Uphaus v. Wyman – Oral Argument – November 17, 1958

Media for Uphaus v. Wyman

Audio Transcription for Oral Argument – November 18, 1958 in Uphaus v. Wyman

del

Earl Warren:

Number 34, Willard Uphaus, Appellant, versus Louis C. Wyman, Attorney General, State of New Hampshire.

Mr. France.

Royal W. France:

Chief Justice, may the Court please.

This case comes before the Court for the second time.

It arises under the same statute and under the same procedures as were involved in the case of Sweezy — Sweezy versus New Hampshire, which was recently decided by this Court and as to which we think the decision of the Court is conclusive upon the instant case.

The case when it came before this Court was remanded to the Supreme Court of New Hampshire for reconsideration in the light of the decision in Sweezy versus New Hampshire.

The Supreme Court of New Hampshire having reconsidered said that they have not altered their view.

In the first decision, there were three of the judges of the New Hampshire Court who were in favor of affirming the sentence of contempt and then, the second — and two who dissented, and then the second decision that the Court having changed its composition.

There were four in favor of reaffirming their own decision and one who dissented.

They — Your Honors will recall that the statute under which the Attorney General of New Hampshire proceeds is one which relates to subversive activities which I define as activities looking toward the overthrow of the Government by force and violence.

We shall present four points for the consideration of the Court, the first that the information sought by the Attorney General is irrelevant and it involves protected First Amendment rights.

Second, that the — a mandate — mandate of the New Hampshire Legislature is vague.

And third, that this statute has been superseded under the doctrine of Pennsylvania versus Nelson.

And fourth, that the indefinite sentence is a cruel and unusual punishment.

I will present the first two of these points and my colleague, Mr. Boudin will present the others.

In order to understand how this case comes before the Court and why the Attorney General of New Hampshire appears to think that the information he seeks is relevant.

It becomes necessary for me to tell you something about Dr. Willard Uphaus, the appellant, and World Fellowship of which he is the Executive Director.

It clearly appears from the record that here is an unusual type of man who takes quite literally the principles enunciated in the Sermon on the Mount.

He was a — a religious youth active in the YMCA and in the Methodist Church.

He — he went to college and from there, to the Yale University, where he took his Doctor of Philosophy degree in the field of religion.

He became a professor of religion in a Midwestern College and later at Yale University.

Following this, he became the Director of the Religion and Labor Foundation, an organization which was formed by religious and labor leaders with a view to discussing common problems affecting these two groups.

While he was serving in that capacity, he was invited with a group of other — rather prominent Americans to attend a World Peace Conference which should have represented delegates from both sides of the so-called Iron Curtain.

This conference was to be in London.

While they were on the high seas, the British Government decided that it would not admit the delegates from the Eastern European Countries.

And the site of the conference was transferred to Warsaw.

From Warsaw, the appellant made a visit of 10 days to the Soviet Union.

This trip is one of the main features of the Attorney General’s complaint against Dr. Uphaus.

Potter Stewart:

In what year did that take place, Mr. France?

Royal W. France:

That was — it took place —

Potter Stewart:

1948?

Royal W. France:

In 1948, I think, of March.

The — the — when he returned, there was a schism in the religion in Labor Committee as to whether he had done the right thing in taking this trip.

And he left that organization and became the Executive Director of the American Peace Crusade.

The American Peace Crusade was an organization of which I happened to be the attorney, which came under attack by the Attorney General of the United States on the theory that it was, in some sense, a subversive organization.

Now, the record in that case showed that there was nothing agitated or done by the American Peace Crusade except to urge a more resilient foreign policy and peaceful coexistence with the Soviet Union.

However, there were also the Attorney General claims in the organization, some people who were or were reputed to be Communists, people of the type of Paul Robeson.

This was deliberately formed by the founders in order that people of different views might come together to discuss peace.

It was the concept of the American Peace Crusade that it doesn’t do any good to discuss peace with your friends or those who agree with you that the — it’s necessary for people of varying views to come together.

And that — that it is necessary for the representatives of our Government to discuss these affairs with those countries with whom we are not in accord.

So, that if there were Communists in the American Peace Crusade, it was with deliberate intent, represented the American Peace Crusade met with the Quakers in Philadelphia in a joint meeting in which the problems of peace were discussed.

Following his connection with the American Peace Crusade and before it was attacked by the Attorney General, it’s now — it has never been determined by a litigation that it was in fact a subversive organization.

The matter is now under judicial consideration awaiting the determination of this Court with regard to the Communist, the listing of the Communist Party.

So, that neither this organization, nor any of the other organizations which have been mentioned by the appellee as being a cause why he investigated Willard Uphaus and the World Fellowship have ever been found by the courts, in accordance with the doctrine laid down in the Joint Anti-Fascist case to — to be in fact subversive, and indeed, they — as was held in Wieman versus Updegraff by this Court.

The list itself was never designed for such purposes as it is now being used for.

And certainly, no one under that decision can be held to be suspected of anything unless he had — was shown to have knowledge, scienter that the organization was in fact subversive.

The appellant’s position here is that he not only had no scienter that it was subversive, but then he knew these organizations were not subversive, that they were indeed organizations to which a loyal American had a right to the law.

Willard Uphaus following his directorship in the American Peace Crusade became the Director of New Hampshire corporation known here as World Fellowship.

World Fellowship was founded by an idealistic person named Willard with the idea of bringing people of all races, creeds, political opinions together for adult education and discussion.

And that he gave to the organization a large acreage in the White Mountains where they were to establish the World Fellowship camp.

Potter Stewart:

When was it founded it about?

Do you remember?

When was the organization founded?

Royal W. France:

Well, it was founded in the 1930’s.

Willard Uphaus became director of it in 1951.

Potter Stewart:

But this was an organization that (Voice Overlap) —

Royal W. France:

And they admit 1952, I think.

Potter Stewart:

Dated back well before the Second World War.

Royal W. France:

That’s right.

The — the organization operated a summer camp.

Royal W. France:

It invited paying guests.

It — it had guest lecturers.

Many of them are clergymen, many of them college professors, social workers who presented various aspects of human relations including the problems relating to peace.

Now, the Attorney General in his statement of reason why this organization should be subject to investigation has listed on page — no, no.

I want this for a reason.

I thought I had it slipped in this brief.

On pages 30 to — 30 to 31 of this brief, the appellee has listed the reasons why he believes that this information is so vital to the State of New Hampshire that the interference with First Amendment Rights is justified.

Now, the first of these reasons is that the Willard Uphaus by his own testimony —

Earl Warren:

What page is this?

Royal W. France:

I’m reading on page 30 of appellee’s brief.

That the witness, Willard Uphaus by his own testimony, has been a member or sponsor of many organizations which persons in positions or responsibility in the United States have believed to be Communist-infiltrated or Communist-controlled, and hence, at the very least potentially subversive in the language of the New Hampshire statute.

Now, this is really the gravamen of the charge.

The Attorney General has listed a large number of speakers and guests at the World Fellowship in New Hampshire.

There is no suggestion that any of these speakers advocated anything improper.

There’s no evidence that they advocated any opinion proper.

The camp was an open camp to which not only people who knew about it were solicited but they had road signs inviting guests to come.

And so, the — the idea that there was anything conspiratorial about this camp is really — there’s no foundation for it.

However, after he had asked Willard Uphaus an inquiry before him or about himself and Willard Uphaus had frankly stated that he belonged to various organizations which were under condemnation by the Attorney General.

He stated that he had never been a Communist.

That he did not believe in the use of force and violence in any context.

That he was a religious pacifist.

And that the organizations to which he belonged were peace organizations or organizations related to the subject — subjects in which he vitally believed.

At the back of the Attorney General’s brief is a list, quite an extensive list of the alleged errors of appellant.

Appendix A on page 39 contains what the appellee considers to be the reasons why the — his — his demand for the production of the guest list and the correspondents with speakers that this institution was justified.

National Religion and Labor Foundation Secretary has spoken of that, American Peace Crusade, World Fellowship, National Council on American-Soviet Friendship, a contributor.

Here again, is a — an organization which has never been found to be subversive.

It aims are to bring about peaceful coexistence with the Soviet Union.

National Committee for the Protection of the Foreign Born, that — this again is an organization which is interested in the preservation of the rights of foreign born citizens, certainly nothing improper or subversive in this sort of activity.

Citizens Committee for Harry Bridges, cited as a Communist organization by the Attorney General.

Now, this organization which was favored (Inaudible) for Harry Bridges was sponsored by the CIO Leadership and many people in — prominent people in American life.

Royal W. France:

The American Friends for Spanish Democracy, many — many fine people including clergymen and liberals all over the country believed in the defense of the Spanish democracy as against the Fascist Rebellion.

And certainly Mr. — Dr. Uphaus has no apology for belonging to an organization that was the friends of the Spanish democracy.

A petition — he signed a petition for clemency in the Rosenberg case.

The Rosenberg case, I have it here, a photostatic copy of this petition which contains the names of several hundred of the prominent clergymen and religious leaders of the country in which they asked the President to exercise — to suspend the death sentence in the Rosenberg case as indeed — did the late Pope Pious XII whether or not the Attorney General believes that that clemency should have been granted to the Rosenberg.

It was certainly a protected activity.

Now, the American Technical Society for the aid to Hispanic democracy, Dr. Uphaus said he never heard of it.

But if it existed, he probably would have been glad to join them.

The National Council for Peace of which he was the Director of the Conference was held in a large Methodist Church in Washington with clergymen and other religious leaders present, and some of the most prominent religious leaders of the country spoke at that conference.

He wrote — so the Attorney General says two articles for the world review.

Well, why not?

Unless there was something wrong about the articles, why is it brought up here?

He attended a public meeting in New York for the Civil Rights Congress, liberty runs.

We reached the point where a man attending a meeting, thereby, is charged with all the views or opinions, that may be expressed there.

He is described — he described himself as a Christian socialist.

The appellant says or the appellee says he’s a member of the party.

