little because it carried the messages over state line into — into California and over the federal line into Mexico and the — the signals actually carried that far.

    They also has a great bearing, it seems to me, on the extent of privacy which they could have expect to have in the course of speaking over this because it covers a — a huge area.

    It’s not something which they would think would be heard only on their farm.

    Hugo L. Black:

    Mr. Davis, if they didn’t intend to protect some kind of privacy and (Inaudible)

    Why did they carefully include the word “radio” several different times —

    Mr. Attorney General:

    I think —

    Hugo L. Black:

    — in 605.

    Mr. Attorney General:

    I think 605, does apply to radio, Mr. Justice Black.

    I think that there are many uses of radio and although it is not before this Court that there might be many interceptions which would violate 605.

    Many —

    Hugo L. Black:

    It doesn’t have to be an interception to violate —

    Mr. Attorney General:

    There has to be an interception and a divulgence.

    Yes, it’s in —

    Hugo L. Black:

    I — I thought one provision was that anyone who divulge it, even if they were lawfully receiving it.

    Mr. Attorney General:

    Well, if it were — if it will illegally — well, if a station employee divulges, that’s true or if there is —

    Hugo L. Black:

    Lawfully receiving.

    Mr. Attorney General:

    If — if a station employee divulges information which he lawfully receives in –in communication.

    That is unlawful under 605.

    Hugo L. Black:

    Lawful — it’s unlawful for one working at the station, have to transmit or (Voice Overlap) —

    Mr. Attorney General:

    To divulge it to an unauthorized person, yes.

    Hugo L. Black:

    — to another station who receives it to whatever is applied both in radio and television.

    Mr. Attorney General:

    I’m not sure — sure I understand your question but in order to protect the lines of communication, they say that if for example as in telegraph if the — if the receiver takes and uses information and gives it to someone, he shouldn’t.

    That is a violation of 605.

    Hugo L. Black:

    Receiver or the transmitter?

    Mr. Attorney General:

    That’s right.

    In other words, there is —

    Hugo L. Black:

    Now, what —

    Mr. Attorney General:

    — is privacy to some messages which are sent over the radio.

    Hugo L. Black:

    So what — what is the effect of your argument that — here, they were receiving it lawfully.

    It says here, no person receiving or assisting in receiving or transmitting or assisting in transmitting any and so forth shall divulge a public (Inaudible)

    Mr. Attorney General:

    That —

    Hugo L. Black:

    I don’t quite see why the fact that they have received it lawfully wouldn’t affect even if they were (Voice Overlap) —

    Mr. Attorney General:

    Would affect their divulgence?

    Hugo L. Black:

    Even if they were Government agents?

    Mr. Attorney General:

    Well, it is our — it is our position that the authority of — for the Commission, and again at the moment I am speaking only of the Commissions monitoring activities, to receive — to inspect must mean that they can monitor and they can use that information, they can divulge it.

    Otherwise, the monitoring is of no effect, it would be —

    Hugo L. Black:

    How do you get them out of this then?

    It’s —

    Mr. Attorney General:

    Well —

    Hugo L. Black:

    No person receiving and — and in the Nardone case, (Inaudible) took the point that that should deprive officers because they might want to expose criminals.

    Mr. Attorney General:

    Yes, but not Federal Communications officers who are authorized under 303 to do this.

    Hugo L. Black:

    They’re receiving it lawfully undoubtedly, but how you get away from the first paragraph of 605?

    Mr. Attorney General:

    Well, I think they’re not only receiving it but they are using it lawfully.

    I think that we have to read 303 and 605 together.

    We have to determine first whether the Congress meant that Federal Communication engineers could monitor and use what they monitor.

    If they couldn’t — if they couldn’t use it, there’d be no — if they couldn’t divulge it, there’d really be no sense in — in listening.

    Felix Frankfurter:

    Use for what —

    Mr. Attorney General:

    Use —

    Felix Frankfurter:

    That they use period, use for what purpose?

