Lawson v. United States of America Brief Amicus Curiae

    Supreme Court of the United States
October Term, 1949.

No. 248

J o h n  H oward L a w son ,

vs.

U n it ed  S tates of A m er ic a ,

Petitioner,

Respondent.

No. 249

D alton  T rum bo ,

vs.

U n it ed  S tates of A m er ic a ,

Petitioner,

Respondent.

Brief of Alexander Meiklejohn, of Cultural Workers 
in Motion Pictures and Other Arts, and of Mem­
bers of the Professions, as Amici Curiae.

M ax  R a d in ,
2683 Buena Vista, Berkeley, California,

Counsel.
Carey M cW il l ia m s ,

904 Spring Arcade Building,
Los Angeles 13, California,

Of Counsel.

Parker & Company, Law Printers, Los Angeles. Phone MA. 6-9171.



SUBJECT INDEX

PACE

Freedom of expression...................................................................... 12

The meaning of the hearings........................................................  14

The triangle of pressure................................................................ 18

Censorship in modern dress.................................................-.....  21

The illusion of acceptance..!.........................................................  24

Economic subjugation .................................................................. 27

The protection of ideas..............................................................   29

Conclusion 36



TABLE OF AUTHORITIES CITED

Cases. page

Child Labor Tax Case, 259 U. S. 20..............................................  8
McDermott v. Pyle, 5 Parke Cr. (N. Y.) 102.... ..........................  34
Minor v. Happersett, 88 U. S. 162..................................................  29
State v. Taylor, 47 Ore. 455, 8 Ann. Cases 627............................  34
United States v. Butler, 297 U. S. L................    8
United States v. Paramount Pictures, 334 U. S. 131.....   8

Miscellaneous

A Free and Responsible Press (Univer. of Chicago Press), pp.
6-9 ...........................................................................   30

Annals, American Academy of Political and Social Science, No­
vember, 1938, p. 97, Freedom in the Arts................................. 11

Annals, American Academy of Political and Social Sciences, No­
vember, 1938, pp. 210-234, Hartshorne, The German Uni­
versities and the Government...........................................................  23

Annals, American Academy of Political and Social Science, No­
vember, 1947, p. 82, The Motion Picture Industry................... 10

Annals, American Academy of Political and Social Science, No­
vember, 1947, pp. 22, 121, 122-............................... ....................  12

Bramstedt, Dictatorship and Political Police: The Technique
of Control by Fear (Oxford Univer. Press, 1945, p. 137).....  18

Byzantine Revision of the Corpus Juris, the Basilica (b. 60, 17) 17 
Chafee, Free Speech in the United States (1941), pp. 17, 28-30,

154, 366, 529 ff. 545.................................................   11
Digest, Book 48, Title 19, Sec. 18..................................................  34
Hallowell, The Decline of Liberalism as an Ideology (1946),

p. 108 .............................................................................   26
Mirsky, History of Russian Literature (1927), p. 54................... 21
New York Herald-Tribune, December 2, 1947, article by E. B.

White ........................................     34
New York Times, November 26, 1947, 1 :2....................................  17



PAGE

New York Times, April 1, 10, 1949..............................................  21
House of Representatives Report No. 2, 76th Cong., 1st Sess.,

13, 1939 .........................................................................................  8
House of Representatives Report No. 1, 77th Cong., 1st Sess.,

24, 1941  .....................................................................................  8
Sington and Weidenfeld, The Goebbels Experiment: A Study 

of the Nazi Propaganda Machine (Yale Univ. Press, 1943),
Chap. IX, The Cinema in the Third Reich, pp. 211-223...........  25

Variety, Hollywood, April 13, 1949, Vol. 63, No. 28, p. 1...........  21

Statutes

Statute of Treason of 1350 (25 Edw. 3, st. 5, c. 2)...................  34
United States Constitution, First Amendment.....................8, 9, 11

T extbooks

Broom, Legal Maxims (10th Ed. by Kersley, 1939)................... 34
47 Columbia Law Review, pp. 416, 428..........................................  8

3 Encyclopedia of the Social Sciences, p. 291..............................  21
Kenny, Outlines of Criminal Law (15th Ed., 1936), pp. 41-42.... 35
4 Lawyers’ Reports Annotated (N. S.) 417............................... 34

14 University of Chicago Law Review, pp. 256, 267......... .........  29
96 University of Pennsylvania Law Review, p. 399................... 24
58 Yale Law Journal, p. 131.......................................................... 23



IN THE

Supreme Court of the United States
October Term, 1949

No. 248
J o h n  H oward L aw son ,

vs.

U n it ed  S tates of A m er ic a .

Petitioner.

Respondent.

No. 249
D alton  T rum bo ,

vs.

U n it ed  S tates of A m er ic a ,

Petitioner,

Respondent.

Brief of Alexander Meiklejohn, of Cultural Workers 
in Motion Pictures and Other Arts, and of Mem­
bers of the Professions, as Amici Curiae.

The following named cultural workers in motion pic­
tures and other arts and members of the professions, 
respectfully urge the favorable consideration by this Court 
of the pending petitions for writs of certiorari in the 
above entitled cases for the reasons hereinafter set forth:



Alexander Meiklejohn and

F rom t h e  M o tion  P ic t u r e  I n d u st r y :

Sam Albert

Edward P. Bailey 
Sol Barzman 
Robert M. Bassing 
Jeanne Bayless 
Leon Becker 
Laslo Benedek 
Connie Lee Bennett 
Seymour Bennett 
Leonardo Bercovici 
John Berry 
Betsy Blair 
Henry Blankfort 
Michael Blankfort 
Julian Blaustein 
Phoebe Brand 
Irving Brecher 
Llarold Buchman 
Louis Bunin 
Hugo Butler

Morris Carnovsky 
Vera Caspary 
Howland Chamberlin 
Frances Chaney 
Charles Chaplin 
Maurice Clark 
Angela Clarke 
Frederick Cleary 
Franklin Coen 
John Collier 
Richard Collins

Dorothy Comingore 
Burt Conway 
Jeff Corey

Howard Da Silva 
Frank Davis 
Jerome Davis 
Nancy Davis 
Olive Deering 
I. A. L. Diamond 
Howard Dimsdale 
Walter Doniger 
Jay Dratler 
Peggy Dreis 
Howard Duff 
Marjorie Duffy 
Philip Dunne 
Arnaud d’Usseau

Leslie Edgley 
Edward Eliscu 
Guy Endore 
Joseph Eger 
Julius Epstein 
Ross Evans 
Jean Empson

Howard Feldman 
Carl Foreman 
Melvin Frank 
David Fresco 
Hugo W. Friedhofer 
Anne Froelick



— 3—

Jerry Gallard 
John Garfield 
Jody Gilbert 
Augustus Goetz 
Ruth Goetz 
Ivan Goff 
Lee Gold 
S. L. Gomberg 
Frances Goodrich 
Don Gordon 
Hilda Gordon 
Lloyd Gough 
James Gow 
Farley Granger 
Edward Gross 
Margaret Gruen 
Jerry Gruskin

Albert Hackett 
Alvin Hammer 
Louis Harris 
Flarold Hecht 
Sig Herzig 
Rose Hobart 
Arthur Hoffer 
J. Jerry Hoffman 
Tamara Hovey 
John Hubley 
Edward F. Huebsch 
Marsha Hunt 
Ian McLellan Hunter 
John Huston

