Wilkinson v. United States

PETITIONER:Frank Wilkinson
RESPONDENT:United States
LOCATION: District Court for the Northern District of Georgia, Atlanta Division

DOCKET NO.: 37
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Fifth Circuit

CITATION: 365 US 399 (1961)
ARGUED: Nov 17, 1960
DECIDED: Feb 27, 1961
GRANTED: Mar 28, 1960

ADVOCATES:
Kevin T. Maroney – for the respondent
Rowland Watts – for the petitioner

Facts of the case

Frank Wilkinson was summoned to the U.S. District Court for the Northern District of Georgia for questioning before a subcommittee of the House Un-American Activities Committee. The subcommittee was investigating Communist propaganda in the southern United States. Wilkinson refused to answer any questions, including whether he was a member of the Communist Party. He did not invoke his Fifth Amendment privilege against self-incrimination and argued instead that the subcommittee had no authority to interrogate him. Wilkinson also argued that he was only called before the subcommittee because of his public opposition to the Un-American Activities Committee. Wilkinson was incited and convicted for contempt of Congress. The U.S. Court of Appeals for the Fifth Circuit affirmed the conviction.

Question

(1) Were the questions asked of Wilkinson pertinent to the subjects under inquiry?

(2) Did the subcommittee have the authority to question Wilkinson?

Earl Warren:

Number 37, Frank Wilkinson, Petitioner versus the United States.

Mr. Watts.

Rowland Watts:

Mr. Chief Justice, Your Honors, and may it please the Court.

This case now before you, Frank Wilkinson versus the United States, you have already heard considerable about in the argument earlier today.

I will not burden the Court by repetition of that argument except insofar as the Court desires or it becomes pertinent to the case of Frank Wilkinson.

Frank Wilkinson was indicted under 2 U.S.C. 192 for contempt to the Congress for refusal to answer a single question.

So his case is simplified by the fact that there is only a single count upon which the court below ruled.

Frank Wilkinson had been subpoenaed to appear before a Subcommittee of the House Un-American Activities Committee in Atlanta in July of 1958.

This Committee had, as its directive from the full Committee, the Subcommittee, three purposes to investigate colonizing activities of the Communist Party in textile and other industry in the South, investigation of dissemination of foreign political propaganda in the South, and investigation of Communist propaganda activity in the South.

Mr. Wilkinson was subpoenaed according to the statement of the counsel for the Committee, on page 30 of the record and on page 156 of the record.

Page 156 of the record is a testimony — the hearing — the report of the hearings by the House Committee and the 156 number is down in the lower right hand corner.

It is information of the Committee and the suggestion of the Committee said, “Mr. Arens, that in anticipation of the hearings here in Atlanta, Georgia, you were set to this area by the Communist Party for the purpose of developing a hostile sentiment to the Committee and to its work and for the purpose of undertaking to bring pressure upon the United States Congress to preclude these particular hearings.”

Mr. Arens also stated —

Hugo L. Black:

Pardon me Mr. Watts.

Mr. Watts, pardon me but I didn’t get the pages of the record.

Rowland Watts:

Oh, it’s 156 stamped in the corner.

Hugo L. Black:

Thank you.

Rowland Watts:

It’s page 2682 of the Committee print.

Hugo L. Black:

Thank you.

Rowland Watts:

Now, there was no suggestion at any time in the testimony of any witness before these particular hearings that Mr. Wilkinson had any knowledge of any of the stated activities for which the subcommittee was authorized to conduct hearings.

On the contrary, there was no indication whatsoever that Mr. Wilkinson had ever been in the South at all.

Now, Mr. Arens stated that he was not — Mr. Wilkinson was not subpoenaed to appear until the Committee had knowledge that he was in Atlanta.

I suggest on internal evidence that this was somewhat inaccurate because that’s a matter of fact, Mr. Wilkinson was served with a subpoena on July 23rd within an hour after he arrived in Atlanta and that is shown on page 40 of the record, the testimonies of the marshal.

And the subpoena was dated the preceding day in Washington, DC.

Therefore, we suggest that while it is not serious that Mr. Arens slipped on that point, it is clearly indicative of the fact that the Committee subpoenaed Mr. Wilkinson before it had any knowledge whatsoever that he was in the South at all, and as a matter of fact before he actually was in the South.

Therefore, it was not possible for the Committee to consider within the framework of its three stated purposes, any testimony by Mr. Wilkinson, and in answer to a parallel question if concerning Mr. Braden this morning.

There is no testimony in the hearing by any member of the Committee or by anyone else that the Committee had any information that Mr. Wilkinson had any relationship to the Communist Party except the testimony, the statement of Mr. Arens, Committee Chairman himself to the effect that they had such testimony.

Now, all of the witnesses that appeared before the Committee prior to the appearance of Mr. Wilkinson, and we conceded that Mr. Wilkinson was present throughout the hearings, heard the opening statement of the Subcommittee Chairman, and so forth.

All the preceding witnesses testify those concerning matter that had some relationship to the purpose of the Subcommittee’s hearings.

Mr. Penha, a favorable witness to the Government, testified, as you heard this morning, in identical fashion to what he had testified in Boston earlier.

Rowland Watts:

That he — about the general purported colonizing efforts of the Communist Party in the South.

The other favorable witness to the Committee, Mr. Fishman, testified as he had testified throughout the country many times before concerning the great influx of allegedly foreign political propaganda from abroad.

The other witnesses, and I have summarized what each proceeding one said in our brief, testified to and/or refused to testify to an unidentified paper called the Southern Newsletter and there was some collateral information.

But at no point, was there any testimony concerning Mr. Wilkinson’s activities and there was no indication that he was either a Communist or that he’d ever been to South before.

Or there was no indication that he had any information pertinent to this Subcommittee’s mandate.

Now, Mr. Wilkinson refused to answer this question and several others on the basis that he considered the mandate of the House Un-American Activities Committee, in proper, violative of the First Amendment and that he was under no obligation to answer.

On — on contrary, in support of the Constitution and in support of conscience, he was under obligation to refuse to answer.

(Inaudible)

Rowland Watts:

No — no, Your Honor.

It was strictly a First Amendment claim and a question of the mandate, the validity of the mandate.

I remind you again as was done this morning that this testimony came after Watkins but prior to Barenblatt.

Hugo L. Black:

You said — I must have misunderstood you.

