LOCATION:Labor Union Protest
DOCKET NO.: 35
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Seventh Circuit
CITATION: 374 US 109 (1963)
ARGUED: Apr 18, 1962 / Apr 19, 1962
REARGUED: Dec 06, 1962
DECIDED: Jun 17, 1963
Archibald Cox – Solicitor General, Department of Justice, reargued for the United States
Bruce J. Terris – argued for the United States
Victor Rabinowitz – argued and reargued for the petitioner
Audio Transcription for Oral Argument – April 18, 1962 in Yellin v. United States
Number 477, Edward Yellin, Petitioner, versus United States.
Mr. Rabinowitz, you may proceed with your argument.
May it please the Court.
The petitioner here was convicted of a violation of Section 192 of Title 18 for contempt of Congress for his failure to answer four questions put by a Subcommittee of the House Committee on Un-American Activities at a hearing held in Gary, Indiana in February of 1958.
The alleged subject under inquiry was Communist infiltration at the basic industry and it was the 10th investigation that the Committee has held on that subject.
The petitioner testified in between the Watkins and the Barenblatt decisions of this Court and then refusing to answer the questions put.
He relied on what he conceived to be his rights under the Watkins decision.
He also cited the vagueness of the authorizing resolution, his rights as he conceived them to be under the First Amendment, the lack of jurisdiction of the Committee over the subject of the inquiry.
He did not rely on the Fifth Amendment.
He was not tried until after the Barenblatt decision and he was found guilty on all four counts and received the maximum sentence possible under the statute namely one year in jail.
Prior to the time he testified, he had been a steelworker employed in Gary.
At the time he testified, he was an engineering student at the University of Colorado, subsequently, received a Fourth Foundation grant at the University of Illinois, he’s now a candidate for his doctor’s degree which I think he will probably receive in June.
Each one of these Section 192 cases come before this — that come before this Court have tracks which distinguish this — this case from all of the other cases and I’ll state those facts, of course.
But I should like to state in all conduct that the constitutional issues in this case, which I propose to raise again, are indistinguishable from the constitutional issues in Barenblatt, Wilkinson and Braden.
And I propose to urge that the decision of the Court in those cases should be reviewed and should be overruled.
The petitioner was subpoenaed to appear on February 10th, 1958.
On February 6th, prior to the hearing, I, who was representing the petitioner, sent a telegram to the 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.”
This request was made in view of Rule IV (a) of the rules of the Committee 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 at a public hearing.”
This witness had never appeared at an executive session, has he?
Had never appeared on executive session, no, sir.
On the same day, I received, in response to my telegram, a telegram signed not by Mr. Tavenner to whom I have addressed my wire but a telegram signed by Mr. Arens, Staff Director, which telegram read as follows, “Reurtel requesting executive session in lieu of open session for Edward Yellin and Nicholas Busic.
Your request denied.”
At the hearing in Gary, I sought to introduce these two telegrams into the record.
Congressman Walter who was residing at the hearing refused to accept the telegrams into the record and in the conformity with normal practice at congressional hearings refused to let me say anything.
He testified at the trial, and at that time he stated that he had never seen the telegrams.He had no idea at all as to what was in them.
He said that he thought, and I quote, “They were more or less in the nature of a request to postpone without grounds.”
As a matter of fact, he said that he hadn’t seen the telegrams until he got on the stand at the trial in Gary two or three years later.
He said all of this was a big misunderstanding that I made a mistake in sending the telegram to Mr. Tavenner, that I should have sent the telegram to him.
Arens, he said, had no authority to deny such a request.
He said, and I quote again, “I am sure this could not have happened, had you addressed your telegram to me.Had he knew one of the request?”
He said, and I quote again, “We might have a different situation today.”
Where are you reading from the record?
Well, the first portion comes at record page 70.
Is this testimony after trial?
This is the testimony after trial, yes, sir.
And this is what, Mr. Arens or Mr. Tavenner?
This is Mr. Walker.
Mr. Walter, Congressman Walter testified.
Chairman of the Committee — of the Subcommittee.
Yes, Chairman of the Subcommittee and, of course, of the Committee as well.
And he said at that time that long time ago when they decided to call Mr. Yellin, they had decided considered the question of an executive session, I had decided not to call him an executive session.
The reason that they had decided not to call him in an executive session was that they had received the report from Mr. Collins, a former F.B.I. agent, who was an investigator for the Committee.
And I quote from page 70 of the record, “His story was that this man was a known Communist, that he had been active in the international conspiracy, that he had deceived his employer.
And furthermore, he came within the category of those people that we were experiencing a great deal of difficulty in finding out about with respect to the colonization.”
Question, “Did you assume from Mr. Collins’ report that Mr. Yellin would be a witness who would refuse to give information to the Committee?”
