Wilson v. Loew’s, Incorporated – Oral Argument – January 08, 1958 (Part 1)

Media for Wilson v. Loew’s, Incorporated

Audio Transcription for Oral Argument – January 08, 1958 (Part 2) in Wilson v. Loew’s, Incorporated

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Earl Warren:

Number 33, Michael Wilson, Gale Sondergard, Howard Da Silva, et al., Petitioners, versus Loew’s Incorporated, a Corporation, Paramount Pictures, Incorporated, a Corporation, et al.

Judge Kenny.

Robert W. Kenny:

If the Court please.

The petitioners had planned to divide their argument and my purpose would keep the — me to discuss the facts in the record, the procedural steps that brought us to this Court and then my colleague, Mr. Margolis will discuss the constitutional and legal questions that are applicable to them.This case involves the black list in the entertainment industry.

This black list is now over 10 years old and it’s still in existence today.

And because of it, men and women are still excluded from callings to which they haven’t devoted their entire professional lives and careers.

The existence of this black list is admitted by the pleadings.No judicial relief, however, either by injunctions or by damages has ever yet been given to the victims of what is conceded on the pleadings to be the concerted action of a monopolistic group that controls all of the employment opportunities in this particular industry.

We have never even had a trial.

And on the pleadings, this is a — this is a case of a complete monopoly of both the production and the distribution of motion pictures and of all employment opportunities in that industry in the United States.

American history, I believe, has very few parallels to such a situation as continues to exist in the motion picture industry today.

The facts alleged in the petitioner’s complaint are as follows.

There are 23 petitioners in this case.

They are actors and actresses and writers and research workers and backlot workers, one classified as a grip.

At the time they filed their complaint in the state court of California in March 1953, these petitioners had each, from five to 25 years, of experience in their professions.

And many of them had acquired reputations, national reputations for excellence of work in the motion-picture industry and at one high esteem professionally.

The respondents, that is the industry respondents, are the motion-picture distributors and producers of the United States.

Between them, they control all of the production and distribution of motion pictures and they control, as I’ve said, all employment industries for all employees in the motion-picture industry.

Two of the remaining respondents are members of the House Committee on Un-American Activities, and the third is an investigator employed by that Committee.

The complaint alleges that these respondents acted both officially and unofficially.

The agreement of the respondents is that prior to March of 1951, and we alleged the agreement was made, they agreed first to exclude from employment in the motion-picture industry all persons who sought employment who had been subpoenaed as witnesses before the House Committee and who relied on their federal constitutional privileges including the Fifth Amendment to answer questions that pertain to their political affiliations and associations or beliefs.

18 of the petitioners fall under this category.

Second part of the agreement was among the respondents that they would exclude from employment in the industry all persons who had been named as communists but who had failed to appear voluntarily before the Committee and upon such voluntary appearance submit to committee inquiries without asserting their constitutional privileges.

And five of the petitioners fall within this group.

Furthermore, this agreement among the respondents was that they would persuade all other employers in the industry to desist and refrain from employing all such persons with the intent of preventing them from obtaining any employment in the motion-picture industry.

Then as one of the means of effectuating this agreement, all of the respondents published and circulated throughout the entire industry a list which contained the names of all such employment, the employees who came within these two categories with the direction and intent that they’d not be employed and the publication and circulation of such a list continues today.

While alleges that the purpose of the agreement was first, to limit control and direct the political activities of all employees of the respondents.

And second, to coerce and influence in the motion-picture industry all employees by threat of loss of employment and thereby to coerce them to refrain for — from adopting or following any political action or relying which was not acceptable to the House Un-American Activities Committee.

And third — the third purpose was to limit employment to those persons whose political believes were acceptable to that Committee.

And fourth, to limit the production of motion pictures by the industry to those the conduct — the content of which was acceptable to the House Un-American Activities Committee.

When it states that the defendants and each of them by this conduct wrongfully, maliciously and without justification have interfered with and injured the right of said employees and other persons reasonably to expect employment in the motion-picture industry and to pursue their professions and occupations therein and it prevented their employment there.

Robert W. Kenny:

The — as I said, the complaint was for injunctive relief and for money damages.

Thus, in the original complaint, the petitioners sought enforcement of three federal rights by the California state courts.

These were, first, the right to pursue their chosen callings in the industry, second, their right to attend as witnesses in a federal forum and to invoke there their federal constitutional privileges, and third, their rights to freedom of speech and press an assembly to be exercised free from coercion and interference.

Now, the pleadings in the state court conform to the California rule that ultimate facts only can be pleaded and that references to statutes and constitutional provisions and principles of law are not properly part of the pleadings themselves.

The respondents demurred generally to the original complaint.

And in California as elsewhere, a demurrer admits the truth of all facts that are properly pleaded.

The trial judge in the law and motion department of the Superior Court there in Los Angeles sustained these general demurrers up to the original complaint and a minute order which gave no indication of the grounds and had no opinion but gave his leave to amend.

