Lawson v. United States of America Petition for Writ of Certiorari

    IN THE

Supreme Court of the United States
October Term, 1949. 

No. 248

J o h n  H o w a r d  L a w s o n ,
Petitioner, 

vs.

U n i t e d  S t a t e s  o f  A m e r i c a ,
Respondent.

Petition for Writ of Certiorari to the United States 
Court of Appeals for the District of Columbia.

ROBERT W. KENNY,
629 South Hill Street,
Los Angeles 14, California,

Attorney for Petitioner.

Of Counsel:
CHARLES H. HOUSTON,

Washington, D. C.
BARTLEY C. CRUM,

New York, N. Y.
MARGOLIS AND M cTERNAN,

By Ben Margolis and William Murrish,
Los Angeles, California.

CHARLES J. KATZ,
Los Angeles, California.

MORRIS E. COHN,
Los Angeles, California.

W OLF, POPPER, ROSS AND WOLF,
By Martin Popper,
New York, N. Y., and 
Washington, D. C.

SAMUEL ROSENWEIN,
New York, N. Y.

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



SUBJECT INDEX

PAGE

Statement of matter involved.............................. ........................... . 2

Statement as to jurisdiction.................................................. ............... 20

Statutes involved .................................................................................... 20

Questions presented ...........................................    23

Reasons for granting the writ....................................  27

I.
The Committee’s utilization of congressional power, as an agency 

of government, to compel disclosure of private political opin­

ion and association is forbidden: (a) by the First, Fourth

and Fifth Amendments as unwarranted invasion into the pri­

vate rights of individuals, and (b ) by the Ninth and Tenth 

Amendments as unwarranted invasion into the area o f gov­

ernmental powers reserved exclusively to the sovereign people 36

A. The Committee’s utilization of congressional power, as an 

agency of government, to compel disclosure of private 

political opinion and association is forbidden by the 
First, Fourth and Fifth Amendments as unwarranted in­

vasion into the private rights of individuals...................... 36

(1 ) The oath ex officio...........................................................  37

(2 ) The right of the individual to be let alone with re­

spect to his beliefs and associations.......................... . 43



11.

B. The Committee’s utilization of congressional power, as an 

agency of government to compel disclosure of private 
political opinion and association, is forbidden by the 

Ninth and Tenth Amendments as an unwarranted inva­

sion into the area of governmental power reserved ex­

PAGE

clusively to the sovereign people.............................................  51

(1) Petitioner’s position ................................... ....................  51

(2 ) The opinion below.................. .........................................  55

II.
This particular inquiry into the Hollywood motion picture in­

dustry lay entirely outside the lawful bounds of the power of 

the House Committee because it constituted a censorship of 

the content of motion pictures and thereby violated the First 

Amendment ... ...................................................... _...........................  61

III.

The Committee as an agency of government used its powers 

under Section 121 of legislative Reorganization Act of 1946 
to impose a blacklist against the petitioner and other named 

individuals, and thereby placed itself above the Constitution 

and disregarded the elementary requirements of due process 

of law in that: (1 ) It usurped the power to legislate con­
fided by the Constitution to the concurrent action of both 

Houses of Congress and the President; (2 ) It exercised 

such power in a manner prohibited even to the entire legis­

lature; (3 ) It invaded the area delegated exclusively to the 
judiciary; and (4 ) It exercised such judicial power in a 
manner prohibited even to the judiciary.......................... ............. 69



111.

IV.
The statute creating the House Committee on Un-American A c­

tivities on its face and particularly as construed and applied is 
unconstitutional in that: (1 ) It permits investigation of,

and as construed and applied has been used to investigate, 
the content of speech and ideas, an area in which no legisla­

tion is possible thereby exceeding the boundaries of legislative 

power under Article I of the Constitution; (2 ) It permits 

the very process of investigation to be used, and as generally 

construed and applied it has been used, to expose and stigma­

tize the content of any and all speech and ideas disapproved 
by the members of the Committee, thereby impeding and plac­

ing a burden upon free thought, speech and association in 

violation of the First, Ninth and Tenth Amendments, and

(3 ) The statute is so vague and ambiguous that, as applied 

in a criminal case, it violates the First Amendment and the 
due process clause of the Fifth Amendment....... .................... . 77

V.

The trial court committed numerous prejudicial errors and 
denied petitioner a fair trial under the Sixth Amendment by 

its rulings, instructions and comments........................................... 88

A. The Subcommittee before which petitioner appeared was 

not shown to be a lawfully constituted tribunal, and the 

trial court committed prejudicial error by reason of its 
rulings and instructions which prevented the jury from 

considering this fact in reaching its verdict..................... 88

PAGE



iv.

B. The charge of the court that (a ) a non-responsive reply,

or (b ) a reply that seems unclear to the jury is per se 

conclusive proof of a refusal to answer, and the com­

ments of the court to the effect that petitioner was not 

trying to answer the question constituted prejudicial 
error ................. ..........................................................................  95

C. The trial court committed prejudicial error in refusing to

permit cross-examination of the principal prosecution 
witness, J. Parnell Thomas................................ .....................101

D. The court committed prejudicial error in excluding peti­

tioner’s evidence that the Committee failed to certify to 

the House of Representatives all of the material facts 
relating to the alleged failure to answer............................ ....104

E. Utilization of government employees as jurors in this
particular case involving the House Committee on Un- 

American activities as the governmental agency directly 

interested in the prosecution, constituted prejudicial 

error ....................................'........................................................ 105

F. The trial court erred in denying petitioner’s challenge and
motion to dismiss the jury panel in that ( 1) the use of 

questionnaire containing the question whether the pros­

pective juror holds any “ views opposed to the American 
form of government” was improper and invalidated the 

jury panel, particularly in the present case, and (2) the 

petitioner’s right to an impartial jury drawn from a 
cross-section of the community was abrogated by the 
establishment of qualifications for jury service other than 

those required by statute and which limited the represen­
tative character of the jury..................................................... 108

PAGE



V.

TA B LE  OF A U T H O R ITIE S CITED

Cases page

Arine v. United States, 10 F. 2d 778...............................................103
Barnes, Matter of, 207 N. Y. 108..... ........................................11. 45
Barsky v. United States, 167 F. 2d 241...................................... 59, 68
Bihn v. United States, 328 U. S. 633...............................................  99
Bollenbach v. United States, 326 U. S. 606'............................ 100, 103
Bowe v. Commonwealth, 320 Mass. 230.............................. ............  51

Boyd v. United States, 116 U. S. 616.............................. ....32, 43, 48

Bridges v. California, 314 U. S. 252...................... ..42, 52, 54, 57, 68
Bridges v. Wixen, 326 U. S. 135................................................. 51, 59
Brown v. Baskin, 78 Fed. Supp. 933..... .......... ..............................  42
Cantwell v. Connecticut, 3101 U. S. 296.....................................   52

Carter v. Carter Coal Co., 298 U. S. 238.........................................  81
Catlette v. United States, 132 F. 2d 902...........................................  71
Chapman, In re, 166 U. S. 661....... .......... .................... .............32, 104

Christoffel v. United States, No. 528, Oct. Term 1948, decided
June 20, 1949......................................................... 33, 34, 90, 91, 93

Cline v. Frink Dairy Co., 274 U. S. 445......................................... 87
Coffin v. United States, 156 U. S. 432.—..............    47
Coleman v. Miller, 307 U. S. 456.....................................................  94
Crawford v. United States, 212 U. S. 193....... .......................... ....107

Cummings v. Missouri, 71 U. S. 277............................ 40, 42, 63, 71
De Jonge v. Oregon, 299 U. S. 353...... ...................................... 51, 52

Edward’s case, 13 Co. Rep. 9, 77 Eng. Rep. 1421........................  38
Estep v. United States, 327 U. S. 114............................................. 76
Federal Trade Commission v. American Tobacco Co., 264 U.