Paul Jarrico 
Robert Joseph 
Gordon Kahn

Jay Kan ter 
Sol Kaplan 
Robert Karnes 
Roland Kibbee 
Victor Killian 
Mickey Knox 
Arthur Kober 
Howard Koch 
Lester Koenig 
H. S. Kraft

Burt Lancaster 
Burton Lane 
Arthur Laurents 
Will Lee 
Robert Lees 
Gladys C. Lehman 
Isobel Lennart 
Sonya Levien 
Alfred Lewis Levitt 
Melvin Levy 
Norman Lloyd 
Joseph Losey

Louella MacFarlane 
Ben Maddow 
Daniel Geoffrey Homes 

Mainwaring 
Arnold Manoff 
Edward May 
Edwin Justus Mayer 
Gregory McClure 
Kitty McHugh 
Eve Miller 
John Skins Miller 
Frances Millington



4

Elick Moll 
Karen Morley 
Henry Myers

Leonard Neubauer

Mortimer Offner 
Arthur Orloff

Norman Panama 
Jerry Paris 
Dorothy Parker 
Irwin Parnes 
Frank Partos 
Kenneth Patterson 
John Paxton 
Leo Penn 
Nat Perrin 
Lester Pine 
Phillip Pine 
Elise Dufour Pinchon 
Robert Pirosh 
Abraham Polonsky 
Stanley Prager 
Robert Presnell Jr. 
George W. Prior 
Marian Prior

David Raksin 
Elias Reif 
Irving Reis 
Anne Revere 
Frederic Rinaldo 
Ben Roberts 
R. B. Roberts 
Stephen Roberts

Robert Rossen 
Selena Royle 
Irving Rubine 
Stanley C. Rubin 
Shimen Ruskin 
Robert Russell
Waldo Salt 
Ruth Sanderson 
Jack Scher 
Wilton Schiller 
Maxwell Shane 
Victor Shapiro 
Seymour Sheklow 
Art Smith 
Louis Solomon 
Eugene Solow 
Gale Sondergaard 
Jan Sterling 
Donald Ogden Stewart 
John Strauss 
Theodore Strauss 
Jo Swerling
George Thomas 
Cyril Towbin 
Dorothy Tree 
Paul Trivers 
George Tyne
Michael Uris 
Peter Viertel 
Salka Viertel
Robert Wachsman 
Sam Wanamaker 
Joseph Warfield 
Mel Waters



5-

John Weber 
John Wexley 
Lynn Whitney 
Frances Williams 
Mervin Williams 
Michael Wilson 
Richard Wilson 
Robert E. Wilson

F rom O t h e r  A rts 
Murray Abowitz, M.D. 
Gregory Ain 
Harmon Alexander 
Robert E. Alexander 
William Alland 
Jack Agins, M.D.
Georgia Backus 
Rev. Lee H. Ball 
Bernard Baum 
Irving Bieber, M.D.
Stella Bloch
Peter Blume
Alex Blumstein, M.D.
Theodore Brameld
Janet Brandt
John Brown
Cicely Browne
Allan M. Butler, M.D.
Jane Rosen Callender 
Angus Cameron 
Dr. A. J. Carlson 
Harry Cimring, M.D.
Peggy Chantler 
Jerome Chodorov 
Helen F. Clark 
P. Price Cobbs, M.D.

Shelley Winters 
David Wolfe 
William Wyler

Frances Young 
Nedrick Young 
Fred Zimmeman

and  P r o fe ssio n s :
Marc Connelly 
Thomas H. Creighton 
Charles C. Cumberland 
Michael Davidson 
Albert Deutsch 
William E. Dodd 
Harl R. Douglass 
Olin Downes 
W. E. B. DuBois 
Alice Dudley 
Garrett Eckbo 
Robert L. Einer 
David Ellis 
Robert H. Ellis, M.D. 
Jerome Epstein 
Paul S. Epstein 
Tillman H. Erb 
Lincoln Fairley 
Hazel E. Field 
Austin E. Fife 
David Harold Fink, M.D. 
Phyllis Frank 
Lawrence J. Friedman, 

M.D.
Dr. Arthur W. Galston 
Ted Gilien



J. W. Gitt 
Max Goberman 
Sanford Goldner 
Boris Gorelick 
Shirley Graham 
Elliott Grennard 
Victor Gruen 
Rev. Armand Guerrero 
Uta Hagen 
Dashiell Hammett 
E. Y. Harburg 
M. Robert Harris, M.D. 
Kenneth Harvey 
Frances Heflin 
A. A. Heller 
Regina Heller 
Lillian Heilman 
Victor Heyden 
Stefan Heym 
Ira Hirschman 
W. E. Hocking 
Tom Holland 
John R. Holmes 
Ernest A. Hutchinson, 

M.D.
Garson Kanin 
Lilian Kaplan 
Doris Karnes 
George Kast 
Anne Kazarian 
Rev. Albert Wallace 

Kauffman 
Milton Kestenbaum 
John A. Kingsbury 
Raphael Konigsberg 
Peter Jona Korn

Kenneth N. Kripke 
Jean LaCour 
John Latouche 
Jack Levine 
Maxim Lieber 
Irwin Lieberman 
Oliver S. Loud 
Robert J. Lynd 
Norman Mailer 
John Martin 
Molly Mason 
Lownder Maury 
Leo Mayer, M.D.
Samuel D. Menin 
Arnold D. Mesches 
Myron Middleton, M.D. 
Arthur Miller 
Pat Miller 
Virginia Mullen 
Helen Clare Nelson 
Clifford Odets 
Father Clarence Parker 
Erwin Panofsky 
Linus Pauling 
Alexander E. Pennes, M.D. 
Thomas L. Perry, M.D. 
Nels Peterson 
Ralph S. Phillips 
Richard M. Powell 
Alan Reed 
Anton Refreigier 
Carroll H. Richardson 
Wallingford Riegger 
Ben Rinaldo 
Holland Roberts 
Stephen Roberts



Vivian Roberts 
Paul Robeson 
Jack Robinson 
Mary Robinson
O. John Rogge 
Edwin Rolfe 
David Rosen 
Dr. Arthur Rubinstein 
John Sanford 
Elf Scharlin 
Charles Schlein 
Dr. Artur Schnabel 
Max Howard Schoen, 

D.D.S.
Budd Schulberg 
Frederick L. Schuman 
John R. Scotford 
Evelyn Scott 
Prof. William R. Sears 
Ben Shahn 
Felice Shaw 
Seymour Sheklow 
Max A. Sherman, M.D. 
Merle Shore 
Wilma Shore 
Samuel Silver 
John Sloan

Pearl Somner
Rev. F. Hastings Smyth
Raphael Soyer
William Steig
Phillip Stern
Gene Stone
Helen Stone
Burt Styler
Carl Sugar, M.D.
George Tabori 
Mary Tarcai 
Joseph A. Thompson 
Oswald Veblen 
Louis Vittes 
Don Waddilove 
Joseph W. Warfield 
Morris Watson 
Max Weber 
Herbert Weisinger 
Gene Weltfish 
Fritz W. Went 
Frank W. Weymouth 
James Waterman Wise 
Ella Winter 
Angers Wooley 
William Zorach