You are referring to the record page 156, the evidence.

Rowland Watts:

The record —

Hugo L. Black:

I have that.

But then you —

Rowland Watts:

Yes.

Hugo L. Black:

Then you said that — read the part where they said, he’d only been summoned as he got to Atlanta.

And you said the subpoena was dated the day before.

Rowland Watts:

Right.

Hugo L. Black:

But on the subpoena, as I find it on page 236, it was dated eight days before.

Rowland Watts:

Yes, he was — he arrived in Atlanta approximately six days before the commencement of the hearing.

He arrived in Atlanta on July 23rd and you will note on the subpoenaed, on 236, it is dated July 22nd in Washington DC.

Hugo L. Black:

Yes, absolutely.

Rowland Watts:

Now, regardless of Mr. Wilkinson’s error in failing to anticipate this court’s decision in Barenblatt.

This Court said in Barenblatt that the mandate of the House Committee had achieved sufficient definiteness because of the persuasive gloss of legislative history.

Now, that maybe true but there is no gloss of legislative or any other history that can justify the extending of the limited mandate given to Subcommittee to include the investigation of a man because he is carrying on a public campaign in opposition to the Committee itself.

As Mr. Arens said, “to induce the Congress to prevent these hearings, these particular hearings from being held.”

The court below ruled that Barenblatt was controlling here, and it was controlling because the Congress had the power to legislate in the area of petitioning the Government for redress of grievance because it had the right to legislate in the area of the Lobbying Act.

And it supported United States versus Harris as controlling on that question.

Rowland Watts:

The court below further said something which is quite curious.

It said that Mr. Wilkinson, in carrying on his campaign to induce the Congress to abolish the Un-American Activities Committee, was carrying on an activity that was more — a greater threat to the security of the country than that charged to Barenblatt.

I don’t think that obviously, it wasn’t controlling but I think that it points up the approach to this problem made by the court below and the error in the approach made by it.

This Court said in Harris through Mr. Chief Justice Warren that the Lobbying Act must be very narrowly construed as was done there to avoid the constitutional dangers of the First Amendment and the Lobbying Act is very — the word lobbying was carefully defined to mean direct communication with members of the Congress concerning legislation.

However, it specifically excluded, as I understand it, a public campaign to induce members of Congress to abolish one of its own Committee.

I suggest to the Court and unless the Court wants me to repeat, I will not repeat what has been said this morning that it is unnecessary to reconsider Barenblatt in the context of this case.

This case is very simple factual.

The Government in its brief has suggested that Mr. Willis, the acting Subcommittee Chairman, after Wilkinson had refused to testify, said that one of one of the purposes of a those hearings was to investigate the alleged reorganization of the Communist Party.

Now, this had never been suggested before and the Government sets forth in its brief this as one of the purposes for which these particular hearings were being held, and the Government suggests that the Subcommittee can change its own mandate within the framework of the whole mandate of the Committee anytime it wants to in the course of any particular hearing.

Now, if this suggestion is correct, there is absolutely no authority, no control over a Committee by the Subcommittee or in terms by the Congress over Committee, and I think that this clearly — this suggestion clearly should be rejected.

There is nothing in the record to justify the upholding of this conviction.

There is nothing in the record in my opinion to support the opinion of the court below.

I would like to reserve what additional time I have for rebuttal.

Earl Warren:

Mr. Maroney.

Kevin T. Maroney:

Mr. Chief Justice and may it please the Court.

Before getting into the particular facts of the Wilkinson testimony, I would like to just briefly refer to the testimony of Mr. Penha at these hearings.

Now, Mr. Penha had previously testified before the Committee in Boston and I have a recollection of reading in this record, although I was unable to find it during luncheon recess, an explanation that during the Boston hearings, Mr. Penha made reference to this Communist Party colonization program in the South.

He referred to that and told the Committee about that during the Boston hearings but he did not go into detail in the Boston hearings.

The Committee was investigating activities in that area, not in the South, at the occasion of the Boston testimony.

Now, Mr. Penha, in these hearings, testified that he had been a member of the National Textile Commission of the Communist Party.

During the time that he was a member of the Party and at the same time reporting to the Federal Bureau of Investigation on the activities of the Party.

He testified that he had been sent as a member of the National Textile Commission into the South and that he had been instructed to and did contact various Communist Party members in this area and with respect to the colonization program.

Many of the people who work all these witnesses in these hearings were people who, Mr. Penha stated, were Communist Party members whom he contacted on the occasion of this trip through the South on behalf of the National Textile Commission.

He testified further as to what a colonizer was.

That a colonizer was — this is on page 9 of our brief.

A colonizer is one that is directed by the Communist Party to teach and spread propaganda in order to cultivate the mass workers within a plan or industry, and son on and so forth.

He also testified and this is at the bottom of the quote on that page that the clear cut danger of a colonizer is that he is a part of the vast network of secret Party members of potential saboteurs, an espionage agents.

The placement of these colonizers is a key in basic industries is vital to the Party from the standpoint of placing such colonizers in the position of promoting strikes, slowdowns, and so forth.

And he gave further details as to his communications with these people in the South to test —

Earl Warren:

Did he give any about Wilkinson?

Kevin T. Maroney:

He — he did not testify concerning Braden or Wilkinson.

The testimony of these other people, although most of them refused to testify, I think that is up in the testimony to confirm the information supplied by Mr. Penha as to the Party’s colonization program.

Earl Warren:

About this other witness, Mr. Maroney, who has taken all over the country to repeat and repeat and repeat again the same testimony that he gave.

Kevin T. Maroney:

Well, in this particular case, Mr. Fishman testified as to the receipt into the United States, the importation into the United States, through the mails of foreign Communist propaganda directed to the areas, the geographic areas, of the South, so that his testimony had to do with the extent and the general nature of foreign Communist Party propaganda that had been imported into the United States and was destined to the southern — various southern communities, as part of an —

Earl Warren:

Was that the fist time he —

Kevin T. Maroney:

— as part of —

Earl Warren:

Was that the fist time he had testified on that subject?

Kevin T. Maroney:

As far as the South is concerned — I assume that in his other appearances which I understand he made before this Committee in various parts of the country from newspaper reports that he testified as to the direction of this foreign Communist propaganda into a different geographical areas of the country.

