Yellin v. United States – Oral Reargument – December 06, 1962

Media for Yellin v. United States

Audio Transcription for Oral Argument – April 18, 1962 in Yellin v. United States
Audio Transcription for Oral Argument – April 19, 1962 in Yellin v. United States

Audio Transcription for Oral Reargument – December 06, 1962 in Yellin v. United States

Earl Warren:

Number 35, Edward Yellin, Petitioner, versus United States.

Mr. Rabinowitz.

Victor Rabinowitz:

May it please the Court.

The petitioner was convicted of a violation of Section 192 of Title 2 for his refusal to answer several questions put to him by a subcommittee of the House Committee on Un-American Activities at a hearing held in Gary, Indiana in February 1958.

The alleged subject under inquiry was Communist infiltration for basic industry.

And it was the tenth investigation that the Committee had held over a period of some four or five years under that Title, to say nothing of course of hundreds of investigations that the Committee has held on related subjects.

He testified between the Watkins and the Barenblatt decisions of this Court.

And in refusing to answer the questions put to him, he expressly relied on the Watkins’ decision on the vagueness of the authorizing resolution upon his rights under the First Amendment and on the lack of the jurisdiction of the Committee over the subject under inquiry.

Like Barenblatt and Braden and Wilkinson and Russell and the other cases that were decided by this Court at the last term, he did not rely on the Fifth Amendment.

He was not indicted or tried until after the Barenblatt case.

At that time he was found guilty and received the maximum sentence of one year.

Prior to his testimony, he had been a steelworker.

At the time of his testimony before the Committee, he was an undergraduate engineering student at Colorado.

Since then he has been a graduate student and a candidate for his doctor’s degree at the University of Illinois.

It doesn’t appear in the record of course but the fact is that in 1961, he received a fellowship from the National Science Foundation which was taken from him when Congressman Scherer made a speech about it on the floor of the House.

And in 1962, he received the fellowship from the National Institutes of Health which was similarly taken from him.

He is however receiving a scholarship from Johns Hopkins University, not out of public but of private funds.

The case was argued at the last term and is now here on reargument.

It differs from the Russell and other cases that were decided by this Court at the last term because this indictment was drawn by the United States Attorney in the Northern District of Indiana.

And he apparently used his own forms for drawing an indictment and did not fall into the error that the court found fatal in the cases decided at the last term.

I shall argue both constitutional and unconstitutional grounds for reversal here.

There are facts in this case that were not present in Barenblatt, Wilkinson and Braden.

And even one of my constitutional arguments may not require a reversal of Barenblatt, Wilkinson and Braden, at least I may have found a crevice in which I can find some shelter.

But if I have, it’s a narrow crevice and I shall ask the Court here to reconsider the Barenblatt, Wilkinson, and Braden cases because I suggest that those cases were bad law.

I must say that the brief on reargument, a new brief on reargument submitted by the Government in this case gives my some comfort in that regard because I think that the Government recognizes that issues such as these are never finally decided.

At page 26 of the Government brief, the Solicitor General says, after discussing Barenblatt, Braden and Wilkinson, under normal circumstances therefore and perhaps in the present instance, it would be enough to show that the case at bar is indistinguishable from the controlling precedence.

We are mindful, however, that the present controversy involves the most delicate and dangerous of the court’s responsibilities.

The Solicitor General then goes on to describe what those delicate and dangerous responsibilities are, I disagree with that.

And I’ll come back to that a little later.

But the Government goes on to say, “For these reasons, we would be derelict in our duty despite the precedence”.

William J. Brennan, Jr.:

Well, that’s not that reason.

Victor Rabinowitz:

I’ll come to the reasons in a few minute — at the close Your Honor because I think that the reasons are very important.

There is a vital difference of opinion between the Solicitor General and I myself with respect to the reasons.

I have no intent to omit it, I will show you.

“For these reasons, we would be derelict in our duty despite the precedence if we fail to show in some detail the constitutional foundation for the congressional investigation into the subject.”

I too feel that there are delicate and dangerous issues involved here and that this kind of issues can never be left rest as certainly the history of this Court has shown.

Let me state —

Potter Stewart:

Mr. Rabinowitz, the — you filed a new reply brief —

Victor Rabinowitz:

Yes, sir.

Potter Stewart:

— but not a new original brief, is that correct?

Victor Rabinowitz:

No, just a new reply brief.

Potter Stewart:

Thank you.

Victor Rabinowitz:

The petitioner was subpoenaed to appear on February 10th, 1958 in Gary.

On February 6th, counsel sent a telegram, addressed to counsel for the Committee reading as follows, “Undersigned represents Edward Yellin and Nicholas Busic.

On their behalf I request executive session in lieu of open session.

Testimony needed for legislative purposes can be secured in executive session without exposing witnesses to publicity”.

The response by — signed by Mr. Arens, the Staff Director of the Committee read, “Reurtel requesting executive session in lieu of open session for Edward Yellin and Nicholas Busic.

Your request denied”.

The request was made in the first place pursuant to Rule IV-A of the Rules of the Committee on Un-American Activities which reads as follows: “If a majority of the Committee or Subcommittee, duly appointed as provided by the rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation, or the reputation of other individuals, the Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing”.

At the hearing, counsel for Yellin attempted to introduce this exchange of telegrams into the record so that the matter could be called to the attention of the Committee and would appear in the record.

Congressman Walter who was presiding refused to permit counsel to address the Committee at all.

At the trial, he said that he never saw the telegram.

He didn’t know what they were.

He didn’t see him at the time of the hearing and as a matter of fact, he hadn’t even seen them until he got on the stand at the trial and when I showed him those telegrams, during the course of this examination, he said, that was the first time he saw them.

Arthur J. Goldberg:

He will — did the witness himself asked the Committee (Inaudible)

Victor Rabinowitz:

No sir.

In the view of Congressman Walter’s express on the witness stand, this was all a big misunderstanding.

He said the telegram should’ve been sent to him and not to the counsel for the Committee.

Moreover, he said, Mr. Arens, who denied the request, had no authority to deny any such request.

Only the Committee had the authority to deny such a request.

Victor Rabinowitz:

He said and I quote, “I am sure this could not have happened had you addressed the telegram to me”.

He further said that he had he known of the request for an executive session, “We might have a different situation today”.

As a matter of fact, Congressman Walter said, that the Committee had concede — considered calling the petitioner on executive — petitioner an executive session.

And this appears at page 70 of the record.

And he said, “Well, the Committee had already passed on the question of whether or not we would hear Mr. Yellin at a session”, when the purpose of calling him was discussed.

Then it was decided then that the rule with respect to an executive session was not applicable because the investigator and I might say it was Mr. Collins, a former FBI agent, who developed this entire matter.

And we were willing to accept his story with respect to the proposed testimony.

I gather from this not completely clear answer that Congressman Walter was saying that an executive session was denied because they had a very reliable investigator and they were prepared to take his word for what the witness was going to be called for and an executive session was therefore not necessary.

Now, that of course is not the standard that is required by the rules.

The rules say that an executive session shall be called when in the opinion of the Committee, the interrogation of a witness at a public hearing might endanger national security or unjustly injure his reputation.

The Government points out that the witness has no right to an executive session and I think this is true.

The witness has no right to an executive session.

John M. Harlan II:

The Rule — that’s Rule IV —

Victor Rabinowitz:

Rule IV-A, it appears at page 4 of my brief.

John M. Harlan II:

Rule IV.

Victor Rabinowitz:

The witness has no right to an executive session, but I respectfully submit, he does have a right to have the rules apply.

And that means in this circumstance, that he has the right to have his request considered by the Committee and to have the standard set forth in the rules applied.

And if then the Committee decides that the standard set forth in the rules do not require an executive session, it may very well be that it will deny it.

Here, the Committee was never given an opportunity to pass on the matter and when it did consider the question of executive session, the standard that he applied — that it applied, bore no relationship at all to the standard that’s set forth — that is set forth in the rules.

Potter Stewart:

Do you know when that rule was promulgated?

Victor Rabinowitz:

No, I don’t sir but I would guess it was probably some ten years ago, at which time there was a great deal of criticism of the Committee for not having any rules, for not permitting counsel to participate and the set of rules was adopted of which this was one.

Potter Stewart:

I’d be interested in knowing when the rule was promulgated and how many times, if at all, that Congress has reauthorized the Committee since the promulgation of this rule.

Victor Rabinowitz:

I’ll be glad to —

Potter Stewart:

And if you can find that out.

Victor Rabinowitz:

— find that out for you, but I might say that this of course is a rule of the Committee, not a rule of the House.

Byron R. White:

I understand —

Victor Rabinowitz:


Byron R. White:

— but they knew — the House knew?

Victor Rabinowitz:

I would presume that the House knew about it.

Byron R. White:

Did the — did they rely on investigator (Inaudible) referred to testify previous to Mr. Yellin?

Victor Rabinowitz:

No, sir.

Byron R. White:

His testimony was never placed in the record?

Victor Rabinowitz:

His test — he did not testify at the Gary hearings.

Now, whether he testified an executive session before the Committee at some other occasion or he testified at some other hearing, I don’t know.

He did not testify at Gary, that I am certain of.

The Committee is bound by its rules.

The standard set by the rules must be followed.

This Court has frequently held that this Committee as well as other Government agencies when they adopt rules are bound by them.

And I respectfully submit that this little misunderstanding that Mr. Walker — Mr. Walter referred to is not sufficient to send the man to jail for a year.

Earl Warren:

Mr. Rabinowitz, you may continue —

Victor Rabinowitz:

Alright, sir.

Earl Warren:

— your argument.

Victor Rabinowitz:

Mr. Justice Stewart, through the courtesy of Solicitor General Cox, I am advised that the rule in question was adopted in the summer of 1953 so that it has — it had been at the time of the hearing in Gary readopted by successive Congresses or by successive Committees I think twice.

That would be in 1954 and 1957.

Potter Stewart:

This is stand — standing Committee of Congress —

Victor Rabinowitz:

This was standing.

Potter Stewart:

— but does it need to be read — constituted these —

Victor Rabinowitz:

I believe that the House —

Potter Stewart:

— every two years?

Victor Rabinowitz:

I believe that the House does go through what is in most cases a pro forma readoption of the rules reestablishing each Committee each year and that maybe that the Committee (Inaudible) —

Potter Stewart:

Or every two years (Voice Overlap) —

Victor Rabinowitz:

Yes, every — perhaps every Congress.

Potter Stewart:


Victor Rabinowitz:

That would be every two years.

Hugo L. Black:

Unless they have appropriation.

Victor Rabinowitz:


There would have to be an appropriation —

Potter Stewart:

Every Congress —

Victor Rabinowitz:

Well, every Congress, if not, every year in some cases.

I would like to pass on next to what is a constitutional point but not a First Amendment point, rather a Fifth Amendment and —

Arthur J. Goldberg:

Mr. Rabinowitz, before you leave the rule question, would it be in your argument that the witness himself has a right to have his application for an executive session passed upon?

Or would it be sufficient that the Committee in substance consider it on its own motion?

Or on application whether it wouldn’t go into executive session with a particular situation?