Insofar as I know, there is no Christian Socialist Party.

It was Dr. Uphaus’ own description of his own political belief.

Here, the World Council for Peace, I’ve already spoken of his trip to the Soviet Union, the Interfaith Committee for Peace Action.

Many a prominent clergymen were on this committee.

He does not remember the labor committee to combat German rearmament that he said he would have combated German rearmament.

The Congress for Peace was a large Congress attended by some 5000 people and addressed by prominent religious leaders.

The Second World Peace Conference was the same as the first one.

The Mid-Century Peace Congress was held in Chicago.

It was addressed by Reverend Henry Hitt Crane, one of the leading Methodist Ministers of the United States and other prominent clergymen.

And he — he is listed as being the editorial advisor of the Protestant Digest that he said he didn’t remember, it might — maybe he was.

Then he lists on the next page 42, the conference on peaceful activities to the Atlantic Alternatives, the Atlantic Pact, a large meeting held in a church in Washington.

The Methodist Federation for Social Action which he is proud to be a member although the Attorney General of New Hampshire doesn’t like it and says that it’s — has Communist objectives.

Dr. Uphaus’ contention is that the creed of the Methodist Church does by its very nature have socialist objectives and — and objectives for peace.

He signed an appeal for amnesty for 11 Communist Party leaders along with such prominent Americans as, Mrs. Eleanor Roosevelt and Norman Thomas, Roger Baldwin and others.

He was a — he’s listed here as having been at the Mid-Century Conference for Peace, the American Friends of Spanish Democracy, on the letterhead, the Delegates for National Assembly for Peace and so on.

Royal W. France:

In other words, down at the bottom here, a number of repetitions of names already appearing in the earlier list.

Some of the known outside guests and speakers at World Fellowship, Dirk Struik.

Dirk Struik is a distinguished professor at the Massachusetts Institute of Technology.

He was accused by a notorious informer of — of being a Communist.

He was suspended, indicted.

The case was dropped and he has been restored to his position on the faculty of the Massachusetts Institute of Technology.

No charges ever having been proved against him.Richard Morford is the Executive Director of the American-Soviet Friendship Council.

Florence Luscomb is a social worker.

Ruth Crawford is a distinguished writer and editor who for a very short time in the early 1930s said that she was a member of the Communist Party.

She was called before a Congressional Committee and when she refused to disclose the names of others who had been with her at that time, she was dismissed along with Mary Jane Keeney who was also mentioned.

But the Attorney General forgets to tell you that when this case was reviewed by the Judicial Tribunal of the United Nations, both Ruth Crawford and Mary Jane Keeney were awarded heavy damages for improper dismissal.

My colleague points out to me that the time is running.

I would like Your Honors to read the report of the Attorney General of New Hampshire to the legislature.

For reasons set forth in our reply brief, we did not consent to the submission of this report to the Court but the Attorney General contends that he has a right to submit it that the court below referred to it.

And so we will make no objection.

I hope that Your Honors will read —

Has that been submitted?

(Inaudible)

Royal W. France:

He’s going to submit it, he says.

Oh.

Royal W. France:

And I have said I will make no formal objection although I think that because of so many misstatements in the report on the hearsay nature of the report that it was not competent or relevant but I’m making no objection to it.

And in fact, I would desire the Court to read this entire report beginning at page 136 of this report.

He lists a lot of people ministers, a prominent lawyer who was once the President of the National Lawyers Guild.

And this is a sin according to the Attorney General.

But I am very proud to be a member of the National Lawyers Guild.

It is true that it was attacked by the Attorney General.

But the present Attorney General has — when litigation was started has dropped the charges against the Lawyers Guild because of the lack of necessary proof.

The names here are the names of people quite obviously have liberal persuasion.

There’s only one who the Attorney General says was — said — admitted that he was a Communist 15 years ago.

And Dr. Scott Nearing, a famous educator according to the Attorney General ran for the — for office on the Communist ticket in 1928 and was later expelled by the Communist Party.

Royal W. France:

This is the kind of information submitted to the General Court of New Hampshire as justifying the invasion of First Amendment rights of not only the appellant here but of the guests whom he has entertained at the World Fellowship camp.

Now, I have just a few minutes left of my time to discuss the nature of the punishment.

It will be apparent to the Court from what I have briefly said and from a closer reading of the record that here is an intensely religiously motivated man.

He is a pacifist.

The Attorney General in his report equates that — equates pacifism with the violent overthrow of Government.

This is about as far removed as I can imagine.

On page 14 of our brief, we quote the appellee, what he said in the course of the proceedings.

The bottom of page 14, “It is, of course, obvious that Mr. Uphaus isn’t going to write someone and ask them to come and make a speech about overthrowing the Government by force and violence.

At the same time, the advocacy of a doctrine that we lay down our arms in favor of a few sticks and stones paving the way for the coming of the Soviet Union is just as much an advocacy of the overthrow of Government.”

If this is not a farfetched concept, truly the description of the past disposition in this passage is — is rather distorted.

I don’t know that pacifists advocate the use of sticks and stones but the concept that a religious pacifist is thereby advocating the overthrow of government by force and violence stretches imagination far beyond the bounds of mind.

There’s only one substantive statement in the — in the entire record that — of anything that occurred at the World Fellowship camp that could be the — in anyway remoted — remotely related to the purposes of the Attorney General’s inquiry.

He was asked whether he had asked a blessing on revolution.

The incident was so trivial that he’d forgotten it.

When the Attorney General questioned me, he said, “Oh, yes,” someone had — had handed him a little slip with the words, “Some have bread, others have none.

God bless the revolution.”

The — the State Supreme Court of New Hampshire uses this as a part of the justification for its decision.

But as really not have pointed out revolution is not a violent affair necessarily.

The — the Industrial Revolution was one of the greatest in history.

I assume that the Revolution of The New Deal, many people thought it was revolutionary.

And the Attorney General himself I think would concede that there — the mere use of the term revolution in a rather light and flippant way like that scarcely amounts to an advocacy of force and violence such as to justify this proceeding.

And I might say that Willard Uphaus does believe that if we would accept the Sermon on the Mountain as being something by which we must live, that it would affect a revolution in this beautiful and bountiful world which would change it so that we would turn bombs into plow shears and guided missiles into pruning hooks.

Earl Warren:

Mr. — Mr. Boudin.

Leonard B. Boudin:

Chief Justice — Mr. Chief Justice, and Your Honors.

In addition to the basic First Amendment argument which was made in Sweezy and which with the burden of Dr. France’s remarks here, we present to Your Honor an argument that are also made in Sweezy, some refracts the — on reading the briefs in Sweezy made much better by Professor Emerson and by me, namely the question of supersedure.

The question as to whether or not under Pennsylvania against Nelson, that doctrine, the State power of inquiry in this matter, not talking generally, has not been superseded.

We think that there has been because of the particular language of the statute involved here and because of a particular kind of inquiry engaged in by the Attorney General.

The inquiry in the present case was made under two resolutions or statutes of 1953 and 1955.

Those resolutions which appear in the appendix to our brief, both tie in the 1953 and 1955 right of inquiry of the Attorney General with the enforcement of the Sedition Act of 1951.

They provide, these resolutions, that the Attorney General is to investigate violations of the Act of 1951, and in addition to decide whether or not there are subversive persons within the meaning of the Act of 1951 located in the State of New Hampshire.

Leonard B. Boudin:

Therefore, it would appear to us that the Act of 1951 if it was — it were invalid under Pennsylvania against Nelson would furnish no basis for the inquiry in the present case.

The tie in I may say between the Act of 1951 and the investigation of 1953 and 1955 is virtually conceded and is set forth in greater detail by the Supreme Court of New Hampshire in Nelson against Wyman, another one of these investigating cases, which I have quoted at pages 6 and 7 on my reply brief.

Now, the question that arises of whether the Act of 1951 which we term is an Act which has been superseded under the doctrine of the Nelson case.

It is an action which provides — which relates in the Preamble that there is an existence in International Communist conspiracy directed against the United States and against the States of this Union with the attempt to take them over on behalf of a foreign power.

It provides for the existence of seditious persons and seditious organizations in each case obviously tying them to the world Communist movement.

And again, in Nelson against Wyman as Your Honors will see from our brief, the Supreme Court of New Hampshire has recognized that this is a statute dealing with the same subject matter as the statute involved in Pennsylvania against Nelson.

Except that, the Supreme Court of New Hampshire has taken the position both in Nelson against Wyman which are referred before and here that the State of New Hampshire has a right to protect itself by a sedition statute against this kind of international Communist movement.

It is essentially a doctrine of state sovereignty asserted with respect to sedition.

A doctrine that we think this Court has said does not exist in Pennsylvania against Nelson.

Now, there are two arguments that are made here by the Attorney General and a position that’s taken by the court below with respect to the question of supersedure.

The Attorney General suggests without clearly stating it in his brief, but I want to give it the — the greatest power here that the power of inquiry is not subject to the Supremacy Clause.

In other words, that while a state sedition law making it criminal to engage in certain activities would be superseded or might be superseded.

I don’t want to make any contention on his behalf.

A state power of inquiry would not be.

Now, we think that given the peculiar circumstance to this case, namely, an inquiry directly predicated upon the statute, a sedition statute.

But even aside from the peculiar circumstance of this case, the power of inquiry necessarily relates to the power to pass a law.

And if the State of New Hampshire could not pass a state sedition law validly of 1951, it could not proceed to investigate how that law was working and to decide whether subversion — subversive persons referred to it in that law were actually in New Hampshire.

Secondly, the Attorney General suggests that or rather the — the Attorney General suggests that Pennsylvania against Nelson is not applicable because he construes that decision as suspending rather than as rendering invalid state sedition laws.

Now, I must only suggest that so long as the state sedition laws are invalid or are suspended, the Attorney General’s power to investigate is also either invalid or suspended.

We will take either choice because in either case would of course prevent the power of inquiry here.