And since the demurrer was impart based upon the ground that the words “black list” and “conspiracy” were conclusions of law, we amended omitting the use of those words but otherwise, the amended complaint was identical with the original complaint.

And there, the respondents again demurred generally to the amended complaint.

This time, the trial court sustained the demurrers without leave to amend.

However, this time, the trial court rendered a written opinion, which is part of the record.

I point out that despite the arguments that the respondents had made to the trial court despite those and contrary to them, the trial court held that we, the petitioners, did have a standing to sue in the Court for an invasion of our right to work.

And the trial court, in its opinion, recognized that we were asserting a right to pursue as petitioners, the — their chosen professions to attend as witnesses in a federal form and to evoke their federal constitutional privileges without losing their right to work and their rights to freedom of speech.

However, the trial court did sustain the demurrers upon the ground that the burden was upon the petitioners to plead a lack of justification.

And they were required to — the court rule, that we were to plead a lack of justification for the acts of the respondents.

And the trial court held that the terms of the agreement, with respect to the invocation of constitutional privileges and its purpose of limiting the political beliefs of the employees and of restricting the content of motion-picture, trial court had held that all of that did not show, as a matter of law, a lack of justification.

And in the trial court’s written opinion, it was discussed, it was discussed first the relationship of the right to work, to due process and to the privileges of — and immunities of citizens.

And we say that this is the constitutional case which permeates the entire — it is the constitutional point that permanetes the entire case.

Second, the trial court, in its opinion, discussed the — state the Fifth Amendment and the duty of the State to protect against private action directed out of its exercise.

We say that these are the questions obviously arising under the Supremacy Clause of the Constitution.

Third, the trial court held that since the State Government could fire employees who were claiming the Fifth Amendment, this, I might say, was written before this Court’s decision in Slochower, the Court said, “Well, since the State can fire employees and take the Fifth Amendment, a reason from that that private employers have the same rights.”

And fourth, the trial court opinion contained a likely discussion of — of free speech, political sense, association, the censorship, allegations of the complaint.

But it held that a private combination of private employers which act — acted to suppress these rights was not unlawful.So the trial court sustained, as I say, the general demurrers without leave to amend and this made an entry of the judgment of dismissal mandatory and a judgment of dismissal so entered is final and appealable.

And we appeal, we appeal to the District Court of Appeals, which is the intermediate Court of Appeals in California.

And in that appeal, we urge that the judgment of dismissal, which held the petitioners to be without any remedy at all, that that judgment had deprived the petitioners of their liberties and properties without due process of law in violation of the Fourteenth Amendment.

We urge that the monopolistic combination of the respondents had deprived the petitioners of their fundamental right to work for a living.

We urge that the combination of respondents had arrogated powers that were denied the Government itself.

Fourth, that the conduct of the witnesses before the Committee and their exercise of constitutional privileges, including the one against self-incrimination, did not justify this concerted agreement.

And we finally urged that the respondents had invaded rights secured by the constitutional laws of the United States and that the purpose of the conspiracy was patently violative of the freedom of speech and press and assembly.

The District Court had appealed and handed down its opinion which completely disregarded the reasoning of the trial court.

Robert W. Kenny:

And the trial court’s reasoning was that the justification was not a matter — it was not a matter of defense.

It was a matter that we had to overcome affirmatively by our own pleading.

The District Court of Appeals disregarded that and instead, the District Court of Appeal, for the first time since the inception of these proceedings, held that the complaint was insufficient because it had failed to allege any existing contract or any prospect of a contract.

And the appellate court went on to say that in view of that conclusion, it didn’t reach any of the other part — points that have been urged by counsel.

So I say this was the first time that the state courts have ruled in favor of the respondents’ argument that the petitioners could not prevail unless they were able to plead a right based on a specific contract or the prospect of one.

The petitioners then filed a petition for rehearing in the District Court of Appeal in which we again argued that the appellate court had denied us the equal protection of law and deprived us of property without due process when it had held that we had no legal regrets against admitted wrongdoers who would deprive them admittedly of their right to pursue their chosen avocations merely because the petitioners were not able to allege the existence of a contract or the probability of a contract for employment.

That petition for rehearing was denied.

Thereafter, we, petitioners, petitioned the — the State Supreme Court for a hearing.

And we again raise all of the previously discussed constitutional issues.

The Supreme Court denied this petition.

However, Mr. Justice Carter was of the opinion that the petition should have been granted.

So I say the petitioners’ case is grounded primarily on their contention that the conduct and agreement of the respondents wrongfully and unjustifiably impaired their reasonable expectation of employment in the industry and their federally protected right to pursue their professions and occupations.

The respondents’ contention, with which the state court agreed, is that the petitioners had no standing to sue at all because they could not allege that they had an employment contract or a specific prospect of one.

We contend that it was the exclusion from all work opportunity by this monopolistic combination and not the deprivation of some specific contract that was the wrong committed here.