    Mr. Attorney General:

    All right.

    And I admit that they must use it for a legitimate purpose and that’s the second question whether this is a legitimate purpose.

    Felix Frankfurter:

    Question of a legitimate, I should think 303 is restricted to activities or conduct or observation of a hearing and I say eavesdrop a hearing for purpose of the act.

    Mr. Attorney General:

    I think that is right.

    Felix Frankfurter:

    Is that right?

    Mr. Attorney General:

    I think that is right.

    I think that’s what’s they have — can inspect for.

    And I question to jump to the next point is, is whether when they have inspected legally been there, if assuming legal monitoring, legal right to — to hear and use for Commission purposes.

    If they get information which leads to something else must — can they use that or are they forbidden to use it.

    Felix Frankfurter:

    You can’t get that out of whether the — the answer to that can be derive — the answer, certainly a yes — can be derive from 303.

    Mr. Attorney General:

    No.

    The yes answer must be derived from the policies of this Court as to whether they will forbid using evidence of — of information which comes to somebody in a lawful manner.

    Hugo L. Black:

    Is that necessarily true because I would — I might view it differently if that was true.

    It seems to me like the Governmental language (Inaudible) which says, “No person, receiving or assisting, we said no person, includes everybody, receive or transmitting or assisting in transmitting, any other state or foreign communication shall divulge or publish the existence of contents such and so forth.”

    Mr. Attorney General:

    That’s — that’s right.

    Hugo L. Black:

    Now, it seems to me that you have to get around the word “divulge”.

    Mr. Attorney General:

    I do — I do, Your Honor.

    Now, as to what you —

    Hugo L. Black:

    How can you say that they didn’t mean all divulgence, but just some.

    Mr. Attorney General:

    In the first place, what you — you have not held anything with respect to people authorized under 303 because in — none of the cases which have come before this Court have we had an authorized monitoring operation.

    They have all been wire tapping operations.

    Now, the question —

    Hugo L. Black:

    But under number one, the paragraph number one in — what difference does that make it all whether it’s authorized or unauthorized —

    Mr. Attorney General:

    Because one — if one has to construe 605 by itself, we must find an unauthorized interception plus, if you please, a then authorized (Voice Overlap) —

    Hugo L. Black:

    But that’s it.

    You’ve been treating it as though it’s all related to interception —

    Mr. Attorney General:

    And an unauthorized divulgence.

    Hugo L. Black:

    — to intersection.

    There’s another one that says, “That no person who helps to transmit it or helps to receive, however, lawfully I submit, shall divulge it.”

    Mr. Attorney General:

    Well, let — let me call your attention, if I may, to the — to the Goldman case where you didn’t — where — where you have clearly the question of divulgence because they didn’t intercept in that case, they heard — well, there was a dissent in the case but the opinion of the Court was that they heard this message before it went on the line.

    Mr. Attorney General:

    Now, they undoubtedly divulge a message which was sent on a line but there was no — according to the holding of the Court there was no illegal interception.

    The same thing would be true if they picked up a message after it had been received at the end.

    The — the divulgence by itself is not illegal under the — under the Communication Act.

    They’re interested in protecting — 605 is interested in protecting the integrity of the radio service and unless there’d be an interference with the — with the sending, with the — with the transmission plus a divulgence because they have to protect against innocent listening in.

    Then there is no violation of 605 and we — we believe that when you read 303 and 605 together, there’s an indication that the Commission intended that monitors, should listen and divulge and use information which was necessary for the regulation of the radio — of the radio field.

    And our question here really is whether they can use it for something other than the radio field.

    And that’s the — I think the — the — real question before the Court —

    Hugo L. Black:

    I have no doubt about their power to receive.

    Mr. Attorney General:

    Well, let —

    Hugo L. Black:

    Where I get stumped and parenthesized is on the first five lines of 605.