Victor Rabinowitz:

I should think that the com — that the witness would have the right to have an application — to have his application considered by the Committee when he makes an application.

Now, it isn’t routine that a witness makes an application but I should think that when a witness makes an application, he’s entitled to have it considered and considered on the basis of the standards that are set forth in the rule.

Arthur J. Goldberg:

Then I take it from that, that you’re argument then would be to — and I’m not saying it took place in this case, but rather to be a reference to the record if —

Victor Rabinowitz:

Yes, sir.

Arthur J. Goldberg:

— you have to interpret what was said.

But I take it from that that the Committee, on its own motion, majority being present, said, “We have to consider whether we apply our rule or we’re not going to apply it.

You would say that would not be sufficient because an element in that decision would be the application?

Victor Rabinowitz:

I’m not sure really.

I — I’m — I can’t — I suppose that when an — a litigant makes an application to a court, the court has to make a ruling on it or ought to make a ruling on it and this of course isn’t the court.

But I should think that the Committee ought to consider applications that are made to it.

Now, of course, Congressman Walter said that such a consideration had been given to it.

There was no Committee record or minute or anything else that was introduced to that effect and —

Arthur J. Goldberg:

The sole evidence we have on that is the record reference from which you (Voice Overlap) —

Victor Rabinowitz:

Yes sir.

That’s the one that I have read.

Hugo L. Black:

Will you have them link?

Victor Rabinowitz:

Yes sir.

Hugo L. Black:

And you tried link this, the telegram?

Victor Rabinowitz:

Yes sir.

Hugo L. Black:

Do they know what the telegram was?

Victor Rabinowitz:


Congressman Walter at times is somewhat irascible and when counsel attempt to speak.

He generally tells them in one formulation or another, sit down or you’ll be thrown out.

That precisely what he said to me at the time, I said, “I’d like to introduce these records,” and he said, “You’ve been here often enough to rule — to know the rules of this Committee, sit down”.

And since I was there often enough to know, I sat down.

Hugo L. Black:

You didn’t tell him of the executive session (Inaudible) —

Victor Rabinowitz:

Well, I had them in my hand and I said, “I would like to introduce these, that I’d like to read them into the record”.

Potter Stewart:

You called Congressman Walter as your witness at the trial?

Victor Rabinowitz:

At the trial, yes sir.

Potter Stewart:

And he was your witness as (Inaudible)

Victor Rabinowitz:

I would like to argue next that the statute under which the petitioner was convicted was unconstitutionally vague in violation of the Fifth Amendment.

And I must admit that this record was inherent.

This question was inherent in the record in Barenblatt, Wilkinson, and Braden, but has to the best of my knowledge never been considered by any majority opinion of this Court.

John M. Harlan II:

This is the narrow crevice, you say.

Victor Rabinowitz:

This is the narrow crevice.

It was not argued in Barenblatt —

John M. Harlan II:

You’re talking about the statute or the resolution?

Victor Rabinowitz:

I am talking about the statute which for reasons that I will give in a moment, I think must be read together with the resolution.

William J. Brennan, Jr.:

Well, the —

Hugo L. Black:

Where is the statute quoted in your brief, to which you referred to?

Victor Rabinowitz:

Page 3.

William J. Brennan, Jr.:

This is the contempt —

Victor Rabinowitz:

From Section 192, yes sir, the contempt statute.

Potter Stewart:

What — well, this has been passed on in good many other cases in addition to those you mentioned, Sinclair and, I guess, a dozen of others (Voice Overlap) —

Victor Rabinowitz:

I think not sir.

I think not if (Voice Overlap) —

Potter Stewart:

Or at least, it was implicit, that is — convictions were affirmed.

Victor Rabinowitz:

Not exactly.

If I may — may I continue —

Potter Stewart:

Yes, you can go ahead.

Victor Rabinowitz:

— because I think that that’s not quite so.

I said it was a narrow crevice under this.

Nevertheless, I think it’s a perfectly sound point.

It was not argued in Barenblatt.

It was not argued in Wilkinson.

It was argued in Braden but apparently not forcefully enough to — Mr. Boudin argued it, not forcefully enough to require any response by the majority of the court.

In all candor, I must say that it was considered and considered at very great length in the dissenting opinion in Barenblatt although it had not been argued in that case.

Victor Rabinowitz:

And I must also confess with candor that much of my argument is cribbed from that dissenting opinion, but I would like to make it nevertheless.

The Government points out that Section 192 reads pretty clearly and I suppose it does, every person who having been summoned as a witness by the authority of either House of Congress to give testimony or to produce papers upon any matter under inquiry before the House, or who having appeared refuses to answer any question pertinent to the question under inquiry shall be guilty of contempt.

The Rumely case, however, interpreted that statute as applying only to a situation in which the question is asked on the matter concerning which the Committee has jurisdiction.

And therefore, that statute I suggest, must be read as meaning that a witness who having appeared refuses to answer any question within the jurisdiction of the Committee is guilty of contempt.

That’s what Rumely said.

And therefore, we must go back to the jurisdiction of the Committee in order to ascertain what the statute means.

It’s analogous to a statute which says it shall be a violation of law for anyone to violate the regulation of the State Department.

If the regulation of the State Department is unclear, the statute is unclear.

Now, it is true that this Court at some length in Barenblatt did consider the meaning of Rule 11, the authorizing resolution.

And as a result of rather extensive research, all of which appears at page 120 of the Barenblatt decision, it found the meaning for the language which the Chief Justice had been unable to find in the Watkins case.

And it said that, as I understand the decision, the words Un-American propaganda activity really means the investigation of Communist activities generally.

Congressman Walter, when he was on the stand at Gary, expanded this a little bit.

He said that the words “Un-American propaganda activity” means and I quote, “Any activity that is inimical to the best interests of the United States”.

Congressman Walter is the ranking Democratic member of the Judiciary Committee and I should think that his views on the subject would be worthy of at least some consideration.

I am not disposed at this time to argue what that resolution means.

We are — I am not arguing now the question of pertinency.

I am not now arguing the question of whether this particular investigation was within the scope of the Committee’s jurisdiction as that jurisdiction has been determined by this Court to be in Barenblatt.

I am directing myself only to the question of whether this statute read as a criminal statute with Rule 11 was sufficiently clear and certain to justify to be able to sustain a criminal conviction.

Now, I submit that Section 192 read in the light of Rumely as with the emendation of Rule 11 does not meet the standards of — retried to this Court of a criminal statute.

The court has formulated these standards on many occasions and let me just refer to the standard applied in the Connelly case.

The statute is bad, said the Connelly case, if and I quote, “Men of common intelligence must necessarily guess at its meaning and differ at its application”.

Well, men of uncommon intelligence have been compelled to guess at its meaning and have differed in its application.

Aside from Congressman Walter, this Court has divided on what the statute means.

I have never heard of a case and the Government cites no case.

I don’t believe there is any case in which a court has examined the legislative history in order to uphold a conviction on a criminal statute.

And it seems to me on its face impossible.

If a statute is clear on its face, legislative history is irrelevant.

And if a statute is unclear on its face, a criminal statute used to sustain a conviction, then most certainly, legislative history cannot be used in order to clarify that statute.

Now I repeat, we are not here concerned with whether the Committee had jurisdiction although this subject under inquiry and I am willing although I don’t think it did, nevertheless, I am willing to concede for the purposes of this argument that it had jurisdiction.

Had there been a subpoena and the motion was made to vacate the subpoena versus the motion perhaps should’ve been denied.

Victor Rabinowitz:

The Committee had a right to hold this hearing and to call these witnesses, I will stipulate to all of that.

But here we have a criminal statute.

And a man cannot be held criminally liable on the basis of a statute which combines the fairly clear language of Section 192 with the most obscure and meaningless language of Rule 11, language on which as I say, many, many people have difficulty.

If there ever was a case of blurred signposts to criminality concerning which the court spoke in United States against the CIO, this is it.

It would be bad enough if Rumely were the only gloss that had been placed on Section 192.

But this Court has placed still another gloss on it.

And in the Barenblatt case, the court found that these questions could be asked depending on the way a balance felt.

And when this is added to Section 192, it seems to me that to require a person to guess as to whether he is supposed to answer, whether he is required to answer a question or not, is far beyond reason.

And that brings me to balancing.

There has been so much written and discussed about the balancing doctrine as set forth in the Barenblatt case that I hesitate somewhat to take up the time of the Court to discuss this matter in detail again.

Not only have there been a majority and minority opinions of this Court on a — in a number of important cases, but there have been law review articles written on it and books written on it, and the subject is really been discussed most extensively.

Nevertheless, it is an issue in the case and a very important issue.Petitioner contends that the balancing theory is unworkable.

But it is as of today the rule of this Court, and therefore, we must try to live with it and we tried.

I would like to read although perhaps the recollections of the Court doesn’t need refreshing, I’d like to read the balancing doctrine as set forth in the Barenblatt case, a single sentence.

“Where First Amendment rights are asserted to bar governmental interrogation, the resolution of the issue always involves a balancing by the courts of the competing private and public interests at stake in the particular circumstances shown”.

Now, this presents two very difficult and serious problems.

The first might be called a substantive problem.

What do we weigh?

How do we ascribe?

How much weight is to be placed to the various elements that we’ve put in this balance?

The second might be described as a procedural problem.

How do we as practicing lawyers trying one of these cases go about the task of convincing the court at the trial level?

How this balance is to be struck?

Do we present evidence to the court on this matter?

Do we say to the court the balance should be struck one way or another on the basis of certain facts?

I would assume from the language of the court that the question of whether X weighs more than Y is a question of fact, and like all other questions of fact is to be tried by the court.

Taking the procedural matter first, we attempted to meet this at the trial level.

And after I assure you a great deal of deliberation, we came to the conclusion that we would try to convince the court that in the particular circumstances in this case, whatever may have been true in Barenblatt and those preceding cases, the balance fell all the way.

And we call an expert witness, Professor Thomas Emerson of Yale University, the record contains his qualifications on the subject and we asked him a series of questions which went to the problem of how much weight do we give to the various elements in this scale?

How many investigations has the Committee had into subversive activities?

Victor Rabinowitz:

How many has it had into infiltration in the steel industry?

How much of this evidence was known to the Committee?

What is the extent of the Communist menace in the United States?

How important is the Communist Party as a threat to the security of the United States?

What kind of laws do we already have on our books with respect to this matter, all of this being directed to the question of where the balance lies.

Now, the Government says that his testimony which of course was presented as expert testimony was contrary to a lot of decisions of this Court, ACA against Douds, the Dennis case, Subversive Activities Control Board case, Carlson against Landon and to the findings of Congress and the Subversive Activities Control Act for example.

And it’s true of course that Professor Emerson’s testimony was contrary to it but what of it?

I would think that in a criminal trial if a defendant wants to prove — that today is Friday, he has a right to come in and try to prove it.

That may be hard to prove but he has a right to try.

The court rejected the testimony.

The District Court as I recall gave no reason for rejecting the testimony.

The Court of Appeals, however, said that the testimony is rejected because the question of balancing is a matter of law and not a matter of fact.