Convinced that issues of as great importance as any 
with which this court has had to deal of recent years 
are here presented, those responsible for this brief have 
deemed it appropriate to elaborate upon a major social 
issue raised by the appellant which happens to be of spe­
cial concern to them. This issue has to do with the ques­
tion of censorship, first, as it affects rights guaranteed



—8—

to the petitioner by the Constitution of the United States; 
and, second, as it relates to the utilization of governmental 
power by a committee of Congress to impose a censorship 
upon the motion picture industry. However since both 
aspects of the matter are inescapably interrelated, they 
have been dealt with in this brief as presenting a single 
issue,----- censorship. In brief compass, it is our con­
tention :

1. That Congress cannot impose a direct censorship 
upon the motion picture industry since motion pictures 
enjoy the same protection under the First Amendment 
as the press and radio ( United States v. Paramount Pic­
tures, 334 U. S. 131, 166). Any prosecution arising out 
of an effort on the part of Congress to impose a direct 
censorship on the motion picture industry in violation 
of the First Amendment could not, therefore, be sus­
tained. Since Congress cannot impose a direct censor­
ship upon the motion picture industry, it follows that 
Congress cannot accomplish by indirection that which it 
is powerless to accomplish by direct legislation ( United 
States v. Butler, 297 U. S. 1; Child Labor Tax Case, 
259 U. S. 20). On this point it is perhaps sufficient to 
observe that members of Congress have frankly stated 
that one of the main purposes of the House Committee 
on Un-American Activities has been to accomplish by 
exposure and publicity ends which Congress could not 
lawfully accomplish by legislation (see: H. R. Rep. No. 
2, 76th Congress 1st Sess. 13, 1939; H. R. Rep. No. 1, 
77th Congress 1st Sess. 24, 1941; also, 47 Columbia Law 
Review 416 p. 428).

2. That a careful consideration of the record in this 
case will show that the hearings out of which appellant’s



— -9—

conviction for contempt arose involved an attempt by 
Congress to impose a censorship upon the motion picture 
industry in violation of the First Amendment. Since 
any effort by Congress, directly or indirectly, to impose 
a censorship upon the motion picture industry would 
involve an abuse of power, petitioner was not required 
to lend his assistance to the committee’s unconstitutional 
purpose. Furthermore petitioner was doubly justified 
in refusing to assist the committee in this enterprise 
when it became apparent that, as part of its scheme to 
censor the industry, the committee was compelled to use 
its power as an agency of government to censor his 
thinking. In this manner the issue of censorship was 
brought directly home to the petitioner, as a citizen, for 
a surrender of his personal privilege or right would 
necessarily have involved an acquiesence in the scheme 
by which the committee sought to censor the industry.

The development of these contentions requires (1) a 
brief statement of the nature of motion pictures as a 
medium of mass communication and the character of the 
hearings out of which the citation for contempt arose; 
and (2) a consideration of certain features of modern 
political censorships.

* * *

Motion pictures belong in the category of the free arts. 
In a sense, the motion picture is a composite form in 
which all the free arts find expression: dance, drama, 
painting, sculpture, opera, pageant; the plastic and 
graphic as well as the verbal and literary arts. As a 
composite form, the making of motion pictures has an 
influence on the other arts and is in turn influenced by 
developments in these related arts (see: “The Motion



- 10-

Picture Industry,” Annals, American Academy of Pol­
itical and Social Science, November, 1947, p. 82). Motion 
pictures have an extraordinary relevance to the mainten­
ance of the democratic ideal since they are essentially a 
mass medium of communication. The weekly world atten­
dance at motion pictures is estimated at 235,000,000 (An­
nals, supra, p. 1) : the weekly attendance in the United 
States has exceeded 85,000,000 (Hearings, p. 1). In its ef­
fectiveness as a form of mass communication the motion 
picture can only be compared with press and radio; yet, 
as Terry Ramsaye has pointed out, motion pictures exceed 
both press and radio in the degree to which they are 
capable of penetrating “the great illiterate and semi­
literate strata where words falter, fail, and miss” (An­
nals, supra, p. 1). As an educational medium alone, the 
motion picture possesses the utmost actual and potential 
importance (see: Annals, supra, pp. 103-109). Of mo­
tion pictures it has been said that: “Perhaps no other 
industry touches so intimately and significantly the lives 
of so large a proportion of the world’s population. In­
deed, the motion picture is relatively less important as an 
economic institution than as a social institution, function­
ing, with varying degrees of effectiveness and desirability, 
in the transmission of artistic ideas, the portrayal of 
human character and human emotions, the description of 
culture patterns of diverse societal groups, the dis­
semination of information concerning current affairs, and 
the interpretation of individual and social experiences. 
No other industry has so firm and so universal hold upon 
the popular imagination or so complete command of pop­
ular interest” (comments of Dr. Gordon S. Watkins, 
Annals, supra, p. vii). It is precisely the social impor­
tance of motion pictures which invests the issue of cen­
sorship, in this case, with such commanding significance.



11-

Freedom of artistic expression is, of course, embraced 
within the guarantees of the First Amendment (Free 
Speech in the United States by Zechariah Chafee, Jr, 
1941, 17, 28-30, 154, 366, 529 ff., 545); and this freedom 
turns on the freedom to develop and express ideas. The 
birth of an idea and its expression are not two distinct 
processes: an idea is born in the act of expression or 
creation. Freedom to the artist, however, means more 
than mere freedom of expression for it includes all that 
the artist really wants which is a chance to be heard. 
“Certainly,” writes Dr. W. Rex Crawford, “the sym­
phonic composer will find it a hollow freedom that per­
mits him to put what notes he will on paper, if he cannot 
find a conductor who will give his work a hearing. The 
dramatist cannot remain satisfied with reading his bold 
lines and presenting his novel situations to a group of 
friends in his library, if every effort to obtain a theater 
encounters new objections . . . It is small comfort
to have won an architectural contest if the design that 
ranked second is the one the committee chooses to erect” 
(“Freedom in the Arts,” Annals, American Academy of 
Political and Social Science, November, 1938, p. 97). 
This is not to say that society must provide the composer 
with an orchestra, the playwright with a theater, and 
the author with a publisher or stand accused of having 
denied the meaning of freedom in the arts. But it is to 
insist that the artist’s freedom is violated when he is 
denied a chance to have his work heard, regardless of 
its merits, solely because of his political beliefs or affilia­
tions. Under these circumstances it is not merely an 
individual right of expression that is violated; the de­
nial extends to one aspect of the process by which a 
society expresses itself, by which a culture is transmitted, 
by which social change is effected.



FREEDOM OF EXPRESSION.