    Mr. Attorney General:

    Well, they aren’t receiving —

    Hugo L. Black:

    Which no — no distinction between receiving it lawfully and unlawfully, you said no divulgence after you receive it.

    Mr. Attorney General:

    That’s right.

    And if you read that by itself, it is of course subject to your construction but is it — can it be conceived that monitors — forgetting for a minute the immigration laws and the other violations, can it be conceived that Congress meant that they should inspect by listening but should hug the information to themselves and not use it.

    Hugo L. Black:

    Why not?

    Mr. Attorney General:

    Well, because there can no enforcement — no regulation of the —

    Hugo L. Black:

    You’ll have it for the purpose of regulating?

    Did have it for the purpose of inspecting their machinery and inspecting what they’re doing to determine whether they break their — cancel that (Inaudible)

    Mr. Attorney General:

    Well, that would be divulgence.

    I mean they have to use it.

    It cannot stay in the mind of the person who hears it.

    He must use it.

    There is no sense in (Voice Overlap) —

    Hugo L. Black:

    Under 303.

    Mr. Attorney General:

    That’s right.

    That — that is the point that I’m trying to make that he can use —

    Hugo L. Black:

    Well, when you get beyond there.

    How do you find any excuse for divulgence?

    Mr. Attorney General:

    Well, the — the —

    Felix Frankfurter:

    May I — may I go into — for your consideration, so you can answer both or the other.

    Felix Frankfurter:

    I have Mr. Black’s trouble is that the first paragraph of 605.

    I like you also to take into account the second cause and no person not being authorized by the sender shall intercept.

    Now, I understand, you follow your argument with 303 and authorized inception by the sender here because that’s the basis on which he operates it.

    Mr. Attorney General:

    That’s right.

    Felix Frankfurter:

    Now, therefore, no person not being authorized by the sender is authorized by defendant shall intercept and divulge.

    I take it no — not being authorized or divulge also.

    Mr. Attorney General:

    That is right.

    Felix Frankfurter:

    I maybe authorized by 303, to both intercept and divulge for the purpose of the 303 but where does it say they authorize (Inaudible) if it’s not under 303?

    Mr. Attorney General:

    Well, the — the sender does not authorize and —

    Felix Frankfurter:

    Very well.

    Then it’s clearly was in the language of 605.

    Mr. Attorney General:

    Well, if — for the purposes of 303 if — if for minute we — we think of 303 there, I think there is no question as to the authority to — to listen and to divulge, if you please, because there is no sense in listening if you don’t divulge for the purposes of inspection and that must be read then, 303 read in connection with 605 must mean there is a limitation.

    Now, our question is, whether 605 shall now be read to mean that for purposes of introduction in evidence used in — in the kind of situation you have in the Weeks case, the Boyd case, the Nardone case and the Weiss case whether you going to have a rule of a court because there is nothing in the — in the Act which forbids the —

    Felix Frankfurter:

    I — I put it to you that there is.

    If you did not have 605, then 303 will stand by itself and it would authorize the client if you will, authorized, the sender will authorized interception and divulgence if 605 is not in the Act.

    Mr. Attorney General:

    That’s right.

    Felix Frankfurter:

    But I put it to you that 6 — instead of 605 be limited by 303, a suggestion that 303 is limited by 605.

    Mr. Attorney General:

    Well, that is a possible — it certainly a — a possible and — and maybe a literal interpretation of the statute.

    But I — but I believe that since —

    Felix Frankfurter:

    Then you have to give me a very good reason for — for not construing affection of the statute limiting this power of 303, a Section that embodies the policy which this Court has described as it did in the first Nardone case.

    You have to give me some very good overwriting, public reading why the limitation upon 303 by 605 should not be respected.

    Mr. Attorney General:

    Well, that — that I — that I hope to do.

    Felix Frankfurter:

    All right.