And I must confess that at that point I have some difficulty in following the reasoning because assuming that the determination of which outweighs what is a matter for the court to decide.

How was the court going to tell, what are the facts on the basis of which this question of law is going to be determined?

Does the court reach its conclusions with respect to the importance of the steel industry with respect to the importance of the Communist Party with respect to all of these other things, by reading the newspapers or by reading acts of Congress, or by listening to the television?

I should assume normally that one of the ways in which a court makes up his mind how to decide even a question of law is by the presentation of testimony.

We think we had a right to introduce that testimony.

We think it was highly relevant on the question of balance.

Now, I would like to get to the first problem which I have characterized as the substantive problem and it is here that I have the greatest difficulty and if what I say sounds —

Tom C. Clark:

May I ask you a question before you go to that?

Victor Rabinowitz:

Yes sir.

Tom C. Clark:

Let’s say we agree with you on the professor’s testimony, shall we consider here this charge?

Victor Rabinowitz:

There is an offer of proof in the record.

The testimony is set forth in full in the record and it is before Your Honors.

Now, of course —

Tom C. Clark:

Can we throw it in the balance, should we probably make the balance or is it —

Victor Rabinowitz:

Well, if you’re going to make the balance and you are prepared to accept his testimony, I suppose it could be thrown into the balance.

Of course, there was no cross-examinations since it was merely in the form of an offer of proof.

There was no countervailing testimony.

That is, the Government made no effort to meet the testimony but its here for the court to examine.

Victor Rabinowitz:

I should like to discuss the problem of what gets in this balance and if I sound in this discussion more like a metaphysician than a lawyer, all I can say is that it wasn’t my idea of this balancing theory.

The Solicitor General says — or let me put it this way, there are two sides to this balance.

There’s the side for affirmance and there’s the side for reversal.

The side for affirmance which is the Solicitor General’s side, says that the public interest that is involved in this situation and I quote from page 48 of the brief is, the need for information concerning putative subversive activities in a critical area of our national life.

Now, remember in discussing this, I am not discussing admissibility of testimony or pertency — pertinency of testimony.

I am addressing myself to the question of how much weight shall be given to it in this constitutional balance?

How important is it to outweigh the very weighty considerations which everybody concedes at least in the language, everybody concedes lie on the other side of the balance.

How much importance is it that the Government have this — the answers to these questions?As I said before, this was the tenth inquiry into the question of Communist infiltration into basic industry.

Thousands — literally, thousands of pages of testimony had been taken on this subject before the Gary hearing and hundreds of witnesses had been called.

It is conceded by counsel that much of the testimony sought of Mr. Yellin was corroborated of information that was already in its files.

As a matter of fact says the Government, it had most of this information, its far back as 1947.

Look at the debates when the Taft-Hartley law, Section 9 (h) was passed.

And I might refer also to Mr. Justice Jackson’s opinion in ACA against Douds.

Now, the Government responds to all of this by saying that the — it isn’t for the court to decide whether Congress needs more information.

It isn’t for the court to decide whether Congress wants corroboration.

And I would say that would be true if we were talking about questions of admissibility because I suppose counsel in a case have the right to get evidence which corroborates information in its files if he wants to.

But it is for the court to decide how much weight is to be given in the balance, otherwise, how can we possibly apply the test in the Barenblatt case.

How many times are we to listen to a repetition of the same testimony sometimes from the same witnesses repeating over and over and over again the same the facts with respect to alleged Communist infiltration in the steel industry or in other basic industry before we get to the point where we say this weighs as only a grain of sand in the balance.

It’s not admissibility, it’s not pertinency but weight in the balance.

Is there not a time when this must end and we will say that the constitutional rights of the witness will overcome?

Mr. Tavenner in his testimony in this case said at one point and I quote, its in the footnote of page 19 of my brief, he said, “We received a considerable amount of evidence at Flint, Michigan or perhaps eight or 10 instances of colonization of the exact type that you describe”.

How long do we continue to deprive persons of the way he writes which everybody admits that they have in order to get this additional bit, this additional one man who will testify to something after thousands of pages of testimony have taken and hundreds of witnesses have testified on this subject?

That’s on the one side of the scale.

What have we got on the other side?

The first place we have the petitioner’s right.

The right to engage in public debate on critical issues, a right which the court has on frequent occasions held there’s tremendous importance and the right which the activities of this Committee inhibits for reasons that are set forth fully in the Watkins and Sweezy cases.

But, there is another right, a right which a very great Justice of this Court felt was perhaps the most important right of all.

Mr. Justice Brandeis said, the makers of our Constitution recognized the significance of man’s spiritual nature of his feelings and of his intellect.

They knew that only a part of the plain pleasure and satisfactions of life are to be found in material things.

They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations.

Victor Rabinowitz:

And they conferred as against the Government the right to be let alone, the most comprehensive of rights and the right most valued by civilized men.

This is the right which lies or one of the rights which lies on one side of the balance.

But there is another element in this balance on petitioner’s side which I think is even weightier and that is the right of the public to hear.

In De Jonge, this Court said the security — the security of the Republic, the very foundation of constitutional government lies in full opportunity for free political discussions.

Edward Yellin is the petitioner in this case but ranged along with him as co-petitioners unknowing, sometimes perhaps even unwillingly, there is a host of other persons.

There is the Committee for Sane Nuclear Policy which was investigated by the Committee and was almost destroyed, if not completely destroyed, by the Committee.

Next week in this city, there will be hearings at which some 20 witnesses of Women Strike for Peace will be called before this Committee.

Last week, an organization called Medical Aid for Cuba, two weeks ago perhaps, was the subject of an investigation by this Committee.

The World Fellowship camp was the subject of an investigation not by this Committee but by a little Committee of little — Un-American Activities Committee up in New Hampshire.

The Integration Movement, almost every progressive movement in the United States has at one time or another been subject to the investigation by this Committee.

To my mind, this is the weightiest element of all.

Now, the Government responds by saying Mr. Yellin wasn’t trying to debate, he wanted to keep quiet.

He had an opportunity to express his views freely at this Committee and they would’ve given him plenty of opportunity to do so perhaps and perhaps they would have, I don’t know.

But certainly the right to engage in free political discussion involves the right to choose your own forum.

No one who was present at the Gary hearing could possibly have confused that hearing room with the free marketplace of ideas which is supposed to be the guarantee provided by the Constitution.

Mr. Yellin, if he wanted to express his views, had a right to express his views in the circumstances and in conditions that he chose, not in conditions in which he was appearing as a witness before a Committee in a courtroom crowded with hostile persons, with the opportunity for an exchange of ideas which the Constitution is supposed to guarantee was not present.

Now, I’m aware as I speak that really in talking about this balance, I am attempting to weigh the imponderable, to measure the limitless.

In a sense, that’s perhaps the principal reason why I feel that the Barenblatt balancing test is improper.

It cannot be applied.

It would turn the law into a scholastic’s debate rather than a living technique or a living method for ruling man and in this case, for protecting the fundamental freedoms without which, we have no democracy here.

And there are other reasons which have been called to the attention of the court why the balancing theory is not consistent with the Constitution.

As Mr. Justice Black has so frequently pointed out, the language of the Constitution is absolute.

Furthermore, the doctrine is based on the fullest premise.

Potter Stewart:

If you (Inaudible) — if you follow the literal language of the Constitution, of the First Amendment, what kind of a case would you have?

Victor Rabinowitz:

If I followed the literal —

Potter Stewart:

What language?

What literal language of the First Amendment are you relying on?

Victor Rabinowitz:

Well, the literal language that I am relying on is that Congress having no power to invest — to pass a law restricting propaganda activities likewise Congress has no power to conduct an investigation into that area (Voice Overlap) —

Potter Stewart:

Well, but you have to depart in the literal language.

Victor Rabinowitz:

Well, I think it’s not the case.

Potter Stewart:

Well — being absolute — being absolute is being literal and you have to depart from the literal language of the Constitution.

Victor Rabinowitz:

I submit that furthermore the Barenblatt decision, Braden, and Wilkinson decisions provide — proceed on a false premise namely that our national security can be injured by too much free speech, by too much political organization, by too much free association.

I don’t know of any society, certainly no well-established society whose security was ever threatened by too much free speech.

It may be true of a country that is just emerging from colonialism where for a period of time, limitations on free speech are necessary, but we’re a strong country, probably the strongest in the world.

Our political institutions are stable and the greatest threat to that stability is I suggest an interference with the freedom of speech.

I would like to return now to the point raised by Mr. Justice Stewart at the very beginning namely the remarks at page 26 of the Government’s brief, namely the delicate and dangerous of the — the most delicate and dangerous of a courts’ responsibilities with which justifies a constant review of the constitutional issues that are involved in these cases.

The Solicitor General suggests that this — the issue raised by this controversy relates somehow to the balance of — to the balance of powers between the Court and Congress.

And that the real issue in this case, the most important problem in this case is the manner in which the Congress, an equal and coordinate branch of Government, has performed one of its own constitutional functions.

And it goes on to refer to the dangers of collision between this Court and the Congress.

Now, I admit that that is a dangerous and a difficult controversy and a delicate one also.

And I don’t think that it is in this case too in a very great extent.

I should have thought that the fundamental problem with respect to the extent to which this Court may interfere with if I may use that word or review the actions of Congress had been set on the Marbury against Madison.

And while I know the question keeps recurring every once and a while, I really think it’s a pretty unimportant part of this case.

There is, however, a delicate and a dangerous issue before this Court.

And that relates not to the relationship between this Court and Congress but rather to the much more important, much more critical relationship between the citizen and this Government, the extent to which the Government may interfere with the freedom of speech and the freedom of association of the individual.

This is the First Amendment.

This is the issue which has been — which has come before this Court scores of time, particularly in the last 17 years, I guess it is since the Cold War began.

And although I don’t want to discourage any of the members of the court, my guess is, it’s going to continue to come before this Court because it is a difficult and a dangerous and a delicate problem.

It’s the issue which I think begun in ACA against Douds and then to the Dennis case, and the Yates case, and the Ballin and the Lerner case, and the Uphaus, and Watkins, and Sweezy and Barenblatt and all of these other cases.

It had to be faced in those cases and I think it has to be faced again and it will continue to come before this Court as long as there is a court because the problems which arise out of the efforts of a Government to interfere with the freedom of its citizens are never ending.

The effect of the decisions of this Court are well-known.

It has resulted in — well, one of the members of this Court has referred to in two articles written I believe 10 or 12 years apart as the Black Silence of Fear or more recently the Submerged American.

I think this Committee has played a tremendous role in creating that Black Silence of Fear.

And while it is not the only one of our Government agencies which has resulted in submerging the American and cutting off so much of the vital debate which is necessary if our country is to survive as a free country.

It has played its role in that.

I hope that the Court will take this opportunity to reconsider the decisions that I have referred to and to free our people and our democracy from at least one of those repressive forces which has interfered for I guess about 25 years now with the free and full expression of opinion by Americans and their free association.

Thank you.

Earl Warren:

Mr. Solicitor General.

Archibald Cox:

Mr. Chief Justice, may it please the Court.

I would like first to deal with petitioner’s only non-constitutional claim.