S. 298 ....................................................... .........................................  58
Fields v. United States, 164 F. 2d 97, 82 U. S. App. D. C. 354.. 96 
Fleishman v. United States (U . S. C. A.-D. C. No. 9852, de­

cided April 8, 1949, Govt. Petition for cert., No. 838, Oct. 
Term, 1948) .................. ..................................................................... 93



VI.

Frankfeld, Ex parte, 32 Fed. Supp. 915............................................ 32
Gideon v. United States, 52 F. 2d 427....  109

Gitlow v. New York, 268 U. S. 652................................................  52
Glasser v. United States, 315 U. S. 60..................................... 110

Greenfield v. Russell, 292 111. 392.....................................................  32

Grosjean v. American Press, 297 U. S. 233..............54, 62, 63, 86
Hague, Ex parte, 150 Atl. 322........................................................ . 45

Hannegan v. Esquire, 327 U. S. 146........................... ...................61, 63
Harriman v. Interstate, 211 U. S. 407.............................................  32

Harris v. United States, 331 U. S. 145........ .................................  34
Hearst v. Black, 87 F. 2d 68............................ ............ ....................  32
Herndon v. Lowry, 301 U. S. 242....... ........................... ............ . 52
Interstate Commerce v. Brimson, 154 U. S. 447........................ . 32
Jones v. Opelika, 319 U. S. 103................................................... 53, 63
Jones v. S. E. C„ 298 U. S. 1...............................................32, 48, 76
Kansas v. Colorado, 206 U. S. 46................   81, 82
Kilbourne v. Thompson, 103 U. S. 164.......................................31, 58
Kovacs v. Cooper, 93 L. Ed. (Adv. Op.) 379..............................  79
Kraus v. United States, 327 U. S. 614.................... ......................... 99
Kwock Jan Fat v. White, 253 U. S. 454.......................................104

Leubuscher v. Commissioner, 54 F. 2d 998..................................... 79
Marshall v. Gordon, 243 U. S. 521....... ...........................................  32

Martin v. Hunter’s. Lessee, 1 Wheat. 304....................................52, 81
McCulloch v. Maryland, 4 Wheat. 316.......................................52, 81
McGrain v. Daugherty, 273 U. S. 175...........................32, 45, 76, 82
Meyers v. United States, 171 F. 2d 800...........................................  90

Murdock v. Pennsylvania, 319 U. S. 105................ .............53, 54, 63
Murphy and Glover Test Oath Cases (1867), 41 Mo. 340.......... 40
Near v. Minnesota, 283 U. S. 697.............................. .....................  66
Newport Bridge Co. v. United States, 105 U. S. 470................ 52

PAGE



Niznick v. United States, 173 Adv. F. 2d 328.......................... 75, 76
Olmstead v. United States, 277 U. S. 438....................................  45
Pacific Railroad Commission, 32 Fed. 241.............................. ........  31

Parker v. County of Los Angeles, Oct. Term 1949, No. 49.......... 28
Patton v. United States, 281 U. S. 276.............................................100
People v. Cleveland, 271 111. 226, 110 N. E. 843........................  94

People v. Webb, 5 N. Y. Supp. 855................ .................................  45
Quercia v. United States, 289 U. S. 469........................................ 100
Respublica v. Gill, 3 Yates 429, 161 U. S. 633............................  42

Schechter v. United States, 295 U. S. 495..................................... 82
Schneiderman v. United States, 320 U. S. 118........... 51, 52, 59, 80

Screws v. United States, 325 U. S. 91.......................................71, 76
Shelley v. Kraemer, 334 U. S. 1................................... .................... 78
Sinclair v. United States, 279 U. S. 263..... ............ ...... ................ 58
Sinclair v. United States, 279 U. S. 747.............................. ........ . 32

Smith v. Texas, 311 U. S. 128...................... .....................................110

State ex rel. School District of Afton v. Smith, 336 Mo. 703,
80 F. 2d 858....................................................................................... 94

Thiel v. Southern Pacific Co., 328 U. S. 217.............................. 110

Thomas v. Collins, 323 U. S. 516............51, 52, 53, 54, 57, 79, 83
Thornhill v. Alabama, 310 U. S. 88.............................. 53, 66, 83, 84

United States v. Ballard, 322 U. S. 78............................................  79
United States v. Ballin, Joseph & Co., 44 U. S. 1....................  91
United States v. Butler, 297 U. S. 1................................................  81
United States v. Classic, 313 U. S. 299.................................... 71, 76
United States v. Curtis, 107 U. S. 671, 27 L. Ed. 534.............  94
United States v. Dennis, cert, granted June 27, 1949, No.

436 ...................................................................................... 34, 105, 107
United States v. Harris, 106 U. S. 629......................................... 81
United States v. Lovett, 328 U. S. 303......................71, 72, 76, 78
United States v. Murdock, 290 U. S. 392.............................. 96, 100

vii.

PAGE



PAGE

United States v. Norris, 300 U. S. 564.....................................32, 90
United States v. Paramount, 334 U. S. 131........ .........................  61

United States v. Reese, 92 U. S. 214.............................................  87
United States v. Seymour, 50 Fed. 2d 930..................................... 90

United States v. Smith, 286 U. S. 6.............................................  94
United States v. Trierweiler, 52 Fed. Supp. 4..............................  71
Watts v. Indiana, No. 610, Oct. Term, 1948................................  40
West Virginia v. Barnette, 319 U. S. 624.......................... 33, 55, 83
Whitney v. California, 274 U. S. 357...............................................  52
Wilson v. United States, 149 U. S. 60.............................................  39
Winters v. New York, 333 U. S. 507.................................. ............. 87
Yick W o v. Hopkins, 118 U. S. 356...........................................52, 84

M iscellaneous

Chafee, Free Speech, p. 529....... ........................................................ 62
Congressional Globe, 29th Cong., 1st Sess., 1845-46, App. p.

455 ............................................................  50
Congressional Globe, 34 Cong., 3rd Sess., 439, 440, Jan. 23,

1857 ....................................................   31
Congressional Record, Nov. 24, 1947, p. 10890............................... 10
Dimock, Congressional Investigating Committees, pp. 161, 162,

163 ...............................   32
Executive Order No. 9835—...................    .....106

Funk and Wagnalls International Dictionary (1935 E d.), p.
1985 .................................................................................    79

House of Representatives Rep. No. 2, 76th Cong., 1st Sess.,
13 (1939) ...............................................    82

House of Representatives Rep. No. 1, 77th Cong., 2nd Sess.,
16 (1940) ........................................................................................... 82

House of Representatives Report No. 2742, 79th Cong., 2nd
Sess., 16 (1940) ...............................  82

Lea, History of the Inquisition, pp. 400, 405................................... 37

viii.



IX.