    Mr. Attorney General:

    I (Voice Overlap) that is the task but I — I also believe that once you have got over the idea that Federal Communications Commission officers for proper purposes are authorized to hear and divulge and read that in connection with 605 that we are not necessary bound by the view that 605 prohibits it.

    I think when you read them together, one must assume that there is an authority to hear and divulge for a proper purpose and the question is whether this is a proper purpose.

    Felix Frankfurter:

    Will you — before you go to that main (Inaudible) main issue, enlighten me on the question I put to Mr. Wilmer as to what — as to the scope of the monitoring specifically, I put to him this (Inaudible) simply just for the purposes of argument.

    I don’t understand any of this.

    I’m not a (Inaudible)

    I don’t belong to the (Inaudible) case but I assume, I assume that there’s a great deal of communication going on between CBS, NBC American Broadcasting Company and their people all over the world, private instruction, tips, suggestions, et cetera.

    Is all of that subject to the monitoring of the Commission?

    Mr. Attorney General:

    I believe it is.

    The broadcast services of course and the — the Broadcast Service and the Auxiliary Pickup Service that comes with the Broadcast Service is by invitation opened everyone to hear that they’re in the business of it to be heard.

    Now, in — there is, however, a great deal of radio point-to-point communication which is the same as telephone communication.

    It’s not only the radio, the broadcasters that used it.

    (Inaudible) telephones — the American Telephone System has licenses of point-to-point communication from here to there.

    It’s a public carrier service where private messages which are in entitled to privacy are sent.

    Now, it is — it is our view that the monitoring authority of the Commission extends to monitoring for the purpose — for proper use all radio facilities.

    Felix Frankfurter:

    (Inaudible)

    Mr. Attorney General:

    We —

    Felix Frankfurter:

    — my radio messages (Inaudible) are monitored by the Commission?

    Mr. Attorney General:

    I don’t know that they are (Voice Overlap) monitored by the Commission —

    Felix Frankfurter:

    I’m not talking —

    Mr. Attorney General:

    — but there is no limitation —

    Felix Frankfurter:

    I am not suggesting that —

    Mr. Attorney General:

    Yes.

    Felix Frankfurter:

    — because they wouldn’t be kept (Inaudible).

    Mr. Attorney General:

    Now, that does not mean that I assert that those can be divulged for any purpose.

    I am not arguing that there can be a divulgence of — of that kind of information.

    I think that’s a very different thing than we have in this — in this — in the case.

    Felix Frankfurter:

    (Inaudible)

    Mr. Attorney General:

    I — I do not see how they can carry out their duties to see that this — these stations are operating on the frequencies with the power and preventing interference, giving the call letters, actually operating as common carriers rather than operating as — as — for the benefit of the owners.

    I don’t see how we can do that without listening.

    Felix Frankfurter:

    With the common carriers.

    Mr. Attorney General:

    And that — that if I may say —

    Felix Frankfurter:

    — argument that (Voice Overlap) —

    Mr. Attorney General:

    That (Voice Overlap) —

    Felix Frankfurter:

    — the common carrier.

    Mr. Attorney General:

    That is I may — if I may say an attribute of the fact that the spectrum is limited and it must be subject to this kind of inspection if we’re going to see that it is used.

    It is in fact used in a way which the — the licenses of — of intent.

    The right of inspection here is not entirely different although it’s listening to what goes on from the right of inspection in any regulated industry, railroads, Securities and Exchange Commission they had — they must investigate, they must find out what is going on.

    Mr. Attorney General:

    Now, they make any proper use of what they find out and if they do make an improper use of what they find out they should be punished but that does not — shouldn’t limit their power to — to carry out this statutory authority to regulate the — the transmission of radio messages.

    Harold Burton:

    My trouble there is that this is not to regulate it.

    This indictment wasn’t to regulate it, was it?

    Mr. Attorney General:

    The monitoring was to regulate their —

    Harold Burton:

    I’m talking about this indictment here.