William O. Douglas:

Was this a suit of (Inaudible)

Robert W. Kenny:

No, this was a — a suit — a common law action for concerted refusal to deal.

Earl Warren:

Mr. Margolis.

Ben Margolis:

Mr. Chief Justice, if the Court please.

The opinion of the court below was based upon the assumption that the complaint in this case alleged interference with a specific contract or a specific business relationship.

A reading of the complaint makes it readily apparent that the unambiguous allegations of the complaint charge not interference with a specific contract or a specific business relationship but rather alleged total exclusion from the opportunity to work from the right to pursue a calling.

What they alleged in fact, we assert, is total exclusion from entry into the marketplace in which contracts of employment and business relationships are negotiated and consummated.

It is this total exclusion from the marketplace which at one and the same time is the principle injury alleged and is the coercive power used by this monopolistic combination to deprive the petitioners of other constitutional rights.

Under our system, individuals are not guaranteed that they will ever have a specific contract or that they will ever enter into a specific business relationship.

Felix Frankfurter:

Do I gather from the answer to Mr. Justice Douglas’ question to Mr. Kenny that this is for a tort action (Inaudible) common law, by common law, I mean an action of tort under allowable California law, is that right?

Ben Margolis:

That is correct.

Felix Frankfurter:

No — no — this fact, no more.

Ben Margolis:

That’s right.

That’s — that’s the way the — the action was instituted but it was instituted for the purpose of protecting the constitutional right to pursue a calling that —

Felix Frankfurter:

So that if California tomorrow saw fit to abolish all — withdrew from the jurisdiction of its court all tort action, you — your redress wouldn’t be in the California court, is that right?

Ben Margolis:

Well, there would be a question whether the Court — whether California could constantly withdraw all remedies for torts within the meaning of the — within the provisions of the Due Process Clause.

Felix Frankfurter:

Well, you might have to go to the federal courts but couldn’t California say, “We don’t believe in state-imposed duty and damages”?

I don’t know whether California has but also took tort actions from time to time withdrawn from the statute saying the Court shan’t bring suit for breach of promise.

The Court — Court shan’t jurisdiction for this statute is out on other thing.

And if California chose not to allow recovery to this Court with torts with anything of the Due Process Clause that — that require this Court to say, “You must do your course for that purpose.”

Ben Margolis:

I think if California offered no remedy whatsoever —

Felix Frankfurter:

Yes.

Ben Margolis:

— for deprivation of property rights which are protected by the Fourteenth Amendment and by the way the breach of promise cases and those kinds of cases are public policy cases and do not involve property rights which are necessarily protected by the Constitution.

Felix Frankfurter:

Well, suppose California stated, “We don’t believe in litigation, we’ll have no courts,” could this Court issue a mandamus that should have courts?

Ben Margolis:

I — I don’t know what the remedy would be under those circumstances but I believe that the refusal to grant any relief would be a denial of due process.

Felix Frankfurter:

Then therefore you could go to the federal court but it doesn’t mean that you could therefore impose jurisdiction upon state courts.

Ben Margolis:

Well, whether we could impose jurisdiction up — but we don’t have that sort of a situation here.

Felix Frankfurter:

But you might very well.

You might very well.

Ben Margolis:

But the state here, the legislature —

Felix Frankfurter:

If it state your answer quite clearly was that you’re here seeking to enforce a course of action given you by the common law of California, is that right?

Ben Margolis:

That is correct.

Felix Frankfurter:

All right.

Ben Margolis:

But also, that is — that was part of my answer, the rest of my answer is that the purpose of it was to enforce —

Felix Frankfurter:

I understand that.

Ben Margolis:

— certain constitutional right simultaneously —

Felix Frankfurter:

But the Court —

Ben Margolis:

— and —

Felix Frankfurter:

didn’t arrive from common law of California law.

Ben Margolis:

Yes.

And also to enforce a right over which the California court clearly has jurisdiction.

There’s no question about jurisdiction here.

What would be the situation if the legislature sought to take away all jurisdiction from the courts is not something that is before us here.

This Court had jurisdiction.

Felix Frankfurter:

Are you suing — are you suing for money or for —

Ben Margolis:

Suing for money and for an injunction, for both.

Felix Frankfurter:

How much money are you suing for?

Ben Margolis:

Many millions of dollars, I don’t remember the exact amount.

Felix Frankfurter:

Therefore State has all sorts of power to limit the jurisdiction of its Court and to make certain requirement of what enables you to get relief of this Court.

Ben Margolis:

I think that the —

Felix Frankfurter:

It may make money limitations.

It may make class limitation as a course of action.

Like this Court, it may have requirement about standing, etcetera, etcetera, doesn’t it?

Ben Margolis:

I think that this is so but the question is — that is not the question involved here.

The question is whether it may deny all remedy.