Earl Warren:

You say, you assume that, you don’t know that.

Kevin T. Maroney:

I don’t know that.

No, sir.

Earl Warren:

Well, then let’s don’t assume it.

Kevin T. Maroney:

Well, I only assume with the fact that his testimony here related to the importation of materials into the South, and of course, that was the subject matter, the geographical area to which this Committee hearing was limited.

Hugo L. Black:

Do you think that gave the Committee any additional information on which to legislate, the fact that he testified to the same thing in different geographical sections of the United States?

Kevin T. Maroney:

Well, as far as Mr. Fishman’s testimony is concerned, I don’t know that — they may not have had sufficient information or have been able to get sufficient information other than at these hearings in order to —

Hugo L. Black:

That would be — now, what I was asking was if the — I understood the argument indeed that the purpose was to inform Congress so it could translate the sections.

Did it add anything to that information, this rather the same thing at seven or eight places throughout the country?

Kevin T. Maroney:

Well I don’t know that it is the same thing, Your Honor.

I say, I don’t know that it’s the same testimony.

He — he testified here that he brought along with him some examples of foreign Communist Party propaganda which had come into the United States from abroad, and which was directed to be disseminated through the mails into the South, which was a geographic interest of the Committee in these hearings.

Now, whether he testified to that in previous occasion, I couldn’t say.

He has, I understand as I say from newspaper articles, testified concerning the importation of foreign Communist propaganda into the United States generally in hearings before the Committee.

As far as into this particular area, I couldn’t say.

What — now, to get to the — to the facts as to the — as to the petitioner here, I might point out, at the outset, that this Court, in its opinion in the Watkins case, pointed out at the very beginning of that opinion that the Watkins case did not concern a truculent or a condemnations witness who had refused to answer all questions of the Committee.

This, however, is such a case.

This witness appeared before the Subcommittee.

He testified that he had come in response to a subpoena, he gave his name, and then when he was asked for his residence address, he stated as a matter of conscience and personal responsibility, I refuse to answer any questions of this Committee.

He was then advised of his right to counsel if he would like counsel there and he said, “He did not choose to have counsel”.

The next question he was asked, and this is at page 155 of the record, 2681 of the Committee print.

The question was, “Mr. Wilkinson, are you now a member of the Communist Party?”

Kevin T. Maroney:

His reply was, “As a matter of conscience and personal responsibility, I refuse to answer any questions of this Committee.”

It is – it is a refusal to answer that question and that question only that the indictment here was based.

Now, after he had refused, the Staff Director explained, went through an elaborate explanation consisting of about one and a half pages of the record, explaining to him the twofold responsibility of the Committee and the purpose why the Committee was conducting these hearings.

And on the next page of the record, at 156, is the text of the Staff Director’s explanation of the Committee’s interest in informing itself of Communist Party activities in this particular area with a view to enabling the Committee intelligently to make recommendations on pending legislature.

There was a particular reference in Mr. Arens’ explanation to H.R. 9937, which was an omnibus bill which had been introduced in the Congress by the Chairman of the full Committee Mr. Willis.

Hugo L. Black:

What do you mean by omnibus?

Kevin T. Maroney:

Well, it’s — it was a bill generally covering of a number of internal security statutes but it covers a variety of different statutes and amendments to statutes, for example, it would amend the Subversive Activities Control Act.

It would also have amended the Smith Act to define the word “organized” as used in the Act.

I think it covered some for the passport procedures.

It would have amended some of the espionage statutes.

In other words, it was a bill covering a variety of internal security statutes.

Now, he also explained that it was the Committee’s information that he was a hardcore member of the Communist Party and then he was designated by the Communist Party for the purpose of creating and manipulating certain organizations including the Emergency Civil Liberties Committee, and then he had been sent into the South for Communist purposes.

And he then stated that it was the information of the Committee that in anticipation of the hearings here in Atlanta, you were sent to this area by the Party, I’m paraphrasing trying to shorten the quotation.

This is at page 156 of the record.

“In anticipation in hearings here in Atlanta, you were sent to this area by the Party for the purpose of developing a hostile sentiment to this Committee and to its work for the purpose of undertaking to bring pressure upon the Congress to preclude these particular hearings.”

And then Mr. Arens said, “Indeed it was a fact you were not even subpoenaed for these particular hearings until we learned that you were in town.”

That apparently was an inadvertency, it should have been that you were coming to town, because he was subpoenaed, as was pointed out earlier, about a week prior to his appearance before the Committee and almost a week prior to his checking in at the Atlanta hotel.

The Committee Chairman then, in further explanation of the pertinency of the questions, said that before he was — he would direct the witness to answer that he would also like to make a further explanation of pertinency.

And this is at page 157 of the record.

And the Committee Chairman, Mr. Willis said that, “We have held hearings.”

He was referring to a pending bill.

“We have held hearings on it just a couple of weeks ago on the question of the organizational features of the Communist conspiracy.”

Specifically, the Supreme Court, in what it popularly referred to as the Yates case, held that the Communist Party must be regarded as having been organized in 1945, and automatically all prosecutions for organizational features have been destroyed and no more prosecution is possible.

He then states that the Committee was therefore interested for — that among other reasons for pertinency of these hearings, would be the development of information which we feel you have, sir, that you could shed a light on the current methods of organizing, or regrouping, or reconstructing of the Party and subdivisions thereof.

So that Mr. Willis made it clear to him that in connection with that legislation that would have defined or would define, if it’s ever passed, would define the meaning of the word “organized” as used in the Smith Act, which was the part of the subject of this Court’s opinion in the Yates case.

And he’s asking the witness to testify as to what he can tell them about the current organizational methods of the Communist Party.

Now, Mr. Wilkinson again refused.

The Chairman directed that he answer the question and he refused on the same basis.

The Committee also pointed out to him and this appears at page 158, and Mr. Arens, the Staff Director, read from a Committee transcript of hearings that it had earlier held in California.

I think.

Kevin T. Maroney:

From the testimony of a witness, Anita Schneider, who testified and identified Mr. Wilkinson as a member of the Communist Party and is having had an influence in a front organization in that area.

The name with which she — I think – it was the Citizens Committee to Preserve American Freedoms.

And despite that information, Mr. Wilkinson persisted in his refusal, completely adamant refusal to cooperate at all or to answer any questions of the Committee.

