Uphaus v. Wyman

PETITIONER:Uphaus
RESPONDENT:Wyman
LOCATION:Fargo, North Dakota

DOCKET NO.: 34
DECIDED BY: Warren Court (1958-1962)
LOWER COURT:

CITATION: 360 US 72 (1959)
ARGUED: Nov 17, 1958 / Nov 18, 1958
DECIDED: Jun 08, 1959

Facts of the case

Question

  • Oral Argument – November 17, 1958
  • Audio Transcription for Oral Argument – November 17, 1958 in Uphaus v. Wyman

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

    Earl Warren:

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

    Royal W. France:

    May it please the Court.

    Earl Warren:

    Mr. France.

    Royal W. France:

    On page 99 of the record, the opinion of the Supreme Court of State of New Hampshire, they state — it appears that the witness, while he does not claim contention here, has pleaded the Fifth Amendment when questioned about Communist matters at Congressional Committee and he was a supporter of numerous organizations on the subversive list prepared by the House Committee and so forth.

    The — when we pointed out to the Court that there was no evidence in the record that the appellant had ever taken the Fifth Amendment anywhere and that if he had taken it, it was improper to draw any such inferences from it.

    The matter was deleted from the opinion of the state court on motion for rehearing.

    However, I think it’s significant that the Attorney General here again relies upon it as a basis for some implication about Willard Uphaus as an indication of how thin the case is upon which he is seeking to rely on and indicating a dangerous tendency to waterdown a recognized constitutional right.

    The — in the matter of the sheriff’s list, the right of the sheriff to get names of guests is perfectly obvious that that has no application here.

    A sheriff would not go to get the names of guests for the purpose of publicizing name in an invidious manner in relation to subversive activities or alleged subversive activities.

    It’s inconceivable that he can use them for such purpose and I’m trying to think he could be restrained if he tried to do it for any such purposes.

    They’re being used here in connection with territory involving First Amendment rights.

    The — Mr. Justice Frankfurter yesterday was interested in the reference on page 42 of appellee’s brief to a name of Julio Curry.

    This list, which the Attorney General presents to this Court, some of the known off-sided guests and speakers at World Fellowship is a curious list.

    So far as I know, Julio Curry was never in this country.

    And if he was, he certainly was never at World Fellowship camp.

    Neither was the liberal journalist I.F. Stone who is disrespectfully referred to here as Busy Stone.

    And if there is anything — he is a severe critic of the Soviet Union and Louie Strong was never there nor wasn’t at Nathaniel Mills and some of the other people on here I’m sure.

    Charles E. Whittaker:

    I would like to ask you, sir, how one could determine the truth of the statements you’ve made without being permitted to make an investigation to find out if it was so?

    Royal W. France:

    I — I think, Your Honor, that I am merely referring to it because the Attorney General says they were there.

    Charles E. Whittaker:

    Are you saying from —

    Royal W. France:

    I think it’s not important whether they were there or not.

    Charles E. Whittaker:

    But you say they were not.

    He says he wants to investigate to find out if so.

    Royal W. France:

    I think it would be quite irrelevant if Julio Curry were there, Your Honor.

    I think that —

    Charles E. Whittaker:

    I see.

    Royal W. France:

    — if I have no doubt and I don’t want the appellant’s position misunderstood.

    I have no doubt that if Julio Curry had come to the World Fellowship to have him and asked to be registered, he would have been tediously received and that nobody had feared that the foundations of Government in the State of New Hampshire were endangered by his presence.

    But the fact is that he wasn’t there and Justice Frankfurter was — seemed to be —

    Felix Frankfurter:

    I — I quite agree with everything you said about Julio Curry or anybody else being there or not endangering the foundations of New Hampshire or anything else, but does that answer all the constitutional questions, the mere fact that I think that?

    Felix Frankfurter:

    Does that conclude —

    Royal W. France:

    No, no —

    Felix Frankfurter:

    — the New Hampshire may think?

    Royal W. France:

    — Your Honor.

    What the Court decided through, I hope that answered my question.

    I was interested however in that set of —

    Felix Frankfurter:

    Well, I just —

    Royal W. France:

    — because you raised —

    Felix Frankfurter:

    (Voice Overlap) that everybody knows, as I suggest today, he takes pride in promoting the Communist cause.

    And of course, when the great figures in the scientific world (Inaudible) — that I entirely agree with you as I do as a human being because you take care of all my problems in this case, doesn’t it?

    Royal W. France:

    No, no.

    That’s right, Your Honor.