Maguire, Attack of the Common Lawyers on the Oath Ex 
Officio, in Essays in History and Political Theory, Harvard
(1936), p. 199 ................................................................................... 38

McGeary, The Developments of Congressional Investigative
Power, p. 104................................................ ......................................  83

New York Herald-Tribune, Dec. 2, 1947, White..........................  SO
Report of the Joint Committee on the Organization of Con­

gress— pursuant to House Cong. Res. 18— Rep. No. 1011
in Sec. 1, Subd. 6..............................................................................  91

Swisher, Stephen J. Field, Craftsman of the Law (Wash.
1930), p. 152....................................................................................... 42

25 W ho’s Who, 1948, p. 1436....................    2

Woodley, Thaddeus Stevens (Pa. 1934).................................... 48, 49

H oly Bible

Matthew 2 6 :33 ....................................................................................... 48

Statutes

Act of Aug. 22, 1935, Chap 605 (49 Stats. 682)....................... . 22
Act of June 22, 1938, Chap. 595 (54 Stats. 942 ; 2 U. S. C.,

Sec. 194) ...... 104
Act of June 25, 1948, Chap. 646 (62 Stats. 869, 28 U. S. C.,

Sec. 1254, Subsec. 1 ) .......................................................................  20

Code for the District of Columbia, Title X I, Sec. 1417......... 22, 108
Legislative Reorganization Act of 1946, Sec. 121..............16, 88, 91
Legislative Reorganization Act of 1946, Sec. 121(b) (P . L. 601, 

Chap. 753, 79 Cong., 2d Sess., 60 Stat. 828, amends Rule 
X I (1 ) (2 )  of Rules of the House of Representatives)—.21, 78, 82

PAGE

Legislative Reorganization Act of 1946, Sec. 133(b)..... ............  94
Public Law 601......................................................................................  30

Revised Statutes, Sec. 102 (Chap. 594, Act of June 22, 1938,
52 Stat. 942, U. S. C., Title II, Sec. 192)............................ 1, 20

Rules of the Supreme Court, Rule 38, par. 7..................................  2



X.

United States Code, Title 2, Sec. 192.......................... .....................  31

United States Constitution, Art. I, Sec. 9 ...... ....................... ..24, 25
United States Constitution, First Amendment..............................

................ .......................... 4, 24, 25, 32, 36, 44, 45, 58, 60, 79, 87

United States Constitution, Fourth Amendment....... 24, 25, 36, 44

United States Constitution, Fifth Amendment—.............................
....... ................. ............................................24, 25, 36, 39, 44, 71, 87

United States Constitution, Sixth Amendment..............................  26
United States Constitution, Ninth Amendment........................24, 25
United States Constitution, Tenth Amendment  ....... ..........24, 25

T extbooks

34 American Bar Association Journal, p. 15........... ....................  27

21 American Political Science Review, p. 47, Galloway, In­
vestigative Function of Congress...............................................  83

1 Baylor Law Review, p. 212..................    27

4 Blackstone’s Commentaries, pp. 325-327......................    43

47 Columbia Law Review, p. 416.................................  27

33 Cornell Law Quarterly, p. 565—..................   27

2 Cooley, Constitutional Limitations, 8th Ed., p. 886.............. 62
1 de Tocqueville, Democracy in America (N . Y. 1946), p. 196 51
3 Elliott’s Debates, pp. 445-449.....................................................  39
3 Encyclopedia of Social Sciences, p. 290, Laswell, Censor­

ship ...................................................................................................  62
6 Encyclopedia of Social Sciences, p. 449, Laski, Freedom

of Association ....................................     51

26 Georgetown Law Journal, pp. 905, 918, Cousens, Investi­
gations Under Legislative Authority......................................... 83

37 Georgetown Law Journal, p. 104,....................     27

172 Harper’s, p. 171, Fredrich, Teacher’s Oaths..........................  40
15 Harvard Law Review, p. 615 (Wigmore)...............................  37

PAGE



XI.

60 Harvard Law Review, p. 1193, Gellhorn, Report on a Re­
port of the House Committee on Un-American Activities.... 27

61 Harvard Law Review, p. 592, O ’Brien, Loyalty Tests and
Guilt by Association.................. ............................................ ........  27

Horne, Mirrour of Justices (Wash. 1903), Sec. 108, p. 245;
Subsec. 10, p. 246...................... .......................................................  37

3 Howard, State Trials, p. 1315...................................................  38
43 Illinois Law Review, p. 253.......................................    27

46 Michigan Law Review, p. 521........................     27

47 Michigan Law Review, p. 181, Nutting, Freedom of Si­
lence : Constitutional Protection Against Governmental In­
trusions in Political Affairs............................................... .......... 50

47 Michigan Law Review, p. 191.....      27

27 Nebraska Law Review, p. 608.         27

38 New Republic, p. 329, Frankfurter, Hands Off the Investi­
gators ...............................................................................................  32

2 Rutgers Quarterly Law Review, p. 125..................................... 27

22 Southern California Law Review, p. 464.......... ..................... 27

23 St. John’s Law Review, pp. 1-67, 243-290, Reppy, The
Specter of Attainder in New York........................................... 41

26 Texas Law Review, p. 816...................... ....................................  27
14 University of Chicago Law Review, p. 256..............................  27

15 University of Chicago Law Review, p. 544, Letter to Presi­
dent from Yale Law School Faculty.................................... . 27

17 University of Cincinnati Law Review, p. 264..... .................. 27

74 University of Pennsylvania Law Review, p. 691, Potts, 
Power of Legislative Bodies to Punish for Contempt.......  83

21 Virginia Law Review, pp. 763, 771, 787, R. Carter Pitt­
man .......................................      39

Wigmore on Evidence (3rd Ed.), par. 785........................ ..............  97

PAGE



IN THE

Supreme Court of the United States
October Term, 1949. 

No. 248

J o h n  H o w a r d  L a w s o n ,

vs.
U n i t e d  S t a t e s  o f  A m e r i c a ,

Petitioner,

Respondent.

Petition for W rit of Certiorari to the United States 
Court of Appeals for the District of Columbia.

To the Honorable the Chief Justice of the United States 
and the Associate Justices of the Supreme Court of 
the United States:

The petitioner, John Howard Lawson, prays that a 
W rit of Certiorari issue to review a judgment of the 
United States Court of Appeals for the District of 
Columbia, rendered on June 13, 1949. On June 16, 
1949, petitioner moved the Court of Appeals for an ex­
tension of time to July 5, 1949, to file a petition for re­
hearing. This motion was denied on June 23, 1949. On 
motion of petitioner, he was granted an extension of 30 
days to August 12, 1949, in which to file this petition in 
this Court.

The petitioner was indicted under Rev. Stat., sec. 102, 
as amended by C. 594, Act of June 22, 1938, 52 Stat.



— 2—

942, U. S. C., Title II, sec. 192 [J. A. 9] ;x was found 
guilty by a jury verdict on the 19th day of April, 1948 
[J. A. 43 ]; and thereafter, on the 21st day of May, 1948, 
was sentenced to one year in jail and fined $1,000.00 
[J. A. 44],

The petitioner perfected an appeal to the United States 
Court o f Appeals, for the District o f Columbia. While 
the appeal was pending in the Court of Appeals, the peti­
tioner filed in this Court a petition for writ of certiorari 
to the United States Court o f Appeals for the District 
of Columbia (No. 334, Oct. Term, 1948). Said petition 
was denied November 8, 1948. Thereafter, the Court 
o f Appeals affirmed the trial court judgment and this 
petition is directed to said judgment of affirmance. The 
opinion below has not yet been officially reported.

Statement of Matter Involved.
Petitioner, John Howard Lawson, a dramatist and 

screen writer (25 W ho’s Who, 1948, p. 1436) was sum­
moned as a witness by the House Committee on Un-Amer­
ican Activities (hereinafter referred to as “ the Commit­
tee” ) to testify at the hearings described below [J. A. 
188].

Between October 20 and October 30, 1947, members 
of the Committee, purporting to act as a sub-committee, 
held hearings, in Washington, D. C., on the subject, as 
designated by them, “ Communist Infiltration of the Mo­
tion Picture Industry” [J. A. 197].

The petitioner was not a voluntary witness. He ap­
peared in response to subpoena served upon him at his 
residence in California [J. A. 381].

Pursuant to paragraph 7 of Supreme Court Rule 38, there are 
filed herewith copies of the joint appendix printed for use in the 
United States Court of Appeals, for the District of Columbia. Ref­
erences “ J. A .”  are to pages of that printed record.