He was later on asked to identify a photo static copy of his registration at the hotel in Atlanta which showed that he listed his business firm as the Emergency Civil Liberties Committee.

Oh, no.

Oh yes, he refused to answer that and to identify the document and he refused to identify whether or not he had made certain telephone calls from the hotel, which were reflected in a list of hotel phone calls that were received by subpoena from the hotel.

And he was also asked, “Are you now the principle driving force, the leader, of the Emergency Civil Liberties Committee?”

And he refused to answer that question.

Now, for the first question, “Are you a member of the Party?”

And these two latter questions, he was cited by the Congress — he was indicted on the first question only.

Now, we think on these facts, of course, no Fifth Amendment problem here.

That this case is clearly governed by this Court’s decisions in the Watkins case and in the Barenblatt case.

The question here was a direct question as to the witnesses’ present membership in the Communist Party.

The — the evidence we think is overwhelming that the purpose for this witnesses being called before the Subcommittee was not because of the fact that he had engaged in activities aimed at abolishing the Committee, but rather the statement of the Staff Director that he had been subpoenaed when they learned that he had come into the South on behalf of the Emergency Civil Liberties Committee to conduct or to hinder the conduct of these hearings, that that was an explanation of the occasion for his being subpoenaed.

The — the Committee Chairman in the opening statement at these hearings had made a statement that the Committee had learned that the Communist Party had been controlling its activities in the South through the importation from other areas, from Northern areas particularly, the importation of Northern Communist agents into the South to control the Communist activities in the South.

Here, the Committee had information that Mr. Wilkinson who it had reason to believe was a Communist, had been sent into the South on Communist business.

We think that clearly, the Committee had a right to subpoena him, to ask him the question as to whether he was a member of the Party, and to solicit information from him as to what he could tell the Committee of current organizational activities of the Party and the propaganda activities of the Communist Party.

Now, the Court of Appeals in its decision, stated that “In its view, the case was covered by the Barenblatt decision and that it — that included him the pervasive authority,” and this is at page 69 of the record.

“Included in the pervasive authority of this Committee is the power to investigate activities directed to interference with the legislative processes and their function.”

The Court then concluded that since this was an area in which Congress could legislate, citing the Harris case that the Committee had a proper legislative purpose and that the inquiry was authorized —

Right –-

Kevin T. Maroney:

— within the Committee resolution.

The trial court, in his instructions to the jury, had pointed out to the jury, and this appears at page 59 of the record that — the Court said this.

“Now, in this case, the Government contends that the subject matter under inquiry,” it’s at the bottom of the page, “was the extent, character, and object of Communist colonization and infiltration in the Textile and other basic industries located in the South, Communist Party propaganda activity in the South, and the entry or dissemination within the United States of foreign Communist Party propaganda.”

If you find, beyond the unreasonable doubt, that the subject matter under inquiry by the Subcommittee, at the time the defendant appeared before it, was, as the Government contends, and that the question that he refused to answer, I’m paraphrasing now, “Related to that subject matter with undisputed clarity and that he was apprised of the pertinency in such a way as a reasonable person would’ve understood the pertinency, then that would satisfy the willfulness requirement of his refusal.”

The petitioner in his — in his brief raises the question, the issue that the question was not pertinent to the subject under inquiry, of course, at the hearing.

The witness, the petitioner, made no objection to the questions on the — on the basis that they were not pertinent to the subject matter under inquiry.

As a matter of fact, the Committee, at the conclusion of his testimony, had to practically dry out of the witness the fact that he was relying on the First Amendment, because his earlier assertions of refusal were simply, that on the grounds of personal conscience and personal responsibility, “I’m not going to answer any questions of this Committee.”

He — he took a flat position right from the beginning.

It made no legal objection to the — to the questions.

Kevin T. Maroney:

But regardless of whether or not he raised pertinency, and therefore, we can raise it here, we think it’s perfectly clear on this record that this question, in the light of this Court’s decision in the Barenblatt case, was clearly pertinent to the three subjects, which we think the record demonstrates were the subjects of the inquiry when this witness appeared before the Committee.

Potter Stewart:

Mr. Maroney, do you understand the Court of Appeals opinion to mean that that court was relying exclusively on the subject matter of opposition, aggressive opposition to the Subcommittee’s activity by Congress —

Kevin T. Maroney:

Well, I think —

Potter Stewart:

— rather than — rather than any of the three subjects of inquiry stated.

Kevin T. Maroney:

I think the Court was dealing with the contention raised on appeal which is the same contention raised here.

And that is — their contention taking the statement of Mr. Arens out of context, we think.

In saying that the only reason he was — he was brought before the Subcommittee was be — was in an effort to harass him.

And — and there reliance on that statement that he would — he was not subpoenaed until they learned that he was coming to Atlanta to — in an effort to hinder these — the conduct of these hearings.

And I think the Court was treating of that argument in its decision. Certainly, we think that the Court’s —

Potter Stewart:

Well, on what the —

Kevin T. Maroney:

— decision is completely correct if the — that the Congress, that this Committee, does have a right to investigate activities carried or propaganda activities carried on by the Communist Party with a view to exercising pressures on the legislature.

In the same way that I think that Congress can legislate as it did on the lobbying statute which statute which was involved in the Harris case.

Potter Stewart:

But you don’t understand that the Court of Appeals is resting its decision on that, the basis of that purpose of inquiry.

Kevin T. Maroney:

Well, I won’t say that their limiting into that Your Honor.

They — that’s the only specific subject.

Potter Stewart:

They don’t discuss anything else, do they?

Kevin T. Maroney:

No, sir.

That will — they don’t discuss that — they recite the facts of the case, and then they say that since the case was tried — the Barenblatt case was decided by the Supreme Court —

Potter Stewart:

Yes.

Kevin T. Maroney:

— this case is governed by Barenblatt unless there are some features distinguishing it from Barenblatt.

The — the Court then stated, then they compare the petitioner’s activity immediately prior — or his activity as to admitting that he was engaged in aggressive opposition to the continued functioning of the Committee.

They compare that with the information as to Barenblatt concerning infiltration into — Communist infiltration into education, and they say that, “This activity of Communist pressure aimed at the legislature is even more dangerous than the type of activity in the field of education that was involved in Barenblatt.”

This was a subject matter in which Congress could legislate and therefore it’s a proper subject for inquiry.