    Mr. Attorney General:

    No.

    The Communications Commission isn’t doing it.

    The question here is on admission in evidence of this information.

    This is a situation as we see it, where in the course of legal and authorized and in fact required operations, they came across, they happened upon information of another criminal act.

    Maybe an analogy would help.

    The — this Court has held that the Fourth Amendment applies to mail matter which is a matter deposited in the mails, it’s In re Jackson, I think, 96 United States.

    And they say that that cannot be search without — without impairing the — the Fourth Amendment but they also say that if material is sent unopened — opened for inspection that then the Fourth Amendment doesn’t apply.

    Let us assume this situation, let’s assume that a package is mailed third class with a sign on the front of it, post master.

    This maybe opened for inspection, postal employee opens it for inspection, lo and behold, inside he finds handwritten material.

    Now, third class matter doesn’t conclude handwritten material.

    You can only send merchandise and — and — so, here is a violation of postal law.

    The man looks at it and he sees that this handwritten material constitutes a threat against the life of the President of the United States.

    Now, this a postal employee.

    I think that no one could doubt that he would not only have the authority but the duty to turnover that information to the Department of Justice and the Treasury agents in order to protect the right of the President of the United States.

    Felix Frankfurter:

    But you have no comparable Section 605 so far as I know in the postal law of the United States.

    Mr. Attorney General:

    We have the Fourth Amendment.

    Felix Frankfurter:

    It is the Fourth Amendment that says (Voice Overlap) —

    Mr. Attorney General:

    Make an illegal —

    Felix Frankfurter:

    — but if a fellow says, “Go and take this stuff,” you’re on illegally seizing or searching.

    Mr. Attorney General:

    And if the operator of a radio station who takes it subject to the right of someone to listen to him sends it out to him to listen to it, then there is not any illegal seizure either.

    Felix Frankfurter:

    I didn’t say there was because you’re quite correcting searching as a question of statutory construction.

    Mr. Attorney General:

    That’s right.

    Felix Frankfurter:

    605.

    Mr. Attorney General:

    And also, if he sends it out —

    Felix Frankfurter:

    — go beyond constitutional meaning.

    Mr. Attorney General:

    That’s right.

    And the question is, are you going to buy from — from using evidence, information which these men legally hear and which constitutes a violation of law?

    Are we going to — are we going to press further this exclusion rule which is a court rule because neither the Communications Act nor the Fourth Amendment says that you shall not introduce this in — in evidence.

    That is a — a rule of this Court with — in order to give body to these things.

    Are we going to carry out a step further and say that when communications engineers who are not sneaking around with — with gumshoes and listening in with — with no right.

    When they — in the course of their official duties received and cannot help but receive information as to a criminal act, are we going to deny the use of that information in evidence?

    The — the cases which deal with this —

    Felix Frankfurter:

    It isn’t — it isn’t that you suggest that you’re arguing (Inaudible) this Court not to extend a rule made by this Court and I’m pressing you to stick close what Congress directed this Court to obey namely Section 605.

    Mr. Attorney General:

    But Congress in 605, Your Honor, did not say that this material should not be used in evidence.

    Felix Frankfurter:

    Congress said that you shan’t intercept or divulge except with the consent of the owner for purposes of this Act.

    Mr. Attorney General:

    But did not say that the information received should not be received.

    Felix Frankfurter:

    No, but it (Voice Overlap) —

    Mr. Attorney General:

    And did say —

    Felix Frankfurter:

    — the purpose of this Act.

    Mr. Attorney General:

    And did say that people should listen to this material.

    Now, the question is where the perfectly honorable people, people who are not — not wiretapping, not sneaking in the dark of night but who are carrying out a proper function and who happened upon — happened upon information as to a federal crime.