- 12-

Freedom of expression, in its related meanings, has a 
special significance in the making of motion pictures. 
Cost factors alone severely limit the number and kind 
of “ideas” that find expression in motion pictures. Fur­
thermore motion pictures are at the mercy of a mass 
market of a magnitude and heterogenity unknown to the 
universe of print or radio. It has been said, in fact, 
that “movies are far more dependent upon a mass refer­
endum than are other media of communication” (see, 
Annals, American Academy of Political and Social Sci­
ence, November, 1947, pp. 22, 121, 122). These factors 
more or less inherent in the nature of the medium, have 
been re-enforced by the manner in which the motion 
picture industry has developed as an institution. Because 
motion pictures started as a medium of “amusement” 
and “entertainment,” without any artistic pretensions, the 
industry long sought to cultivate a distinction between 
“entertainment” and “propaganda” as a means of min­
imizing its social obligations and avoiding responsibility 
for the fullest development of the new art form. The 
distinction, of course, is essentially unreal (see, Annals, 
supra, p. 117). Any dramatic presentation which is 
coherent enough to hold the attention and interest of an 
audience is in some degree entertaining; and, conversely, 
the “purest” entertainment film is likely to have hidden 
psychological or social implications. Hence the treatment 
of non-conventional subjects is certain to bring forth 
charges of “propaganda” just as the making of “pure 
entertainment” films will be denounced as an evasion of 
social responsibility. In either case the charge stems 
from the fact that a new art form has not yet been given



— 13—

a real measure of freedom in the selection and treatment 
of ideas and subject matter. For it is obviously absurd, 
and also unfair, to charge the industry with a lack of 
social responsibility—or with political bias—and at the 
same time to deny the industry that measure of freedom 
which alone would stimulate a real sense of responsibility. 
That the industry has been “unregulated” in the past does 
not mean that it has been “free.”

Those who engage in the production of motion pictures 
in a democracy have a clear responsibility to further the 
values upon which such a society is based (a responsi­
bility which derives from the freedom of expression 
which in theory is guaranteed in such a society); but 
dictation, direct or indirect, is utterly at variance with 
the idea of social responsibility. Censorship makes for 
an evasion, not an acceptance, of real social responsibil­
ity. Like the press and radio, the motion picture industry 
is subject to regulation in the public interest; but the 
content and ideas of motion pictures cannot be dictated 
by a congressional committee any more than such a com­
mittee could dictate the editorial policy of the American 
press. The real question we propose to discuss is, there­
fore: Did the appellant’s conviction arise out of an abuse 
of the congressional power of investigation or, stated 
another way, did the committee, in its hearings in this 
matter, seek to impose a censorship upon the American 
film industry?

On this point it is important to note that the hearings 
are entitled: “Hearings Regarding the Communist In­
filtration of the Motion Picture Industry.” At the open­
ing session, the chairman expressly stated that the purpose 
of the hearing was to determine the extent to which



- 14-

Communist influences,—which the chairman carefully 
failed to define,—had infiltrated the motion picture indus­
try in Hollywood (Hearings, pp. 3, 9). Obviously this 
statement had reference not to the question of ownership 
or control but to the question of propaganda. In de­
termining the purpose of the hearing, therefore, it is 
significant that the chairman, with the apparent approval 
of his colleagues, characterized the purpose in such a 
manner as to make it unmistakably clear that the com­
mittee was directly concerned with the content and ideas 
of the American film industry. It would be impossible, ob­
viously, to determine the propaganda content of American 
films without making a systematic examination of the 
output of the industry for a stated period, picture by pic­
ture, story by story, scene by scene.

The Meaning of the Hearings.
The real meaning of the hearings, however, is to be 

found not in the stated purpose but in the actual utiliza­
tion of official power by the committee: what it did as an 
official agency of government, how it proceeded, what it 
accomplished. Although elaborately disclaiming any in­
tention of imposing a censorship upon the industry {Hear­
ings, p. 73), this is precisely what the committee not only 
sought to accomplish but actually succeeded in doing. 
The record is replete with suggestions, advanced by the 
chairman and other members of the committee, that the 
industry should make “anti-Communist” pictures {Hear­
ings, pp. 28, 76, 106, 132, 144, 145, 146, 223, 227, 324). 
Wholly unambiguous, these suggestions were made in a 
tone and manner that carried clear overtones of compul­
sion. The record is also full of suggestions, emanating 
from the chairman and other members of the committee,



— 15—

that the industry should make more pictures “extolling 
the American way of life” (Hearings, pp. 29, 237, 307). 
At the same time the industry was severely criticized 
—and, more important, publicly criticized,—for having 
made certain motion pictures which were discussed, by 
name, at considerable length. It will also be noted that 
the committee discussed with spokesmen for the industry 
specific details having to do with the content and ideas 
of films; references, for example, were made to films de­
picting evil bankers and corrupt congressmen, with the 
clear implication that the committee did not approve of 
such characterizations. The objective of the use of of­
ficial governmental power in all of this was clearly cen­
sorial.

The same abuse of power, moreover, is betrayed in the 
committee’s pre-occupation with the role of the writer 
in the motion picture industry. Not only were the hear­
ings largely concerned with writers, but the committee 
consistently and carefully stressed the importance of 
writers to the purpose of the inquiry (Hearings, pp. 
35, 58, 150, 225). The basis for the committee’s in­
terest in writers is, of course, quite clear. In a com­
posite art form like motion pictures, the writer occupies 
a role or position that is of special interest to the censor. 
Not that the writer is capable of infiltrating propaganda 
into films—the manner in which the industry is organ­
ized makes this a preposterous supposition,— but be­
cause the writer, more directly than the other crafts­
men, is concerned with the content and ideas of motion 
pictures. The “story” is the principal raw material of 
the industry; every production starts with an idea; 
and writers are the principal germinators and developers



16—

of ideas in the industry (see: Annals, supra, pp. 37-40, 
16).

It should also be noted that the committee was con­
cerned not with writers in the abstract but with certain 
writers; moreover, its concern with these writers was most 
specific, namely, it wanted these writers discharged from 
their positions and blacklisted in the industry. The record 
discloses, most significantly, that the industry was re­
luctant to discharge the writers under investigation; it 
was also reluctant to adopt a policy which would be tanta­
mount to a blacklisting of these writers in the industry 
(Hearings, pp. 53, 65, 313, 471, 472). Almost from 
the opening session, the committee brought pressure 
to bear upon the industry spokesmen to force them to 
discharge the writers who had been selected for investi­
gation. At one point the chairman stated: “We hope that 
by spotlighting these Communists you will acquire that 
will,” meaning the will to dismiss the writers under in­
vestigation (Hearings pp. 141-142). This was not one 
of the incidents of the hearings; it was obviously a major 
purpose. Not only was the suggestion repeatedly ad­
vanced that the writers should be dismissed (Hearings 
pp. 49, 50, 53) but at least one member of the com­
mittee kept insisting that the Motion Picture Producers 
Association should blacklist these men in the industry 
(Hearings p. 18). In the context of the hearings, these 
suggestions must be regarded as more than mere casual 
hints or gratuitous recommendations; they carried the 
implied threat of a directly imposed federal censorship 
in case of noncompliance. What the committee clearly 
set out to accomplish was a censorship of the industry 
accomplished through the stratagem of forcing the in­



17-

dustry to discharge a selected group of writers who were 
identified with a point of view and set of ideas of which 
the committee disapproved. A purge of ideas was ac­
complished through a purge of individuals associated or 
identified with these ideas; in effect this type of censor­
ship might be described as symbolic censorship. That the 
committee succeeded in forcing the industry, against its 
better judgment, to discharge the writers under investiga­
tion, is merely another way of saying that it succeeded 
in its strategy of imposing a censorship-by-indirection 
upon the industry (see: New York Times, November 26, 
1947, 1:2).