    The —

    (Inaudible)

    Royal W. France:

    — the Attorney General seems to me to have misread the opinions in the Sweezy case, while it is true that the opinion of the Chief Justice must based upon the vagueness of the mandate.

    There was also discussion of the First Amendment rights which seem to me to indicate that those three members or four members of the Court were not in disagreement with the fact that First Amendment rights here might have been violated.

    And certainly, the — the Chief Justice in his statement, which is quoted on page 18 of our brief, where he says “We cannot — we do not now conceived of any circumstances where any state interest would justify infringements of rights in this field,” indicates to me clearly that the Attorney General is trying to put too narrow in interpretation upon that opinion.

    I think also that he’s trying to put too narrow in interpretation upon the opinion of Mr. Justice Frankfurter in which Mr. Justice Harlan concurred.

    I do not conceive that in discussing academic freedom, Mr. Justice Frankfurter was limiting the teaching process to the laws of a chartered university.

    Now, that in discussing political association, he was limiting it to the progressive part.

    I think the issue is much broader here with a camp of adult people.

    It’s quite obvious that competent people came there as lecturers on various subjects and that this was an adult educational process that was going on.

    And I just can’t imagine what danger there could have been to the State of New Hampshire.

    I may say that the Attorney General had a standing invitation to come there and lecture himself, but he is not yet honored that he had complete opportunity, have a representative of his office, attend the meetings there.

    There was nothing secret about it.

    It was an open discussion by adult people of questions of common interest.

    And I think that it’s perfectly clear, as Mr. Justice Harlan’s opinion in the National Association for the Advancement of the Colored People versus Alabama pointed out that this appellant had a right to protect not only his own constitutional rights, but the rights of other persons.

    Now, the — the opinion of the court below expresses the thought that not only the correspondence of guest speakers, but the correspondence concerning guest speakers was the subject of this subpoena.

    In other words, here, not only where letters which couldn’t conceivably, as I think the Attorney General admitted yesterday, couldn’t conceivably deal with the overthrow of Government by a force and violence and nobody would write such things in a letter, not only those letters but the correspondence that might be in the files by third or fourth persons concerning these people.

    It seems clear that this goes far beyond any —

    Earl Warren:

    Where do we find that record, Mr. France?

    Can you tell me please?

    Royal W. France:

    It is on page — page 94 of the record.

    Third line from the bottom.

    Opinion says, “Produce all correspondence with or concerning persons who presented speeches, addresses panel discussions or panel.”

    This is a very wide case indeed and certainly, it would seem that the appellant was quite justified in protecting their right to leave.

    Now —

    Felix Frankfurter:

    Was there any question raised as to the breadths of the subpoena?

    Royal W. France:

    We objected —

    Felix Frankfurter:

    To all of it.

    Royal W. France:

    To all of it.

    Felix Frankfurter:

    Yes.

    Royal W. France:

    (Voice Overlap) constantly that the subpoena itself was violative of —

    Felix Frankfurter:

    I understand that.

    Royal W. France:

    — the First and Fourteenth Amendment rights.

    Felix Frankfurter:

    I understand that.

    Royal W. France:

    And I —

    Felix Frankfurter:

    I want to know whether any objection was made that the subpoena violates constitutional rights because of its breadth.

    Royal W. France:

    Well, I — I think that was implicit in various parts of the argument.

    But I don’t remember specifically any reference to that, Your Honor.

    Could I ask you a question, Mr. France?

    Royal W. France:

    Yes, sir.

    In your argument, what significance, if any, do you attached to the Attorney General’s report to the legislature?

    The red book that was handed to us yesterday?

    Royal W. France:

    I consider that a report of this kind, containing the names of people or — (Inaudible) or have — or quite innocent people that a report of this kind made in this kind of an investigation carries an invidious implication.

    The Attorney General himself said that these names are send around through a network of 37 Attorney Generals.

    The fact is that in the current parlance, the fact that someone has been cited somewhere becomes a matter of how many.

    Every name here —

    Well, I know, but what constitutional significance do you — if any, do you attach to it?

    Royal W. France:

    Well, I —

    Federal constitutional significance.

    Royal W. France:

    I think that it’s — the constitutional significance of it is that here is a — a man who is been — he is asked to give names which involved the right of free speech and association at a publicly operated camp.

    And it seems to me that the First Amendment territory is invaded by this kind of a request which brings people into an invidious association in a report made on the subject of subversive activities in the State of New Hampshire.

    That would seem to me to be a — an area which this Court has said should not be invaded.