    In this case, a violation of the immigration law whether that should not be divulged, should not be used in evidence in a court, whether this Court is going to say that that is the kind of dirty business that —

    Felix Frankfurter:

    It doesn’t — it doesn’t have to say its dirty business.

    It wouldn’t be only in which the law take a particular situation which may in itself be as you quoted on everything else, that even for the public good and (Inaudible) within the restricted policy laid down by Congress which follows on in it’s reach maybe may have great public business.

    Mr. Attorney General:

    But let — let us look for a minute the cases that we — if — on — on this kind of thing.

    Let us consider the — the cases where evidence has been denied admission.

    We get first the — the Weeks case and the Boyd case where there are unreasonable searches and seizures and where this Court said, “Because there is a violation of the Fourth Amendment, we will not permit this to be used in evidence, in spite of the fact that ordinarily we do not consider how evidence was obtained.”

    Then, let’s us consider the wiretapping cases where the Nardone case and the Weiss case where they said, “This is an illegal interception.

    These people were doing wrong when they — when they overheard this and we are not going to let the United States adopt, endorse, take the advantage of this wrongdoing that they are doing.

    So, we are not going to let them use it in evidence.”

    Now, those are cases where either in order to discourage it by making it unprofitable or because they didn’t want to — didn’t feel the United States should endorse a wrong, they — they use this rule.

    That is not a situation such as we have here.

    This is more like what is called — say the — the Zap case or the Harris case where you have a legal search.

    You have a search warrant and you’re going after a particular article and what?

    And you have no right to seize anything else.

    Mr. Attorney General:

    You’ve got a search warrant or seizure warrant for a particular thing.

    If you are there and you find lying on the desk some article which is — which is seizable, the cases, the Zap case, the Harris case stand for the ground that that can be seized and used in evidence and there you even have a Fourth Amendment case and a seizure of the (Inaudible) case where there was a — a listening but there was no illegal listening and the Court held that that could be used or the Goldman case where the man standing outside the room, listening with a — with a device on the wall, listening to what was going on in the wall.

    Again, you have no illegal act by these people which needs to — the sanction of the Court in other for enforcement.

    As we see it, Your Honor, this case falls in — in that line of cases where in the course of a perfectly legal and indeed authorized and required operation, one comes cross in illegal activity.

    There is no reason why it shouldn’t be introduced in evidence in a criminal case.

    Stanley Reed:

    That — I suppose that would be limited by 303.

    Mr. Attorney General:

    That’s right.

    Stanley Reed:

    And what — what force do you give to determine this 303, what it says investigating to find whether they conform to the requirements of the rules, the regulations of the Commission or the provision of any act?

    Mr. Attorney General:

    Well that, I believe, is what they were doing in this case when they came across this evidence.

    Stanley Reed:

    And —

    Mr. Attorney General:

    They believe —

    Stanley Reed:

    — there was an act which said you could not have what, conspiracy against the United States?

    Mr. Attorney General:

    No.

    The act which that — that this is in — that this evidence is used is illegal concealment of aliens who are improperly in the United States.

    Stanley Reed:

    Oh, I understand that but since they’re monitoring to find out whether the radio was conforming to the provisions of the various statutes —

    Mr. Attorney General:

    Yes, sir.

    Stanley Reed:

    — was the statute against conspiracies and to — to break a law of United States covered by that provision (Voice Overlap) —

    Mr. Attorney General:

    I would doubt it.

    I think that the operations if they were monitoring for were the — the rules and regulations of the Commission whether the — whether the radio was operating as authorized.

    Stanley Reed:

    The rules and regulations of the Commission.

    Mr. Attorney General:

    That’s right.

    Stanley Reed:

    The provisions of any act.

    I presume, that means the act of the United States, the terms of any treaty or convention?

    Mr. Attorney General:

    Well, You Honor, I haven’t considered the provisions of any act.

    It sounds as though that gave them power to inspect for whether their operations were conforming to the — to any act and that may be direct authority where the — whether they’re conforming to the Immigration Act as far as that could go.