As the history of German and Italian fascism clearly 
reveals, there can be no more effective censorship of any 
medium of communication than a purge of the individuals 
identified with ideas and points of view which the censors 
want to expurgate. This is not, of course, because the 
individuals selected for the purge are necessarily persons 
of outstanding influence and ability; the purge is intended 
to be symbolic. In the conquest of ideas, the taking of 
ten hostages can in effect approximate the direct suppres­
sion of certain ideas and points of view. This is pre­
cisely what Mr. Stripling had in mind when he asked a 
spokesman for the industry: “Don’t you think the most 
effective way of removing those Communist influences 
. . . . and I say Communist influences; I am not say­
ing Communists; I am not accusing them all of being 
Communists . . . but don’t you think the most effective 
way is the payroll route?” (Hearings pp. 49-50). Seldom 
has there been a more explicit statement of a principle 
basic to the strategy of terror, namely, “you take my life 
when you do take the means whereby I live.”



— 18-

The Triangle of Pressure,

The three main “nerves” which modern censorship 
manipulates, it has been said, are coercion, bribery, and 
persuasion, or, translated into practical policy, terror, 
corruption, and propaganda. “The totalitarian engineers,” 
writes Dr. E. K. Bramstedt (Dictatorship and Political 
Police: The Technique of Control by Fear, Oxford Uni­
versity Press, 1945, p. 137), “either threaten man with 
dangerous insecurity, turning the screw on him by various 
forms of terror, or they promise him a deceptive security 
by the cash value of corruption or the mental opium of 
propaganda. In all these cases they reckon that man 
will eventually prefer the security of complete submission 
to the grave risks of an independent attitude. Many 
advantages of an economic or social kind are promised 
and sometimes granted. The mind of the masses is 
filled with colorful suggestions of what is marked as good 
or bad for them. It is the combination of these three 
agencies which constitutes the mental climate of a dic­
tatorship. Terror, corruption, and propaganda are only 
three different sides of the same triangle, and it is impos­
sible to recognize its geometrical proportions without 
taking all three into consideration. All three aim at 
directing people according to a preconceived pattern of 
thought and action. They reduce them to an attitude of 
docile passivity and make them the mere object of intel­
lectual hypnosis, however subtly applied. Man, when suc­
cessfully approached by any of these three methods, does 
not act but reacts, he does not think but follows a stim­
ulus. At the end he is enchained by fetters of which 
he is often only vaguely aware.” (Emphasis added.)



- 19-

Propaganda by government is a method used to divest 
the people of their right to propagandize. The former 
is destructive of democracy, the latter is necessary to it.

Only those who ignore the unmistakable contemporary 
reality embedded in the analysis just quoted can be blind 
to the fact that the logical and intentional consequence 
of the contempt citations in this case was the censorship 
of a particular point of view and of certain ideas in the 
making of motion pictures and, at the same time, an open 
encouragement of certain other ideas and points of view. 
Had the committee subpoenaed a group of newspaper 
publishers and demanded of them that they discharge 
and blacklist ten editorial writers, all associated with a 
certain point of view, the meaning could not have been 
more unmistakable. To underscore the strategy of the 
hearings, it should be pointed out that the industry did 
in fact adopt a general industry-wide “non-Communist” 
hiring policy. Coupled with the discharge and black­
listing of the ten writers, the adoption of this policy 
constituted the industry’s symbolic acceptance of the un­
stated alternative offered by the committee, namely, 
acquiescence in the plan of censorship which we are sug­
gesting or Congress will adopt a program of direct cen­
sorship.

So far as other writers in the motion picture industry 
are concerned, the effect of the discharge of appellant 
and his colleagues could only be: first, to discourage the 
submission of any plot, story, or theme which might pos­
sibly give rise to an inference that the author was identi­
fied with or sympathetic toward the wide range of ideas 
which the committee insisted that the industry should 
suppress; and, second, to encourage every writer in the



- 20-

industry to submit only those ideas, stories, and themes 
which, by inference, would meet with the approval of the 
committee. The penalty for failure to Comply with this 
general policy of caution can be most severe, namely, 
dismissal from the industry. The fact that writers in 
the industry are well paid (Hearings p. 73)—that the 
prizes for conformity are high—only emphasizes the 
ease with which an indirect censorship has been im­
posed on the industry by a committee of the Congress. 
For there was a dual—although closely related—purpose 
in the strategy of the committee: just as it sought to 
coerce and bribe the writers of the industry so it sought 
to terrorize and corrupt the owners and/or managers 
of the industry. In effect the spokesmen for the in­
dustry were compelled to submit to the will of the com­
mittee as the price to be paid for escaping direct censor­
ship and other forms of harassment including the possi­
bility of further public hearings. And there was, of 
course, a third purpose: namely, propaganda for the mil­
lions who followed'the hearings in the press, on the radio, 
or on the screen.

The plan of censorship devised by the committee has a 
special significance to the individual writer or creative 
artist in our society. In the past, as the Authors League 
of America Inc., has stated in a resolution bearing on 
this case, censorship has commonly “operated only against 
a work produced and issued to the public, and only to one 
work at a time . . . Here, however, we are faced with 
a different form of censorship. Here the man himself 
is proclaimed suspect . . . Indeed, the whole corpus
of a man’s work, past and future, is thus declared sus­
pect” (Hollywood on Trial, p. 146). To emphasize the



— 21-

meaning of this statement, suffice it to say that Twentieth- 
Century Fox Film Corporation, subsequent to the con­
tempt convictions in this case, purchased a story by 
Albert Maltz, one of the writers here involved (New York 
Times, April 1, 1949, April 10, 1949); and then suddenly 
announced, under obvious pressure, that it would not 
produce the story ( Variety, Hollywood, April 13, 1949, 
Vol. 63, No. 28, p. 1), - - an act of cultural vandalism 
in one of its ugliest and crudest forms.

Censorship in Modern Dress.
The full meaning of the hearings out of which appel­

lant’s conviction arose, however, can only be understood 
in terms of the new censorship which has arisen to plague 
our times. Although censorships change as times change 
and new conditions arise, the basic idea of all censorships 
is the same: to protect an authority based on privilege 
by a policy of suppressing ideas and opinions (Vol. Ill, 
Encyclopedia of the Social Sciences, p. 291). Hence the 
scope of most censorships is commensurate with the area 
of privilege under attack. For example, the most rigorous 
of old-style censorships, that of Czarist Russia, left cer­
tain areas of intellectual life open to free inquiry and, 
even as to prohibited fields, was easily evaded (see: A 
History of Russian Literature by Prince D. S. Mir sky, 
1927, p. 54). Within the last quarter century, however, 
a new censorship has arisen which differs in crucially 
important respects from the censorships of the nineteenth 
century.

Since the social crisis, as viewed by the modern censors, 
is now “total,” the scope of the new censorships is all- 
inclusive. Not only has the scope of censorship changed: 
the methods and techniques of suppression have also



-22

changed. The rigor of any censorship will depend on 
many factors, including the relative ease and speed of 
communication. Since nearly anything said or written 
stands a chance nowadays of being heard or read by large 
masses of people, and in a brief period of time, modern 
censorships aim, not merely at preventing or punishing 
the expression of ideas, but at reaching back one step 
further to control the process of thought itself. Here 
the scientific technical apparatus of modern times has 
revolutionized the methods of censorships (see Bram- 
stedt, supra, p. 1.)