— 3—

At the outset of the hearings (according to petitioner’s 
offer o f proof), counsel for petitioner presented to the 
Committee a motion to quash the Committee’s subpoena 
[rejected Exhibits 4 and 5 for identification, J. A. 394- 
406], and were advised by the Chairman that the motion 
should be renewed before petitioner was called to the 
stand [J. A. 212],

Twenty-four witnesses preceded the petitioner [J. A. 
200]. Some of the witnesses testified that petitioner was 
a Communist, active as such in the motion picture indus­
try, and attacked his character, integrity, and reputation 
[J. A. 223-235], Prominent employers in the motion 
picture industry, some of whom preceded petitioner on 
the witness stand and others of whom followed him, were 
directly asked by the Committee to discharge petitioner 
Lawson, and others, to establish a blacklist and to use the 
Motion Picture Producers Association of America as an 
instrumentality for the effectuation of that blacklist [J. 
A. 240-242; see also offers of proof referred to below, 
pp. 513-545],

As petitioner offered to prove [J. A. 212], his counsel 
renewed in writing their motion to the Committee to 
quash the Committee’s subpoena [rejected Exhibit 6 for 
identification, J, A. 406] on October 27, 1947, and at the 
same time filed a written “ Application to Compel the 
Return of Witnesses for the Purposes of Cross-Ex­
amination” [rejected Exhibit No. 7 for identification, 
J. A. 409],

By his renewed motion to quash, petitioner raised be­
fore the Committee constitutional objections that the sub­
ject matter of the investigation was outside the power of 
the Committee as an agency of government, that the in­
vestigation had the non-legislative object and aim of estab­



4

lishing and maintaining “a system of blacklists and to tell 
the motion picture industry whom to hire and whom to 
fire, without regard to the ability or talent of the employee 
involved and without regard to the choice of the particu­
lar employer” [rejected Defendant’s Exhibit 6, J. A. 407] 
and had the non-legislative object and aim “ to direct the 
motion picture industry to make only those films which 
the Committee feels reflect its ideas o f the American way 
of life. This investigation is thus intended to deprive 
not only the motion picture industry of its free choice to 
select film subjects. More important, it will deprive the 
American people of the privilege of selecting such films 
as they may desire to see, solely upon the basis o f quality, 
content and the public’s unhampered choice.”  [Rejected 
Exhibit 6, J. A. 407.]

By his written application for the allowance of cross- 
examination of witnesses who had testified before the 
Committee against him, petitioner asserted and offered to 
prove to the Committee that these witnesses conspired 
with the Committee “ to conduct this investigation for the 
purpose of controlling and censoring the motion picture 
industry and to deny persons engaged in the production 
of motion pictures the fundamental guarantees of freedom 
of speech, thus violating the Constitution o f the United 
States and particularly the First Amendment thereof. An 
examination of the record o f this investigation to date 
discloses that out of a total of 200,000 words o f testimony 
submitted into evidence, 185,000 consisted of hearsay. 
When there is added to this shocking fact the accumu­
lation of unsubstantiated accusation, slander and vilifica­
tion, it becomes clear that the right o f cross-examination 
is even more essential in this hearing than in a Congres­
sional inquiry where minimum standards of decent proce­
dure are observed.” [Rejected Exhibit 7, J. A. 410.]



— 5-

Both the motion and application were denied and peti­
tioner Lawson then proceeded to testify.

At the outset o f the petitioner’s testimony before the 
Committee, he asked leave, and was denied the oppor­
tunity, to read a statement. The Chairman said, “ The 
statement will not be read. I read the first line.”  [J. A. 
188.]

The petitioner protested this refusal and called atten­
tion to the fact that executives of motion picture produc­
ing companies had been accorded the privilege of reading 
their statements.

Then the petitioner was asked and answered prelimi­
nary, identifying questions. The Committee next asked 
whether he was a member of the Screen Writers’ Guild. 
The petitioner first objected to the question, urging that 
the Committee had no power to ask it. He was inter­
rupted numerous times in the course of his reply before 
he was able to and did say that it was a matter of public 
record that he was a member of the Guild. The Commit­
tee interrogated him concerning his activities as a mem­
ber and officer o f the Screen Writers’ Guild. The peti­
tioner answered these questions, protesting them, assert­
ing they violated his constitutional rights, and stating 
that the information sought was a matter o f public record, 
and that he was a former President of the Guild. Simi­
lar questions concerning his screen writing were answered 
in the same way.

The petitioner was then asked: “ Are you now or have
you ever been a member of the Communist Party?” 
Again the petitioner replied by protesting, by saying that 
the question violated his rights and exceeded the powers 
o f the Committee. He asked that witnesses who had 
testified concerning him be recalled for cross-examination



so that he could show they had perjured themselves. Mem­
bers of the Committee and its counsel, Mr. Stripling, 
repeatedly interrupted the petitioner’s reply. The testi­
mony was brought to a close by the Chairman in the fol­
lowing manner:

“ The Chairman: Then you refuse to answer that
question; is that correct?

Mr. Lawson: I have told you that I will offer my
beliefs, affiliations, and everything else to the Ameri­
can public, and they will know where I stand.

The Chairman (pounding gavel): Excuse the
witness . . .

Mr. Lawson: As they do from what I have writ­
ten.

The Chairman (pounding gavel) : Stand away 
from the stand . . .

Mr. Lawson: I have written Americanism for
many years, which you are trying to destroy.

The Chairman: Officers, take this man away 
from the stand . . .”  [J. A. 196-197.]

Petitioner offered and the Court refused to allow proof 
that when the Committee certified the alleged contempt 
to Congress it did not submit any part o f Lawson’s state­
ment which he had offered to the Committee during the 
hearing, nor was it in any way presented to or considered 
by Congress before or during the debate on the citation 
for contempt. Similarly proof was offered and rejected 
that the defendant’s various motions made before the 
Committee to quash the subpoenas and for the cross- 
examination of witnesses were not submitted to or con­
sidered by Congress either before or during the debate 
on the citation for contempt [J. A. 301-309].



7-

With this preliminary statement of the Committee hear­
ings and the certification to the House o f Representatives 
as developed at the trial, we now turn to a consideration 
of the proceedings in the trial court.

Prior to the trial, petitioner filed a Motion to Dismiss 
the Indictment, which was denied [J. A. 5, 6, 11]. 
A t the trial, the following was the only evidence offered 
by the Government to establish the existence of a com­
petent tribunal at the time that the petitioner testified at 
the Committee hearings. The Committee had been created 
and its personnel of eight members designated by virtue 
of and pursuant to the Legislative Reorganization Act of 
1946 [J. A. 174-175, Government’s Exhibits 1, 2 and 3, 
J. A. 379-380], On the morning of October 27, 1947, the 
session at which petitioner Lawson was called, three 
members of the Committee, Congressman Thomas, Chair­
man, of New Jersey, Congressman Vail of Illinois, and 
Congressman McDowell of Pennsylvania, were present. 
The Chairman opened the hearing on that day by saying: 
“ The record will show that a sub-committee is present 
consisting of Mr. Vail, Mr. McDowell and Mr. Thomas.” 
[J. A. 183.] Over petitioner’s objections, the Chairman 
of the Committee testified that as a matter of law he, as 
chairman of the Committee, has authority to designate 
whether a full committee or a sub-committee shall sit, and 
in the latter event, to appoint the sub-committee; that he 
had appointed a sub-committee at the outset o f the hearing 
on October 27, 1947, by making the statement in the 
record to the effect that a sub-committee consisting of 
himself, Mr. Vail and Mr. McDowell was present [J. A. 
183-186, 197-198],