Hugo L. Black:

The Court said this, “Included in that pervasive authority is the power to investigate activity directed to interference with the legislative processes and their functions.”

Do you think it’s an effort to get the legislation passed or defeated as an interference for the legislative function?

Kevin T. Maroney:

As an interference?

Hugo L. Black:

Yes.

Kevin T. Maroney:

Well, not necessarily.

No, sir.

Hugo L. Black:

Well, could it be that it sets an effort to sway them one way or the other, even passed to defeat the legislation?

Kevin T. Maroney:

Well, I think it could be depending on what the fact situation was.

Hugo L. Black:

Do you mean to be made unlawful to attempt to — if members of the — persuade the members of Congress to pass or defeat an Act?

Kevin T. Maroney:

No, sir.

I — but of course I don’t think that’s the measure of weather or not Congress has a right to inquire in a particular field.

Hugo L. Black:

Well, I —

Kevin T. Maroney:

Congress certainly could legislate and regulate such activities as it did in the Lobbying Act.

Hugo L. Black:

Well, I should think – if you – you don’t — I totally understand you except the Court’s statement here that there’s a directed effort, directed interference that we had here —

Kevin T. Maroney:

Well —

Hugo L. Black:

— when you try to get that bill passed or defeated.

Kevin T. Maroney:

Well, I think what the Court was referring to was the apparent efforts on the part of the petitioner acting on behalf of the Communist Party.

Hugo L. Black:

Suppose he was, what differences does it make —

Kevin T. Maroney:

Well, —

Hugo L. Black:

— suppose he has right to send this concern.

I’m not talking about now —

Kevin T. Maroney:

No.

Hugo L. Black:

— something else.

Kevin T. Maroney:

No difference on his right to send it.

Hugo L. Black:

It was his right to send it.

Then what difference does that make?

Kevin T. Maroney:

I don’t think it makes any on his right to send it.

but on the question of whether or not he has a right to remain anonymous.

Hugo L. Black:

That’s — that’s a different question.

Kevin T. Maroney:

That’s — I think that makes a difference and it’s something that Congress has a right to inform itself about and to decide whether or not legislation is needed.

It might just convince them that no legislation is needed, but of course, an inquiry result with — having such a result is a perfectly proper inquiry.

Hugo L. Black:

You don’t think, do you that they could?

Suppose a man had sent telegram of — telegrams or letters to all persons, the members of Congress, to get them to pass or defeat a bill.

That he could be punished by exposure or any other methods by the Government for this.

Kevin T. Maroney:

Well, no.

Not punish this, because I don’t think that there’s any indication at any place except in the arguments, conjured up by the petitioners in these two cases that there’s any desire or intimation here of any kind that the Committee was trying to punish activities or just to exposing for the sake of exposure.

Hugo L. Black:

That you don’t consider as in this case, either one of those points.

Kevin T. Maroney:

I — I do not.

No, sir.

Earl Warren:

Well, Mr. Maroney, when the Chairman of the Committee or the counsel for the Committee, when the witness is on the stand, says, “Now, we have good reason to believe that you were a hardcore Communist and that you are engaged in Communist propaganda and so forth,” and then ends it up by saying, “Are you a Communist?”

You don’t think that punishes in many regardless of how he answers the question?

Kevin T. Maroney:

Well, I certainly don’t think it’s punishment —

Earl Warren:

Well, it isn’t putting him in jail.

Kevin T. Maroney:

— concerning —

Earl Warren:

It isn’t putting him in jail, everybody knows that.

But — but to make that statement without any evidence being in the record, that they have reason to believe that he is a Communist, that he is engaged in Communist propaganda, when being a Communist under the — under the legislation existing is a criminal offense.

Do you not think that when they then asked him, “Are you a Communist?”

That that is done with the intention of the effect of it, let’s say, the effect of it is to punish him regardless of what he says.

Kevin T. Maroney:

Well, it may result in a detriment, Your Honor, but I don’t think that the purpose of the Committee certainly — certainly we couldn’t say on this record that the purpose of the Committee was to bring about a detriment.

Here, the Committee did have and read to the witness sworn testimony that it had received, I think in California hearings, identifying that witness as a Communist.

The Committee did have information that he had recently been sent into the South on Communist Party instructions for a Communist Party business.

The Committee was asking him, and I think had a perfect right to ask him, “What can you tell us that will help us know what the Communist Party is doing?

How it is operating, how it is organizing, what regrouping is it doing?”

So that the Committee could make an intelligent appraisal, a more intelligent appraisal, in making recommendations on pending proposals that were in Congress at that time.

Felix Frankfurter:

I have an impression but I don’t know, though I should know.

There is no immunity power for witnesses before the Un-American Committee.

Kevin T. Maroney:

Yes, sir.

Yes, Your Honor.

Felix Frankfurter:

There is?

Kevin T. Maroney:

It’s the same immunity sanction that the —

Felix Frankfurter:

Well, I’m not talking about the old 860.

I’m not talking about the evident can’t be used but —

Kevin T. Maroney:

No, no.

This was —

Felix Frankfurter:

— but full community — full immunity, there is?

Kevin T. Maroney:

I think it’s the — it’s part of the immunity statute which was involved in the —

Felix Frankfurter:

Counselman and Hitchcok.

Kevin T. Maroney:

That’s right.

Felix Frankfurter:

I know but that isn’t an immunity.

Kevin T. Maroney:

No, no, no.

The — the —

Felix Frankfurter:

Ullmann.

Kevin T. Maroney:

— the case that was here about —

Felix Frankfurter:

Ullmann.

Kevin T. Maroney:

— four or five years ago, Ullmann.

Felix Frankfurter:

When — when was this immunity power given to —

Kevin T. Maroney:

At the same time, as the Congress passed the statue, giving to the Attorney General the authority to go and request immunity from a court.

Felix Frankfurter:

I don’t understand then.

Kevin T. Maroney:

And as a part of the same statute, Committees of Congress were given authority to make the same request to the Court with the proviso that they have to give notice.

Felix Frankfurter:

So that the cases in which witnesses have claimed the Fifth — the protection of the Fifth Amendment, claims which the Committee need not to stop it.

Kevin T. Maroney:

That’s correct, sir.

And as a matter of fact in this hearing —

Felix Frankfurter:

Have we — have there been demands for — have there been assertions of the immunity power which you say exists in hearings before the Un-American Committee?