The enforcement of conformity has been rightly called 
the beginning of modern dictatorships. Once the process 
is launched it must be systematically extended until the 
last vestige of resistance has been overcome. As Sir 
Frederick Pollock once pointed out, there is nothing more 
vicious or damnable than heresy, that is, if you believe 
in heresy. To those who believe in political heresies, 
there can be no limit to the right of the state to suppress 
so grave an evil. The body politic must be “purged” and 
“cleansed” of all “undesirable” elements and no sooner 
is the first purge effected than it develops that the purging 
process must be continuous. Starting usually with the 
civil service, the purge is rapidly extended to the labor 
movement, the professions, until, in a thorough and 
systematic manner, every social and occupational stratum 
has been coordinated. At this point the party or agency 
in charge of the purge usually undertakes a purge of its 
own ranks so as to further “coordinate” the structure 
of power that is being created in the guise of extirpating 
heresies.



-23—

As rapidly as possible the censorship program is ex­
tended to the entire educational system which is “co­
ordinated” through an attack on the concept of academic 
freedom and a gradual denial, to students and faculty, 
of the right to entertain unorthodox views. In the social 
sciences, objectivity quickly becomes a mirage and eventu­
ally even the most academic disciplines are directed toward 
“the closest possible relationship with the national pol­
itical needs of our people” (Neuman, supra, p. 196; em­
phasis added). The “new” education is based, of course, 
upon a thorough-going proscription of unorthodox be­
liefs and a systematic indoctrination that permeates every 
field of inquiry and instruction. As in other areas of 
social life, this coordination is largely achieved through 
the taking of “hostages.” The coordination of the Ger­
man colleges and universities was brought about by the 
dismissal of probably not more than IS percent of the 
academic teaching staff (see: “The German Universities 
and the Government” by E. Y. Hartshorne, Annals, 
American Academy of Political and Social Sciences, 
November, 1938, pp. 210-234). The key to the success 
of this new technique of the token purge is to be found 
in “the effect that this politicization has on the remaining 
academicians” (Neuman, supra, p. 196). In the civil 
service, as in education, “political reliability” becomes the 
dominant concept. The Nazis brought about a remark­
able “coordination” of the German civil service by the 
dismissal of not more than 10 percent of the bureaucrats 
(see: Yale Law Journal, Vol. 58, p. 131).

As the enforcement of conformity proceeds it becomes 
necessary for the censors to create a “system of interlock­
ing fears” (Neuman, supra, p. 198). In fact the new



— 24-

censorship is to be distinguished from all censorships of 
the past by its use of modern technological innovations to 
bring about an amazingly effective organization of terror 
with what appears to be a minimum show of force and 
violence. Every resource of modern technology is brought 
to bear upon the problem of annihilating the last vestige 
of resistance or opposition. As conformity becomes an 
end in itself—an all-consuming public passion,—distrust 
is practiced as a matter of official policy. Thus the 
suspect is guilty before he is arrested; counter-espion­
age becomes the order of the day; and “loyalty” becomes 
a major obsession. Ostensibly designed to protect the 
government against revolutionary overthrow by “force 
and violence,” the new censorship proceeds by force and 
violence to overthrow the rights of the people.

The Illusion of Acceptance.
Although compelled to use force, the censors are also 

anxious to create the illusion that their dictates are obeyed 
out of the cheerful readiness of a seemingly free people. 
“Every dictatorship,” writes Neuman (supra, p. 203), “is 
eager to create the impression of seeming normalcy essen­
tial not only to visitors from foreign countries but to 
its own citizens.” For this reason, the new controls pro­
ceed by relative indirection; the indirect censorship is 
preferred to direct control. As pointed out in the Uni­
versity of Pennsylvania Law Review, Vol. 96 at p. 399: 
“The pressure has been toward the development of new 
devices, untrammelled by such hard-won protective ele­
ments (as civil rights), devices operating indirectly, 
imposing new sanctions such as economic deprivation in 
place of fine and incarceration. The inclination has been 
to draw within the operation of such techniques those



-25-

persons who, because of their position only on the fringes 
of groups formerly subject to criminal law, could not 
otherwise be brought under governmental control” (em­
phasis added). Among the factors which make the use of 
such indirect techniques feasible is the great extension of 
propaganda facilities. For example, all modern dictator­
ships have been quick to use and control motion pictures 
as part of their propaganda apparatus (see: The Goebbels 
Experiment: A Study of the Nasi Propaganda Machine 
by Derrick Sington and Arthur Weidenfeld, Yale Uni­
versity Press, 1943, Chapter IX, “The Cinema in the 
Third Reich,” pp. 211-223, where it is pointed out, p. 
215, that control of personnel was one of the means used 
to coordinate the industry).

One of the secrets of the success of the new censorship 
is that it is far more brutal and coercive than it appears 
to be; most of its dictates, in fact, rest on implied sanc­
tions. Laws are not needed to limit the right of free 
speech; speech is just as “free” as people feel free to 
speak. The Commission on Freedom of the Press has 
given an unequivocal “Yes” in answer to the question,— 
Is the freedom of the press in danger? Yet no laws 
have been passed which would challenge the right of a 
free press. Indeed the new censorship is an aspect of 
the continued rapid growth of an undemocratic economic 
structure of power in our society and of the encompassing 
insecurity which affects every element in the society, the 
rich as well as the poor. It is this structure of economic 
power which has tended to rob civil rights of real mean­
ing and significance. “Liberalism,” as Dr. John H. Hal­
lowed has reminded us, “was not destroyed by the Nazis 
. . . rather, the Nazis were the legitimate heirs to a



- 2 6 -

system that committed suicide” ( The Decline of Liberal­
ism as An Ideology by Dr. John H. Hallowed, 1946, p. 
108). In fact, liberalism has been steadily undermined 
by the gradual disappearance of individual autonomy and 
initiative in social and economic life. The new censors, 
therefore, do not need to imprison armies; a handful of 
strategically selected hostages, in each group or strata, 
will suffice for their purposes.

“Pressure” is the key word in the vocabulary of the 
new censorship. The entire weight of the economic struc­
ture can be brought to bear, at any threatened point, in 
the effort to enforce conformity. For the initial attack, 
exponents of extreme points of view are usually selected 
since they can be relied upon to offer open and defiant 
resistance to the censors. At the outset it is the in­
transigent, the defiant, witness that the censors elect to 
degrade and silence, not because this witness is regarded 
as particularly “dangerous” but because his humiliation 
will have greater symbolic (i. e. propaganda) value than 
would the humiliation of a less defiant non-conformist. 
It is not the deeds but the mental attitude of this witness 
that invests him with importance in the eyes of the censor 
(see: Bramstedt, supra, p. 25). Once the strategic host­
ages have been selected, every variety of pressure,— 
coercion, bribery, and persuasion,—is brought to bear 
to force them to recant. In fact recantation is the real 
objective of the inquisition. For the new censorship 
must convert or destroy; it feels menaced by silence. Set 
in motion at the top, the pressures aimed at securing total 
conformity are systematically applied throughout every 
social and occupational strata. The prelude to recantation 
is the breaking of the will to resist and resistances are



-27—

broken by myriad and convergent pressures. The aim of 
Foche, the dreaded Minister of Police under Napoleon I, 
as Bramstedt has pointed out, was “not so much the 
annihilation of the caught bird, but the catching of others. 
He did not believe so much in violent punishment, but in 
enforced enlightenment. The prisoner could improve his 
own position by enlightening the eager police . . .  all 
the worse for him if he failed to realize his own interest” 
(supra, p. 24).