Archibald Cox:

One that he was not obliged to answer the Committee’s questions because the Committee violated its own rules, its act of questioning witnesses in executive sessions.

The pertinent facts you will recall are these.

The Committee has a rule which apparently dates back to 1953 set forth on page 82 of our brief.

If a majority of the Committee or subcommittee duly appointed as provided by rules of the House of Representatives, believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation.

The Committee shall interrogate such witness in an executive session for the purpose of determining the necessity or advisability of conducting such interrogation thereafter in a public hearing.

Pursuant to this rule, the subcommittee met and considered whether there was sufficient reason to believe that questioning petitioner in a public session might endanger the national security or unjustly injure his or another’s reputation so that the petitioner should first be preliminarily questioned in an executive session.

The commission — the Committee decided that there was not enough reason.

Potter Stewart:

Now, where is the — where does it appear in the record that the Committee —

Archibald Cox:

On page —

Potter Stewart:

— did apply the test of the rule?

Archibald Cox:

I infer that from the statement that Committee met — it’s on Record 70.

The Committee already — very top of the page, the Committee passed on the question of whether or not we would hear Mr. Yellin at a session when the purpose of calling him was discussed.

It was decided that the rule with respect to an executive session was not applicable.

I take it also there is nothing explicit that says we apply each of the tests in the rule.

It says it was decided that the rule was not applicable and I would think that was enough in the absence of anything contrary.

Potter Stewart:

I would think that would probably be enough in from the absence of anything to the contrary but I’m — notice that on page 82 of the record, there is a suggestion to the contrary that they — and this again, I think, is Congressman Walter testifying, and he doesn’t mentioned anything about damage to the personal reputation of a witness.

And he does purport to set out there what’s — what standards are taken —

Archibald Cox:

This was a — this is true.

It is also true that he was being asked at that stage a general question.

Potter Stewart:


Well, they begin with a question on — bottom of page 81, “The Committee does sometimes hold executive sessions, doesn’t it?”


And what are the considerations which the Committee uses in determining whether to hold executive sessions?

Archibald Cox:

And then it — then he goes — then he discusses what it — the Committee usually does (Voice Overlap) there’s no doubt about that.

But I suppose that it could be argued that the Committee did hear what he usually did.

I would think that a general testimony in answer to a general question was really less persuasive —

Potter Stewart:

Than the rule itself?

Archibald Cox:

— than focusing the — on the statement that we decided that the rule was not applicable.

William O. Douglas:

The reason — they state — they state the rule was not applicable was because the investigator was a former FBI agent.

Archibald Cox:

I’m sorry, I got —

William O. Douglas:

Top of page 70.

Archibald Cox:

Well, they said that the — the reason —

William O. Douglas:

Was not applicable because the investigator was a former FBI agent.

Archibald Cox:

Well, I think he interrupted his train of thought that the other part of the answer is.

Well, his story was that the man was a known Communist.

That he had been active in international conspiracy.

That he had deceived his employer and so forth.

I think that’s all part that what the investigator said is part of the reason that the former employment of the investigator, except perhaps this — they thought that added to his reliability.

Earl Warren:

But General, after that — after that answer that you just read of Senator McClelland’s, as you then having said that it was in answer to a general question, there was another one.

“Are those the only circumstances under which executive hearings are held?”

The answer is, “I don’t know of any other except that where we are fearful, the testimony might be induced, it could be harmful to the national defense.

We are not so sure about the testimony of any witnesses”.

Isn’t that rather specific?

Archibald Cox:

Well, I think it’s specific that that was all he could recall.

It certainly is.

I wasn’t able to follow Your Honor exactly because I was still back on page 70 because I’ve got the graph, he did not mention this reason.

I would think so far as that goes, that the Committee’s own interpretation and application of the rule was to be given very great weight indeed if it was not binding.

Was it —

Archibald Cox:

The Committee — well, I think that it’s a Committee, it’s a rule adopted for the Committee’s own guidance.

It’s a rule which purports to confer no rights on witnesses any way.

It’s a Committee which leaves — it’s a rule, excuse me, which leaves the Committee of the very widest discretion.

In each instance, it’s simply, if the Committee believes, it should — that these things would happen, there they should hold a preliminary statute.

We think three — to summarize, we think there are three answers to this contention.

One, that the rule was satisfied.

Second, that the rule confers no rights upon witnesses, that it sets up no procedure, that it is written in terms guiding the Committee’s discretion, and that failure to follow it adds nothing to the witnesses’ rights.

Third, I would lay stress, more stress than I have in my brief perhaps on the fact that the objections raised by the witness were — that no objection was raised by the witness on the ground that he had not been questioned in a preliminary executive session.

On the contrary, his objections under the Fifth Amendment — under the First Amendment and the lack of congressional power were all general objections which would be equally applicable in an executive session or in a public session.

Here —

Earl Warren:

When he tried to lay a predicate for it, didn’t he, by offering the telegrams?

Archibald Cox:

But the counsels said —

Earl Warren:

Was there any other reason than that?

Archibald Cox:

— this counsel said that he would like to have the telegrams in the record.

Earl Warren:


Archibald Cox:

And then, following not any idiosyncrasies of Congressman Walter but in an established rule of that Committee, counsel was reminded that all counsels were permitted to do in that Committee hearing — were to advise witnesses and not speak.

The petitioner at that stage did not say a word with respect to a desire to be heard in executive session.

It’s significant I think too that the petitioner has never given the slightest indication that he would testify in executive session.

Indeed, his request for the executive session, his objections in the court, his objections before the Committee, are all carefully void any intimation that he would’ve been test — willing to testify under any circumstances.

It would seem to me to be a travesty now to set aside and justify his refusal to answer on the ground of which so far as we can tell didn’t possibly influence his conduct.

There is one other point with respect to the rule that I split over.

The telegrams — the telegram requesting the executive session was addressed to Committee counsel.

It arrived very late after the Committee and the counsel had left Gary.

There’s nothing in the rule that says that the decision must be made on the request.

The Committee had made it.

There was nothing whatsoever new set forth in the request and the staff director, I infer although this does not appear in the record, answered mindful of the Committee’s private — previous decision.

The witness undoubtedly could’ve raised the question later on what would’ve happened, of course, I don’t know and neither does anyone else.

I think that’s the whole case on that point and that I should now proceed.

Coming to the constitutional issues, I must make two preliminary remarks.

First, we are concerned here with the refusal of a particular witness to answer four specific questions during the course of a particular congressional investigation.

I stress the point because petitioner’s reply brief complains of our close and literal attention to the facts of this case and says that the real issue is what the petitioner’s calls the enormity of the Committee’s offense against the American people.

This Court, I need hardly say sits to decide particular cases and we’re here concerned with the case of Edward Yellin, a case which as I shall argue later is very different and in our view much stronger for the Government than any of the previous cases that have come before the court and other conceivable cases involving the Committee’s activity.

The rights of other witnesses not to answer other questions under other circumstances and on other occasion will have to be decided when those questions arise.

Second, I must emphasize that we are not concerned here with the rightness or wrongness, the wisdom or folly, the necessity or superfluity or even the fairness or unfairness of the Committee’s action.

The responsibility for legislating is vested in the Congress.

With it goes the power and duty of deciding what bills should be considered.

What information should be obtained and how it should be obtained in order to frame appropriate legislation.

When an individual asserts that the Congress has trespassed on one of his individual rights, then of course, this Court has the constitutional duty of deciding between the two.

The court can avoid unseemly conflict and avoid upsetting the balance of our constitutional system only by exercising special care in such cases in marking the line between violation of constitutional rights which the courts must redress and simply bad judgment in the exercise of legislative power which is remediable only in Congress or at the polls.

The previous decisions of this Court coming down directly to the constitutional merit, the previous decisions of this Court require affirmance of the judgment.

Barenblatt against the United States, Wilkinson against the United States, Braden against the United States are squarely in point, that these — this is an easier case than any of them.

Petitioner admits these constitutional claims he’s made cannot be affirmed or accepted without overruling those decisions.

Archibald Cox:

I’m not unmindful that occasionally in our constitutional history exact precedence have been overruled.

This — and appropriate indeed and essential when the inherited law has lost reality or changes in the condition and the community has altered the conditions on which the precedence were based.

And so that today the precedent would have a different social or economic impact than at the time that it was decided.

The present case obviously does not fall in that category.

Hugo L. Black:

Is that — do you mean by that, that that’s the only conditions, those are to be set up and barred beyond which (Voice Overlap) —

Archibald Cox:

No, no, I mean, nothing is absolute as that, Justice Black.

I think that is a relevant circumstance, a highly relevant circumstance in deciding whether a decision should be overruled.

Now, I was simply — but there are others.

I would like to point out that that circumstance is not applicable here.

That Barenblatt, Wilkinson, and Braden were recently decided by a full court after careful deliberation.

William O. Douglas:

Since I’ve been on the court through that, this happened and then a membership of the court changed and the no case was rather immediately overruled as I remember it.

Archibald Cox:

There have been — there have been instances of that.

The two cases, two situations in which it would seem to me that overruling a case came easiest was where there were changes in conditions or where the decision was an isolated peak as it were on the amendment.

Neither of those is applicable here.

Barenblatt, the basic postulate of Barenblatt, Wilkinson, and Braden, that the Communist conspiracy is a threat to the national security into which Government may inquire in concerning which it may legislate and why is not applicable to ordinary political party is the predicate of at least the score of decisions over the last 15 years.

And Barenblatt and the cases that followed it were preceded by decisions in the lower court which were quite uniformly in accordance with those decisions.

Now, I submit with the greatest deference that the power to overturn such an established body of constitutional law without any relevant changes in the underlying conditions should be exercised only upon the clearest conviction of a very serious error before the —

Hugo L. Black:

Wouldn’t that rule apply at any time to overruling the case?

Now, that’s a general statement.

I don’t see why it could be limited to those few grounds.Of course, it should — what I mean is, do you say that it should be limited to the cases where there’s clearest error, but if the court thinks that the clearest error, then your standard is met, is it not?

Archibald Cox:

Well, it’s a matter of degree as of clarity.

The degree of what was — one must show in order to overrule it, I presume that it involves too — consideration of the arguments on the — the reasons not to overrule the decision.

For I point out with all respect that the condition which is indispensable to all liberty acceptance of the rule law depends on preserving the principle that even the highest court must give judgment not simply according to its use of policy however just or wise but according to a law that binds the courts no less than the litigants, the judges, no less than the judge —

Hugo L. Black:

Now, I would ask (Voice Overlap) —

Archibald Cox:

— and that is a consideration —

Hugo L. Black:

I would like to ask you another question with this.

That implies that the court sometimes does it.

The basis of what he speaks the law ought to be rather on the basis of what he thinks it is.

And the mere fact that one vote to overrule a past decision of the court certainly cannot give rise to attributing to that person, the desire simply to get his own notion to the — of the law even though they’re wrong.

Archibald Cox:

But I — I’m thinking that’s true but there are — there are times when a court decision creates a rule of law which did not previously exist and there are times in constitutional law where the line between law and policy, evaluation of social and economic conditions become exceedingly binding indeed.