If the denial here had been based upon the proposition that these individuals had sued for too much money or that the only an injunction would be granted in this sort of a situation that the Court would grant only an injunction, and by the way, that this apply to all persons equally in the same position because we have a denial of equal protection of the laws point here and there’s also a supremacy point here.

But here, the point is that what the California court said was here is the subject over which we do have jurisdiction.

There’s no contention that they don’t have jurisdiction.

We will not condition relief upon some procedural step upon you’re limiting your claim for damages, upon you’re asking only for a certain kind of relief, we say that you — you are totally excluded from all relief.

Felix Frankfurter:

It caused — you haven’t got a contract of expectation of getting one.

Ben Margolis:

That’s right, but that isn’t the procedural step.

Felix Frankfurter:

That’s what I call — that’s what I call standing to sue.

Ben Margolis:

Well, I think what is involved here is the question of whether or not by creating this requirement of standing, they have taken all way all remedies from these people and by taking away all remedies from the petitioners have denied them the constitutional rights.

What you’re really arguing is this is not a bona fide state ground.

Ben Margolis:

That is correct.

We’re arguing that it’s about a bona fide state ground.

Therefore, you’re — therefore, you’re saying that California, as a matter of due process, has to give a remedy —

Ben Margolis:

That’s right.

— for violation of federal constitutional rights, is that it?

Ben Margolis:

Regardless of whether it could withdraw all torts from its courts, it hasn’t done so.

And it has said to the citizens of the State, “We will protect you when you are injured by the wrongful acts of others including this kind of a tort.”

But it has now said this is one group from which we withdraw this.

In other words, there is a remedy but this remedy is being denied these people on a purely arbitrary and capricious ground, as I will attempt to show as my argument goes on.

Felix Frankfurter:

Are you — does that imply that in very cognate cases, they don’t make this requirement to a suit that you have either an existing or a prospectively promising opportunity?

Ben Margolis:

Not in cognate cases.

Felix Frankfurter:

Not in cognate cases.

Ben Margolis:

No, no.

I —

Felix Frankfurter:

You mean — you mean they — in other cases, they don’t make this requirement.

Before you can get relief, you must either allege a breach of contract or a breach of a perspective contract.

Ben Margolis:

Your — Your Honor will recall, perhaps, that in Parker versus Lester, and I think Your Honor wrote the opinion, Mr. Justice Frankfurter, you referred to the fact that a case could safely be sent back to the California Supreme Court because that Court had been diligent in its protection of the civil liberties of its citizen.

And you cited as evidence of that fact the case of James versus Marinship.

Now, the case of James versus Marinship happens to be a case in which the California Supreme Court spoke most eloquently and most forcefully of the fact that in the State of California, the right to work is a constitutionally protected right extending to all and that the State of California will protect that right.

So we are dealing here —

Felix Frankfurter:

This is not an abstract though.

Ben Margolis:

It — but there wasn’t any —

Felix Frankfurter:

Suppose they’re in the business of dealing with real life litigations and real life intrusions into right.

Ben Margolis:

That’s what we —

Felix Frankfurter:

And what —

Ben Margolis:

— have here.

Felix Frankfurter:

Pardon me?

Ben Margolis:

That’s what we have here.

We have total —

Felix Frankfurter:

And your court, the Court of California said you haven’t got it, if you haven’t got a contract or the likelihood of getting one.

Ben Margolis:

Well, let me say this.

When you’re suing for the right to pursue a calling, Mr. Justice Frankfurter, for the right to enter the marketplace in order to compete, in order to obtain a contract or in order to obtain a business relationship, it is simply a contradiction in terms to say that you have to have achieved that business relationship before you can enter the marketplace.

Felix Frankfurter:

But I understood Judge Kenny didn’t say that that was the only ground of the Court, it said either an existing contract or the expectation (Voice Overlap) —

Ben Margolis:

They read — no, what they said is a reasonable expectation of a contract.

How can one have a reasonable expectation of a contract if he is completely foreclosed from entering the marketplace and negotiating or attempting to negotiate?

Felix Frankfurter:

Because they may belong to a people who are handicapped either by talent or by age or by something else that’s relevant to the — to the prospective contractor.

He may have lack of those qualifications which are likely to get him a contract.

Ben Margolis:

But on the admitted facts here — you see, we have to deal with the facts of this case, not with some other case.

The admitted facts here are number one, that these people are people of high standing and high reputation in the industry, number two, that these people have been excluded from any opportunity to achieve a contract solely by reason of the fact that they appeared before a federal forum and exercise their right as witnesses in the matter that has been indicated.

Felix Frankfurter:

But you compel the movie people from hiring any of these people even if every one of these conditions are satisfied?

Ben Margolis:

That is not the remedy we are seeking.

Felix Frankfurter:

I know.

Felix Frankfurter:

I’m asking whether you could.

Ben Margolis:

No.

We’re not — we’re not seeking but we could get damages for their concerted refusal to permit these people to enter the marketplace and we could get an injunction against this concerted action and that is the remedy that we are seeking.