The petitioner served subpoenas duces tecum on the 
Committee calling, among other things, for the records



of the Committee relating to the appointment of or any 
authority given to appoint a sub-committee to sit in the 
hearings in Washington in October of 1947. The Gov­
ernment’s motions to quash the subpoenas in their entirety 
were granted, despite petitioner’s contention, among other 
things, that these records would show that the Committee 
was authorized to conduct the October, 1947, hearings 
only by and through the full committee [J. A. 318-28, 
343-346],

Upon submission o f the case to the jury, the judge 
instructed it that if the Chairman designated a sub­
committee on October 27, 1947, the body so designated 
was a validly constituted sub-committee of the Committee, 
thereby deciding as a matter of law and without regard 
to the facts that the Chairman had authority to designate 
a sub-committee [J. A. 355], The Court refused to give 
petitioner’s proposed instructions, either that a quorum 
of the full Committee was necessary in order to consti­
tute a legally competent tribunal, or that a sub-committee 
could act only if it had been designated by the full Com­
mittee or pursuant to its authorization [Petitioner’s Pro­
posed Instructions 37 to 48, inclusive, J. A. 372-375],

The trial judge held immaterial and refused to permit 
evidence in support o f petitioner’s contentions that the 
Committee used its powers as an agency of government 
to establish a blacklist against petitioner and others, to 
censor motion pictures and to conduct an unlimited in­
vestigation into the content of speech and ideas, designed 
to impede and resulting in the impediment of free speech 
and association. In support o f his contentions the peti­
tioner made a number of offers o f proof, after Govern­
ment objections to appropriate questions had been sus­
tained. All of said offers were rejected. With respect



— 9—

to blacklisting the petitioner offered to prove the follow­
ing:

(a ) A  sub-committee of the Committee, with its chief 
investigator, Stripling, went to Los Angeles in the Spring 
of 1947 and there examined a number of motion picture 
producers, and called upon them to discharge and to sus­
pend certain writers and directors whom the Committee 
considered to be Communists, among whom was the peti­
tioner, Lawson.

(b ) The producers at first rejected the demand of the 
sub-committee that certain writers be discharged and 
blacklisted and said that such conduct was unlawful [J. A. 
545].

(c )  In the Summer of 1947, the Committee sent two 
of its investigators, Leckie and Smith, to Hollywood, there 
to call upon the producers, including Louis B. Mayer, 
executive in charge o f production at Metro-Goldwyn- 
Mayer Studios, and Dore Schary, executive in charge of 
production at RKO Radio Pictures. These investigators 
urged the producers “ to clean out their houses of certain 
writers, including petitioner, else there would be trouble 
in the industry from the House Committee.”  [J. A. 312- 
316.]

(d ) During the hearings at which petitioner testified 
all o f the members of the Committee and the Committee’s 
chief investigator urged the Motion Picture Producers 
Association and individual producers to establish a black­
list o f persons, including the petitioner, whose alleged 
views and affiliations were disapproved by the Committee.2

2For example one Committee member stated that the industry 
should “ concern itself with cleaning house in its own industry . . . 
I don’t think you can improve the industry to any greater degree 
and in any better direction than through the elimination of the 
writers and the actors to whom definite Communistic leanings can



— 10—

(e ) In November, 1947, following the close of the 
Washington hearing, the industry capitulated to the 
Committee’s demand for a blacklist; the petitioner and 
nine other writers and directors named by the Committee 
were blacklisted by the industry. Unexpired contracts 
o f other so-called “ unfriendly”  witnesses were abruptly 
terminated and further employment in any branch o f the 
industry was denied to all o f them, including petitioner 
[J. A. 263 and 167 F. (2d) 241, 254, note 8],

( f )  Thereafter, the Committee in its request for con­
tempt citations claimed “ the credit for these discharges 
and this blacklist.” * I * 3

be traced.”  The Committee’s counsel joined in the demand that 
“ Communistic influences . . . and I say Communist influences;
I am not saying Communists” ; be eliminated from the industry by 
cutting “these people off the payroll”  [J. A. 517], One of the 
members of the Committee stated the function of the hearing in this 
way: “ . . . of course, we have the problem of eliminating the
Communist element from not only the Hollywood scene but also 
other scenes in America, and we have to have the full support and 
cooperation of the executives for each of those divisions” [J. A. 
518]. At another point, the Chairman of the Committee stated that 
four of the unfriendly witnesses (the term used by the Committee 
in referring to petitioners Lawson, Dalton Trumbo, and other w r i­
ters) before the Committee have been shown to have “ extensive 
Communist and Communist-front records. Yet, this kind of people 
are writing scripts in the moving picture industry” [J. A. 521]. 
He then went on to state that that was one of the reasons for the 
investigation, and that the investigation will be beneficial to the 
American people and to the industry “because you are the people 
. . .  you persons high up in the industry can do more to clean 
your own house than can anybody else, but you must have the will 
power, and we hope that by spotlighting these Communists you 
will acquire that will” [J. A. 522],

3[See Transcript. J. A. 263-4]; Congressional Record, Monday 
November 24, 1947, at page 10890, et seq.:

“ Congressman Mundt: . . . Then to go on I want to
congratulate the Fox Moving Picture Co., the Twentieth Cen­
tury-Fox, I believe it is called, which passed a resolution the 
other day, and I want to read it to you. ‘Resolved, that the 
officers of this corporation be and they are hereby directed, to 
the extent that the same is lawful, to dispense with the services



— 11—

With respect to censorship the petitioner offered and 
the Court refused to permit the following p roof:

(a ) The Committee utilized its hearings to stop the 
production o f motion pictures, the over-all approach of 
which did not meet the approval o f the Committee mem­
bers. Included in this category were pictures like “ Mis­
sion to Moscow,” based upon the book of the same title 
written by former Ambassador Davies [J. A.. 489-490] 
and pictures which depicted Negroes in a favorable light. 
One of the reasons why the petitioner was called as a wit­
ness by the Committee was that he wrote pictures which 
did so treat Negro characters [J. A. 325-326],

(b ) The Committee utilized its hearings and the ques­
tions put to petitioner to compel the motion picture in­
dustry to make only the kind of pictures the Committee 
believed should be seen by the American public. Thus 
for example the chairman asked one witness whether he 
believed that these public hearings would “ aid the industry 
in giving it the will to make these [anti-Communist] 
pictures,”  and the witness replied: “ It is my opinion that 
they will.”  [J. A. 488.]

(c )  The Committee utilized its hearings to establish 
standards for the content o f motion pictures. It called 
on the motion picture industry to eliminate from pictures

of any employee who is an acknowledged Communist or of any 
employee who refuses to answer a question with respect thereto 
by any committee of the Congress of the United States and is 
cited for contempt by reason thereof.’

“ I congratulate Twentieth Century-Fox on that progressive 
and patriotic step. I think it is time, and I think it is just a 
little late, that Hollywood take that action but I congratulate 
it now because it is highly important that Communists be 
purged out of the moving picture industry. This desirable 
objective has been materially aided by the recent hearings in 
Washington as the general public is becoming rapidly alert to 
the problem.”



- 12-

anything which the Committee considered Communistic 
or un-American or subversive propaganda. The Com­
mittee chairman and other Congressmen, members of the 
Committee, recognizing that “ it would be very foolish for 
a Communist or a Communist sympathizer to attempt to 
write a script advocating the overthrow of the govern­
ment by force or violence,”  found un-American propa­
ganda in “ innuendos and double meanings, and things 
like that” [J. A. 504], in “ slanted lines” [J. A. 505], in 
“ subversion” inserted in the motion pictures “ under the 
proper circumstances, by a look, by an inflection, by a 
change in the voice.”  [J. A. 505.] Among the sub­
versive manifestations in motion pictures specified by the 
Committee were reference to some crooked members of 
Congress, to dishonest bankers or Senators, to a minister 
shown as the tool of his richest parishioner, and to pre­
sentation of bankers as unsympathetic men [J. A. 506- 
510].