Archibald Cox:

If I imply that anyone was simply trying to make the world according to his (Inaudible), I had no — no such intention.

I do mean to imply that there are weighty considerations on the side of adhering to an established body of decision and I think that that weight is the greatest when one does not have in favor of arguing for change, either the fact that it’s an isolated decision or the fact that the underlying conditions have changed.

Hugo L. Black:

In the final analysis, I suppose you would agree that a judge who was here under oath to support the Constitution should construe it after considering all of these things that you say according to his best judgment of what it — what it means?

Archibald Cox:

Of course.

Coming to the substantive question, in our view, reason and principle also demonstrate quite apart from the authority that the use of compulsory process in examining petitioner as a witness before the Congressional Committee deprived him of none of his constitutional right.

In examining this question, we may begin with the proposition that it said along that Congress’ power to use compulsory process to secure information in aid of a proper legislative purpose.

It is also clear beyond dispute on this record that the questions that petitioner was directed to answer were asked in pursuance of a proper legislative purpose.

The Committee’s purpose was set forth in the resolution authorizing the hearings in Gary and it was restated by the chairman at the start of the hearing in the presence of all the witnesses including the petitioner.

Without reading his statement at length, it emphasized that the Committee was holding the hearing for the purpose of receiving testimony concerning Communist techniques and tactics of infiltration, and the extent, character, and objective of Communist Party activity in basic industry.

He then went on to refer to the existing laws over the administration of which the Committee was exercising oversight and to some of the bills and kinds of bills that were before the Committee at the time the hearing was held.

Among those proposals just to make it specific that there was legislation to which this inquiry was highly relevant, were Section 9 (h) of the Taft-Hartley Act which had been repealed.

HR 8151 which proposed to amend the Internal Security Act by setting — by authorizing the Secretary of Defense to establish a system of security around defense plants.

Another bill introduced by Congressman Shearer, who was one of the Committee conducting the hearing to accomplish the same purpose by other ways and various proposals to amend the Smith Act, the Internal Security Act, and the Communist Control Act.

Whatever might be the merits of any particular piece of legislation, it is also — it is not denied in this case at least that Congress has some power to enact some legislation, to deal with infiltration of vital defense plants, in basic industries by professional revolutionaries through fraud and deception for the purposes of a foreign dominated conspiracy.

And that is the kind of conduct that the record shows very clearly into which this inquiry was being conducted.

It’s also plain that the pertinency of the questions was made clear to the petitioner.

He acknowledged that he was present when the chairman made his statement and as I understand it, he has not challenged the pertinency seriously in the lower court or in this Court.

It follows therefore that the use of compulsory process was a lawful exercise of legislative power unless it violated some constitutional privilege or other restriction upon the Congress.

Petitioner’s claim is that the answer violate — is that the use of that process violated the First Amendment.

We think otherwise.

In the beginning, it is plain that petitioner is not being prosecuted because of any statements, any publications, or any associations.

He is being prosecuted because of a refusal while under subpoena to answer the inquiries of the legislative body.

The use of compulsory process is concerned primarily with the witness’ performance of the normal duties of all citizens to furnish information needed in the legislative or judicial process.

Second, the use of the compulsory process did not in itself curtail petitioner’s freedom of expression or association.

He remains free from any governmental compulsion to think, speak, or form such associations as he chooses.

Nor was this petitioner being tolerated by the Committee because of any past statements or association.

Being so far as the record shows, he has never made any past public statements of any kind.

He was subpoenaed because he apparently could give information needed in the legislative process.

He does not even claim that this is a case of exposure for the sake of exposure.

In this case, we submit, in this respect we submit, the case is markedly different from Uphaus, Wilkinson, and Braden where the dissenting justices did find occasion, that did find that the occasion for calling the witnesses was their public criticism of the Committee.

Archibald Cox:

There is nothing like that present here.

Fourth, the Committee’s questions I think can fairly be described as primarily concerned with conduct with reported infiltration of professional revolutionaries into the basic steel industry concealing their background and identity through fraud and deceit all in support of a program looking forward to disruption of normal trade union activities, political strikes, or sabotage, or espionage as might be directed by a foreign power.

Undoubtedly, the questions would also have elicited information concerning petitioner’s associations and beliefs or possibly including his speech.

But this is because the speech and associations were an extra complaint intertwined with the conspiracy to engage in conducts subversive of bona fide unions and dangerous to the national security.

In short, the petitioner’s only complaint here when one analyzes it carefully is that the consequences of compelling him to testify about conduct might result in disclosure of views and associations sufficiently unorthodox, unpopular, or even hateful to the general public to damage him and perhaps to discourage others from embracing unorthodox or controversial views or associations in the future.

Let me make it clear that I do not suggest that those consequences raise no constitutional issue.

Of course they do.

In some cases they lead to the conclusion that the use of compulsory process would violate the First or the Fourteenth Amendment.

My only point is that in this case, any interference with freedom of association as an indirect consequence.

The constitutionality of which cannot be decided without taking into account the justification for requiring the disclosure.

Let me take a moment to try and make that clear, both the distinction of its importance by a simple and indeed perhaps trivial example what I think it illustrates the point.

Suppose that a man is on trial for first degree murder and he offers an alibi to the effect that at the time the murder was committed he was at a closed meeting of the top members of the John Birch Society.

The defendant subpoenas me as a witness hoping to prove through me that he was at that meeting.

Now, if I am compelled to answer on the ground overruling my claim of freedom of speech or freedom of association, certainly the disclosure of the secret membership in the John Birch Society would be damaging to my career.

I assume that I would lose the pleasure of appearing before this Court as often as I do, I doubt that I should be welcomed back by my former associates with much enthusiasm.

Others who observe my faith, I suppose might be deterred from engaging in the same associations at least under the same circumstances.

Nevertheless, it seems fair to conclude that no one did — would dispute that the testimony could be required.

That the interest in the fair administration of justice would prevail over my interest in privacy of associations and that it would add nothing to the argument to say it would be true that the public interest in my associational secrecy so that others might be — might feel free from engaging in associations would also be sacrificed to some extent.

Now, of course I don’t say that the present case is identical with the example.

My point to repeat it is that the effect on First Amendment freedoms in the present case is indirect and consequential as in my example.

And that therefore, one cannot dispose of the present case simply by asking whether freedom of association might be adversely affected by requiring the testimony.

William O. Douglas:

But if you are engaged in the balancing processes, I gather you are, then you would have consider I would think in this case, the Yellin case the extent of which Yellin’s testimony, it was necessary for the (Inaudible) by Congress that it is —

Archibald Cox:

No, I intend to —

William O. Douglas:

— provided by the (Voice Overlap)

Archibald Cox:

I intend to — I intend immediately to discuss some of those questions as I do deal with the issue, I don’t attribute any particular significance to balancing, justification, cogent reasons for invading the privacy, any of the expressions that recognize that here there is a conflict between two interests.

And where there is a conflict between two interests as so often in the law, the court must measure the one in the light of the other and determine their relative importance.

The point stated by the Chief Justice very well in the Watkins case.

It is manifest after pointing out the effect of some of the disclosures that might be compelled, he went on to say.

It is manifested despite the adverse effects which followed upon such compelled disclosure or private matters not all such inquiries are barred.

The critical element is the existence of and the weight to be ascribed to the interest of the Congress in compelling disclosures from an unwilling witness.

Archibald Cox:

Here, the public interest in questioning petitioner lay in obtaining for legislative purposes information concerning putative subversive activities in a vital area of our national life.

The information if the reports the Committee had withdrew was relevant to national survival.

The Communist Party, Congress had previously found, also purportedly a political party is in fact an instrumentality of a conspiracy to overthrow the Government of the United States.

The policies and programs of the Communist Party are secretly proscribed for it by foreign leaders of the World Communist Movement.

Even if that finding were not supportive by convincing proof, certainly there would be the strongest reasons for inquiring further into the conduct of a conspiracy which there was substantial reason or indeed any reason to believe might be being manipulated by a foreign and sometimes hostile power for treasonable purposes.

Nor are we concerned here and I wish to emphasize this distinction between some of the prior case, nor are we concerned here with a general inquiry into the activities of the Communist Party, the Committee was investigating a reported program for infiltrating highly educated rev — professional revolutionaries into the basic steel industry by concealment, fraud and deceit.

And then by having the Communist agents pose as ordinary workers to subvert labor unions and other worker organization to Communist purposes.

The basic steel industry, I need hardly say is the core of our economy in time of peace and its lifeblood in times of war.

William O. Douglas:

I misunderstood the record.

I understood that the Committee already had this information.

Archibald Cox:

I think that —

William O. Douglas:

I don’t —

Archibald Cox:

That is an overstatement and it seems to me that the record, with all deference, does not bear it out.

I wonder if I might simply finish discussing the subject into which the Committee was inquiring and then deal with the question of what petitioner —

William O. Douglas:

But suppose (Voice Overlap) —

Archibald Cox:

— have had.

William O. Douglas:

— certainly.

And anyway, like it goes to my earlier question as to whether or not — whether you’re weighing or balancing, whatever the phrase is, whether the (Voice Overlap) —

Archibald Cox:

Well, let me say —

William O. Douglas:

— the importance of this particular witness’ testimony to the performance of the legislative function must not be considered.

I don’t know if this — did — they seemed to have had all the information that they could possibly got from this man.

Archibald Cox:

Well, I intend to — I intend to find out —

William O. Douglas:

And certainly sending him to prison doesn’t get him more information.

Archibald Cox:

Well, let me — let me discuss the reasons for calling petitioner now then if I may and then I will come back to the national importance of the subject that the Committee was investigating.

Petitioner was in a position to furnish extraordinarily accurate and pertinent information about this reported conspiracy.

He was not subpoenaed as the result of indiscriminate dragnet procedures.

The Committee had information before he was called that he was a long time Communist Party member who had actively participated in the party’s organization of the steel industry.

In the Gary area, he was apparently one of the professional revolutionaries with higher education whom the party had recruited to conceal their past, pose as laborers and thus gained for Communist purposes key positions upon the workers in basic industries.

His education and this long experience put him in a position where if he were willing, he could give invaluable information upon the direction, techniques, and purposes of the program of colonization.

Now, it is said that although the Committee was asking questions directed to that very program of action, that the Committee had all the information it could possibly use on this point.

Archibald Cox:

And that this would be redundant and therefore of no value to the Committee.

We think Mr. Justice Douglas that there are two complete and very short answers to that argument.

In the first place, it seems to us to have no foundation in effect.

We can’t tell what petitioner would’ve said since he refused to even to tell where he lived in 1949.

But every indication in the records shows that he could’ve contributed in part for the testimony.

Now first, at the time petitioner was called, there was no witness who had testified about Communist infiltration in the steel industry in Gary, Indiana.

Its nonsense I think to say that testimony about what happened in Buffalo or some place in the fish industry down in North Carolina or in the auto industry in Flint covered this subject completely.

Certainly, a conscientious legislature would wish to know the extent of the colonization programs in terms of the number of vital industrial plants effect, it wish to know its intensity in terms of the number of professional revolutionaries are on that area.