Kevin T. Maroney:

I can’t cite a case but there has —

Felix Frankfurter:

No, I don’t see any, do you?

Kevin T. Maroney:

There has been — I’m fairly sure and I would have to check on this and submit a memorandum for this.

Felix Frankfurter:

Do you mind giving me the reference of this here, —

Kevin T. Maroney:

Oh, certainly.

Felix Frankfurter:

— I mean under the statute, whereby witness can claim protection of the Fifth Amendment when appearing before the Un-American Committee?

Kevin T. Maroney:

Well, what the way it works is the same way it works where the Attorney General —

Felix Frankfurter:

Well, I don’t care how it works but if the statute is the same as in the Ullmann case and the case we had here the other day, whatever it was, whereby they can compel the testimonies by appropriate procedure by getting a judge to satisfy.

Kevin T. Maroney:

If he invokes the Fifth Amendment and the Committee decides it would be in the best interest of —

Felix Frankfurter:

Do you think there is such a statute?

Kevin T. Maroney:

There is.

Yes, sir.

And then he has to —

But only if he invokes it, wasn’t it?

Kevin T. Maroney:

Only if he invokes the Fifth Amendment same as —

(Inaudible)

Kevin T. Maroney:

— in the criminal case.

(Inaudible)

Kevin T. Maroney:

And only if the Committee decides to give it and of course where the Committee is concerned, the Attorney General must be given notice so that he can interpose an objection or —

(Voice Overlap)

Kevin T. Maroney:

But in these hearings, and I don’t think I can make a direct reference to it now but we will in the supplement — in a supplemental memorandum in connection with the citation of the statute.

One of these witnesses apparently gave the impression that he might like to furnish information and the committee member made reference to the authority of the Committee to request the grant of immunity and they asked the — they asked the witness, not this witness, but another witness at these hearings.

“If this Committee should decide to request the grant of immunity, would you then be willing to cooperate and to furnish information?”

And he said he would.

But the illustration that the Committee —

Felix Frankfurter:

Yes.

Kevin T. Maroney:

— can and sometimes does consider furnishing or requesting immunity, an immunity order from a court, is demonstrated in these very hearings.

And the particular witness in the citation to the record reference, we will furnish in a supplemental memorandum, setting out the statute under which they could do that.

Hugo L. Black:

May I ask you another question and about the — what the Chief Justice read to you.

Who was it that made that statement that we have information that you are a hardcore Communist?

Kevin T. Maroney:

That was Mr. Arens, Staff Director —

Hugo L. Black:

Is he a Congressman?

Kevin T. Maroney:

No, sir.

He was the Staff Director.

Hugo L. Black:

Has this Court ever held anymore with reference to the power of investigation that it gives Congress the power to ask questions in matters connected with the legislature?

Or is there any privilege granted in the Constitution or elsewhere or questions asked by a nonmember of Congress — for the statements made by nonmember of Congress —

Kevin T. Maroney:

Well, of course —

Hugo L. Black:

— where it charges a man with something that’s pretty serious?

Kevin T. Maroney:

Of course, the witness here directed, after what had transpired between the questionnaire and the witness — directed that the witness answer the question.

Hugo L. Black:

Well, I understand you — I understand that he was first charged with being a hard-core Communist whatever that is.

But we have held that it’s so serious, and has been recognized it’s so serious, that a man can claim the privilege not to answer that.

And do you think any of the cases have held that if a man is charged, for instance, with a crime by a counsel for Committee, he can then be compelled to answer that attorney’s questions.

Have we ever had that up before us?

Kevin T. Maroney:

I don’t think that question in that form it has been presented to the Court.

Kevin T. Maroney:

No, sir, but of course here, the question — he wasn’t identified by Mr. Arens as being a Communist at the outset.

He was asked the question —

Hugo L. Black:

I’m not —

Kevin T. Maroney:

“Are you a member of the Party?”

Hugo L. Black:

But I — the question I heard read was that he stated to him that you are a hardcore Communist.

Kevin T. Maroney:

That was —

Hugo L. Black:

Suppose he had said, “We — we have their message you’re a murderer and a thief.”

Would that have been a privilege?

Kevin T. Maroney:

Well I think — certainly, I think he could’ve invoked the Fifth Amendment and that he could have done it here.

Hugo L. Black:

But suppose he — suppose he just didn’t want to be accused for being a thief or a murderer by a counsel or —

Kevin T. Maroney:

You mean —

Hugo L. Black:

Committee isn’t highest legislature by the (Inaudible).

Kevin T. Maroney:

— could Congress be precluded from making such an inquiry?

Well, I don’t think Congress could be precluded from making an inquiry merely because the inquiry might reveal the commission of a crime on the part of the witness.

Hugo L. Black:

I’m not talking about that.

I’m talking about this.

Here, you have the counsel for the Committee accusing a man or something which I assume he thought and has generally recognized as a pretty bad charge, being a hardcore Communist, whatever that is.

Have we ever had any question of the rights to make those kinds of statements to a man by an attorney for a committee?

Kevin T. Maroney:

I don’t think that question has ever been posed in that way, Your Honor.

And as a matter of fact, I think, that under this Court’s decisions in Watkins and Barenblatt, that it’s the type of thing that has to be explained to a witness to demonstrate to him the pertinency of the question, why they are asking him this particular question in relation to the overall inquiry of the Committee.

He was — he wasn’t charged.

The — the Committee made no statements about Mr. Wilkinson at the outset until he decided that he was not going to answer anything.

He didn’t invoke the Fifth Amendment.

He — he didn’t make any legal explanation.

He said, “I’m not going to answer any questions of this Committee” when he was asked the question in the first instance, “Are you a member of the Communist Party?”

When he refused, when he gave no legal justification for his refusal, the Committee then explained that the basis to demonstrate to him why they had reason to ask him about these things and why the question asked to him was pertinent to what they were trying to find out for their own legislative purposes.

I — I don’t see how they could do it any other way.

Hugo L. Black:

Was this —

Kevin T. Maroney:

And the fact that it might result in detriment, I don’t think this detracts from the power of the Committee.

The Committee’s purpose was not to hurt him.

Kevin T. Maroney:

The Committee’s purpose was to secure information.

Hugo L. Black:

But it wouldn’t make any difference, would it, what its purpose was?