With respect to his contentions that the Committee used 
its hearings and powers to conduct an unlimited investiga­
tion into the content of speech and ideas designed to 
impede and resulting in the impediment of free speech and 
association, the petitioner offered and the Court refused to 
permit the following p roo f:

(a ) During its entire existence the Committee has con­
sidered its authority sufficiently broad in scope to permit 
investigation and examination o f every kind of organiza­
tion, whether fraternal, social, political, economic, or 
otherwise, and of every kind of propaganda, including 
limitless and unrestricted inquiry into any and all ideas, 
opinions, beliefs, and associations, of any and all indivi­
duals and organizations. In determining whether the in­
vestigation into the Hollywood motion picture industry



— -13—

should be made, hearings held, and questions put, the Com­
mittee interpreted and applied the resolution and rules 
under which it acted in accordance with said construction 
of its powers [J. A. 420; rejected Exhibit 9].

(b ) The Committee conducted its Hollywood investiga­
tion, determined the pertinency o f questions, and other­
wise proceeded upon the basis that its authority was 
established by its own definition and application of the 
terms “ un-American propaganda activity”  and “ subversive 
and un-American propaganda that . . . attacked the
principles o f the form of government as guaranteed by 
our Constitution.”  The Committee’s concept of what is 
un-American and subversive runs the whole gamut of 
what are often denominated progressive ideas in Ameri­
can life, from support of the New Deal to opposition to 
the Committee on Un-American Activities; from opposi­
tion to monoply to defense of sit-down strikes; from ad­
vocacy of the Geyer Anti-Poll Tax Bill to opposition to 
the method of choosing members of the legislature in 
New Jersey; from supporting, during the war, friendship 
with “ our allies, the Russian people” to the belief that the 
government of Franco-Spain is not democratic; from a 
belief in absolute racial and social equality to signing a 
resolution in opposition to outlawing of the Communist 
Party; from criticism of Congress to criticism of Chiang- 
Kai-Shek [rejected Exhibit 9 for identification; J. A. 
420-479; 249-253].

(c )  Upon the basis o f the aforesaid premises as to 
what constitutes un-American, subversive activity, the 
Committee has built up files containing names of more 
than a million individuals and more than a thousand or­
ganizations accused of being subversive. It has asserted 
that it functions as “ the Grand Jury of America,” as a



— 14—

“ vigilante committee,”  and that it is a “ democratic”  sub­
stitute for the gestapo [rejected Exhibit 9 for Ident., 
J. A. 420-479],

(d ) Representative Herman E. Eberharter as a mem­
ber of Congress and a former member of the Committee 
thoroughly familiar with its activities would state on the 
basis of his expert knowledge that the Committee had not 
been engaged in obtaining information for any matter 
within the scope of any lawful legislative power but that 
it had engaged in attacking ideas with which it disagreed 
and which could not be considered subversive by any 
reasonable standard and that it was a conscious political 
instrumentality directed against the new deal [J. A. 307- 
309],

(e ) The Hollywood hearings directly impeded the ex­
ercise of free speech and association. The effect o f these 
hearings was recognized by a witness called by the Com­
mittee, who said he could not answer a question as to 
whether Communism was increasing or decreasing in 
Hollywood, because “ It is very difficult to say right now, 
within these last few months, because it has become un­
popular and a little risky to say too much. You notice 
the difference. People who were quite eager to express 
their thoughts before begin to clam up more than they 
used to.” The effect o f the Committee’s action was also 
pointed out by Mr. Eric Johnston, of the Motion Picture 
Producers’ Association, who stated that while Senator 
Robert Taft need not worry about being called a Com­
munist, not every American was in that position. Charges 
of this kind can take away everything that a man has—  
“ his livelihood, his reputation, and his personal dignity.”  
[Exhibit 10 for Ident., J. A. 542.]

The petitioner contended that the procedures of the 
Committee were such as to deny him due process of law.



- 15-

The trial court held that any evidence on this point was 
immaterial. The petitioner then offered to prove and the 
Court rejected proof that during the Hollywood hearings 
and at all other times the Committee while using its pow­
ers to accomplish the unconstitutional objectives set forth 
above including the destruction o f individuals by black­
listing, character assassination and otherwise has con­
sistently denied the basic rights of confrontation and cross- 
examination o f witnesses, effective aid of counsel, the 
right to produce evidence, and that the Committee at all 
times has assumed “guilt by association”  and unqualifiedly 
accepted hearsay upon hearsay and unsubstantiated gos­
sip [rejected Exhibits 9 and 10 for Ident., supra].

The Government’s evidence on pertinence was tried be­
fore the judge alone and not before the jury, over peti­
tioner’s objection, which was overruled [J. A. 220],

The only evidence to support the claim that the question 
put to petitioner was pertinent came from Congressman 
Thomas, who read from the Committee Transcript por­
tions o f the testimony given by three witnesses before the 
Committee during the investigation [J. A. 219-228]. 
These three witnesses, relied on to establish pertinence, 
were witnesses as to whom petitioner had in his “ Appli­
cation for Cross-Examination” [rejected Exhibit No. 7] 
— sought the right of cross-examination. Meaningful ef­
forts to cross-examine Mr. Thomas on the issue o f perti­
nence were disallowed, the Court saying:

“ The Court: Suppose they did not have any testi­
mony. Suppose they decided to investigate the infil­
tration of Communists in the motion picture industry 
and they called Mr. Lawson as the first witness and 
asked him whether or not he was a Communist.

Mr. Margolis: I take the position that they can’t



— 16-

call 140,000,000 Americans to the stand and ask 
them if they are members o f the Communist Party.

The Court: I think I have had enough. I will
rule. I will rule that the question is pertinent.”  [J. A. 
242.]

The petitioner claimed that even by the Government’s 
own test the inquiry into the motion picture industry was 
not pertinent to the subject-matter which the Committee 
by the terms of Section 121 of the Legislative Reorganiza­
tion Act of 1946 was authorized to investigate and par­
ticularly that the writers’ lack of control over the content 
of motion pictures rendered the questions put to petitioner 
not pertinent. In this connection the petitioner offered 
proof which the Court refused to permit that:

(a ) There is nothing in American motion pictures gen­
erally or in the motion pictures written by petitioner spe­
cifically which by any reasonable standard or definition 
could be considered subversive or which would otherwise 
justify inquiry by the Committee [J. A. 270-280],4 “ A c­
tion on the North Atlantic,” as one example of the pictures 
written by petitioner was classified by the organization as 
desirable for family or mature audiences and received a

4In addition to producers of long standing and high repute, heads 
of great studios including the largest studio in the world, prominent 
writers, story analysts, and drama critics, Richard Griffith, a re­
viewer, critic and executive director of the National Board of 
Review, was offered as a witness on this point. Mr. Griffith has 
reviewed many thousands of films as a critic and on behalf of his 
organization, whose purpose it is to organize audience support for 
meritorious pictures. Its seal is placed on approved films. The 
organization has two to three hundred community councils con­
sisting of representatives of civic, religious, educational and cultural 
organizations. The governing body is composed of delegates from 
such organizations as the Boy Scouts of America, the American 
Bar Association, the Association of American Colleges, the Na­
tional Association of Better Business Bureaus, the Daughters of 
the American Revolution, the Y.M.C.A., etc. [J. A. 266-70],



— 17—

star as a picture especially worth seeing and as one which 
had done a great service for the American Merchant Ma­
rine [J. A. 272].5 6

(b ) As a matter of undeviating practice in the motion 
picture industry it is impossible for any screen writer to 
put anything into a motion picture to which the executive 
producers object; the content of motion pictures is con­
trolled exclusively by producers; every word, scene, situ­
ation, character, set, costume, as well as the narrative line 
and the social, political and religious significance of the 
story are carefully studied, checked, edited and filtered by 
executive producers and persons acting directly under 
their supervision; and consequently the content of every 
motion picture is determined by the producer; all of these 
facts were matters o f common knowledge when petitioner 
Lawson was subpoenaed by the House Committee.