Now, the State of New Hampshire through its Supreme Court has made, I think, a — a solid argument but we think equally disposed of by this Court’s decision in Pennsylvania against Nelson.

It says that possibly, doesn’t say this inquiry with that kind, that possibly a State might find local sedition which it could direct its attention to by a valid statute despite Pennsylvania against Nelson.

And Your Honor may — Your Honors may recall the following Pennsylvania against Nelson, two state courts, one in Kentucky in the Braden case and the other in Massachusetts in the Gilbert case, both dismissed, in one case, reversed the conviction, dismissed the indictment.

The other case dismissed the indictment without evidence being taken in the course of the trial.

And in both those cases it was suggested on pursuance that of course the court was not deciding that in the speculative situation of sedition directed against a State alone, the State would be powerless to act.

But we are dealing here not with a speculative situation but with a situation of the international Communist conspiracy as described in this statute which has not isolated the State of New Hampshire anymore in the matter that let us say a Shays’ Rebellion isolated Massachusetts in 1786.

We are dealing with an international conspiracy as found by the various legislatures which has never selected one state or another, not even New Hampshire and its special interest.

And the Attorney General of the New Hampshire has very candidly and well-stated repeatedly in speeches and in briefs and in the Sweezy case that it’s impossible to conceive of sedition against the State that is not related to sedition against the United States in the modern sense and vice versa.

As he’s read — said to Your Honors in Sweezy, “Well, I’d paraphrase it so I won’t repeat it.”

And when you read his brief in this case and his arguments made to the court below and, of course, through the printed records, you will see that he is repeatedly pointing out the importance of preserving the Union not just New Hampshire.

Leonard B. Boudin:

And the fact that he relies upon — at the Attorney General’s list of the United States and the congressional investigating committee hearings which of course deal with national organizations which he believed to be subversive.

And in each case, the Attorney General of New Hampshire is saying that he has a right on behalf of New Hampshire to aid the Federal Government in connection with its nationwide sedition.

And so, we say that treating this particular statute, the Act of 1951, as a statute not limited to New Hampshire, recognizing of the Court in the Gilbert case, that he has referred to said, that the techniques which were involved are the familiar paraphernalia of Communist agitation for the overthrow of Government in general and cannot be directed separately, and exclusively against the Government in this Commonwealth.

And in Gilbert, the indictments refer to with the counter indictment related exclusively to the Commonwealth of Massachusetts.

But what the Court in Massachusetts recognized as the paraphernalia — the familiar paraphernalia of Communist methods directed against the Nation as a whole applied in this particular case.

And in this point, I think I might rest with Mr. Wyman’s very succinct statement quoted at page 6 of my brief when he said, “National security is state security and state security is national security.

A threat to one is a threat to both.”

Now, I turn but only for a moment because I’m very anxious for Your Honors to hear Mr. — Dr. France in rebuttal.

I turn for a moment for the vagueness point.

And I do so briefly really because seven members of this Court have already stated their views on whether the Attorney General acted in Sweezy without due process because the mandate of the legislature in that case was too vague.

Since seven members of this Court have stated the arguments on both sides better than I could and certainly more persuasively than I could, I see no reason to add anything on the subject.

It would in respect to the two members of the Court who will read those opinions and who were not participative —

Felix Frankfurter:

Are you saying that the vagueness (Inaudible) seven members don’t recognize what I think of that?

Leonard B. Boudin:

Your Honor, in that case, the concurring opinion disagreed with the Chief Justice’s opinion which stated that the mandate of the legislature to the Attorney General was so vague as not to indicate what the Attorney General was to do.

And therefore, there was a lack of control by the legislature of the Attorney — over the Attorney General.

It was to that that I referred.

Felix Frankfurter:

Vagueness is of course technical for me, a technical doctrine under due process.

Leonard B. Boudin:

Yes.

Felix Frankfurter:

(Inaudible)

Leonard B. Boudin:

Thank you.

Now, there is only one thing that can be —

Felix Frankfurter:

(Inaudible)

Leonard B. Boudin:

I beg your pardon?

Felix Frankfurter:

All I can see you get out of it was the right they didn’t intend to put in.

Leonard B. Boudin:

Well, perhaps I was —

Felix Frankfurter:

(Inaudible)

Leonard B. Boudin:

— perhaps I was emphasizing —

Felix Frankfurter:

(Inaudible)

That is often the case, as between lawyers and justices.

Leonard B. Boudin:

I may have been emphasizing the majority opinion more than the concurring.

Leonard B. Boudin:

Now, there’s only one thing that can be added here in terms of chronology.

And that is the argument made by the Supreme Court of New Hampshire or the position taken by the Court.

That in 1957 the legislature or General Court of New Hampshire passed a resolution stating with respect to Dr. Sweezy that this Court was wrong in connection with the last point that I made about what the legislature of New Hampshire wanted with respect to Dr. Sweezy.

And that in fact the legislature wanted exactly what Mr. Wyman has said it wanted.

Now after that, I think it is sufficient to say that the resolution related specifically to Dr. Sweezy.

It was not considered by this Court sufficient to overturn the decision in Dr. Sweezy’s case when it was presented to it upon rehearing.

Thirdly, that of course the resolution passed in 1957 could hardly affect our right in 1955 and 1956 and the earlier 1957 at the time of the — the times of the alleged contempt and the original decisions of the State of New Hampshire.

With that I close and thank Your Honors.

Earl Warren:

Attorney General Wyman.

Louis C. Wyman:

Mr. Chief Justice, members of the Court.

I am very happy and grateful to have the opportunity at this time to be able to argue this case, because particularly of the argument that has been made to date in respect to the meaning and significance of some of these earlier decisions.

It is been said here that we’re out of business in New Hampshire as a state investigation of subversive activities because of the Steve Nelson decision and the Sweezy case.

I don’t believe, most respectfully, that this Court has ever held that to be the law.But at this point, this is a very simple case.

What is before the Court here is a subpoena duces tecum to Willard Uphaus asking him to produce two things which he refuses to produce.

Not for the reason of the Fifth Amendment.

Not for reason of any claim at all, except as he says, for reason of conscience and for technical reasons assigned by counsel, First Amendment, Fourth Amendment, Sixth Amendment and so forth.

No Fifth Amendment.

Now, what was he called for?

The first thing was his guest list at World Fellowship Incorporated, which is a summer camp in New Hampshire to which people come from many parts of the United States and concerning which considerable facts were unavoidably set forth to the legislature of New Hampshire in a required report which was submitted to the General Court on January 5th, 1955.

In his argument just now, Mr. France just said that he’d like to have this report in the record printed as an appendix to their reply brief is a statement that they don’t consent to it, but will raise no formal objection because of the fact that they didn’t consent to it.

We brought 40 copies here with us simply for the reason that we believe that it is impossible to adequately assess the full record of this case and to determine whether the questions that are asked of Dr. Uphaus in which he declines to answer in this case are relevant without examining this report which antedates the proceeding which is now before this Honorable Court.

I would like to the second class of information that’s asked for here by the subpoenas is for correspondence between Uphaus and speakers who came to World Fellowship.

On this — without going into the page references in the record, there were some 20 speakers with whom he had correspondence and that correspondence is in existence.

It is in New Haven, Connecticut and the guest registers which are asked for by the subpoena are in existence for the two years, not forever, but just for 1954 and 1955.

They’re in existence on 355 (Inaudible) in New Haven, Connecticut and there were about 300 or maybe 400 guests in each of the two years.

That’s all that this case is about.

Now, as against the request of the legislature of New Hampshire, not of the Attorney General, this is a legislative committee of one which has been approved as a procedure and practice in my State.

And as to which this Court held of such approval to be binding and of no concern here.

This committee was the Attorney General for the General Court because they didn’t want a committee of politicians to be conducting this kind of investigation in New Hampshire.

And this committee has operated in this case as in all other cases under rules of procedure which are printed up in the appendix to the brief, and which are ultimately fair, which were approved in substance by the House of Delegates of the American Bar Association and has at all times good witnesses in executive session including Dr. Uphaus.

Louis C. Wyman:

That executive session incidentally consisted of having the witness and this counsel come into one room, a private room without anybody being there at all except possibly myself or one or two Assistant Attorneys General or a — an investigator, the witness and this counsel.

And if the transcripts which are printed, some of which are printed in the transcript of record in this case, are examined by this Court, I am sure that you will find that at all times the exchanges between counsel and the witness and the committee were both courteous and restrained.

So that at this time, what does this case involve for this Court as an issue as the fundamental gravamen to use Dr. France’s language.

The gravamen of —

Potter Stewart:

Just before you —

Louis C. Wyman:

Yes, sir.

Potter Stewart:

— you do that point, Mr. Wyman, you indicated the procedures that have been followed by this legislative committee.

One, it is true, isn’t it, under rule one printed in your Appendix B that any part of this, that of the transcript of these executive sessions can be made public by the Attorney General in his discretion, so long as he finds that if such publicities require to effectuate the purposes of the (Voice Overlap) —

Louis C. Wyman:

That is the language of the New Hampshire’s subversive activities law of 1951, Chapter 588 of our RSA and the basic policy of the New Hampshire law.

He may not publish it unless it effectuates the purposes of the act.

Potter Stewart:

In his opinion, in his (Voice Overlap) —

Louis C. Wyman:

In his opinion.

Potter Stewart:

— unfettered opinion, is that it?

Louis C. Wyman:

In his unfettered opinion but the publication comes in two ways, Your Honor.

First, in New Hampshire in respect to certain witnesses who claim the privilege against self-incrimination, and then, only, in respect to those aspects of their testimony which might elicit further additional information as to whether what they refuse to talk about was known to anybody else in New Hampshire.

And second, in a report from the General Court of New Hampshire, which is required to be made, with respect to recommendations for legislation in this field and from which two separate laws were passed in New Hampshire, in 1955.

Potter Stewart:

That’s 944, is it?

Louis C. Wyman:

No sir.