I assume that on one way or the other.

Kevin T. Maroney:

That’s right, I think motive was about —

Hugo L. Black:

Or if they — you get that — just put it on that alone.

Kevin T. Maroney:

And the fact that there might be result in detriment, I think is —

Hugo L. Black:

Immaterial.

Kevin T. Maroney:

Well, not immaterial but I think it’s one of the things that the Court has considered in Barenblatt, for example, in weighing the First Amendment rights of the individual against the public right and need for the information that the Committee was seeking.

I think that possibly, in weighing those opposing values that that kind of a consideration might come into play.

But in summary, we see nothing here at all to take this case out of the Barenblatt decision and I think it’s — as a matter of fact, it’s squarely within this Court’s decision in both Barenblatt and in the Watkins case.

Potter Stewart:

What was the question — what were the questions or what was the question asked in the Watkins case?

Kevin T. Maroney:

In Barenblatt?

Potter Stewart:

In the Watkins case.

Kevin T. Maroney:

In Watkins?

Potter Stewart:

Do you have it in mind, I — I just — go on.

Kevin T. Maroney:

The precise — I think it’s as to somebody else’s membership Your Honor.

I may — I may recall the precise questions of —

Potter Stewart:

Well, never mind, I have it here.

Kevin T. Maroney:

He — he testified, I think, that he was not a Communist and they asked him, as to other people, whether or not he knew they were Communists, and his position was that he didn’t mind testifying about himself and his own activities but he wouldn’t identify any people that he knew were Communist unless he knew to a certainty that they were still Communist as of the time of his testimony.

So that the question is related to third parties, generally speaking.

Thank you.

Earl Warren:

Mr. Watts.

Rowland Watts:

Your — Your Honors.

So on the question of these traveling witnesses, I refer you to the hearings of Communist activity in New — in the New England area published by the House Un-American Activities, March 18th, 1958, or a testimony was taken on that date in which Mr. Penha at page 21, 28, and thereabouts in following, discussed, at great lengths, the colonizing efforts of the Communist Party in the South specifically in North and South Carolina.

Concerning Mr. Fishman, I refer you to page 112 of the record in which the only reference to foreign political activity — propaganda activity in the South is Mr. Arens, “Tell us, if you please, sir, what type of mail this is which comes into the Southern States?”

Then Mr. Fishman gives the general testimony he’d given many times before and says, “Areas this like the State of Georgia.”

And then later, he says, “Does it also go into Alabama and Mississippi?”

And he says, “Yes.”

The only thing that has any possible bearing on the South is the statement in passing the percentage of material sent here is far less than it is in some of the northern states.

Now, I suggest that that was not very worthwhile testimony to bring Mr. Fishman down from New York to give in Atlanta.

Rowland Watts:

As far as Mr. Wilkinson is concerned, the Committee practically treats him like a traveling witness also, because in fact, he had been subpoenaed and appeared before the Committee 18 months previously in Los Angeles, was asked, basically the same question and gave, basically the same answer.

I suggest that there was no occasion for bringing Mr. Wilkinson subpoenaing him at Atlanta.

The Government suggests that he was subpoenaed there because it was a matter of convenience they discovered in there.

But what they wanted to ask him about was his activities against the Committee itself in his public campaign against the Committee himself.

And the Committee has not hesitated to call people all the way across — from all the way across the country if they wanted them to testify.

Mr. Fishman, in his trips about the country with the Committee, testified twice in San Francisco.

I think it is clear that Wilkinson was not subpoenaed for anything that had to do with the mandate of the Subcommittee, the authorization of the Subcommittee.

Now Mr. Arens, in questioning —

Felix Frankfurter:

Would you mind summarizing why that’s clear?

Rowland Watts:

Yes.

Felix Frankfurter:

I hope this has nothing to do what one may think, one may think as ill of this conduct as —

Rowland Watts:

Right.

Felix Frankfurter:

— one sometimes think ill of the prosecutors and the criminal courts and the federal courts were asking cumulative witnesses.

Or one may think, ill of the judgment for allowing it.

But why do you — why is there something that lies in the minds of men so clear to you?

Rowland Watts:

Why — what lies in the minds of men in this particular situation, it seems to me, is that a Subcommittee of the — of the Congress is sent to the South to conduct investigation in three specific areas.

Mr. Wilkinson, who is well-known to the Committee because of his activities in our position to the Committee, appears in Atlanta.

The Committee doesn’t allege that it has any information concerning him other than that he has been assigned to carry on this job of opposition to the Committee.

Felix Frankfurter:

But an inquirer doesn’t have to tell in advance what he’s going to get out of a — out of a witness.

Rowland Watts:

No, he said —

Felix Frankfurter:

No man in a criminal trial does that or in a civil trial.

Rowland Watts:

No.

He certainly, doesn’t but I think the record of what actually transpired here —

Felix Frankfurter:

How can you tell if he shut off all inquiry and wouldn’t answer any questions?

Rowland Watts:

The specific question that they wanted to get from him was his activities in organizing a hostile attitude towards the House Committee itself.

Now, this is recognized in the court below.

And the court says —

Felix Frankfurter:

Is it — does it appear in the record that that’s all they wanted to get out of him.

Rowland Watts:

No, Your Honor, it does not.

Felix Frankfurter:

Well then how can you tell it was?

Rowland Watts:

Because there is nothing in the record, nothing in the hearings to show that he had any knowledge concerning anything else that the Committee was mandated to investigate.

Felix Frankfurter:

But you don’t know that and I don’t know that and the record doesn’t disclose it, because he shut off all inquiries.

And an examining counsel doesn’t have to tell in advance what he’s trying to get out of a witness.

Rowland Watts:

Very well.

Potter Stewart:

There’s — there is something in the record to show that the Committee had information indicating that he was a member, a fairly active member of Communist Party, apparently on page 158, —

Rowland Watts:

That refers to —

Potter Stewart:

— in Los Angeles.

Rowland Watts:

— to the testimony given in —

Potter Stewart:

Los Angeles.

Rowland Watts:

— Los Angeles.

Potter Stewart:

But that —

Rowland Watts:

And that was the same hearing which Mr. Wilkinson was subpoenaed to appear and did appear and refused to answer.

We are not making, as a primary contention, Your Honor, and I’m sorry that this was the purpose, although I recognize what I may think the Committee had in its mind, was not a proper question.