Charles E. Whittaker:

What do you mean by the marketplace (Inaudible)

Ben Margolis:

In this case, the marketplace is the entire motion-picture industry in the United States.

What these respondents have done, these respondents who control all employment opportunities in the motion-picture industry have said, “We will not employ any of these people and we will not permit anyone else in the motion-picture industry to employ any of these people.”

So that they have closed all opportunities for these petitioners to pursue their calling to obtain any employment within the industry.

That is the basis for the cause of action.

Hugo L. Black:

Do I understand that in your case (Inaudible) on a holding of this Court that California has to give enforcement (Inaudible) or not?

Ben Margolis:

No, it does not.

Hugo L. Black:

I — I gather that from what you’ve said.

I — I have so understood you.

Ben Margolis:

No, I — I understood Mr. Justice Frankfurter to simply ask me the question as to whether or not California has to grant a tort remedy.

And I answer that in my — in my opinion was in the affirmative.

However, our case does not depend solely on that.

Hugo L. Black:

What is your — what is your —

Ben Margolis:

Well, we have a number of points.

Let me turn to one of the points then that this does not depend at all upon that.

Hugo L. Black:

(Inaudible) came up to this Court several times.

The Court finally sent it back not because California was compelled that they’re guilty but the (Inaudible) whether California is guilty, the assumption being that it would give a remedy — would have given a remedy but for the fact that it is withdrawn, what has been done did not violate the Federal Constitution that is quite a different thing from what you’ve been arguing up to this time.

I had supposed that you would continue that what they had done was to misconstrue the Federal Constitution and hold that for that reason, there was no cause of action.

Ben Margolis:

That is, of course —

Hugo L. Black:

It makes it quite a different situation so far as I am concern.

You’re saying that you have a right to go into the federal — state court to enforce a court remedy where the State refuses to give any.

We held in Hood versus Bell that the federal courts maybe over but that — did not depend on whether it was the state control but — up today in your answer to Justice Frankfurter, you have left me with the impression that what you are depending on that the Court wrongfully held that it would not give a remedy because there was no contract.

That’s quite different from the Court saying, “We will not give a remedy although we have — we do supply remedy, we’ll not give it here because we think that there has been no constitutional or Federal Constitution (Inaudible)

Ben Margolis:

We have — I — I’m sorry that I was not clear.

I thought that I have said that we have grounds which existed independently of whether or not the State could withdraw the tort remedy.

There are Supreme — some Supreme Court cases that we have cited which say that the withdrawal of all remedies constitutes a denial of due process.

That’s only one of our problems.

Hugo L. Black:

But what I’m — what I’m —

Ben Margolis:

And —

Hugo L. Black:

(Voice Overlap)

argue —

Ben Margolis:

Yes.

Hugo L. Black:

— is this.

If you had showed that you’re not depending on that, would you say the State does give a remedy, if you have that — if that’s your contention (Inaudible) of the remedy and would have given the remedy to these people, what’s the point of misconstruction of a federal constitutional provision?

Ben Margolis:

Well, there are two points that we have which — at least two points that relate to your question.

The first is our claim that there has been here a denial of equal protection of the law.

Now, here, the State does afford a remedy and, of course, I need not argue to this Court that where it does afford a remedy, it may not make arbitrary classifications or unreasonable classifications between the people to which it does afford a remedy.

Now, here, the State, under the Supreme — under the — under the decisions of the Supreme Court of California, James versus Marinship and others has held, and this is binding upon the District Court of Appeal, it has never been reversed, has held that the right to work, the right to pursue a calling as such is protected under California law.

The effect of this decision is to place in one category those who do have contracts and say that they may protect their right to have — to pursue — do have contracts or reasonable prospects of contracts and say that they may protect their rights to pursue a calling.

But to place in another category those who have been totally excluded from any opportunity of obtaining contract by the action of these respondents and say that they — because they do not have any contract or do not have any reasonable opportunity of obtaining contract that therefore, they are excluded from pursuing their right to a calling or — or at least having that right protected in the federal court in the — in the state court either by an action for damages, by injunctive relief or in any other way.

Felix Frankfurter:

Can you say that that’s what we call an unreasonable classification and therefore a denial of the equal protection —

Ben Margolis:

Yes.

Felix Frankfurter:

— which has nothing to do with these constitutional questions, these other constitution?

You think —

Ben Margolis:

No.

No, this is an — I —

Felix Frankfurter:

(Voice Overlap) —

Ben Margolis:

— try to make it clear, Mr.– Mr. Justice Frankfurter.

This is — this does not depend upon whether the State has the power —

Felix Frankfurter:

I understand.

Ben Margolis:

— to withdraw all court remedies.

Felix Frankfurter:

That’s a totally different thing.

Ben Margolis:

That — that is my position.

Felix Frankfurter:

That is if the State can’t draw a line of relief between those who enjoy existing conflicts, I have a prospect of one, and those who are without qualifications.