    And in this case, the particular broadcast was not only five people who were in the course of violation.

    The particular broadcast was itself, an integral part of the violation.

    In other words, it’s not as though a radio station which maybe in violation of the antitrust laws is — is broadcasting.

    This case to be broadcast which was intercepted was itself a act in violation of the — of the immigration laws and —

    Felix Frankfurter:

    Mr. Davis, was this the — Mr. Stratton —

    Mr. Attorney General:

    Mr. Stratton was the engineer.

    Felix Frankfurter:

    Yes.

    But what he disclose (Inaudible)

    Mr. Attorney General:

    No.

    No, he —

    Felix Frankfurter:

    But you can’t rely on that.

    Mr. Attorney General:

    I don’t rely on the subpoena, no.

    Felix Frankfurter:

    (Inaudible)

    Mr. Attorney General:

    No.

    I don’t rely that.

    Felix Frankfurter:

    I suspect you didn’t because you couldn’t?

    Mr. Attorney General:

    No.

    What —

    Hugo L. Black:

    I presume if that question — some of the judge might have had some discretion in connection with issuance of the subpoena.

    Mr. Attorney General:

    I think if it was subpoenaed that there would be a separate question in — in that —

    Hugo L. Black:

    Quite different under the first part of the act.

    Mr. Attorney General:

    Yes.

    Although, under the Nardone case and the other cases unless — unless this is authorized that was use made of it in connection with the preparation of the case and the grand jury indictments, so that the — the — if this is wrong, the — there was a wider — a wider input has been — it could be cured by just using a subpoena.

    Felix Frankfurter:

    (Inaudible) might argue that the subpoena (Inaudible) require the sanction of a court and you might have to classify the court what was introduced so that the Congress might be ready to have a (Inaudible) on that and not the officials themselves exercise the —

    Mr. Attorney General:

    Yes.

    They could have been limited to a subpoena situation.

    Now, I want to turn to the — to the last point and that is the point on which the court below went.

    The court below said, even though radio communications may not be — that the — the monitoring of radio communications may not be used except for purposes of the Commission.

    They said in this case, “We do not have the type of communication which deserves protection,” and the court below said, “That it didn’t deserve protection because there was not a license operator which is admitted by counsel for petitioners,” at least with respect to the interception on the first three days.

    On the fourth day, the operator was licensed and the court below said, “It’s necessary to separate the evidence which came in on the first three days of monitoring and the evidence which came in on the fourth day of monitoring.”

    They sent it back to the court below to do that.

    We think the Court was right in saying that whatever protection is given by 605 with respect to the communications.

    It cannot be thought to apply to a communication which is itself violative of the Commissions own authority because the very purpose of 605 is to preserve this valuable right to give its dignity and there is no dignity in an illegal transmission.

    But we think the court below didn’t go as far as it could in this respect because the broadcast — the — the transmissions of this radio station were unauthorized, not solely because these people didn’t have an operator’s permit, but even more so because they were not using it for the limited purpose for which it was authorized.

    It was authorized for the use of farming purposes and these people were using it in order to conceal — now, in — in here I say a word of caution, I don’t know the facts, but according to the indictment and if — if it’s proved.

    Mr. Attorney General:

    But according to the indictment, they were using this radio for the purpose of concealing aliens which were illegally in the country.

    It’s not an unusual thing in the law when a — a privilege is given to some relationship for that privilege to be stripped away when the relationship is abused.

    Perhaps, the classic example of it is the attorney-client privilege which is a privilege which we all treasure highly.

    But from the beginning, it has been denied to those who would use the attorney-client privilege to cloak a crime or to cloak fraud, fraud itself.

    If the courts will strip from — from that privilege, that privilege away from attorney-client and much lesser thing to feel that when the valuable airways which are limited in use, which are crowded, by and large they’re crowded.