Answer, “We had no way of knowing.”
Question, “Well, what conclusions did you draw from the report of Mr. Collins which you have just related?”
Answer, “We concluded that this would be a fine witness for the Committee in support of proposed legislation having to do with colonization and two, having to do with the protection of our defense efforts and it is always worth the chance that somebody will testify.”
Question, “But wasn’t it worth the chance of calling him an executive session to see what his position would have been?”
Answer, “I’m sure that had you communicated this whole matter to the Committee before we left Washington so that we should — could have given the due consideration, we would have and always do, we might have a different situation today.”
I then said, “Well, I raised it at the hearing.
Couldn’t you have called an executive session right then and there?”
And he said, “Well, I didn’t know what was in these telegrams.
I thought you were just asking for postponement.”
And then I said, at page 71 of the record, “When did you first learn that I had made an application for an executive session?”
Answer, “I believe today.
I’d never seen these telegrams, actually.
I heard you mention them, at least now my recollection is, I heard you mention them but I haven’t seen them until this minute.”
And then subsequently, at rule — at page 72, he says that as I say, if he had known of the request, we might have a different situation today.
Now — it’s rather unjust to send them in to jail for a year because of the misunderstanding with the Chairman of the Committee, who wasn’t sufficiently interested to read the telegrams which were — which I was attempting to present to him at the hearing.
What does — what if anything does the transcript of the Subcommittee hearing show with respect to the request for an executive session?
At the opening of the hearing, the witness identified himself and this is — well, I — I think that the hearing is attached to the record that — that is the printed transcript, it’s attached to the record that Your Honors have.
It appears at page 1974 of the printed record which should be an appendix to what Your Honors have.
And Mr. Yellin was asked about his name and where he lives and then I said, “Mr. Counsel, I wonder whether it would be possible to read into the record the exchange of telegram — telegrams between myself and the Committee in connection with the witness’s testimony.
I would like to have it appear in the record.
“The Chairman said, “We will decide whether it will be made a part of the record when the executive session is held.”
Congressman Walter said that no executive session ever was held.
And then I said, “Mr. Chairman, I sent the telegram because I wanted them to appear.
I don’t care whether they appear publicly or not.
I do want it to appear that the exchange of telegrams occur.
I didn’t do it just to increase the revenue of the telegram company.”
And the Chairman said, “Well, whatever the reason was, whether it’s been stated or otherwise, it will be considered in executive session.”
I then said, “May I state?”
And the Chairman said, “Do not bother.
You know the privileges given you by this Committee.
You have appeared before often enough.
You know as well as anybody.
Go ahead, Mr. Tavenner.”
And I know from having appeared before this Committee on previous occasions that this is usually the prelude to the possibility that counsel will be asked to leave the witness room — the hearing room and so I used my discretion and I sat down.
I would like to note first that the standards used by Mr. Walter in applying Rule IV of the Committee were quite different from the standards used by the Committee, standard set forth in the rules rather.
The rules say that an executive Committee shall be held when the Committee believes that the interrogation of a witness in a public hearing might endanger national security or unjustly injure his reputation.
Congressman Walter, in his testimony at page 70, said that they had decided to hear Mr. Yellin at a public session instead of an executive session because the man was a known Communist.
He’d been active in the international conspiracy.
He had deceived his employer.
And then he came within a category of those who might give information.
Now, the Government has responded to this by saying that, well, under the rules, no one has a right to an executive session.
And I suppose that that is probably true.
I do submit, however, that under the rules, everyone has a right to a good faith consideration of a request for an executive session.
Such a request was made.
It was communicated from counsel to counsel, which is the normal way of communication between parties to litigation or what, this possible potential litigation.
And there was no good faith or any other kind of consideration given to the request in this instance.
The Committee is bound by its rules.
This Court has frequently so held.
And I submit that under the circumstances here, the petitioner was entitled to a good faith consideration of his application.
He never received any consideration of his application either in good faith or otherwise and that these grounds alone are sufficient for our reversal here.
I would like next to move to a problem that is raised, I think inherently, in all of the cases since the Barenblatt decision, although I don’t believe that the Court has ever addressed itself to it as fully as I would like to have the Court address itself to it on this occasion.
In the Barenblatt case, the Court used this language.
When First Amendment rights are asserted to bar governmental interrogation, resolution of the issue always involves a balancing by the Courts of competing private and public interests at stake in the particular circumstances shown.
I cannot, as a philosophical matter, accept the balancing theory at all but as I think, one of the members of this Court said, assuming what I cannot assume namely that the balancing theory is what we are to adopt here.
I was confronted at the trail of his case of following the rule that the Court had laid down in the Barenblatt case and, therefore, I address myself to the question of balancing.