Ben Margolis:

Yes.

Where — where the right to work and the right to pursue a calling is protected by state laws, as it is here.

In — in those situations —

Felix Frankfurter:

(Voice Overlap)

that makes a difference.

Ben Margolis:

Well, at least, let me say this, that it strengthens our case and we do have that here.

It strengthens our case and we do have that here.

Felix Frankfurter:

Because equal protection or — or violation of denial — it may be a denial of equal protection even as to interest or opportunities which the State has the right to deny everybody.

Ben Margolis:

That is correct.

Felix Frankfurter:

But it can’t make a differentiation that has no basis in what we call (Inaudible) whatever you call it.

Ben Margolis:

That’s right.

And here to say that one must have a contract which he has been precluded by the wrongful act of another from having any possibility of opinion in order to have the right to pursue a calling is simply irrational.

It just has no relationship to the protection of the right involved.

Hugo L. Black:

But that does not finally get down to what you’re arguing or saying (Inaudible) if the State just cannot give protection to a court action of the people who have contracts who — who refuses to those who have not.

Felix Frankfurter:

Yes.

Ben Margolis:

That is my provision in this situation, yes.

Also, there is involved this particular problem here which maybe another way of putting the same point.

The District Court of Appeal did not purport to change the law of California with regard to the protection of the right to work.

It simply refuse to apply the established law which protects the right of — the right to work in the State of California to these petitioners and to select these petitioners and to refuse to apply to them rights which are protected under the law of the State of California is also another basis for arguing that this is a denial of the equal protection of the law.

Now, the second point which has no relationship —

Hugo L. Black:

I mean that, as I understand it, you are — you are saying that they do allow a remedy even for — or for without contract.

Ben Margolis:

Yes.

Hugo L. Black:

(Voice Overlap)

But have just denied them and you are invoking now the (Inaudible)

Ben Margolis:

Yes, Your Honor.

And the case of like — the — the leading case in California is the case of — that I referred to before, James versus Marinship and there, the right — they speak of the right to work and they speak of it without any reference.

And it’s quite clear from a reading of the contract that has no reference to the existence of contract or the nonexistence of a contract.

It’s the right to work in the — in the manner that the phrase was used in Truax versus Corrigan which doesn’t depend upon the — having a contract but which is — which means the right to — to compete for jobs, to try to obtain employment on equal terms without — without discrimination under the law or from private combinations of this kind.

Now, also — and prior —

Felix Frankfurter:

On — on this propriety, you should invoke Truax against Corrigan.

I noticed that this is, for me, a very offensive case or invoke by a so-called liberal lawyers whenever they seek their purpose.

Ben Margolis:

Well, I think that —

Felix Frankfurter:

(Voice Overlap)

Felix Frankfurter:

for the law.

Ben Margolis:

I think that while Truax versus Corrigan in many ways is a bad case that there are some of the —

Felix Frankfurter:

(Voice Overlap) from that.

Ben Margolis:

— there are some other principles in it that I still allow and I’m relying upon those principles, not the others.

I turn out to another ground which is totally independent, the question of whether or not a State may be totally deprived as citizens of all tort remedies for a particular wrong.

It is our claim that the effect of the state court judgment is to ignore and to violate the provision of the Constitution making the Constitution — the Federal Constitution and the laws thereunder, the supreme law of the land.

Now, this has been treated in respondents’ brief as though all we were relying upon were the fact that the action taken against these petitioners resulted from their claim of the privilege of the Fifth Amendment.

This is not accurate.

The situation is as follows.

The Congress of the United States, under the Constitution that has been held by this Court, has the power to investigate.

Pursuant to that power, Congress has enacted a series of laws giving Congress the power to subpoena witnesses, requiring them to testify, establishing penalties for their refusal to testify and setting up a whole body of relationships between the witnesses and Congress, which body of relationship has been supplemented by the decisions of this Court, some of them last term, holding that the various federal guarantees of the First and the Fifth Amendment and other guarantees applicable to persons generally apply in — to witnesses subpoenaed to appear before legislative hearing.

Now, it is this entire body of rights and duties of witnesses which we say constitute to supreme law of the land.

The issue between the parties here is a relatively narrow and we think simple one.

The respondents take the position that the supreme law of the land does not apply here because the only interference, the only retaliation against these witnesses came from private sources.

In the first place, and this, I think, is perhaps the least important answer to this, in the first place, this is not the fact as alleged in the pleadings and as admitted.

It is alleged in the pleadings that this was a conspiracy involving federal officials, that is officials of the Federal Government, acting jointly with a private monopoly combination.

Now, whatever else maybe said, it would seem quite clear that the Supremacy Clause is certainly — certainly makes the laws and Constitution of the United States binding on federal officials and binding upon those acting in conjunction with them in a conspiracy to violate persons because of their exercise of federally protected right.