And he’d wish to know about the degree of its success or failure.

If the evidence convinced him that the conspiracy was ineffective and made up on the whole of rather pathetic or radically inclined young men, he might conclude that the wisest fallacy would be to leave them alone.

If the evidence showed that numerous vital steel mills were affected and that there were professional revolutionaries in key union positions of each, new legislative measures might be deemed appropriate.

Petitioner’s testimony covering the vital Gary steel mills would’ve thrown important new light on those methods.

Second, —

William O. Douglas:

I suppose that would be true if you were investigating the church or the — what (Inaudible) confession on it.

That would be very interesting information that some Congressmen that I think —

Archibald Cox:

Oh, we’re — we’re dealing with questions of degree here as I recall it, like the privilege in self — against self-incrimination at least in a judicial proceeding.

The privilege of the confession is absolute.

As I was arguing —

Earl Warren:

Well —

Archibald Cox:

— earlier, the right to privacy of association seems to me not to be absolute.

The second point on which Yellin could give new and important information —

William O. Douglas:

The relevancy of my question obviously was whether or not Barenblatt is — should be overruled.

Archibald Cox:

But I think that in this case, is an easier case from the Government’s point of view and that therefore even if which I don’t suggest for a minute, Barenblatt were wrong, it shouldn’t be overruled in this case.

I think this an exceedingly strong case and I don’t mean to guess any aspersions on Barenblatt.

But I think one could disagree with Barenblatt and both to affirm in this case, I think that’s quite clear.

John M. Harlan II:

Unless you’re going to say that the Congress of the United States has no power to investigate that he was a Communist.

Archibald Cox:

But this is even more than the field of Communism, I think Justice Harlan.

This is a — this is in a vital — I didn’t develop that part of my argument, but this is in a vital steel mill.

It also isn’t a — in an — which has been a tremendous national importance and I needn’t relate all the occasions on which it’s been a tremendous national importance.

So it also pertain — excuse me sir.

Arthur J. Goldberg:

(Inaudible) that this constitutes a national burden (Voice Overlap) —

Archibald Cox:

This had been one of the points that I — we do develop in our brief and that I had intended to develop if I hadn’t gone on to deal with what petitioner could add.

It’s also of relevance I think that history demonstrates that the effect of these activities in the labor movement is not sheer fantasy that there is a — have been a number of occasion early during World War II if you recall it Justice Goldberg.

There were Communist strikes in North American Aviation and in Allis-Chalmers in Milwaukee.

That was in the (Voice Overlap) —

Archibald Cox:

So that these are very real in this industry and I think it is quite different in those respect, from education, propaganda activities, those are different cases which have been decided and we are (Inaudible) —

William O. Douglas:

How about the NAACP versus Alabama?

I suppose many would think precisely as you do in this case, in that field, they’re very critical.

Archibald Cox:

I doubt — I’m afraid I don’t quite understand the point of Your Honor’s question.

How would I distinguish that case?

William O. Douglas:


Archibald Cox:

Well, I think the difference is that there was their suggestion, no overriding public interest in the information sought to be elicited.

That’s one difference.

The second difference is that there, the information sought to be elicited as I understand it had to do only with associations.

Whereas here, the effort is to investigate conduct and the associations come in collaterally and incidentally.

And I may say this seems to me also to be true of the Florida case involving the NAACP, NAACP against Gibson.

That — and of course, it goes without saying that I would distinguish between the conspiracy to infiltrate bona fide unions in the labor movement and the — in the vital steel industry is altogether different from the activities of the NAACP.

Now, coming back to the question, was this information that Yellin was requesting to give redundant?

I’ve indicated that it dealt with the new area and I could’ve dealt with it in a degree of detail and in a more vital segment of industry than before.

It also have —

Byron R. White:


Archibald Cox:

In the area of Gary, it had very little about the steel industry.

I just — to the best of my recollection all it had was about Buffalo.

Byron R. White:

(Inaudible) they really want to find out.

Archibald Cox:

Well, they wanted to know whether he was in Gary —

Byron R. White:


Archibald Cox:

— as preliminary matter to know whether he could give it —

Byron R. White:

Was it also a fact?

Archibald Cox:


Byron R. White:

Did it also — did the record shows that (Inaudible)

Archibald Cox:

The record shows that they had some information that he was in Gary, yes.

But I think that — I think this is quite clearly a preliminary question, the questions that go to the heart of the inquiry where those that counts two and four are based on, did he know any colonizers in the steel industry in Gary in 1957, was one, and the other related to the colonizers in the steel industry prior to 1957.

Hugo L. Black:

I thought one of the counts under which he was convicted was the one that said he declined to tell where he lived?

Archibald Cox:

That’s true.

What I was — what said was that the heart of the inquiry was embraced in the two counts that I just mentioned, that the one that dealt with where he lived was a preliminary question which would normally be asked a witness in order to found out whether he could give this more vital information on the point.

Hugo L. Black:

I don’t suppose he should be doubted on whether they knew where he lived, isn’t it?

Again, he’s been convicted for failure to tell them where he lives as though that makes (Voice Overlap) —

Archibald Cox:

Well, people had —

Hugo L. Black:

— on the part of the Congress.

Archibald Cox:

People — well, I’m not arguing that the need to know where he lived Justice Black was essential (Voice Overlap) —

Hugo L. Black:

Well, how can you (Voice Overlap) to support that count under the balancing doctrines?

Archibald Cox:

Well, I think to support that count, that I must show that this was closely related and preliminary unto the subject under investigation.

If you’re asking a man what he knows about activities in Gary, it’s important to know how much he — how much of the time he was in Gary.

Hugo L. Black:

If they didn’t already know?

Archibald Cox:

If people have been — people have been — I’ve been — the text in the last few years as if my residence was a place where it wasn’t, this is in — may be erroneous information.

Hugo L. Black:

Well, do you think there’s any possibility that first, we should read this record and not know that they knew where he lived in Gary, Indiana?

Byron R. White:

If the judge may want to verify the information, I suppose that some of the —

Archibald Cox:

Insofar as where he lived, well, yes.

The other part, the heart of the inquiry seems to me to have gone far beyond verifying.

Byron R. White:

But even if they do (Inaudible)

Archibald Cox:

I think they — I think they knew that they didn’t know as much in this instance.

I’ve already pointed out that they hadn’t had any testimony directly about colonizing in Gary at all.

I would like to add that they didn’t have any testimony about activities in Gary either then or later after 1950 or 1952.

This was a hearing in 1957.

Looking to — or early 1958, looking to legislation to be enacted at that by some early Congress of manifestly knowing whether these efforts had continued or not, or whether they had been intensified or not at Gary would be highly important to one who is trying intelligently to make up his mind on this precedent.

Third, as Your Honors suggested, the witness, there was every reason to believe could have given information on this point in a great deal, more detail than any of the previous witnesses who had testified.

There has been — I understand that no colonizers, they were called, no professional revolutionaries who infiltrated by this process of fraud and deceit who has been willing to testify before the Committee.

Even if there had been one or two, here was one which could’ve added presumably if the information the Committee previously had a great deal about the way these activities were being conducted.

Now, it would seem to me, I find it a little — maybe he shouldn’t have been indicted on this count, but I find it little startling that one shouldn’t ask the witness whether he was there at the scene of the activities he’s being questioned about.

William O. Douglas:

I suppose an easier —

Archibald Cox:

But even if — even if one shouldn’t, this was — this conviction carried concurrent sentences and the — to sustain it on any one count would of course sustain or require affirming the judgment below and that counts two and four are not I think conceivably open to the objection about residence.

The — I’ve stressed already the degree of national interest in knowing about this program in its most basic industry and in the — one of the handful and most important bill in its most basic industry.

I’ve also sought to develop that the pertinency of the questions to the sub — that subject, the extent to which it was pointed out to the witness and the reason to believe that he could afford new information.

Now, there is one other answer to this argument about new information that I would like to submit to the Court.

It’s more fundamental so it doesn’t need to be ruled upon in this case.

We submit that whether information sought by a Congressional Committee is necessary or unnecessary or fruitless or useful or helpful or redundant is not a subject for a judicial determination once it is determined to be impertinent.

There’s no doubt that the objective of the Committee must be legislation.

The information sought, as I just said, must be pertinent to that objective.

There must I assume for present purposes be some reason to believe that the witness has the pertinent information and he must be made aware of its pertinence.

The public importance of Congress’ acquiring pertinent information on the subject under investigation must also justify the risk of damage to the individual liberties.

But once those points have been covered, I submit, the judicial function is exhausted.

Choosing among pertinent lines of inquiry deciding when the ground has been adequately covered, decide — relying on testimony received or seeking new testimony that will corroborate or disprove the testimony already received are all parts of the legislative process.

No one can tell how helpful a logically material bit of information will be without studying and drawing inferences from the information you already have and ascertaining the other potential sources of information.

Obviously, the line that an investigation takes next requires some judgment as to what are the most likely forms of legislation and how will the Congress and the public respond from the legislative process to the information already adduced.

That I submit although as I say, I don’t think our case rests on it, is a test for the law made and that the court should not undertake and substitute its judgment of theirs once the basic constitutional requirements that I had listed have been satisfied.

Now, I would like to turn to the information to the interest asserted by the petitioner.

And I suggest that we should examine it very carefully.

Let me make it plain that when I talk of this as an individual interest, that we fully recognize that there is a public interest in individual liberties not only because of the importance of the individual himself, but that is what the Government exist for.

But also because of the effect of the example on others and because the exercise of First Amendment freedoms and other civil liberties is of course important to the community as a whole.

Exactly stated, the in — only interest that can be asserted by this petitioner is secrecy of association.

Indeed, it’s fair to say that everything indicates that the — his claim is really to a right of deception concerning his association.

Petitioner was not subpoenaed as I said earlier because of having a public or private utterance.

He was not subpoenaed because of any participation in an open assemblage.

The information in the possession of the Committee indicated that petitioner was recruited by the Communist Party to conceal his true beliefs and associations and then by false representations to insinuate himself in a bona fide worker organizations, and then to subvert them to his revolutionary purposes.

The interest he asserts is in not having those activities known to the public so that he and others may feel free to engage in them in the future.

I submit therefore, it is inaccurate to say that petitioner is simply invoking a right of freedom of speech or freedom of public assembly or association.

At best, his claim is to a right of privacy in associations.

That right has received and in my judgment should receive constitutional protection.

The point was decided in NAACP against Alabama, Bates and Little Rock, Shelton and Tucker and other cases.

There are two reasons however for concluding that the right to secrecy of association is not entitled to the same very high degree of protection which is acknowledge for freedom — recognized for freedom of speech are open in public assembly.

Archibald Cox:

One reason for a deference in the degree of constitutional protection is that the reasons for the special protection we incurred, the freedom of speech do not pertain to the right of privacy of association.

The other is that the asserted freedom to conceal one’s association may be used to subvert the freedom of association of others.

Let me develop each point if I may very briefly.

First, we place a unique constitutional value upon freedom of speech because the public discussion is the only part — that is not only the best half of the truth, but the indispensable condition of a democratic government.

The best corrective for error in thought and speech is more thought and more discussion.