That’s the only written report that’s ever been submitted by me.

The — I like to say also —

Potter Stewart:

The statute did not require an annual report.

Louis C. Wyman:

No, sir.

Potter Stewart:

Just a report?

Louis C. Wyman:

Just a report.

Potter Stewart:

And that’s what you have there?

Louis C. Wyman:

That’s what I have.

What I have here is not the full report.

What I have here is offset reproduction of only those sections of the report that deal with World Fellowship and Willard Uphaus.

The full report is three or four times this size.

And at this time, if it’s of any significance, I would like to say that 90% of the names of witnesses that were — that testified in the executive session in the investigation of subversive activities in New Hampshire had never been published.

Louis C. Wyman:

They did not appear in this report and it is then our policy in accordance with the rules of procedures not to do that whenever we can avoid it.

But we do have this statute in New Hampshire which requires that when a witness declines to answer, that the committee can do nothing about it and they must transfer the matter to the Court.

And then, before the Court they have a full hearing, to determine whether or not the questions are relevant.

Whether or not the — the statute under which the questions of course is constitutional.

And after the Court makes that determination one way or the other, the case is decided under the aegis of the judiciary.

I think it’s of some importance to mention the fact about names because the implication of the argument in appellant’s brief is that if the names of the guests are produced in accordance with the subpoena, that we will immediately proceed to the report under the legislature of subversive persons.

Which I assure to you, on my professional word, will not be done.

We do feel, however, that the guest names have some relevance that there may have been many of them who were or are members of the Communist Party.

And that in any fact finding investigation, that it is our responsibility and duty in order to try to find out whether there was advocacy of violent overthrow or that kind of incitement to action referred to as a limitation under the Smith Act and hence, applicable to that aspect of the New Hampshire’s — the subversive activities act by Yates versus U.S. held by this Court whether that existed at World Fellowship.

You see, there are two things here that are really the job of the committee.

One, is Willard Uphaus a subversive person?

That’s one.

The second is, and this is perhaps more important, is World Fellowship incorporated a bona fide place in which people come for the purposes of dissent and argument, and discussion of controversial matters all within the limitations of freedom of speech?

Or, is it a place where they come to hatch a plot to overthrow the Government of the State of New Hampshire?

Felix Frankfurter:

Where was it incorporated?

Louis C. Wyman:

In New Hampshire as a voluntary corporation, Your Honor.

That is the thing that —

William O. Douglas:

I gather that you, Mr. Attorney General, it’s your view that even a philosophical Communist would not be entitled to any rights under the First Amendment?

Louis C. Wyman:

No, Your Honor.

I have never said and I do not now urge and argue in this Court that a Communist is not entitled to all of the rights which any American citizen or a person in this country is entitled to.

A philosophical Communist is a species of individual as to whose actual philosophy, I am in doubt.

Do you mean I do not know, Your Honor, what — by that whether he advocates —

William O. Douglas:

I’m just — I’m just reading your speech in1957 before the Attorney General —

Louis C. Wyman:

Yes.

William O. Douglas:

(Inaudible)

Louis C. Wyman:

Yes I did, your Honor.

I was intensely critical of some of the decisions.

William O. Douglas:

I gather the — was the grip of your argument today?

Louis C. Wyman:

No.

I think a part of the grip in my argument today and the feeling that I have then was that as things now stand, all the witness has to do today to avoid a contempt charge is to refuse to answer and cite Sweezy and Watkins and perhaps Yates and we’re in doubt.

Louis C. Wyman:

We don’t know whether he has to answer or not.

Now, we feel that the Watkins case in this particular cause which is here is inapplicable, because we don’t think we have a vague resolution.

We think that this Court in effect in Watkins told the Congress of the United States, “Rewrite your resolution empowering your un-American activities and your internal security subcommittee, empowering them to act.

Rewrite it so that we’ll know and can pass as a judicial act upon what un-American activities means.

Or, we will be unable to determine whether a particular question is relevant to the line of inquiry which you are now taking.”

But in New Hampshire, we have an Act which was very carefully written by a Frank Ober of the Maryland bar and has been patterned in the many states in this country known as the Ober Act, in which subversive activity is defined very clearly to require a scienter with intentional advocacy of the overthrow of the Government of the State of New Hampshire by force and violence.

And to require of an organization before it can be held to be subversive that it shall have and be found to have as one of its purposes, the overthrow of the Government of the State or any political subdivision thereof by force and violence.

And I say the State because as we see it in the Steve Nelson decision of that portion of the New Hampshire law which said the Government of the United States or the State of New Hampshire, that portion which dealt with the Government of the United States has been struck out insofar at least as the capacity of the State of New Hampshire to constitute this concern.

We don’t believe that this Court struck out from the statute, that section of — of the statute which said that New Hampshire may make it a crime to conspire or to advocate or to teach the propriety of the overthrow of the Government of the State of New Hampshire within its borders.

And there, perhaps raises the question and a very important one, what happens when someone takes the position that the web and fabric of the statutory restrictions on this type of activity are all directed at the International Communist Movement.

What happens when the — when it is said that advocacy of the overthrow of the Government of the United States unavoidably involves, advocacy of the overthrow of the Government of the State of New Hampshire (Inaudible) in California, and there, we cannot answer that except to say that we hope that this Court will read carefully the opinion of the Supreme Court of New Hampshire.

In this case, where it said we’re concerned and we find the legislature’s concern is valid about overthrow of the Government of the State of New Hampshire and we believe that it cannot be found that the legislature did not have a genuine concern to know whether there were people at World Fellowship, Inc. that were conspiring to overthrow the Government of New Hampshire.

And hence, the investigation appears to be warranted.

Felix Frankfurter:

May I ask you, Mr. Attorney, whether the code of procedure by which you were governed as a member of the committee of your legislature, whether that was an ad hoc court — court of procedure for purposes of this — the inquiry with which you were charged or is it a standing code of procedure for legislative inquiry by your legislature?

Louis C. Wyman:

Your Honor, when I was first empowered with the obligation of conducting this investigation for the legislature in 1953 in New Hampshire, I came to Washington to study the rules that applied to the various committees that had been in this field at that time in Washington.

And to try and put together from them a composite which would come as close to settling the arguments that were made of unfairness that I could find and still not completely incapacitate the committee’s informing function.

It was an ad hoc combination of those things for the purposes of the New Hampshire investigation.

Felix Frankfurter:

Had the legislature as such approved the sanction of your procedural method — your procedural dealings?

Louis C. Wyman:

Yes, Your Honor.

In the sense that they have received and accepted the report, twice extended the investigation and now made the investigation a permanent part of the permanent legislation of New Hampshire, not as a permanent investigation, but by providing that whenever the Attorney General has any evidence coming to him of any responsible source, and again, I am unable to say that it is required to come to the General Court.

It comes to the Attorney General that he shall have the power to investigate.

And if he believes legislation to be required, he shall make his report to the legislature at that time.

That’s the —

Felix Frankfurter:

In this field?

Louis C. Wyman:

In this field only.

Yes, Your Honor.

A reading — many law review articles and many cases which have dealt with the whole — the question of issues in this case and the application of the First Amendment and before I spend my concluding moments of argument upon the facts of this case, which we believe to be very important, I want to refer to two or three things which seems to me are basic.

First, that the Communist Party is not a lawful political party, nor is it an ordinary political party as the Republican Party or the Democratic Party in America.

If it is to be considered as that, as an ordinary political party, then, I think that the entire tenor of the disposition of this matter has got to take a different tone.

We don’t believe any responsible source whether in or out of Government has ever found in this country that the Communist Party was anything other than a conspiracy.

Louis C. Wyman:

One of the objects of which was to overthrow the Government of the United States of America, and in part, the governments of all the various States of the United States.

Felix Frankfurter:

When did the Communist Party cease to be on any of your electoral tickets?

Louis C. Wyman:

1946, I believe was the last year, Your Honor, that the Communist Party was on the ticket in the State of New Hampshire.

Since 1951, which was the year that they first passed the subversive activities law in New Hampshire, no one admits to being a Communist in my State.

William O. Douglas:

Is the party be outlawed as such?

Louis C. Wyman:

No, sir.

William O. Douglas:

It could lawfully appear on the ballot?

Louis C. Wyman:

It could lawfully appear on the ballot, although it is very plain from the Preamble to the Act in New Hampshire of 1951, the Subversive Activities Law that what the legislature of New Hampshire had in mind was the Communist Party rather than fascism but it is so worded that if fascism or any others that denied the constitutional freedoms whether — be involved in a party that it would be subject to the sanctions of our Act.

Felix Frankfurter:

And you — and you would feel that within your jurisdiction to make inquiries into the activities of a fascist party or suspected by you will be an organization having fascias purposes whatever they may be.

Louis C. Wyman:

Oh, I would believe it to be absolutely imperative.

If Gerald L. K. Smith came into the State of New Hampshire, I’d want to know what he was doing, You Honor.

And I would believe that the statute required me to find out, at least to ask him, whether or not he was advocating any of the doctrines for which he has so infamous in America.

Earl Warren:

Could you have the right to subpoena all his correspondence?

Louis C. Wyman:

It depends upon whether I have something in my possession which was in the nature of probable cause.

I would say that out of the blue, no.

Not to subpoena all of his correspondence.

But, if I had in the possession of the staff of the committee a — an indication that he had within New Hampshire, been active in many organizations, infiltrated or controlled by Communists or fascist, then I would say if he had ran an organization in my State or was heading it up and he’ ask people to come there and speak and one of the things I was required to find out was whether there had been advocacy of overthrow of it’s Government by force and violence that I would be required to ask for his correspondence with them.

Earl Warren:

But you just said that after his infamous career in other States of the Union, you would fee that you’re — you’re involved in a duty to — to investigate him now, bearing in mind the so-called infamous career that he’s had.

Would you feel that you have the right to subpoena all of his correspondence, if he came into your State?