Felix Frankfurter:

If you are right —

Ben Margolis:

But —

Felix Frankfurter:

— if you are right, you have at least stated a federal cause of action against federal officials.

But this — this is a California tort action.

I don’t see how you — how you can say this is a violation by federal officials of their federal obligations.

Ben Margolis:

In this federal tort action in which we are complaining of the violation of the right to work, the taking away — the injury is the taking away of the right to work and the interference with other constitutional right.

The Court, in applying the law, has the duty to apply the law in such a way that no one will be injured because of its exercise of federally protected rights, of its rights protected by the laws —

Felix Frankfurter:

That — that has nothing — that’s true about the opinions.

I mean — what you’ve just said is true as against this (Inaudible) defendant who hold no federal position.

Ben Margolis:

That is our point.

Felix Frankfurter:

Very well.

Ben Margolis:

We make that point also.

In other words, we say that here, we have — we don’t have just civilians but we have a combination.

Ben Margolis:

But our point is that the supreme law of the land is the supreme law of the land for the Federal Government and federal officials, by the State Government and state official and for private individuals that —

Felix Frankfurter:

Does the complaint charge that these members of the — of the Congress were in — if I may use a vulgaris, were in cahoots with the Hollywood people?

Ben Margolis:

Precisely.

Felix Frankfurter:

You mean that this is a conscious that they got together, not that they accomplished convergingly the same result but they really had a community of mind.

Ben Margolis:

Charges joint action and joint intent.

Felix Frankfurter:

You mean they — but somehow rather there was a partnership.

Ben Margolis:

That’s what the charge is.

Felix Frankfurter:

Not that they brought the favors, the charges that some members of this Committee sat down or communicated or telephoned or wired or talked, is that right?

I just want to know.

Ben Margolis:

A complaint charges a single conspiracy to which the members of the Committee, the investigator and this monopolistic combination of party.

Charles E. Whittaker:

(Inaudible)

Ben Margolis:

Well, I think —

Charles E. Whittaker:

(Inaudible)

Ben Margolis:

— a single agreement, yes.

We struck the word “conspiracy” but what is left is agreement —

Felix Frankfurter:

Why do —

Ben Margolis:

— and a conspiracy is an agreement to do a certain kind of an action.

Felix Frankfurter:

I don’t understand this.

I don’t see what the point is of striking conspiracy but insisting there was an agreement.

Ben Margolis:

The only reason that the word “conspiracy” was stricken was because during the course under California law, it has been time and time again held that the word “agreement” is not a conclusion.

It was argued however before the trial court that the word “conspiracy” and the word “black list”, which appeared in the complaint, were conclusions.

We didn’t agree with that and we did not know when the Court sustained the original demurrer what his grounds were for sustaining the demurrer.

But this argument had been made and during the course of the — of the argument the judge had seemed to give attentive ear to this contention with which we disagreed.

We try to meet this objection and we think we left our complaint in substantially the same form and meaning substantially the same thing by striking these — these words which we thought that the judge held were conclusions regardless of whether or not they actually work.

Charles E. Whittaker:

(Inaudible)

Ben Margolis:

But it alleged a joint agreement and a mutual impair.

And as I say, I understand conspiracy to mean precisely that.

Our last point is that there has been a denial of due process here.

By the state sanctioning, a private monopoly, together with members of a federal committee engaging in a joint agreement and course of action designed to deny to individuals the right to pursue a calling because they had exercised their constitutional guarantees as witnesses before a federal committee and for the purpose of controlling their political ideas and association and for the further purpose of controlling the content of motion-picture.

It is our position that the state sanctioning of this kind of monopolistic control of the right to enter a calling based upon the surrender of constitutional rights constitutes a denial of due process.

Ben Margolis:

And here once more, we are not concern with the question of whether or not the State could take away all tort remedies from everybody.

The question here is whether this monopoly which control all employment opportunities in an entire industry may in effect set itself up as a licensing agency and determine who may and who may not enter into a particular calling and may, in the process of doing so, establish conditions calling for surrender of constitutional rights which must be met before access to that particular calling will be permitted.

Here, we have the sole point that has been raised that there is a no state action.

It is our assertion, our position that the State of California acted when it dismissed the complaint here and the State of California acted when the Court — District Court of Appeal wrote an opinion establishing a policy of law, a policy of law that private monopolies have this power and that they may do these things and that the State will permit this to be done without affording its citizens any protection whatsoever.

It is our position that this is very much like the case of Marsh versus Alabama, that where a private combination arrogates onto itself the kind of powers which belong to the Government, there was the running of a power.

Here, it was the — it is the determination of what the conditions are or what the prerequisites are for entering into a calling for having the right to work.

We say that there is no greater right in a private monopoly combination to run a town or to control who may enter a calling than there is in such a combination to operate a town and to utilize that town as a means of depriving people of their constitutional right.

In effect, what they have done here is to set up this monopoly as a licensing agent.