I — I pointed out though that what they were asking him about and what they said they wanted to ask him about was — had to do with this question of his alleged assignment by the Communist Party to carry on a public program and our position to induce the Congress to abolish the Committee.

Felix Frankfurter:

Would you think that was an illicit forbidden line of inquiry?

Rowland Watts:

I — I do not say that Your Honor.

I — I say that the Subcommittee was not authorized to do that with this.

The Subcommittee had three specific purposes given it by the Committee.

And —

Felix Frankfurter:

What were those?

Rowland Watts:

They were colonizing an industry in the South, foreign political activity propaganda distribution in the South, and Communist activity in the South.

Felix Frankfurter:

And you think the letter is not – that the inquiry whether it was a Communist, an organized Communist effort to put the Committee out of business, which I might privately sympathize, is — excludes an inquiry whether they were engaged in trying to put him out of business?

Rowland Watts:

If —

Felix Frankfurter:

On the score of remedies, do you think that’s excluded as a lawyer?

Rowland Watts:

Yes sir.

Felix Frankfurter:

You do.

Rowland Watts:

I —

Felix Frankfurter:

I must say you have very strict notions of relevance.

Rowland Watts:

I suggest that the Congress — that the court below erred in claiming that this was a legitimate area of investigation by the Committee because the Committee had not — the Congress cannot legislate to force disclosure of motivation, of a person carrying on activity to petition Congress for redress of grievance under the First Amendment, or at least this Court stated and has that it would narrow and to burn lobbying to avoid the constitutional question under the First Amendment upon —

Felix Frankfurter:

But that’s a very different thing, statutory construction.

Felix Frankfurter:

I myself had a hand in it.

Statutory construction narrowly construing legislation to avoid raising questions doesn’t prove that it’s constitutionally forbidden, a very different thing.

Rowland Watts:

I would like to suggest further that among all the multitude in these activities that this Subcommittee was claiming it had the power to investigate in excess of the mandate given it by the Committee itself.

One of them was this Bill 9937, the so-called Omnibus Bill that the House was going — that the Un-American Activities Committee was going to put through Congress but it never did.

This Bill was summarized in part, in major part on page 19 and 20 of the record by Mr. Arens on direct examination at the trial.

Now, with all of these provisions in this Omnibus Bill, not one of them referred to any suggestion that the law being an Act should be changed.

So they didn’t get their authority from that.

Also, what they were talking about was an amendment to the Smith Act to redefine the word “organized” in the light of this Court’s decision in Yates.

However, that particular Bill was not before the House Un-American Activities Committee but was before the House of Judiciary Committee and hearings were held on it, and the Judiciary Committee did vote it out, report it out that a week after these hearings.

And it passed the House on August 12th, 1958.

So the Committee, as I suggested at the trial, seem to me to be doing a little colonizing of its own and going far beyond the mandate, the Subcommittee’s mandate as set forth in the resolution establishing it.

I think that we come back to the basic question which was raised under Count V of the Braden case earlier.

That is whether or not this was not impaired beyond the power of the Committee to interrogate Mr. Wilkinson because of his public activities to induce the Congress to abolish the House Un-American Activities Committee.

The court below raised — based this decision squarely on this point and it’s asserted the power to do this.

Potter Stewart:

I’m not quite sure that I understand how broad your argument is in this — on this aspect of the case.

Now, let’s assume as it seems to be the fact that this petitioner, when it was opposed and aggressively articulately opposed to the House Un-American Activities Committee and wholeheartedly in favor of its abolition and actively, in favor of this Commission.

How much — how much immunity then does he get from interrogation by the Committee?

Rowland Watts:

I think that’s no immunity for — from interrogation by the Committee in any other field than what is his motivation in carrying on a campaign against the Committee.

And I think there he gets full immunity because perhaps, if the Committee is investigating other legislation that had nothing to do with the functioning of Congress, I would say more than perhaps.

I believe that no immunity is granted, one who is opposing such legislation.

But certainly, if a person is going to be interrogated because of his opposition to a functioning of it — of a Committee of Congress, as to your — his motivation, this is going to destroy the right to petition the Government for redress of grievance under the First Amendment.

William J. Brennan, Jr.:

Whether what the Committee is trying to get at — this Committee is trying to get at is his activity, motivation (Inaudible) some other activity (Inaudible).

Rowland Watts:

Perhaps so, but I think —

William J. Brennan, Jr.:

(Inaudible)

Rowland Watts:

I —

William J. Brennan, Jr.:

(Inaudible)

Rowland Watts:

I think not, Your Honor.

I — but I don’t believe you have to go that far in respect but my answer to the question —

William J. Brennan, Jr.:

And I’m so (Inaudible)

Rowland Watts:

In our position to the Committee.

William J. Brennan, Jr.:

Yes.

Felix Frankfurter:

But Mr. Watts, there’s very little doubt.

One doesn’t have to be a great profit to know that there will be full coming proposals in the Congress of the United States to carry out certain what some people may think very highly desirable social measures and what some other people may think destructive proposals.

And the chances are very good if it passes any guide to the future.

That there would be powerful interest against the passage of what – referring to the United States maybe a very desirable in legislation.

And you say that if there’s a mass effort to flood the Congress or to saturate Congress with opposition to highly desirable legislation that is so conceived by the person and leaders of Congress, you cannot find out the source of that evidence.

Rowland Watts:

Not by compulsory process, Your Honor.

Felix Frankfurter:

I can assure you the past is against you.

Rowland Watts:

Isn’t — isn’t the —

Felix Frankfurter:

The future may not be but the past is.

Potter Stewart:

Is — isn’t the law — the subtle stated law kind of against it too, If you — couldn’t Congress require the disclosure of paid lobbyist for example?

Right.

In — in Harris but only by narrowly defining what — of what lobbying meant which was direct contact with the Congress.

Felix Frankfurter:

As a matter of construction, not as a matter of constitutionality.

Rowland Watts:

That’s right.

You fail — to find it to avoid the constitutional question as Mr. Chief Justice Warren said, and I think that this is a basic position that I would take that cannot go into this if lobbying is going to be so defined, but this Subcommittee was not asking Wilkinson any question that was pertinent to its mandate because it was not investigating lobbying.

Thank you.

Earl Warren:

You’re welcome.