Economic Subjugation.
Economic subjugation is, of course, one of the most 

effective pressures for conformity in our society. If the 
recusant witness is a writer, do not bother to burn his 
books (a book-burning might call attention to the en­
croachment on civil rights); simply blacklist him with 
editors and publishers. Make it difficult for him to com­
municate with his audience and dangerous for his audience 
to communicate with him. Convey to him by a thousand 
suggestions, often subtle, always brutal, an awareness of 
the fact that certain themes are regarded as “subversive.” 
Dangle rich prizes for conformity before his eyes and 
rely upon enlightened self-interest to police his thoughts. 
Make it impossible for him to earn a livelihood by his 
craft if he fails to conform. Destroy his self-confidence. 
Create such an atmosphere of hostility toward him that 
even his children will be shunned by the children of con­
formists. If he is a clergyman, talk to his trustees. If 
he is a lawyer, pressure his clients to pressure him. 
Through skillfully directed propaganda, make this 
recusant witness a social and moral pariah in the com­
munity. Label him; smear him; force him to recant; 
or, indirect pressures failing, destroy him. But, all the



- 28-

while, be at great pains to deny that any “punishment'' 
is being inflicted or that any ostracism is intended. Cam­
paigns of this character can be organized without the 
enactment of a single statute infringing civil rights. For 
the undemocratic structure of economic power is used to 
provide the unvoiced threat, the unstated sanction, that 
can convert a “hint” into a command, a suggestion into 
a threat.

Those on whose behalf this brief is filed have read the 
record of the hearings out of which this prosecution arose 
with a feeling of deep shame and outrage. From first 
to last the record is one that reflects no credit on American 
institutions or ideals. We refer not merely to the ob­
jectives of the committee but to the manner and method, 
the tone and temper of the hearings. There was no 
“hearing” in this matter within any rationally defined 
meaning of the term; what took place was more in the 
nature of an ideological lynching, a form of psycholog­
ical warfare conducted on grossly unequal terms. Every 
effort was made to humiliate appellant, ostensibly a mere 
witness before the committee; to focus an image of him 
on the mirror of American public opinion of such calcu­
lated distortion as to make him an object of universal 
hatred and contempt. Indicative of the committee’s sense 
of fairness is the fact that it brought a parade of 
“friendly” witnesses to the stand and permitted and en­
couraged these witnesses to defame appellant and his 
colleagues without giving the latter any opportunity to 
protect their reputations. No opportunity whatever was 
offered the appellant to cross-examine these witnesses or 
to call witnesses in his own behalf or to make a state­
ment. The more violent and abusive the friendly wit-



- 29-

nesses became, the more the committee beamed its ap­
proval. All the facilities of press, radio, and motion 
pictures were enlisted to make the humiliation of the 
appellant a nationwide spectacle (see: 14 University of 
Chicago Law Review 256, p. 267).

The proceedings out of which this prosecution arose 
are poisoned with a bigotry and petty malice that, even 
in the brief span of time that has elapsed since the hear­
ings, incites utter amazement and incredulity. It is, 
indeed, hard to believe that it was a committee of the 
Congress of the United States which conducted this 
witch-hunt. As Chief Justice Waite pointed out in Minor 
v. Hap per sett [88 U. S. 162]: “Allegiance and protec­
tion are reciprocal obligations. The one is a compensation 
for the other; allegiance for protection and protection for 
allegiance.” But here a committee of the Congress with­
drew the protection of due process from a group of citi­
zens of the United States in the course of an inquiry 
into their allegiance to the government,----- a most un­
pleasant spectacle to recall, even in retrospect.

The Protection of Ideas.
We are not so much concerned, however, with the lack 

of due process in the hearings or the personal injustice 
done appellant, as we are with the threat of censorship 
implicit in this proceeding, the censorship not only of a 
most important medium of mass communication but of the 
thought-processes of every craftsmen connected with mo­
tion pictures. Still more are we concerned with this 
censorship as it constitutes a denial that the American 
people are capable of self-government. The guarantees 
of the First Amendment secure a public purpose as well 
as a private right and the public purpose has nowhere



•30—

been more clearly stated than in the Report of the Com­
mission on Freedom of the Press (A Free and Respon­
sible Press, University of Chicago, 1947, pp. 6-9):

“Freedom of the press is essential to political lib­
erty. Where men cannot freely convey their thoughts 
to one another, no freedom is secure. Where free­
dom of expression exists, the beginnings of a free 
society and a means for every extension of liberty 
are already present. Free expression is therefore 
unique among liberties: it promotes and protects all 
the rest. It is appropriate that freedom of speech 
and freedom of the press are contained in the first 
of those constitutional enactments which are the 
American Bill of Rights.

Civilized society is a working system of ideas. It 
lives and changes by the consumption of ideas. 
Therefore it must make sure that as many as pos­
sible of the ideas which its members have are avail­
able for its examination. It must guarantee freedom 
of expression, to the end that all adventitious hind­
rances to the flow of ideas shall be removed. More­
over, a significant innovation in the realm of ideas is 
likely to arouse resistance. Valuable ideas may be 
put forth first in forms that are crude, indefensible, 
or even dangerous. They need the chance to develop 
through free criticism as well as the chance to sur­
vive on the basis of their ultimate worth. Hence 
the men who publish ideas require special protection.

*  *  *

Across the path of the flow of ideas lie the exist­
ing centers of social power. The primary protector 
of freedom of expression against their obstructive 
influence is government. Government acts by main­
taining order and by exercising on behalf of free 
speech and a free press the elementary sanctions



— 31

against the expressions of private interest or resent­
ment: sabotage, blackmail, and corruption.

But any power capable of protecting freedom is 
also capable of endangering it. Every modern gov­
ernment, liberal or otherwise, has a specific position 
in the field of ideas; its stability is vulnerable to 
critics in proportion to their ability and persuasive­
ness. A government resting on popular suffrage is 
no exception to this rule. It also may be tempted 
—just because public opinion is a factor in official 
livelihood—to manage the ideas and images entering 
public debate.

If freedom of the press is to achieve reality, 
government must set limits on its capacity to inter­
fere with, regulate, or suppress the voices of the 
press or to manipulate the data on which public 
judgment is formed.

Government must set these limits on itself, not 
merely because freedom of expression is a reflection 
of important interests of the community but also 
because it is a moral right. It is a moral right be­
cause it has an aspect of duty about it.

It is true that the motives of expression are not 
all dutiful. They are and should be as multiform 
as human emotion itself, grave and gay, casual and 
purposeful, artful and idle. But there is a vein of 
expression which has the added impulsion of duty, 
and that is the expression of thought. If a man is 
burdened with an idea, he not only desires to express 
it; he ought to express it. He owes it to his con­
science and the common good. The indispensable 
function of expressing ideas is one of obligation 
—to the community and also to something behind 
the community—let us say to truth. It is the duty 
of the scientist to his result and of Socrates to



— 32—

his oracle; it is the duty of every man to his own 
belief. Because of this duty to what is beyond the 
state, freedom of speech and freedom of the press 
are moral rights which the state must not infringe.