And what they have said to this monopoly is you are free to bar from the profession anybody that you want to bar from entering into this industry for any purpose that you desire, for any reason at all as long as that person does not already have a contract or a reasonable prospect of a contract.

Now, if this is the law, then this monopoly can say, “We will not take any of the graduates of a particular university because the president of that university has criticized the motion-picture industry and has injured the motion-picture industry and we will not take any graduates from any university in the future where there is any criticism of the motion-picture industry,” and there would be no wrong which the State was bound to protect under the Due Process Clause because the students graduating from that — those colleges obviously did not yet have contracts or prospects of contracts of employment or this monopoly could exclude absolutely any political, any religious, any national, any social group which, at any particular time, was unpopular as long as the member of that group did not already have a contract or reasonable prospect of a contract and could exclude them on whatever ground the industry choose but the grounds here being that the employment of such people by one person in the industry would injure other members of the industry.

As a matter of fact, this would give a private monopoly complete unequivocal control of all opportunity to determine who may or who may not work in an entire industry in the United States.

It is our position that to the extent that such powers may be exercise at all, they belong to the State and that even when the State lays down requirements for entry into a profession, witness the Konigsberg case, that State may not lay down unreasonable qualifications.

No more may a private industry — industrial combination exercising monopoly powers in effect state powers lay down unreasonable and unconstitutional conditions for entry into a calling assuming arguendo that they have the right to lay down any conditions whatsoever.

Felix Frankfurter:

Do I draw a fair inference in your argument that F.E.P.C. legislation is really redundant?

Ben Margolis:

I would say this that if all of the — if there was a combination and conspiracy of the kind charged here which totally excluded all people of a certain nationality or group from the entire opportunity to pursue a calling that there would be a remedy.

But the F.E.P.C. legislation is directed, as I understand it, against individual acts of individual employers.

We are not acting for a remedy against individual acts of individual employer.

Felix Frankfurter:

And — and the point of view of — of constitutionality, what difference does it make if a large corporation, as many of you do, excludes certain categories from employment, from the point of view of — of a deprivation on what you’re talking about, I repeat my question.

Isn’t F.E.P.C. largely needless legislation because it’s now in the Constitution?

Ben Margolis:

I say, Mr. Justice Frankfurter, that there was a great distinction between what a private employer may do in determining who he will hire and will not hire under the Constitution of the United States and between what a combination which employ — which controls all employment opportunities within entire huge industries if you go throughout the United States may do.

The private employer may —

Felix Frankfurter:

It’s the violation of the Sherman law is — such as interstate commerce.

Ben Margolis:

It may be a violation of the Sherman law —

Felix Frankfurter:

It may be a violation of the Civil Rights Act to which reference has been made.

Ben Margolis:

It may be a violation of that but —

Felix Frankfurter:

I don’t see from the point of view of a large employer as always — any number of this country, large, single corporate large employers.

I gather your argument and draw the proper inference.

You can accomplish under the Constitution now with all these painful under all small productive efforts as getting F.E.P.C. legislation where the case is concerned here.

Ben Margolis:

Well, our contention is that when a monopolistic combination sets itself up in this manner and not only agrees among its own members that it will not hire certain persons but persuade every other employer in the industry not to hire certain persons that this combination asserting itself up as a kind of super government.

It is exercising governmental power just as surely as the corporation in Marsh versus Alabama was exercising governmental powers when around a town.

Ben Margolis:

Let me give you an example of what I mean.

Suppose that in the Konigsberg case —

Felix Frankfurter:

Well, one doesn’t go on the ground in Marsh that it was — that a private person couldn’t do that.

That isn’t the case (Inaudible)

Ben Margolis:

Well, let me — that was my understanding or one of the basis.

But let me give — let me give you an example of what I mean, Mr. Justice Frankfurter.

Let’s take the Konigsberg case.

Felix Frankfurter:

It has nothing to do what I think about this.

We’re talking here about the powers of courts, ambiguous powers of this Court deal with what California did as a matter of law —

Ben Margolis:

I understand that, of course.

Felix Frankfurter:

— what I think is distasteful to me or not.

Ben Margolis:

I understand that, of course.

Felix Frankfurter:

Awful lot of things that is distasteful to me that I can’t do anything about it as a judge.

Ben Margolis:

But I wanted to give Your Honor an example of — in relation to the Konigsberg case.

The Konigsberg case was one in which the State of California, by its action, denied entry to the profession of law.

Suppose under the law of the State of California, a private organization was permitted to determine who should practice law, suppose they were permitted to do that, would a — that private organization, without any review to the Court, would that private organization’s denial of Konigsberg’s right to practice be any less a violation of the Due Process Clause or the Equal Protection Clause then was the violation by —

Felix Frankfurter:

I don’t — I don’t answer your question because I don’t accept your starting point that a private organization determining who should be admitted to justice is the same thing as Hollywood.

We haven’t yet reached that point.

Earl Warren:

We’ll recess now.