Louis C. Wyman:

It would depend, Your Honor in my opinion, and I’m sorry to have to answer it this way as to what activity he had had within my State.

Earl Warren:

Well, I was just using your own words.

Louis C. Wyman:

Yes.

Earl Warren:

You chose him as the subject.

I didn’t choose him.

You chose him.

Louis C. Wyman:

I chose him –-

Earl Warren:

And because of his infamous —

Louis C. Wyman:

(Inaudible)

Earl Warren:

— background I suppose in kind of distinction to — to Communist background.

Louis C. Wyman:

That is correct.

Earl Warren:

Now, if you — knowing what you do about him, if he’d came into his — into your State, would you feel that it was your right to — to obtain all of his correspondence, and the names of all the people who attended his gatherings?

Louis C. Wyman:

If he had gatherings within my State, Your Honor?

Earl Warren:

Yes.

Louis C. Wyman:

Yes, I would, Your Honor provided —

Earl Warren:

Have the correspondence, also?

Louis C. Wyman:

If people were invited to come there and speak, the people in New Hampshire, yes.

Provided I have in addition, indication that those people had been active in organizations which somebody thought were controlled by subversives.

Earl Warren:

And would that depend upon your sole decision based upon secret information or whatever information you might have as to whether he — he should be subjected to that procedure?

Louis C. Wyman:

No, Your Honor.

It would not.

Earl Warren:

Who —

Louis C. Wyman:

My —

Earl Warren:

— would decide that?

Louis C. Wyman:

My decision is always under our procedure in New Hampshire subject to review by the Court upon a record which in turn is subject to review by the Supreme Court.

Earl Warren:

Yes, but what do you base that on?

As in this case, do you not base it upon what you reported to the legislature in that red book that you just have before you?

Isn’t — isn’t that using your own discretion?

Louis C. Wyman:

Within certain limits, my discretion is used but as has been held in New Hampshire, that discretion must be supported by something in the nature of some legitimate and reasonable reason for concluding, as I have, that there was a necessity to obtain the information.

I could not for example out of thin air take the case of John Jones and ask John Jones without anything more for his correspondence or inquire into his private life.

Earl Warren:

Well, you could, I suppose if you made a report to the legislature stating that — that your information was that he had known people of bad character and had associated with people who have no known connections, and you had made that report to the legislature, I suppose you could use that against John Brown just the same as you used it against Mr. Uphaus, couldn’t you?

Louis C. Wyman:

Well, Your Honor, you have said, made a report that people were known to have bad character.

I have never characterized anyone in any reports submitted to the legislature as being subversive person.

I have never so characterized Willard Uphaus and I made it very clear on repeated occasions.

I have reported the obviously known facts of association on membership and organizations which was cited by the Attorney General of the United States or membership in the Communist Party or alluded, for example, to the fact that before the House Committee on Un-American Activities on May 23rd 1956, Willard Uphaus took the Fifth Amendment when asked about certain of the things he was asked about in New Hampshire before.

Earl Warren:

Now — now — I — you — you considered — do you base your judgment then on the fact that — of that he should have his correspondence reviewed here partially or largely on the fact that he claimed the Fifth Amendment in a congressional hearing?

Louis C. Wyman:

No.

Earl Warren:

Well, why do — why do you cite it to us if you do not?

Louis C. Wyman:

I cite it to you, because Your Honor, if he took the Fifth Amendment honestly, he said that, “If I gave a truthful answer, I might subject myself to the risk of prosecution for a crime not outlawed by the statute of limitations.”

Earl Warren:

Does that mean that — does that mean he confesses guilt?

Louis C. Wyman:

Not quite because if he wants to avoid the risk of being prosecuted, if he thinks that those responsible for the handling of prosecutions might be indiscreet in their preparation of cases, he might be able to take it honestly for that purpose.But when it refers to a time in history — and this, I believe it referred to the Warsaw Peace Congress outlawed by the statute of limitations, I know of no valid reason for taking the Fifth Amendment, Your Honor.

Earl Warren:

Well, I suppose if you’re not the one who makes the decision, now are you that I thought it was a constitutional right that a man could just take them.

I thought you could take it without — without it being a reflection against him which would deprive him of any rights of an American citizen.

Louis C. Wyman:

I think that’s probably so.

I don’t think that simply because he takes the Fifth Amendment, he can be deprived of those rights without notice in hearing as this Court has held in this (Inaudible) case and in certain other cases.

Earl Warren:

Well, I’m just wondering why — why you — you cite to us the fact Mr. Uphaus did avail himself of the privilege of the Fifth — Fifth Amendment in order to support your position here, because you said, we were talking, I think about (Inaudible) and you said if he’d taken the Fifth Amendment, this — Mr. Uphaus did another thing.

Louis C. Wyman:

Oh, well this, Your Honor, had nothing to do with the inquiry in New Hampshire.

He did not see fit to take the Fifth Amendment —

Earl Warren:

That, I don’t know —

Louis C. Wyman:

— in New Hampshire.

And —

Earl Warren:

— I understood he — he spoke very frankly to — to you and before the Court as to all the things that involved him personally.

It was only when — when it came to being an informer that he — that he declined to answer.

Louis C. Wyman:

Well —

Earl Warren:

Isn’t that correct?

Louis C. Wyman:

No.

I — we dispute that.

We think he answered with less than candor concerning himself personally and concerning others that in the sense of questions that did not require the disclosure of any names, but it would require a full examination of all the transcripts to come to that conclusion.

I felt that the Fifth Amendment used by Mr. Uphaus before the Walters Committee at that time was significant because it took the American League for War and Fascism or the American Committee for the Protection of the Foreign Born, or any or these organizations with which Mr. Uphaus may have been associated by his own testimony in the past.

And he says there’s nothing wrong with that.

And yet, when he is asked about, who the people were that were with him when he called on the American Ambassador in Moscow, he takes the Fifth Amendment.

Now, I only cite this to you and this is very important Mr. Chief Justice.

We don’t use the subversive list in New Hampshire with any element of censure.

We don’t use them for the purpose of saying anyone is guilty of anything who has been a member of an organization on that list.

We only use them here as a reason for inquiring further to see whether there was subversion in New Hampshire.

Now, a Communist or more has been active in these organizations or they could never possibly have been cited.

Cited has never been the case in the report of the New Hampshire Legislature that we submitted.

No one has ever been cited about anything.

By Dr. France’s own argument here, at least four of the speakers that are referred to in the appendix to our brief, without going into any of the others, were Communists at one time.

All we’re interested in, in New Hampshire in the balancing process which is the $64 question here on the balancing of First Amendment rights against the public interest in disclosure.

In the balancing process, we’re interested in finding out whether these people were just having a — a hype fest or whether they were plotting subversion, and intrigue as fantastic as it may sound to some.

Louis C. Wyman:

And that’s why we believe that the information called for is relevant and pertinent and that we are entitled to have it.

And that we do not in that process trespass upon any First Amendment rights.

Potter Stewart:

Now, in that connection — in connection with which you just said, is it true as it’s been represented that these meetings were open to the public with road signs inviting the public?

Louis C. Wyman:

Oh yes, Your Honor.

That’s true.

As a matter of fact, I can’t answer that in regard to all of the meetings.

We do not know what all of the meetings were or when they were or what was said at them.

But we do know there is a sign on the highway just below Conway, New Hampshire which advertises World Fellowship Incorporated and a place of public accommodation and invites people of all faiths and creeds to come in which is perfectly proper.

It’s a professionally paid place.

I mean, you don’t go in and stay there for nothing.

You have to pay for your room and your board.

And we have a statute in New Hampshire and have had for some more than a quarter of a century which requires that public registers be kept of people who go and stay in such places.

Potter Stewart:

Is that — I was going to ask you that.

Is that list available to you as Attorney General?

Louis C. Wyman:

I suppose technically it is because technically I am the chief law enforcement officer of the State, but it is worded as being available to the sheriff —

Potter Stewart:

To the sheriff.

Louis C. Wyman:

— and police officers.

And we have never seen that at this point to go in and take that list in the police centers.

Felix Frankfurter:

Does that mean that if he gets the register with the sheriff, that there would be no question about the sheriff if he doesn’t get those?

Louis C. Wyman:

Unless — unless the proprietor of such a place and when I say such a place, any public place took the position that such a statute was unconstitutional itself as a violation of the First Amendment.

That no police power of the State or public welfare of the State required such a register.

Felix Frankfurter:

What’s the category under which access was given to the sheriff?

How are these places are described I should say?

Louis C. Wyman:

Just a moment, Your Honor.

We quoted in our brief.

Page 25.

I think.

Louis C. Wyman:

It’s RSA Chapter 353, Section 3 and it appears in our brief at page 25.

Thank you, Your Honor.

Felix Frankfurter:

But what, how do you categorize?

Felix Frankfurter:

Would you mind telling me?

How are they different from having the State going and find out who’s registered as the Mayflower (Inaudible)

Louis C. Wyman:

No difference except that, it says, “All hotel keepers” and I’m quoting, Your Honor, “All hotel keepers and all persons keeping public lodging houses, tourist camps or cabins shall keep a book or card system and cause each guest to sign therein his own legal name or name by which he is commonly known.

Said book or card system shall be at all — shall at all times be open to the inspection of the sheriffs or his deputies or any police officer.”

Felix Frankfurter:

Now, is there any doubt that this place was subject to that book as a requirement?

Louis C. Wyman:

No doubt, whatever, in my opinion.

Felix Frankfurter:

Is there any doubt the sheriff could get this list about which there is always controversy?

Louis C. Wyman:

Oh, yes, Your Honor.

The list that is called for by the subpoena goes way beyond anybody who stayed overnight.

Felix Frankfurter:

If they did so.

Louis C. Wyman:

Oh, yes.

We — we feel that —

Felix Frankfurter:

Anybody who stays there during the day or –-

Louis C. Wyman:

Anyone who has been there at all.

Felix Frankfurter:

What is the reach of your subpoena as to the private correspondence of Mr. Uphaus?