Petitioner further claimed that the question was not 
pertinent and was an invasion of his constitutional rights 
because the Committee did not ask the question in order 
to get information which it believed it needed. In this 
connection the Court rejected petitioner’s offer of proof 
that every Congressman before whom Lawson testified on 
October 27, 1947, and a majority of the members o f the 
whole Committee, and the Committee itself announced in 
their official statements that they were convinced before 
Lawson was put on the stand that he was a Communist 
and that nothing he could have said would change their 
minds, and that his disavowals would not be believed [J. 
A. 262-266; rejected Exhibit 11 for Ident., J. A. 546].

5An offer to exhibit each of the motion pictures which Lawson
had written to the Court and to the jury was also rejected by the 
Court.



In addition to rejecting the offers of proof hereinabove 
referred to, the Court refused to permit or sharply cur­
tailed cross-examination of the principal prosecution wit­
ness, Congressman J. Parnell Thomas, on the issues re­
ferred to above. Nor was the petitioner allowed to cross- 
examine the Congressman on the issue of his bias and 
prejudice as a prosecution witness against the petitioner 
[J. A. 202-203; J. A. 207; J. A. 214-244], On the Gov­
ernment’s motions the Court quashed subpoenas duces 
tecum directed to the Committee calling for its records 
relating to the aforesaid issues [J. A. 318-328; J. A. 343- 
346],

At the close of Government’s case, petitioner made a 
motion for acquittal which was denied [J. A. 300.]

During the course o f the argument of defense counsel 
to the jury, the Court interrupted the argument and stated 
to the jury that “ there is nothing in the record to indicate 
that he was trying to answer the question. You can refer 
to the record” [J. A. 348-349], and charged the jury that 
(a ) a non-responsive reply, or (b ) a reply that seems un­
clear to the jury was per se conclusive proof o f a refusal 
to answer and that such reply required the jury to return 
a verdict of guilty as against petitioner [J. A. 358, 359].

All of the petitioner’s prayers and requested instruc­
tions to the jury were denied by the Court [J. A. 360].

Included in the instructions denied were some to the 
effect that a failure to answer or a non-responsive answer 
was not necessarily a refusal to answer [J. A. 377-378].

Prior to and at the outset of the trial, motions to trans­
fer the cause to another district for trial on the ground 
that juries in the District of Columbia contain many Gov­
ernment employees and their relatives and that it was



impossible to have a fair trial in this particular cause 
wherein the principal prosecution agency was the House 
Committee on Un-American Activities, which Committee 
exercised meaningful control and authority over the jobs 
and the political views o f the Government employees and 
their near relatives who might be called to sit upon such 
a jury; the motion to transfer to another district for trial 
was denied [J. A. 13-25, 57], Prior to the final selection 
of the jury, petitioner moved to excuse for cause from 
the trial jury selected all those jurors who were govern­
ment employees and government pensioners and their near 
relatives, and this motion was denied [J. A. 166]; as 
finally constituted, the trial jury in the case was composed 
o f five persons employed by the Government, one juror 
who was receiving a pension from the Government, and 
one juror whose mother was receiving such a pension 
[J. A. 142, 143, 167]; the petitioner’s request for addi­
tional peremptory challenges so that he might attempt to 
get non-government employees into the jury box was like­
wise denied [J. A. 166],

Immediately prior to the trial a challenge to the array 
and a motion to dismiss the jury panel was made on the 
ground that it was selected in fi manner neither designed 
nor calculated to obtain a representative cross-section of 
the community. In support thereof, petitioner proved that 
one o f the qualifications for jury service in the District of 
Columbia is an affirmative response to the question “ Have 
you any views opposed to the American form of govern­
ment?”  [J. A. 87, 92.] In addition, the jury commis­
sioner examined handwriting on questionnaires returned 
by talesmen for the alleged purpose of determining the in­
telligence of the prospective jurors; persons of low income 
groups with “ poor handwriting” were disqualified on the

— 19—



-20—

alleged ground that such poor handwriting- disclosed a 
lack of intelligence in members of such groups. How­
ever, those in higher income brackets who likewise had 
“ poor handwriting”  were accepted for jury service [J. A. 
97], This motion also was denied [J. A. 29-32, 57-98].

Following the jury’s verdict of guilty, petitioner made 
a motion for a new trial and in arrest o f judgment, both 
of which motions were denied [J. A. 8].

Statement as to Jurisdiction.
The conviction was affirmed by judgment of Court of 

Appeals on June 13, 1949. The jurisdiction of this Court 
is based on the Act o f June 25, 1948, c. 646 (62 Stats. 
869), U. S. C., Title 28, sec. 1254, subsec. 1, which pro­
vides that a writ of certiorari may issue to the Court o f 
Appeals of the District o f Columbia “after rendition of 
judgment or decree.”

Statutes Involved.
(1 ) Rev. Stats., Par. 102, as amended by Chap. 594, 

Act of June 22, 1938, 52 Stat. 942; U. S. C. A., Title 2, 
Par. 192:

“ Every person who having been summoned as a 
witness by the authority of either house o f Congress 
to give testimony or to produce papers upon any mat­
ter under inquiry before either house or any joint 
committee established by a joint or concurrent reso­
lution of the two houses o f Congress, or any com­
mittee of either house of Congress, wilfully makes 
default, or who, having appeared, refuses to answer 
any questions pertinent to the question under inquiry, 
shall be deemed guilty of a misdemeanor, punishable 
by a fine of not more than $1000.00 nor less than 
$100.00 and imprisonment in a common jail for not 
less than one month nor more than twelve months.”



-21
(2 ) Sec. 121(b), Legislative Reorganization Act 

1946, P. L. 601, Chap. 753, 79 Cong., 2d Sess., 60 Stat. 
828, amends Rule X I ( 1 ) (2 )  o f Rules o f the House of 
Representatives to provide:

‘■'The Committee on Un-American Activities, as a 
whole or by subcommittee, is authorized to make from 
time to time investigations o f :

“ ( i )  The extent, character, and objects o f Un- 
American propaganda activities in the United States, 

“ (ii) the diffusion within the United States of sub­
versive and Un-American propaganda that is insti­
gated from foreign countries or o f a domestic origin 
and attacks the principle of the form of government 
as guaranteed by our Constitution, and

“ (iii) all other questions in relation thereto that 
would aid Congress in any necessary remedial legisla­
tion.

“ The Committee on Un-American Activities shall 
report to the House (or to the clerk of the House if 
the House is not in session) the results of any such 
investigation, together with such recommendations as 
it deems advisable.

“ For the purpose of any such investigation, the 
Committee on Un-American Activities, or any sub­
committee thereof is authorized to sit and act at such 
times and places within the United States, whether or 
not the House is sitting, has recessed, or has ad­
journed, to hold such hearings, to require the attend­
ance of such witnesses and the production of such 
books, papers, and documents, and to take such testi­
mony as it deems necessary. Subpoenas may be issued 
under the signature of the chairman of the committee 
or any subcommittee, or by any member designated by 
any such chairman, and may be served by any person 
designated by any such chairman or member.”