What are we balancing here?
The Court first speaks in terms of the competing private and public interests at stake in the particular circumstances shown.
To me, that sounds like this is the question of fact to be determined in each case in accordance with the particular circumstances in each case.
Now, it’s hard and I was puzzled about how to address myself to this problem but it wasn’t my language and it wasn’t my ruling, it was this Court’s ruling.
And so at the trial, I attempted to address myself to this question, what are we balancing?
What are the elements and the scale?
And what way are we to assign to each of these elements?
Who was to decide this question?
The Barenblatt decision says resolution of the issue always involves a balancing by the Courts.
And so the Courts, presumably, in the first instance, the trial court has to balance these issues.
Now, part of the question is easy.
On the one side of the balance is the public interest in national security.
How much weight is to be given to that side of the scale?
Is it possible that each judge reads the morning newspapers, decides how much protection the national interest requires this day or this year and then ascribes in some way and this becomes almost a metaphysical problem, how much weight he’s going to give to the — to that aspect of the national security?
Or is this a question of fact that’s to be determined on the basis of evidence which is presented in Court?
Since the first possibility seem to me inconceivable, I address myself to the second and I attempted to or for evidence in Court as to the nature of the national security interest involved and how much weight should be given to it.
And I could think of no better way to approach to this problem than to present expert testimony on it and that’s what I tried to do.
I presented an expert witness.
It was Professor Thomas I. Emerson, professor of law at Yale University, who has devoted the last 10 or 15 years of his life to a discussion of problems involving freedom of speech and national security and their impact on each other.
And I offered him as an expert witness on the question of how much weights to be given to part of this of this — on the scale that — to solve this factual problem.
His testimony was excluded.
The court said this was not a proper subject or testimony in court.
The Court of Appeals later said, this is a question of law to be decided by the Court and therefore the exclusion of the testimony was proper.
I don’t understand what that means.
But in any event, Professor Emerson’s testimony was — was excluded as I say, however, it does appear in the record as an offer of proof and it can be read by the Court at pages 91 to 114 inclusive and in our opinion, it should have been admitted.
I’m now addressing myself to the weight of the evidence.
I’m not addressing myself to whether it proves the case that I was trying to prove but rather to the admissibility of it.
And I submit that the Court was in error in excluding that testimony.
The second thing that I tried to do in meeting this question of how much weight has to be given to the national interest was to attempt to prove at the trial that the information that was sought of the petitioner by the questions which are the subject matter of the inquiry, which are the subject matter of the indictment here, that these questions were trivial, that they will miniscule, that they were so unimportant that even if they were placed in this scale, they wouldn’t amount too much.
It is conceited now that as to two of the questions, namely, “Where did you reside in 1957 and were you a member of the Communist Party in 1949” were corroborative, corroborative of information that was already in the files of the Committee.
The other two questions, which were questions formed in this jargon that the Committee has developed, “What do you know about colonization in the steel industry?”
Incidentally, I object to those questions on the ground that this word “colonization” is a peculiar word of ought that experts and the Committee know but the witnesses at a congressional Committee aren’t necessarily required to brush up on but of course it was given concurrent sentence so even if I win on those two questions, I haven’t won my case.
In any event, it was my argument that these two questions relating to colonization in basic industry had been the subject of testimony at nine prior hearings in Buffalo, in Flint, in New Orleans, in Denver, in Baltimore, all over the United States.
Now, with three or four other witnesses who cooperative fully at the Gary hearing until the great deal about this subject and that therefore this testimony on these two questions was cumulated.
Now, the Government says, and I think the Government is right, that even corroborative questions and even cumulative questions are pertinent because they’re corroborative or cumulative.
They maybe pertinent, but they don’t weigh much.
They have no great weight in the balance which this Court has directed should be struck in each particular circumstance.
That is the point of my argument with respect to these questions.
Now, what’s on the other side of the balance?
To balance the public interest, the national security, the weight to which we still don’t know and how much weight is to be given to those interests.
I think we can agree here that on the other side of the scale are those great rights that are protected by the First Amendment, the right of privacy, the right of free speech, the right of assembly and above all, and most important of all, the right of the public to hear a debate of the important issues that are confronting the world today and confronting the United today — United States today in an open society without fear of a subpoena from a congressional Committee.
Those are the rights on the other side of the scale.
I cannot believe that the Barenblatt, Braden and Wilkinson cases can be explain by the feeling of any member of this Court that those First Amendment rights are unimportant or that they don’t require protection.
As a matter of fact, this Court has protected those rights and has protected them very effectively in cases like NAACP against Louisiana, Bates against Little Rock, Shelton against Tucker and others.
My time is up.
We’ll recess now, Mr. Rabinowitz.