Louis C. Wyman:

Solely — solely with persons who have spoken or have been invited to speak and have spoken at World Fellowship.

Now, for example Mary Rozak was referred to in the hearings before the House Committee on Un-American Activities as having been at World Fellowship and talked at the World Fellowship.

Mary Rozak has been identified under oath as a former member of the Communist Party.

And I say former because again, no one admits openly at this time to my knowledge to being a member of the Communist Party, at least, in New Hampshire.

And Mary Rozak did talk at World Fellowship in the 1955 season.

That would be one of the things we’d like to find out and we believe we’re entitled to without violating his First Amendment rights: is did he ask you to come there and advocate with the intention of incitement to the commission of an overt act against the Government of the State of New Hampshire or not?

I realize, and when I say that, that it sounds incredible that such advocacy or such urging or solicitation could have taken place at that time in America that it had —

Potter Stewart:

Well, is — let’s — let’s accept it that sounds fairly incredible but isn’t it — let’s assume the credibility of that that might have been the purpose.

Isn’t it absolutely incredible that he would have put that down in the letter in writing it to her?

Louis C. Wyman:

It’s very doubtful.

Potter Stewart:

That’s not the way you ask somebody to cooperate with you in overthrowing the Government by force and violence, is it?

Louis C. Wyman:

That’s how —

Potter Stewart:

(Inaudible) not have in the letter and sending it through the United States mail?

Louis C. Wyman:

That’s — that’s probably true.

And that was what was — what I meant and was referred to by Mr. Boudin in his argument in saying it most unlikely that the appellant here would ever openly admit or put down in writing any of the things which are the very subject matter of the investigation.

Louis C. Wyman:

He says —

Earl Warren:

Isn’t it equally unlikely that he would have those things in his possession now and would — would state openly in Court that he did have them and where he had them, where they could be located if he — if they did in fact show anything subversive?

Louis C. Wyman:

Probably, Your Honor, I would assume that his counsel if they did fact show anything subversive would advise him to take the Fifth Amendment or the New Hampshire equivalent and decline to produce it.

But at the present time, that position has not been taken.

We do not know whether it would show anything subversive.

It is unlikely.

However, in the Supreme Court opinion in New Hampshire, the Supreme Court in New Hampshire did refer to the fact that — and I quote from page 22 of the first jurisdictional statement which was filed in this cause originally by appellant, a book available at the center entitled “World Fellowship of Faith” contained an article which after supporting Communism reads, “If any government stands in the way, that government must be overthrown.”

And again, there were statements to the effect that, “If any people stand in the way, that people must be destroyed, we must banish God from the skies and capitalists from the earth.”

The witness denies that he subscribes to everything in this publication.

The witnesses’ views, Your Honor, are not on trial here.

This is solely a fact finding investigation and we have attempted to impose no criminal sanctions whatever upon Willard Uphaus.

He’s not being prosecuted for anything.

We simply would like to know in New Hampshire, what this organization was up to at World Fellowship and who was there.

And as things stand now —

William O. Douglas:

Does your office monitor meetings like this —

Louis C. Wyman:

No, Your Honor.

William O. Douglas:

— in New Hampshire?

Louis C. Wyman:

No.

William O. Douglas:

Did you have your agents there —

Louis C. Wyman:

No, Your Honor.

William O. Douglas:

(Inaudible)

Louis C. Wyman:

No, I have not.

I have not.

I have undertaken on occasion to check number plates that have gone to World Fellowship Incorporated but the cost of maintaining a surveillance of the place was beyond any budgetary availability in my State.

Now in this case here, the appellant and again, I’d like to point this out because I think it’s important.

The transcripts will show that the appellant took the position with the Superior Court of New Hampshire.

In effect, I don’t care if you order me to produce these documents.

I know they are called for by the subpoenas.

I came here to Court, I did not bring them with me and I will not produce them no matter what you do.

The same position was taken before the Supreme Court of New Hampshire.

Louis C. Wyman:

And now, in a publication entitled “A Matter of Conscience,” the appellant says the same thing to the Supreme Court of the United States.

Saying, “In an appeal for funds, that if the Attorney General — ” and I’m quoting, “of New Hampshire wins, Willard Uphaus, being the man that he is will go to jail for the rest of his life.”

In effect, it makes no difference what the decision is here.

The witness isn’t going to answer.

And as far as that, it relates to cruel an unusual punishment, I think Mr. Justice Black in the Green case in his dissenting opinion, very clearly disposes of that by saying that in such circumstance, Mr. Uphaus or a person subject to a contempt order holds the keys to his own dilemma in his pocket because he can’t comply with the order and he doesn’t have to go to jail or spend any time confined even overnight.

Hugo L. Black:

I believe I said “valid contempt” though.

Louis C. Wyman:

Valid — you said “valid”, Your Honor.

And you said that it was in the nature of civil a coercion as distinct from the criminal contempt which was imposed upon Green and some of the others in that particular case.

Potter Stewart:

Mr. Wyman, this subpoena was limited to what period of time, speaking —

Louis C. Wyman:

The years 1954 and 1955, which does not mean Your Honor the entire year but merely the summer season.

Potter Stewart:

Summer season up to —

Louis C. Wyman:

That’s all.

Potter Stewart:

— a year.

Louis C. Wyman:

Two months on each —

Potter Stewart:

(Inaudible)

Louis C. Wyman:

— of those years.

Potter Stewart:

And the subpoena duces tecum asked for a list of all the guests.

Louis C. Wyman:

That’s right.

Potter Stewart:

And plus correspondence with speakers —

Louis C. Wyman:

That’s right.

Potter Stewart:

(Inaudible)

Now, the record shows doesn’t it, that you know the identity of the speakers.

Do you?

Louis C. Wyman:

No, not all of them.

We know the identity of quite a few of them.

We are not sure that we have all of them although we have in the report listed a great many of the speakers because we believe the speakers to be important.

And the speakers, we know there was correspondence with some of them, but with not all of them.

Now, there were other things that the subpoena has called for, a good many of it.

And those things have been disposed of in this case either by the appellant saying, “I don’t have any of that,” which we didn’t question or by his saying that those dealt with professional employees and — by — are not taking an exception with the matter.

Actually, the whole question here is confined solely to the production of the guest list and the argument which is made that production of the guest list would expose the guest to manifest indignities and the risk of being classified as subversive persons and so forth, which is utterly untrue.

Louis C. Wyman:

And the implication which is tried to be presented to the Court that the minute the guest list is given, it’s going to be published in a red report to the general court which will smack of some kind of a taint upon the guest, which is also untrue.

Earl Warren:

Well, it could be without any restraint on your part wouldn’t it?

Louis C. Wyman:

If it —

Earl Warren:

And it’s just a matter of your own — of your own choice if you would not do that.

But under — under this statute and with the power you have, could you not list every person whose name was given to you by this man?

Louis C. Wyman:

Yes, except, Your Honor that the rules of procedure precluded insofar as the indiscriminate names of public — in public of people are concerned.

Earl Warren:

And who — who determines as to what indiscriminate means?Is there anyone —

Louis C. Wyman:

The sound is —

Earl Warren:

— that you have reviewed over a committee —

Louis C. Wyman:

Yes, Your Honor.

Earl Warren:

— that you’re —

Louis C. Wyman:

If the Court —

Earl Warren:

— publishing?

Louis C. Wyman:

No.

Earl Warren:

(Voice Overlap) — publishing?

Louis C. Wyman:

Not in the report to the legislature.

Earl Warren:

Why haven’t you, if that is what we are talking about, the publishing.You could publish anything you want.

Louis C. Wyman:

Yes, Your Honor.

Earl Warren:

That’s what — that’s what I meant.

Louis C. Wyman:

And I —

Earl Warren:

The fact that you don’t do it, isn’t because the — the statute raises that standard.

It’s merely because you yourselves, as a professional matter feel that you shouldn’t do it.

Louis C. Wyman:

That’s right, Your Honor.

Earl Warren:

Isn’t that right?

Louis C. Wyman:

That’s right.

And we believe that if the legislature in a case such as this and again, trying to — this — differentiate myself from the legislature in the sense only that I am a committee of the legislature.

If the legislature wants to know who was at World Fellowship Incorporated, it is absolutely entitled to know, who was at World Fellowship Incorporated in New Hampshire with the record that the executive director of World Fellowship has.

And with the record of Communist Party activity and the association that people who have spoken there have.

Such as to mention names, Julian Schuman, William Hampton, Scott Nearing, Clarence Loskin who took the Fifth Amendment in this same investigation in New Hampshire in respect to activities at World Fellowship Incorporated.

Earl Warren:

I know — I — I noticed also that there were — that some of these people when we questioned them every time there’s associations, that some of these organizations that you say were listed with the Attorney General, held meetings in — in some of the churches, in New Hampshire.

Earl Warren:

Now, may I ask you if you would feel free under your — under this statute to go to the churches and — and demand that they — to give the correspondence between them and the — and those who spoke and — and also have the right to demand that they give you a list of the people who have been there?

Louis C. Wyman:

No, Your Honor.

Earl Warren:

Now, will you distinguish, please for me, between the churches and this particular institution?

Louis C. Wyman:

Well, Your Honor, I can —

Earl Warren:

Insofar as your — your legal power is concerned.

That’s all I’m asking you.

Louis C. Wyman:

The First — First Amendment of the Constitution very clearly says the Congress shall make no law respecting an establishment of religion, the freedom of speech.

But the establishment of religion is something which goes very deeply under the picture.

You will find in this report here that we believe that Mr. Uphaus’ position as far as religion is concerned here, is a bogus and hypocrisy and a sham.

And that the record shows that to be the case, I am sorry I have to make that statement.

But we believe that to be the case and the facts.

And that behind this façade, there is, in all probability at least, New Hampshire is suspicious of it, going on activity and furtherance of the aims and the objectives of the Communist Party in the United States.