We pitched our constitutional philosophy upon the belief that men who have the chance to hear all sides will reach the wisest and best decisions.

No one ever stated the point more eloquently than Mr. Justice Brandeis in his separate opinion in Whitney against California.

I would like to take time to read a lengthy passage which states the ideas I’ve tried to condense, time forbids but I would like to emphasize that he winds that passage up saying, “If there be time to expose through discussion the falsehood and fallacies to avert the evil by the processes of education, the remedy to be applied is more speech not enforced silence”.

Now, petitioner is unwilling to stake his doctrine on such intents of being unwilling to suppress — to subject them to the free competition of ideas, to the marketplace of ideas, to have them discussed, known they didn’t — have them known and publicly discuss.

He’s not in a position to claim the same degree of individual freedom as those who are asserting the right to speak openly and publicly.

Second, I would point out that secrecy or privacy of association is susceptible of abuses not open to speech or open public assemblage.

It can be used not only to protect one’s own freedom of association but to destroy or subvert or mislead the associations of others.

There’s no better example than the activities of the Communist colonizers described in the present record.

According to the testimony before the Committee, these highly educated young men embraced Communism, joined the party, took part in its activities.

This counsel says is a normal — is an exercise of the normal freedom of belief, of speech and association.

But then by fraud and deceit, they were to gain jobs for workers, infiltrate the worker’s organizations pretending to be bona fide trade unionists but in fact acting for a foreign power.

In this way, the asserted cloak of privacy would become a method of deceiving others in order to subvert or destroy their associations.

Now finally, I must emphasize the point made from the beginning.

The Committee was not investigating speech, thoughts, or political associations.

It was investigating conduct.

The violation of any privacy of beliefs or association would be incidental to that same central inquiry, the result indeed of the misuse of speech and association to further a conspiratorial end.

Judging the claims of petitioner’s right and giving it its due public importance against the importance of the end being — against the importance of the inquiry, the importance of full knowledge upon this very important subject of infiltration of our most basic industry, it seems clear to us that the judgment below was correct.

Now, I’ve thus far not dealt with two of the arguments that were presented by Mr. Rabinowitz.

One is the claim that the statute he says is unconstitutionally vague.

I must say first that it seems to me that any question about the vagueness of the rule — of rule — of the rule constituting the Un-American Activities Committee was clearly disposed of in (Inaudible) — in Barenblatt.

As I read on page 122 after a long discussion, the opinion of the court says, “The rule cannot be said to be constitutionally infirmed on the score of vagueness”.

And then it goes on to discuss whether Congress could constitutionally confer this authority on the Committee.

Now, it doesn’t seem to me to change the argument to say that we are looking at this through the rule of dealing with — in behalf of Congress.

Second, dealing with the argument on its merits, the petitioner had no reason to doubt what it was that he was required to do.

He was directed to answer those questions.

Archibald Cox:

And he knew that if he failed to answer the question, he in all probability would be charged of a crime.

This is not like a situation that one can argue that he doesn’t know what his legal obligation is.

His legal obligation was specifically pointed out to it.

The argument here is that well, we challenged the authority of the Committee to require that.

Maybe it did require it or attempted to require it but it didn’t have the legal authority.

It’s now settled that it did had the legal authority.

Indeed that is conceded by petitioner and I would’ve supposed it was perfectly claimed that whatever be the exact limits of the Committee’s authority, that there was no doubt about its authority to conduct this kind of investigation into this kind of activity and this by industry.

The other argument deals with the failure to receive Professor Emerson’s testimony in answer to a general question what are the factual considerations and values that we should take into account in resolving the basic constitutional issue in this case.

It’s enough to say that the difference between the petitioners and ourselves is not whether Professor Emerson’s views should be taken into account, but how should that kind of material be brought to the attention of the court.

Should it be done by testimony under oath or should it be done in the normal manner by briefs or by the citation of such statements in law review article by the court’s own study and understanding, by reference to public documents, and the like.

Its enough to say that this kind of question dealing with the basic conditions, the basic human values, if you will, and conditions in society that enter into the determination of a constitutional question have always in our constitutional system, have been decided by the courts, and the basis of such knowledge or — and information as it may come to them in briefs or through their own reading and prior experience.

And that it is not something to be found on the testimony in a particular record with the findings of fact by the particular trial judge on that record and not taking into account anything else binding upon this Court.

Certainly, Professor Emerson’s view should be taken into account.

They’re in the record.

I hope the Court will read them.

They’re an excellent illustration in my view of how easily and intelligent man could miss the whole point.

But all such arguments are important for the court to consider.

But they needn’t come in through sworn testimony and cross-examination, so that we submit Mr. Chief Justice that there was no error below and that the judgment should be affirmed.

Earl Warren:

Well General, just how would a defendant in a given case raise this balancing issue where Barenblatt says that the balancing had to be related to the particular circumstance shown?

Now, I suppose that means a particular case.

Now, how would the defendant raise that?

Archibald Cox:

Well, I’d — first, I would not understand the reference, a particular circumstance shown to refer to anything other than the inquiry that was being made in that case by Congress.

It’s objective.

That of course can be shown by the resolution.

The kind of question asked.

That of course can be shown by the testimony or in most of these cases, the transcript of the testimony before the Committee.

And that particular circumstance means the sort of circumstance I’ve been arguing here.

Knowledge about those is derived on the part of the court, from what is submitted in the briefs.

I would think that it’s from the general reading on the part of the court.

It is derived from a public documents of the same kind — sort of information that comes to the attention of the court whether it decides a large number of legal question which are based on underlying appraisal of the conditions in the community.

Archibald Cox:

Let me take an unconstitutional example which has been settled but at one time was litigable.

I have in mind the case of Glass against Ickes where the question was whether the Secretary of Interior should have an absolute privilege to make statements about people doing business before the Interior Department no matter how much it might injure that man’s reputation.

Now, to decide whether to recognize such a privilege requires a judge to have a view about Government, about the importance of freedom of expression on the part of Government officials and of course, a view about the knowledge of the kind of harm that such statements may do to the one who is defamed.

But that kind of understanding about the impact in the community has never in the law I think been decided by calling witnesses to testify on the particular record.

I —

Byron R. White:


Archibald Cox:

Well, I would think that was —

Byron R. White:


Archibald Cox:

Well, I think that for our purposes, the only thing that needs to be determined is not whether as a matter of fact the Communist Party is dominated by a foreign power but whether con — the Congress has sufficient foundation for believing that, to make this subject pertinent to inquire into.

The power would exist whether it is true as a fact or simply whether it was basis for inquiring it —

Byron R. White:


Archibald Cox:

I wouldn’t think that issue was opened in a court, no.

Byron R. White:


Archibald Cox:

I take it that the court — I take it that there must be some reasonable foundation for the congressional belief just as there are again the — I am taking the example or field from this particular case because it might clarify our reasoning.

I suppose that if a state legislature would pass a statute that required every homeowner to cut down all his maple trees, that it wouldn’t be opened to — would normally be tried out in a courtroom whether maple trees like cedar trees harbored an insect which would just — which would damage, if not destroy, an important crop like the apple crop.

That the question is whether the legislature had a reasonable basis for reaching such conclusion and that has been best proved, as Your Honor knows, best called to the attention of the court through materials like a Brandeis brief.

And it seems to me that it was quite proper for the district judge to take that position in this case.

I don’t think the important question is really whether it comes in by testimony or not.

Let me make it clear, we are perfectly willing to accept Professor Emerson’s statement as Professor Emerson’s opinion and belief.

We’d — I would stipulate that here now that we accept it as his opinion and belief and we will accept further that cross-examination wouldn’t have shaken his opinion and belief.

The question is whether —

Earl Warren:

They wouldn’t do that below — they wouldn’t do that below though, would they?

Archibald Cox:

I don’t think they disputed that below.

I don’t think it was ever made quite that explicit but I think that the whole conduct was consonant with that being their position.

The question —

Earl Warren:

I thought you said it was — took the position that it was irrelevant and wouldn’t let them introduce it.

Archibald Cox:

It was not that if — if they took the position that it bar on a question to be decided by the court, and therefore and it was not properly put in by way of sworn testimony.

Now, I think really the critical question I am suggesting is not so much whether the court will accept the sworn testimony but whether the court is to be limited to findings concerning these ultimate values based on sworn opinion and testimony.

And that the critical question is whether this Court is going to be based — limited by the opinions of those who saw and heard the witnesses as to which they believed and which they didn’t believe.

And I submit that that would be totally at odds with our entire constitutional history as well as an exceedingly cumbersome and I think unwise process.

Hugo L. Black:

Wouldn’t your argument imply — I’m not saying it should be, expressing views about getting evidence on the constitutional questions overtime.

But wouldn’t your argument imply equally to the position that’s been taken recently in a number of courts.Like you said, it’s not been found on by this Court that you can introduce witnesses to find out whether in a particular community, a matter is obscene in order to determine the constitutionality of the law?

What about that?

Archibald Cox:

Well, I have asked — Your Honor I have — I would prefer not to take a position of that but I —

Hugo L. Black:

Well, I thought —

Archibald Cox:

— haven’t studied it myself —

Hugo L. Black:


Archibald Cox:

And it is a question that’s involved in cases before this Court.

Hugo L. Black:

But it —

Archibald Cox:

I —

Hugo L. Black:


Archibald Cox:

I’m sorry I haven’t (Voice Overlap) —

Hugo L. Black:

I didn’t know that was involved in a case here at the moment.

Archibald Cox:

We have it from — we haven’t thought about it —

Hugo L. Black:

I thought about it —

Archibald Cox:

— in time.

Hugo L. Black:

I thought about it in connection with this argument.

I remember — I recall arguing very vigorously against hearing evidence to determine whether the legislature had a right to decide a certain train practices per se.

It took several weeks to get evidence and determine —

Archibald Cox:

What —

Hugo L. Black:

— the constitutionality of an act on that basis.

Archibald Cox:

I should have (Voice Overlap) —

Hugo L. Black:

I’m not saying that that would — that would control this case.

Archibald Cox:

I think if Your Honor compare with me, it’d be unwise for me to express something about which I have no intelligent thoughts at the moment in which it does all —

Hugo L. Black:

I just —

Archibald Cox:

— come before the court.

Hugo L. Black:

The reason I asked for your general argument was — and I may say that it’s — I’m not going to — indicated you to disagree with that general argument was that you should decide the constitutional questions on the basis of the Constitution rather than people’s evidence about whether the thing was unconstitutional.

Archibald Cox:

There is without directing myself to that, I should acknowledge that this is sometimes a question of degree.

I recalled that the first time I was ever in this courtroom dealt with the constitutionality of certain litig — certain legislation pertaining to the bill.

And there, the case, the economic fact had been tried out with great detail before a Master.

Archibald Cox:

Finally they were stipulated by a counsel and no doubt that gave the court a picture of the industry which would not otherwise been available.

But I don’t think anybody argued that the ultimate judgment as to the weight of various interests involved, because that was an economic case was to be made by the Master finding — making findings of fact.

The constitutional facts are facts which this Court must determine for itself from whatever sources seemed best to it.