The moral right of free expression achieves a 
legal status because the conscience of the citizen is 
the source of the continued vitality of the state. 
Wholly apart from the traditional ground for a free 
press—that it promotes the ‘victory of truth over 
falsehood’ in the public area—we see that public 
discussion is a necessary condition of a free society 
and that freedom of expression is a necessary con­
dition of adequate public discussion. Public dis­
cussion elicits mental power and breadth; it is es­
sential to the building of a mentally robust public; 
and, without something of the kind, a self-gov­
erning society could not operate. The original source 
of supply for this process is the duty of the indi­
vidual thinker to his thought; here is the primary 
ground of his right.

This does not mean that every citizen has a moral 
or legal right to own a press or be an editor or have 
access, as of right, to the audience of any given 
medium of communication. But it does belong to 
the intention of the freedom of the press that an 
idea shall have its chance even if it is not shared by 
those who own or operate the press. The press is 
not free if those who operate it behave as though 
their position conferred on them the privilege of 
being deaf to ideas which the processes of free speech 
have brought to the public attention.” (Emphasis 
added.)

In this country we have never acquiesced in the proposi­
tion that persons could be punished for their beliefs any 
more than we have approved the theory that beliefs per se



- 33-

can be banished from men’s minds by fear or compulsion. 
Belief is a domain that lies beyond speech and statement. 
Freedom of speech and of press are indispensable aspects 
of self-government; but freedom of belief rests on our 
concept of the moral freedom of the person. We have 
always insisted that the person must be regarded as 
morally free since only by this insistence are we justified 
in drawing the inference of responsibility upon which 
the theory of self-government rests. Under our system 
of government, therefore, we do not reject a policy by 
arresting the persons who have proposed it. “The essence 
of our political theory,” writes Mr. E. B. White (New 
York Herald-Tribune, December 2nd, 1947), “in this 
country is that a man’s conscience shall be a private, not 
a public affair, and that only his deeds and words shall 
be open to survey, to censure and to punishment. The 
idea is a decent one, and it works. It is an idea that 
cannot safely be compromised with, lest it be utterly 
destroyed. It cannot be modified even under circum­
stances where, for security reasons, the temptation to 
modify it is great . . . One need only watch totali­
ta rian  at work to see that once men gain power over 
other men’s minds, that power is never used sparingly and 
wisely, but lavishly and brutally and with unspeakable 
results. If I must declare today that I am not a Com­
munist, tomorrow I shall have to testify that I am not a 
Unitarian. And the day after that I have never belonged 
to a dahlia club. It is not a crime to believe anything at 
all in America.”



— 34—

The American tradition, in this respect, merely follows 
the established maxim of the law which runs Cogitationis 
poenam nemo meretur (“No one deserves punishment for 
his thought” ). In one form or another this maxim oc­
curs in all the standard collections of maxims, including 
the one of Broom (10th ed. by Kersley, 1939). It is cited 
as an authoritative statement of law in our courts. Cf 
McDermott v. Pyle, 5 Parke Cr. (N. Y.) 102; which 
again is cited for this maxim in State v. Taylor, 47 Ore. 
455, 8 Ann. Cases 627; 4 L. R. A. N. S. 417.

The maxim is derived from the Corpus Juris of Jus­
tinian. It appears in the Digest, Book 48, Title 19, Sec. 
18, and is there quoted from the great jurist, Ulpian, who 
died in 228 A. D. It was regarded as sufficiently im­
portant so that, brief as it is, it forms a section of the 
title by itself. It was repeated in the Byzantine revision 
of the Corpus Juris, the Basilica (b. 60, 17), put to­
gether in the ninth century. The Glossators of the thir­
teenth century note it particularly and cite other illus­
trations. It is a well-known fact that these Glossators 
exercised a considerable influence on the founders of the 
common law, especially on Bracton.

Even in the common law of treason, where it has been 
frequently declared that there is an exception to this prin­
ciple, because under the Statute of Treason of 1350 (25 
Edw. 3, st. 5, c. 2) “imagining” or “compassing” the 
death of the King was included, it has been pointed out 
that the statute itself—which in part has been taken over 
into the Constitution of the United States—demands quite



■35

explicitly an overt act as proof of the “imagining” and 
“compassing.” And in the revival of the statute in the 
first year of Mary (1553) there is an express denuncia­
tion, in the preamble, of those who punish people for 
words alone “without fact or deed.” The notion that 
thoughts could be punished, without even words, would 
have been abhorrent even during the quasi-absolutism of 
the Tudors. Cf. Kenny, C. S. Outlines of Criminal Law, 
15th ed. (1936) 41-42.

The maxim cogitationis poenam nemo merehir was 
widely quoted by civilians and canonists. Every now 
and then it was uneasily explained away by some jurists 
in their eagnerness to carry out the arbitrary decrees of 
their masters. But the great majority pointed out that 
these “interpretations” were perversions. The maxim 
was not a casual assertion; on the contrary, it was placed 
in a deliberately conspicuous position in the Digest title 
called, “On Punishment,” which dealt with the theory and 
practice of punishment under the law. It is worthy of 
note that in a dictionary of canon and civil law of 1759, 
edited by Bynkershoek, the maxim is quoted with the con­
cluding words coram terreno tribunals, “before an earthly 
tribunal.” The suggestion is made, therefore, that before 
a heavenly tribunal thoughts might be punishable. Wheth­
er or not the Committee on Un-American Activities of the 
House of Representatives feels that it can claim a standing 
higher than that of an earthly tribunal we need not con­
jecture but we may assume that this Court makes no 
such pretension.



-36-

Conclusion.

Concerned as we are with the social implications of the 
issues in this case, we most respectfully urge the court 
to decide these issues upon the basis of broad principle 
and in a manner that will provide a real guide to American 
policy. A reversal of the petitioner’s conviction will not 
necessarily settle the issue discussed in this brief but a 
reversal based upon the guarantees of the First Amend­
ment would go far toward arresting the trend toward 
censorship of thought and opinion of which this case is 
a most significant manifestation. In the last three decades, 
this court has vindicated and upheld the guarantees of the 
First Amendment in a manner and with a courage that 
is quite beyond praise. Now the court is being asked, 
in this case, to vindicate these same guarantees against 
encroachment by the federal Congress in an abuse of the 
important power of investigation. We can appreciate 
the seriousness of the issue which is thus presented to the 
court but we are convinced that the mere fact that the 
transgressor in this instance happens to be a committee 
of the Congress will not blunt the force of the precedent 
with which this court has upheld the American Bill of 
Rights.

M ax  R a d in ,
Counsel.

Carey M cW il l ia m s ,
Of Counsel.





Service of the within and receipt of a copy
thereof is hereby admitted this...............day of
September, A. D. 1949.



THE HOLLYWOOD TEN

1574 CRO SSRO ADS OF THE WORLD

HOLLYWOOD 28, CALIFORNIA



I support the Brief of Alexander Meiklejohn and Carey McWilliams sub­
mitted to the Supreme Court in the cases of John Howard Lawson and 
Dalton Trumbo.

Name___________________________________________ _

Address_________________________________________

Profession_______________________________________

I wish to receive all of the published material relating to the cases of The 
Hollywood Ten. Q

Send me---------------------copies of this Brief to distribute among men and
women in the fields of the Arts, Sciences and Professions.

I will undertake to present a resolution in support of this Brief to the 
cultural organization listed below—and will notify you of its passage,

(Name of Org.)----------------------1________________ ____

I wish to make a contribution of $----- «L» 00---- -------, for the publication
program of The Hollywood Ten, which you will find enclosed.