That being the case, we feel that we are not in the position, Your Honor at all here of your suggestion that under a statute, there would be power to go into the church, authorized ordained church and investigate the activities in the church unless it were perfectly apparent upon an overwhelming record that it was not a bona fide church and that the activities going on there were merely a masquerade or a mask with which to cover a sabotage, espionage or otherwise.

And I certainly can say to you the answer is “No.”

Earl Warren:

But we have some — some churches that are on a rather informal basis, more informal than others.

For instance, the Jehovah’s Witnesses.

If they had a — a gathering, would you feel — would you feel that you had the right to do that or would do they have to have some form of church building and hierarchy or — or something else to indicate that they were a religious group?

Or — or what is the test that you would use to determine whether you are interfering with religion or not?

Louis C. Wyman:

Solely, Your Honor, whether members of the Communist Party present or former were active within the group itself.

Earl Warren:

I —

Louis C. Wyman:

That’s all.

Earl Warren:

I understood you to say a few moments ago that in New Hampshire, no one now, admits that he is or was a member of the — of the Communist Party.

What would happen to him if he did that?

Louis C. Wyman:

Well, first, I didn’t say, “was” Your Honor, I said, “now

Earl Warren:

I was (Voice Overlap) —

Louis C. Wyman:

— admits.”

Earl Warren:

I beg your pardon?

Louis C. Wyman:

I didn’t say “was.”

We have had many people come to us and explain that they had been in the Communist Party in years past and had gotten out it at a certain time and the reasons for their going into it and their affiliation with it and that they saw no evidence while they were there of force and violence within the party and the sense that it was an operation in New Hampshire.

Now, if somebody came in today and said, “Yes, I’m a Communist.”

Louis C. Wyman:

I’ve had that happen.

The gentleman has now passed away.

I said now in the course of the investigation, “Do you advocate to the overthrow of the Government in the State of New Hampshire by force and violence?

“No sir, of course not.

“Do you advocate the overthrow of the Government of the United States by force and violence?

“No, of course not.”

And you go through a very capital examination of such a witness if the witness is answering and not playing cat and mouse with you, Your Honor, and you’ll find that he’s not a Communist at all.

And that is the case, now if there’s —

Earl Warren:

Do you — you disproved to him that he is a Communist.

Louis C. Wyman:

I believe I did sir.

I think that’s about the size of that.

Earl Warren:

That — that’s a test?

Louis C. Wyman:

The test of —

Earl Warren:

Or, you can just prove to him the fact that he is a Communist?

Louis C. Wyman:

Well, I don’t think that if the person doesn’t advocate the overthrow or alteration of the Government of the United States or of all the free capitalist countries by force and violence, if that ultimately becomes necessary that he’s following the Marxist, Leninist mind which the Stalin’s vision of the manifesto and the changes in the development of the doctrine as it’s come over the years.

And if he is not following that — that line, then he certainly is getting quite far afield from little brother and foster who said that there will be a Soviet America just as sure as the sun rises tomorrow morning, whether anybody thinks that’s ridiculous or not.

If I may, Your Honor, I have just —

Earl Warren:

Yes.

(Inaudible)

Louis C. Wyman:

Excuse me, just three or four more minutes.

Earl Warren:

Go right ahead.

Louis C. Wyman:

Mr. Boudin has suggested that Sweezy in the sense that I have some kind of a roving discretion invalidates this particular statute because the resolution is too broad.

We don’t believe that to be the case but I’d like to say this.

This statute was drafted in the — almost exact language of the Bilbo Statute.

I was a counsel to the Bilbo Committee and helped prepare the resolution under which Senator Bilbo was investigated in Mississippi in 1946.

And if you’ll compare the resolution investigating Senator Bilbo, calling for that investigation, with the one in the principal case, you will find they are almost identical.

In fact, we took the language from that resolution in putting this one in existence in New Hampshire.

Earl Warren:

Was it ever tested?

Louis C. Wyman:

I don’t know whether — no, Your Honor.

I don’t think so.

Louis C. Wyman:

Senator Bilbo died before that case was finally disposed of and the senator had cancer of the mouth and throat.

As far as a — a roving discretion is concerned, we believe that we must call to your attention for what your discretion believes it to be, were the fact that the Supreme Court of New Hampshire, when you sent this case back for reconsideration in the light of Sweezy, has returned it with an opinion saying, in effect, that they believe there is no question upon this record, but that the legislature of New Hampshire specifically wants the information requested by the subpoenas.

May I ask you a question?

Louis C. Wyman:

Yes, Your Honor.

(Inaudible)

Louis C. Wyman:

No.

Just the names?

Louis C. Wyman:

Just the names and the correspondence with them.

We tried to find out as far as we could, what the contents of the speeches were by asking questions and there is a lengthy series of transcripts on that.

In fact, the transcripts, in some of the studies, in this — in the little State of New Hampshire, in this investigation which ultimately resulted in the report in this case would probably come to a point such as this.

And out of those transcripts, there had only been to my knowledge, three people who have taken any position that — that there have been any rights abused.

That doesn’t mean they can’t take that position at all but it does mean that in most instances, I think everyone was in agreement that they weren’t being pushed around and I think this record will show that Dr. Uphaus has never been pushed around here, either.

And I think that’s important too because the suggestion is made in the reply brief, that in some manner, what we’ve done in New Hampshire is akin to what happened in 1952 and 1953 in some of the worst abuses that the Court is familiar with at the time of the zenith of these types of investigations.

And that is something that I myself having the responsibility for these investigations, I’m extremely anxious that the record in this case shall prove to this Court that we have not done that.

Even though I do admit that it has been necessary to report to the legislature concerning to the speakers and those active at World Fellowship in great detail.

But that report was something which was in relation to the question before the legislature of whether in New Hampshire, legislation would be necessary to classify organizations as subversive or not subversive vis-a-vis overthrow of the Government of the State of New Hampshire.

And that is something which we recommended against.

We said that we don’t think it’s necessary.

We only have one organization in the State above which there is question and it’s still under investigation.

And that organization is World Fellowship Incorporated.

Felix Frankfurter:

I notice that neither you nor Dr. France mentioned the most distinguished name among the list of guests, Joliot-Curie, was that the professor or Madam Curie?

Louis C. Wyman:

That was the professor as far as I know and —

Felix Frankfurter:

Why was he even mentioned?

Louis C. Wyman:

I do not know Your Honor without looking at the record but I can tell you that in the —

Felix Frankfurter:

Insofar as both of you slighted the one great name in the land.

Louis C. Wyman:

I can tell you that in the transcript, Mr. Uphaus testified that he went to Paris and to Moscow, to London and to Moscow at the invitation and accepted the direction of that group at the invitation of Joliot-Curie.

And that is just a part of the case.

Now, I don’t cite that.

And I don’t say that, Your Honor, in any censure of Willard Uphaus, but merely to try to show why we believe that with this type of record, we were at least entitled to inquire to see whether communist activity in the sense of subversion and intrigue had taken place in New Hampshire at World Fellowship.

Now, we think when all the interests are balanced, and the whole question is considered in the sense of trying to see the rights of the State as opposed to a reasonable measuring concern with the rights of the individual involved, that there is a clear room here for valid legislation, there is clear room for judicial sanction of the relevant question and for a judicial affirmance, we believe that in the United States, once you find the statute to be constitutional, the resolution calling for the investigation to be sufficiently definite and clear and the question put under the resolution to be relevant, to be good.

Louis C. Wyman:

Once you find that, which has been found in New Hampshire in a hearing before a Court after extensive argument.

Then, the only thing available to the witness is the Fifth Amendment and not the First Amendment because you come into your First Amendment argument, then your argument before the Court on the constitutionality of the statute.

This is not an investigation of candy making or business cocktails or of lobbying such as the Rumely case.

Just as the Court held in the Rumely case, if this were an investigation of subversion, our answer would undoubtedly be different.

And I would like to say one thing about the Rumely case where the Court said that we don’t want — we don’t want to have an unlimited invasion of the thinking processes that all that’s involved in the list to whom they sent the magazine in the Committee of Constitutional Government is a saturation of thinking processes.

If Dr. Rumely had a list instead of the people that met in the wing of the capital for the purpose of handing money to members of Congress, to influence legislation, can it be denied that that list would not have been clearly relevant and pertinent and within the committee’s function to obtain.

We say here that on this —

Earl Warren:

Well, have you established anything comparable to that in this case?

Louis C. Wyman:

We believe this —

Earl Warren:

That’s — that’s the question.

Louis C. Wyman:

We believe we have, Your Honor.

Earl Warren:

May I ask if — if anyone of these organizations that you have listed and that Mr. France went over has ever been declared by any — any court to be a subversive organization?

Louis C. Wyman:

The Communist — by any Court —

Earl Warren:

Yes.

Louis C. Wyman:

— the answer is that — that as I understand —

Earl Warren:

By any judicial —

Louis C. Wyman:

— in —

Earl Warren:

— determination and if any of these — any of these been determined to be subversive organizations.

Louis C. Wyman:

The subversive activities controlled more from the second time has said the Communist Party itself is and I believe that question is on its way —

Earl Warren:

Yes —

Louis C. Wyman:

— back up here.

Earl Warren:

But, you don’t list him here as being a member of the Communist Party or — or —

Louis C. Wyman:

We refer to him now that many members of the Communist Party were at World Fellowship Incorporated, yes Your Honor.

We refer him there to transcripts in the past which a —

Earl Warren:

Is that the equivalent?

Louis C. Wyman:

Well, for the purposes of investigating to determine whether or not there was subversion, we believe that shows more than is necessary to establish the relevancy of the question yes.

Earl Warren:

I — I went looking here.

I — I thought I remembered something in this record which I read yesterday to the effect that you stated that you thought that — that any man who had had any association with Communist or reputed Communists should be subject to investigation.

Now, I — I may — I may have — maybe misquote you but that’s the recollection that I have.

Am I incorrect in that?

Louis C. Wyman:

To this extent.

Earl Warren:

I’m talking about the record here.