    If that is not only used not for the purpose which it is designed but used in order to violate a law of the United States.

    Thus, in this case, we do not have a wire tapping case, we do not have an illegal search and seizure case, we do not have an invasion of privacy.

    We have a case where these petitioners were transmitting messages to an area of 15,000 square miles for everybody to hear.

    Now, it’s a strange thing if everybody can hear, but if a federal officer hears and hears that there is a violation of a law going on that he may not use that information in order to bring the petitioners to justice.

    Mark Wilmer:

    I’ll be very brief —

    Earl Warren:

    Mr. Wilmer.

    Mark Wilmer:

    — if it please the Court.

    The difficulty I find with the last argument of counsel is that the Congress hasn’t seemed fit to look at it that way.

    It seems to me that — that we cannot read in 605 any distinctions as between legality and in illegality.

    We cannot read into it anything which — with which I can go on at least to the effect that Congress intended various practical considerations to weigh in whether 605 will apply or not.

    The languages there, is unequivocal and it’s clear.

    Now, I’d like to suggest one other thing in response —

    Hugo L. Black:

    If what he said is correct —

    Mark Wilmer:

    Pardon, Your Honor?

    Hugo L. Black:

    What he said in the last sentence is correct, why — why do you not come under the proviso that said that it does not apply if it’s being transmitted for the use of the general public?

    Mark Wilmer:

    Well, it is not, Your Honor.

    Felix Frankfurter:

    I understood him to make that statement.

    Mark Wilmer:

    I can’t agree with that.

    Hugo L. Black:

    What — what is in the indictment that refutes it or in the record?

    Mark Wilmer:

    There is nothing in the — well, the — the indictment is to the effect that they were using this between their home and the pickup trucks.

    Now, all radio communications are — are general in the sense that if someone wants to listen in they can get in on it but there is no turning of it to the public domain in the sense that that implies.

    All radio communications as I understand it, if someone wants to — to buy the right kind of equipment, they can listen in on it but the thing that’s in the public domain is where it is broadcast for the public.

    This isn’t broadcast for the public.

    This is broadcast —

    Hugo L. Black:

    Where — where do we get that information that this was not broadcast to the public, that it was a kind of a private communication between the radio station and somebody else who are intended for their special —

    Mark Wilmer:

    The testimony of the — of the two Sugdens, Your Honor.

    They testified the — that the sending station was in the farm home.

    The wife operated in connection with their household duties.

    The trucks are out in the field and they talk back and forth between the private station in the house and the — the truck in the field.

    Hugo L. Black:

    For the purpose of giving them information.

    Mark Wilmer:

    Of — of business communication.

    Hugo L. Black:

    Are there any evidence to the contrary —

    Mark Wilmer:

    No.

    Hugo L. Black:

    — or in the record?

    Mark Wilmer:

    No.

    There is nothing to imply, Your Honor, that this was intended to the public — for the public.

    And I say, and again, as I said before, that just because stealing is easy, doesn’t dignified or justified and just because it’s easy to intercept doesn’t justify interception.

    That — that seems to be counsel’s argument that because this is so easy for people to listen to therefore, 605 should be repealed.

    But I say that because it is so easy to, 605 should be dignified.

    605 should be enforced because that’s the only way we can keep people from listening in and tackling.

    Now, one other thing.

    Counsel has said that because of the illegal purpose, the protection 605 should be stripped from this Act.

    Well, suppose the Sugdens are tried and suppose this evidence is introduced in evidence and the Sugdens are — are acquitted.

    What is the answer there?

    You can’t permit agents of the Federal Communications Commission to themselves decide a man is guilty, try him in their own mind and say he’s guilty.

    Therefore, we will intercept and paddle and justify doing it by their test because as I have said supposing that the testimony is admitted.

    They have attempted to do it and the jury acquits them and they’re then found not guilty and the crime wasn’t committed and yet the interception has been held and illegally.