And as I said before, we certainly would think that Professor Emerson’s views — he’s a distinguished professor, should be taken into account.

We hope the opposing view as well his will.

Byron R. White:


Archibald Cox:

I don’t think that’s a question to be tried out in the evidence in each particular constitutional case.

Byron R. White:

You don’t think those practice (Inaudible)

Archibald Cox:


No, Your Honor.

I said I didn’t think that they were appropriate to be tried out in the evidence in a particular case.

Byron R. White:


Archibald Cox:

But here — here we are — here we are dealing with the propriety of congressional action and the facts in the first instance, the reason to make this inquiry in the first instance was up for Congress to determine.

Earl Warren:

But one of (Voice Overlap) —

Archibald Cox:

I add —

Earl Warren:

— we’re deciding, aren’t we determining here whether a man can be put to jail, put in jail in these circumstances.

And aren’t we determining whether or not he’s entitled to make a defense for himself?

Archibald Cox:

Well, the — we’re determining in what manner his defense shall be made.

Of course he’s entitled to make a defense for himself.

We’re discussing whether those facts which go into deciding, whether requiring him to answer this question was constitutional are to be established on the basis of opinion testimony and only opinion testimony, I take it, which if one followed that, would require the court like he emphasized to follow the opinions on the value of free speech of the witnesses.

Byron R. White:

Only —

Archibald Cox:

Now, I think that is not an appropriate way of deciding constitutional issues.

Byron R. White:

Do you think Emerson’s testimony (Inaudible)

Archibald Cox:

Well, all he did was read the newspapers.

He testified that this came from a file or clippings of magazine articles that he collected.

Byron R. White:

The district judge (Inaudible)

Archibald Cox:

Well, I think that the — I think there’s two answers.

One, is that it is to a degree, the duty of this Court to keep abreast and social problems and condition, and of the facts that go into them equally of history and the like.

That’s one reason that it’s such an arduous job.

I think, two, the point I made earlier is highly relevant here that the question of fact, how many Communists are there is not a question to be tried out in this proceeding for contempt.

Byron R. White:

But it is (Voice Overlap) —

Archibald Cox:

The question is whether —

Byron R. White:

— rather a constitutional question.

Archibald Cox:

The question that is relevant for constitutional purposes is whether Congress had before it sufficient information to justify its coming to the conclusion that this was a highly important subject for it to investigate.

And one ascertains what Congress had or might have had before it the same way one ascertains whether there is a justification for legislation fixing the price of milk or legislation requiring the cutting down of cedar trees or the leaving of coal pillars in a — when a coal mine is dug in the (Inaudible) region, and the like.

These questions have never been done by exact testimony and I emphasize the court being limited to that exact testimony, sometimes the testimony may be helpful.

If it is helpful and not confining, then the thing to do with this case is to read it and take it into account.

Byron R. White:

In any event, do you think it involves (Inaudible)

Archibald Cox:

That’s correct.

Earl Warren:

Mr. Rabinowitz.

Victor Rabinowitz:

Thank you sir.

I trust I need not remind the court that we are dealing here with the application of a criminal statute and the right I take it that every person accused of a criminal statute has to present whatever facts there are in its favor.

And to have the determination made on the basis of the record that’s presented in the court and not determine on whether this Court or any other court who has read newspapers or what newspaper they have read.

It doesn’t seem to me that any intelligent system of justice can be operated on that basis and we never have up to this point.

I am somewhat entranced by the suggestions, somewhat belatedly made that the Government is now prepared to stipulate Professor Emerson’s testimony, because this Professor Emerson’s testimony is admitted as I understand the situation, this judgment of conviction should be set aside as contrary to the weight of the evidence since there’s no evidence at all on the other side.

No one — nobody put any evidence here about the extent of Communism in the United States, about how vital or not vital the steel industry was, or any of these other facts, and I would take it that where there is some evidence on one side and no evidence on the other, the court would have to rule on the basis of that record.

Of course this was not the position of the court below and I am sure of the — and not the position of the Government below and I am sure that had the matter been — had the evidence been admitted, there would’ve been cross-examination and I should think that there would have been not only cross-examination but perhaps rebuttal testimony because Professor Emerson’s testimony, it seems to me, goes directly to this whole process of balancing.

And while it may not have been as effective as calling a hundred thousand or a hundred and eighty million witnesses and asking them whether they’re members of the Communist Party, somewhat impractical, it seems to me the kind of occasion which opinion testimony is appropriate.

Arthur J. Goldberg:


Victor Rabinowitz:

Well, in the first place, I never said that Congress couldn’t investigate.

Congress can investigate —

Arthur J. Goldberg:


Victor Rabinowitz:

I’ve — I’ve never —

Arthur J. Goldberg:


Victor Rabinowitz:

I have never even suggested that Congress cannot conduct an investigation by interrogating witnesses because there are many witnesses, hundreds of them, perhaps thousands, who have come in and who have testified quite freely on this subject.

And while I think that the Committee is acting beyond its jurisdiction and so forth for the reasons that I’ve stated before, I don’t know of any way of stopping a Committee from calling a witness who testifies voluntarily before him about his or her membership in the Communist Party as was of course true in this very hearing —

Arthur J. Goldberg:


Victor Rabinowitz:

— where several witnesses did testify.

Arthur J. Goldberg:


Victor Rabinowitz:

Your Honor, I think —

Arthur J. Goldberg:


Victor Rabinowitz:

I think —

Arthur J. Goldberg:


Victor Rabinowitz:

I think that if I had to, I would be willing to go that far.

But I don’t have to.

Arthur J. Goldberg:

But you have to argue.

Victor Rabinowitz:

Because in this case and if there was one thing I learned from Mr. Justice Frankfurter is that is that I shouldn’t try to prove more than I have to, to win my case.

In this case, in view of the extensive testimony that Congress have taken on this particular subject and in view of the trivial nature of the questions that were asked, then I’ll come to that in just a moment.

And in view of the fact that it was cumulative testimony and it was corroborated in the view of the view of a very large elements on the other side of the balance, I say that Congress did not have the right to conduct this — to ask these questions of Mr. Yellin.

And I think that same thing is probably true of the whole Gary investigation.

They had volunteer witnesses there who gave a great deal of information about this so-called colonization and I’ll come to that in a just a moment.

Hugo L. Black:

Was there any indication that the Government wanted to pass a local bill reg — regulating conditions that gave —

Victor Rabinowitz:

Oh, no.

No suggestion whatsoever.

Hugo L. Black:

But it’s supposed to be a general bill covering this subject all over the country?

Victor Rabinowitz:

I suppose so.

I’m not sure that there was any bill that was really referred to — the Committee always talks in terms of the Subversive Activities Control Act than the other bills that may be passed, that Congressman Walter for years has been introducing, and onto this bill which covers a wide variety of subjects and its on this bills that they Committee sometimes says that it’s holding its hearing.

I would just like to raise one or two rather short points.

One goes to this executive session matter.

It is true that at rule — at page 82 of the record, Mr. Walter set forth, I think in pretty complete form, the general rules that the Committee uses in determining whether as to here, to hold executive sessions, and I think that that is conclusive in my favor because the general rules and he says, there are very many exceptions or any exceptions he said is in may favor but even more telling if I may suggest, it is the testimony at Rule 70 because as Mr. Justice Douglas pointed out, the rule said Congressman Walter, the rule with respect to an executive session was not applicable but sentence didn’t stop there although that’s where the Solicitor General stopped reading it.

The next word is “because” and then Congressman Walter goes on to apply a completely different standard, different from the standard you —

Earl Warren:

Where is that Mr. —

Victor Rabinowitz:

It’s on page 70, sir.

And it’s the first question — the first answer —

Earl Warren:

Oh, yes.

Victor Rabinowitz:

“The rule with respect to an executive session was not applicable because the investigator was an FBI agent and he’d done a pretty good investigating job”, which has nothing at all to do with Rule IV-A.

Mr. Solicitor General suggested that this was not a case of exposure for the sake of exposure.

Well frankly, if this was not — if this is — if the failure to call an executive session under these circumstances was not a perfect case of calling witness in public for no reason other than to give publicity to his testimony, I don’t know what it is.

I would like to go to one (Voice Overlap) —

Hugo L. Black:

Did you argue that point?

Victor Rabinowitz:

Pardon me?

Hugo L. Black:

Have you argued that point, that was exposure for exposure’s sake (Voice Overlap) —

Victor Rabinowitz:


Hugo L. Black:

I understood you —

Victor Rabinowitz:

I — I’ve argued it in the brief.

I think the failure — I don’t remember exactly what page, but it certainly is in there.

I would like to go to this question as to whether this testimony as corroborated or accumulated or what have you.

Questions one and three were admittedly corroborative of testimony that the Committee had in its files.

And Mr. Tavenner said so on the stand.

He said, “Yes, we had sworn witnesses who testified that this man lived in Gary.

We have subpoenaed his employment records”.

As a matter of fact, his employment records I think were put in the record and we have sworn testimony that he was a member of a Communist Party in 1949.

And we knew all of that.

Byron R. White:

But they didn’t know in full what — they didn’t know whether the sworn testimony was accurate?

Victor Rabinowitz:

That’s true.

They didn’t know whether he still was, but they didn’t ask him whether he still was.

That’s not one of the counts in this case.

Byron R. White:

Well, they didn’t know whether their sworn testimony — the reason that they did that (Inaudible)

Victor Rabinowitz:

I think it is probably — well, this is true of all accumulated testimony or corroborated testimony, sir.

And I — and I said, I’m not arguing that it wasn’t relevant.

I am merely arguing that it weighs very little in the balance.

Byron R. White:


Victor Rabinowitz:

Pardon me?

Oh, I don’t know.

He said they had sworn testimony.

One of whom testified at the Gary hearing but I don’t know how many.

Now, on the other question namely the extent of colonization in Gary, at page 151 of the record, there appears the report of the House Committee.

And I’m not going to read it.

It runs on some — well, its too closely printed pages.

I’ll just read a few words.

Victor Rabinowitz:

“Describing the tactical maneuvers of the Communist Party in its infiltration of labor unions, Mr. Lautner asserted that colonizers were sent to Gary, Indiana for the purpose of building a party in the steel industry.

He defined a colonized Communist as” — and then he goes on to describe one.

“The witness told the Committee of classes conducted by J. Peters, a national functionary for the Communist Party for colonizing members of the Communist Party.”

And he goes on at very considerable length discussing the whole colonization program of the Communist Party in Gary and elsewhere.

Mr. Lautner testified immediately before Mr. Yellin.

The Committee goes on to discuss the testimony of Mr. LaFleur who also testified as to the colonization in the Communist Party and it ends up with this conclusion reached without the benefit of Mr. Yellin’s testimony.

“The testimony disclosed the pattern of colonization in the steel industry by young men with excellent training and education who came into the area from New York City and elsewhere.

It is apparent that a hard core of Communist Party — of the Communist Party is actively engaged in the rehabilitation of a Communist Party in the steel industry in Gary”.

So I submit the question two and four were just as cumulative as the others and weigh just as little in the balance, if we are to balance.

Earl Warren:

Let’s adjourn.