Louis C. Wyman:

It is my opinion now.

And it has been for some time that a Communist who was a genuine Communist is an enemy of the United States and seeks to destroy this Court and the court system in New Hampshire and all over this world.

I am as convinced of that as anything I can be, but that —

Earl Warren:

So —

Louis C. Wyman:

— is beside the point.

Earl Warren:

We wouldn’t have to disagree with you to —

Louis C. Wyman:

No.

Earl Warren:

— to — on that question.

Now, how —

Louis C. Wyman:

Now, the New Hampshire (Voice Overlap) —

Earl Warren:

(Voice Overlap)

Louis C. Wyman:

— the New Hampshire Legislature feels I think from the preamble of the statute the same way and has directed the Communist activity, they used the word subversive.

Communist activity should be investigated in my State.

I have, and taken that, to mean that whenever, a Communist or a former Communist is in my State, the legislature would like to know what for and why.

I have never attempted to erect a fence around the State and say, “keep out.”

Here, we have the unique fact that Communists or former Communists from all over the world have come to a place in New Hampshire and we are not able yet to find out who was there.

We believe that the State is entitled to this information.

Earl Warren:

Now, you say Communists from all over the world.

Is there — is there any finding, any place in this record that any of these people are Communists?

Louis C. Wyman:

Well, there is repeatedly —

Earl Warren:

Do you talk about reputed Communist?

Yes, that’s — that’s something very common these days to call people Communists.

Felix Frankfurter:

Why don’t you say Joliot-Curie?

Louis C. Wyman:

Well, Your Honor, I —

Felix Frankfurter:

There’s no question about that.

He takes pride to look back.

He’s a very, very distinguished person.

And he takes pride to the fact that it was (Inaudible) relevant to answer the question.

Felix Frankfurter:

I don’t want you to think about any the others.

Louis C. Wyman:

Well, I will say Joliot-Curie but there are many others, Mr. Chief Justice whom — on — have been testified under oath before a number of committees by informers if you wish to use the phrase.

Herbert Philbrick has identified at least three of these people as former members of the Communist Party.

Earl Warren:

Matusow and some others called a lot people Communists, too, but as it is they’re very much respected today as informers, do they?

Louis C. Wyman:

There’s a serious question about the validity of the testimony of Mr. Matusow, there’s no question about it.

He’s recanted the great deal of that —

Earl Warren:

Yes.

Louis C. Wyman:

— testimony.

Earl Warren:

But I was talking about was — was to prove.

Establish proof, of course.

In fact, if someone testified that — that way doesn’t — couldn’t bear much the basis for investigating someone else because he happens to be in the same vicinity with him.

Felix Frankfurter:

(Inaudible) even say anything about the preemption, the Nelson case —

Louis C. Wyman:

Well, I —

Felix Frankfurter:

— publication?

Louis C. Wyman:

I certainly intend to, Your Honor, and I’ll confine myself to that now except —

Felix Frankfurter:

I have — I (Inaudible)

Louis C. Wyman:

— to refer the one thing here that at pages 17, 39, 40, 43, 51, 72, and 74 of the first transcript of Dr. Uphaus’ testimony, there are — it mentioned a number of individuals and whom he recognizes as present or former members of the Communist Party.

In the question of the preemption, we take the position simply that the New Hampshire statute which is patterned on the overact is saved by a Separability Clause, that this Court in the purpose to its opinion in the Steve Nelson decision when the Chief Justice spoke, he said this case — the instant case is concerned only with sedition against the United States.

We believe that there was never in the Steve Nelson case intended by this Court to outlaw those provisions of state statutes which prohibited — attempted to regulate sedition against the State Government.

Our statute very clearly and it’s printed as an appendix both to the report and to the brief and to the plaintiff’s jurisdictional statement contains a Separability Clause which strikes out from the Subversive Activities Law in New Hampshire, now, the United States or any political subdivision thereof in the light of the Steve Nelson decision and in such in place thereof, the State of New Hampshire which is already in there and continues in there by a virtue of the Separability Clause.

That we believe gives us full authority to legislate in that field or to amend.

But we take the position here, Mr. Justice Frankfurter, that we have the power to investigate as distinct from to legislate whether or not the provision relating to the United States Government is superseded by the Steve Nelson decision until and unless Congress acts otherwise that being the case, there was language in the Steve Nelson opinion which indicated that the states sedition statutes were merely suspended in there enforceability.

Now, I don’t know whether by that the Court meant that they were off the books completely or they were to continue on the books until such time as Congress either amended the Smith Act or removed it entirely from the books.

But if this —

Earl Warren:

You may finish.

Louis C. Wyman:

Thank you all, Your Honors.

In — in this situation, by that provision, it’s very clear that whether the enforceability was suspended or not, that a committee may investigate in aid of legislation, even though that legislation if ultimately enacted might be unconstitutional or might be in the field in which they could only be in a standby status.

But, it’s very clear that legislation designed to protect the security and sovereignty and integrity of the State is not struck down by the Steve Nelson decision.

And we believe that the Tenth Amendment, in fact, would reserve such a power to the state governments in any event although recognizing that arguments can be made on both sides of that proposition.

Hugo L. Black:

Is anything in the record that indicates that these people that you’re asking about anyone of them at any time said anything against the State of New Hampshire?

Louis C. Wyman:

Yes, Your Honor.

I believe there is on a number of instances.

Hugo L. Black:

But subversive activities against the State of New Hampshire?

Louis C. Wyman:

Well, we take the position that when, for example, and I hesitate to use this phrase but it appears in the transcript when — this, “God bless the revolution.”

The question was asked and the question was asked by what kind of a revolution you mean by that?

“Oh, just any kind of a revolution.”

It appears in the transcript that that — that revolution may very well have been directed, if in fact, it was intended even in a trite way against the State of New Hampshire and it’s something about which the legislature of New Hampshire is concerned and would like to know.

Hugo L. Black:

Is that the closest you have to a statement —

Louis C. Wyman:

No.

Hugo L. Black:

— of any kind from which it can be inferred that any these people and in malicious designs against the State of New Hampshire?

Louis C. Wyman:

No, Your Honor, because it appears to us and we take the position consistently that Communist apparatus of conspiracy and the conspiratorial senses directed against the capitalist system as distinct from any particular form of government and that it is definitely directed against the security and integrity of each of the States just as well as it against the United States.

Hugo L. Black:

That’s the basis then of your argument.

Louis C. Wyman:

That is the basis of the argument, Your Honor.

And in addition to that fact, that these were activities within the State of New Hampshire to which these people came which were directed definitely toward the State of New Hampshire which has in this field over a period of four or five years, now, had several decisions which relate in a quite sweeping way to the Communist Party and powers to investigate it which in partnership with the Federal Government.

Transcripts given to the FBI, copies of the complete subpoena duces tecum in the Harry Dexter White case given in the full volume by our committee to the Internal Security Committee.All of those things relate very definitely to the common security program.

Earl Warren:

Mr. France.

Royal W. France:

If the Court, please.

With all due respect to the Attorney General of New Hampshire, I find myself somewhat amazed by certain statements that he has made.

How he could say that a man like Willard Uphaus who appeared before him and then told him everything about his beliefs, his conscientious beliefs, his own activities or he could say he was a bogus is beyond my comprehension.

On page 23 of the record in this case, the Methodist Minister under whom he served for eight years said, “During the eight years or so that I served as his pastor, I can truthfully and humbly state that I have never had a more consecrated or self-sacrificing layman in Willard Uphaus.

He was on call for deeds of kindness and mercy, a veritable (Inaudible) whenever I as pastor called on him.

Anyone who dares — anyone who dares say that he uses religion, his religion as a cover-up for his social concern is a liar and the truth is not in him.

I wish the Christian Church had 100 men as deeply spiritual and devoted as Willard Uphaus.”

And similar tributes are paid by the two other pastors of the Methodist Church under whom he has served as a layman.

A second thing that I’m amazed at is that the Attorney General says that he would not give the names that he obtained in such an investigation, but he has given them.

Willard Uphaus was clearly right when he was reluctant to give these names to the Attorney General because here they are published in a report to the legislature.

And on page 165 — 155 of this report are listed the names of people who were representatives from foreign governments, preachers, college professors without any indication why they’re listed here.

And yet, under the parlance of today, these men had been cited in New Hampshire and the Attorney General in the proceedings admitted that there’s a — a list, a card index exchanged between the 37 Attorney Generals throughout the United States.

And these people coming here to register, at a public camp where nothing was concealed, where the Attorney General was personally welcome to camp and I think perhaps did have a representative because I don’t know how else he knew about that little incident about the “God Bless the Revolution.”

This camp which was open to everybody and not at all conspiratorial in its nature, the names of these people that he wants to give so that they may be circulated are cited.

Royal W. France:

And Willard Uphaus says, “I have been moved first by my religious convictions, by my inner conscience, by the direct teachings of the Bible that it’s wrong to bear false witness against my neighbor.”

I am also completely at a lost as to why the Communist Party is continually brought into the State.

It is not a fact to me, Your Honors will find it not to be the fact from the reading of the record that anybody who was ever — who is — was shown to be a Communist was present and certainly Willard Uphaus testified that there was nothing taught there about the overthrow of Government by force and violence, not even about Marxism that they talked about peace and about social problems.

And the Attorney General tries to distinguish the decision in Sweezy on very narrow grounds.Mr. Justice Frankfurter wrote an opinion stating the importance of academic freedom.

And the Attorney General would limit that to something in a university, but academic freedom is — he speaks of in a psychotic sense.

This was a camp where the adult education was carried on.

My time I reserved a little more time —

Earl Warren:

Yes.

Royal W. France:

— for my speech —

Earl Warren:

It’s all right —

Royal W. France:

I see the light is on so I think I will continue for a few minutes more in the morning if I may.

Earl Warren:

Yes, yes.

You have some 15 minutes more Mr. —

Royal W. France:

Thanks.

Earl Warren:

— France.