    (Voice Overlap) in the same way as if he had broadcast in the newspaper publicity or press interviews or whatnot, the names of these people who make no distinction between that kind of conduct —

    Royal W. France:

    I — I think —

    — according to the legislature.

    Royal W. France:

    That’s right.

    I think this report is not a private report for the legislature.

    It went to the press.

    Every person’s name there was — was cited in an invidious context.

    Felix Frankfurter:

    Could you enjoin that a private person did that?

    Could you enjoin the publication of such a document?

    Royal W. France:

    I —

    Felix Frankfurter:

    I though you couldn’t on the near, that would be an infringement of, in itself, the freedom of speech.

    You could sue them for libel, but you couldn’t enjoin them, could you?

    Royal W. France:

    No, I think you couldn’t enjoin them, Your Honor.

    But I — I don’t believe that that’s quite the question here.

    The question here is whether the report of — of these names to the Attorney General, whether the — whether the appellant was justified in the light of the use that could be made or would be made in which later was made of these names whether he was justified in invoking the First and Fourteen Amendments as a reason for refusing to give this kind of information for broadcasting in this context.

    Felix Frankfurter:

    Do you think that inquiries otherwise relevant, I’m not now defining what would be relevant, the inquiries otherwise relevant elicited by a Congressional Committee that brings people into distribution while they could not be compelled by a Congressional Committee merely because the man don’t have to have very fastidious case to be unwilling to make that disclosure and I, myself, happen to have strong views on that subject, but could Congress be prevented from asking questions from witnesses when the questions are otherwise relevant merely because the answers bring other people into distribution?

    Royal W. France:

    I — I supposed not Your Honor, but I — my contention is that there’s no relevance —

    Felix Frankfurter:

    Very well.

    I understand that.

    Royal W. France:

    — shown in this whole inquiry —

    Felix Frankfurter:

    I understand that.

    Royal W. France:

    — to — to this —

    Felix Frankfurter:

    They’re not relevant so they can’t be asked.

    Royal W. France:

    Yes, that’s right to the — the question here, the Attorney General was asked to investigate activities looking toward the overthrow of Government by a force and violence.

    It seems to us that from the entire record, his own entire record, there’s no such issue in the — no such relevant issue in this proceeding.

    Felix Frankfurter:

    I follow that.

    Felix Frankfurter:

    But if — if that were allowed and while it may say that one of the consequences of not allowing it is that it brings names into distribution, the fact that it brings other people’s names into distribution, doesn’t thereunder constitutional issue from my point of view.

    Royal W. France:

    Well, I — I’m trying to agree with you on that, yes.

    If — if it were relevant to — to an inquiry, I will be inclined to think that Your Honor was right about that.

    Now, as I — as I’ve indicated, there just isn’t any that the Attorney General has made a great deal of reference to the so-called communist international conspiracy.

    There’s just no evidence in this record that any Communist ever visited the camp.

    And as I’ve said by that — by saying that I don’t mean to say that a Communist would not have been welcome there, I just think the whole thing is — is quite improper.

    Now, I — if I have just one minute more, Your Honor, to —

    Earl Warren:

    Well, you many have one minute, yes, Mr. France.

    Royal W. France:

    I have not indicated the matter of the cruel and unusual punishment in answer to what Mr. Wyman said about it.

    This is a case not of the ordinary requirement for the production of a record, it’s the case of a man being asked to violate his conscience which is clearly set forth here on — on page — the last page of our reply brief.

    We set forth a statement by professor — Union Theological Company — Seminary as to the importance of this issue of conscience.

    And it —

    Earl Warren:

    Very well.

    Royal W. France:

    — seems to us that to possibly send the man to prison for life if he continued to obey the mandates of his conscience, would be cruel and unusual.

    Felix Frankfurter:

    Pardon.

    This is the second time you’ve said that.

    And I was much startled by it the first time.

    Why do you say for life, Mr. France?

    Royal W. France:

    This is — he — he must either decide between violating a conscientious scoop up or remaining in prison.

    There’s no alternative.

    Felix Frankfurter:

    But not for life.

    That isn’t the question we’ve got here, is it?

    Royal W. France:

    Well, it’s — as long as he refuses, I should say that he would have to stay there under the order of the Court.

    Charles E. Whittaker:

    Wouldn’t that be true, Mr. France, wouldn’t that be true of every person who was cited for a civil contempt?

    Wouldn’t be?

    Royal W. France:

    My — my point is that for a court to compel a man to make his choice is a cruel and unreasonable compulsion put upon him.