(3 ) Title XI, Section 1417 o f the Code for the District 
o f Columbia, relating to qualifications for jurors, pro­
vides :

“ No person shall be competent to act as a juror 
unless he be a citizen o f the United States, a resident 
of the District o f Columbia, over twenty-one and 
under sixty-five years of age, able to read and write 
and to understand the English language, and a good 
and lawful person, who has never been convicted of a 
felony or a misdemeanor involving moral turpitude.”

(4 ) 49 Stats, at Large 682, Act of Congress of August 
22, 1935, Chap. 605, provides:

“ All executive and judicial officers o f the Govern­
ment of the United States and of the District of 
Columbia, all officers and enlisted men of the Army, 
Navy, Marine Corps, and Coast Guard of the United 
States in active service, those connected with the po­
lice and fire departments of the United States and o f 
the District of Columbia, counselors and attorneys of 
law in actual practice, ministers of the gospel and 
clergymen of every denomination, practicing physi­
cians and surgeons, keepers o f hospitals, asylums, 
almshouses, or other charitable institutions created by 
or under the laws relating to the District o f Colum­
bia, captains and masters and other persons employed 
on vessels navigating the waters of the District of 
Columbia shall be exempt from jury duty, and their 
names shall not be placed on the jury lists.

“ All other persons, otherwise qualified according to 
law whether employed in the service of the Govern­
ment of the United States or of the District o f Co­
lumbia, all officers and enlisted men of the Na­
tional Guard of the District of Columbia, both 
active and retired, all officers and enlisted men of



•23—

the Military, Naval, Marine, and Coast Guard 
Reserve Corps of the United States, all notaries 
public, all postmasters and those who are the re­
cipients or beneficiaries of a pension or other gratu­
ity from the Federal or District Government or who 
have contracts with the United States or the District 
o f Columbia, shall be qualified to serve as jurors in 
the District o f Columbia and shall not be exempt 
from such service: Provided, That employees of the
Government o f the United States or of the District 
of Columbia in active service who are called upon to 
sit on juries shall not be paid for such jury service 
but their salary shall not be diminished during their 
term of service by virtue of such service, nor shall 
such period of service be deducted from any leave of 
absence authorized by law.”

Questions Presented.
I.

As a matter of law in a contempt proceeding such as 
this, is there a conclusive presumption which attends every 
Congressional investigation that such investigation is 
lawful, that the Committee had jurisdiction of the subject 
matter under inquiry, that the Committee acted within 
the lawful bounds of its power, and that it denied no Con­
stitutional rights or privileges to the witnesses, as was all 
conclusively presumed by the trial and appellate courts 
below in the face of petitioner’s attempt to prove the con­
trary in each respect?

II.
May a private individual, called as a witness by the 

Committee in an investigation into a private industry 
wherein he is employed, be compelled to disclose his politi­
cal opinions and associations, particularly where the Com­



— 24—

mittee’s proceedings are used to impose loss of employment 
and other penalties upon him; or does such compulsion 
violate Article One, Section Nine, and the First, Fourth, 
Fifth, Ninth and Tenth Amendments to the Constitution?

III.
Does an investigation in which the Committee uses its 

powers to censor the content of motion pictures lay outside 
the lawful bounds of the Committee’s power; and may a 
witness before the Committee be compelled to answer a 
question which is put as part of the process o f censorship, 
or would such compulsion violate the First Amendment?

IV.
Does an investigation in which the Committee uses its 

powers to secure the discharge and blacklisting o f per­
sons whose alleg’ed ideas and affiliations are deemed “ un- 
American” and “ subversive”  by the Committee lay out­
side the lawful bounds of the Committee’s power; and may 
a witness before the Committee be compelled to answer a 
question which is put as part of the process to secure his 
discharge and blacklisting, or would such compulsion be a 
usurpation of power and a violation of the due process 
clause of the Fifth Amendment?

V.
When a witness before the Committee is being threat­

ened with discharge and blacklisting- in and by the Com­
mittee’s use of its power, is it a denial o f due process 
under the Fifth Amendment to refuse to allow the wit­
ness the effective aid of counsel, the right to make a state­
ment and offer evidence in his own behalf, the right to 
cross-examine witnesses who attack him, and other essen­
tials of a fair hearing?



Is the statute establishing- the House Committee on 
Un-American Activities, on its face and as construed 
and applied generally and in the present case by the 
Committee, unconstitutional as in contravention o f the 
First, Fourth, Fifth, Ninth and Tenth Amendments and 
Article I, Section 9 of the Constitution?

VII.f*
Did the trial court, by its instructions, refusals to 

admit evidence and quashing of subpoenas duces tecum, 
commit prejudicial error in taking away from the jury 
the questions of fact relating to the issue o f the existence 
of a lawfully constituted tribunal and, in effect, determin­
ing that issue as a matter of law?

VIII.
Did the trial court commit prejudicial error in instruct­

ing the jury that a failure to give a responsive answer or 
the giving of a reply which is unclear to the jury is per se 
conclusive proof o f a refusal to answer, and in comment­
ing to the jury that the petitioner was not trying to answer 
the question?

IX.
Did the trial court commit prejudicial error in sharply 

curtailing cross-examination of the only prosecution wit­
ness as to some issues and refusing to permit cross- 
examination at all as to others?

X.
Did the trial court commit prejudicial error by refus­

ing to admit evidence that the Committee, in presenting 
to the House of Representatives the citation for contempt, 
did not inform it as to all o f the material parts thereof?

V L



XI.

Did the utilization, over the objection of petitioner, of 
government employees as jurors in this particular case, 
involving the House Committee on Un-American Activi­
ties as the governmental agency directly interested in the 
prosecution and based upon the charge that petitioner re­
fused to disclose whether or not he was a member of the 
Communist Party constitutes prejudicial error?

XII.

May the Jury Commission of the District of Columbia 
validly impose as a requirement for jury service a nega­
tive answer to the question, “ Do you have any views 
opposed to the American form of government?” ; and 
did the trial court commit prejudicial error in denying 
petitioner’s challenge and motion to dismiss the jury panel 
based on the aforesaid requirement?

X III.

Was petitioner’s right to an impartial jury drawn from 
a cross-section of the community abbrogated by the estab­
lishment of qualifications for jury service other than those 
required by statute and which limited the representative 
character of the jury; and did the denial of the challenge 
and motion to dismiss the jury panel based upon the 
aforesaid grounds constitute prejudicial error?

XIV .

Was petitioner denied a fair trial in violation of the 
Sixth Amendment by reason of the matters set forth in 
questions V II to X III, inclusive.

— 26—



Reasons for Granting the Writ.

The court below decided important questions of federal 

law which have not been, but should be, settled by this 

Court. It decided federal questions in a way in conflict 

with applicable decisions of this Court. The court below 

has so far departed from accepted and usual course of 

judicial proceedings, and so far sanctioned such a de­

parture by the trial court herein as to call for an exercise 
of this Court’s power of supervision.

This is the first of the ten now famous “ Hollywood 

writers” contempt cases. The widely publicized hearings 

out of which these cases arose were held in Washington, 
D. C., from October 20-30, 1947, by the House Committee 

on Un-American Activities. Since then a great debate, 
international in scope, has arisen over the constitutional 

questions presented by this case.* These comments have 

been numerous and highly important.

*See 46 Mich. L. Rev. 521; 47 Mich. L. Rev. 191; 33 Cornell 
L. Q. 565; 17 Univ. of Cincinnati L. Rev. 264; 14 Univ. of Chi­
cago L. Rev. 256; 61 Harvard L. Rev. 592 ( “ Loyalty Tests and 
Guilt by Association,” John Lord O ’Brien) ; 43 111. L. Rev. 253; 60 
Harvard L. Rev. 1193 ( “ Report on a Report o f the House Com­
mittee on Un-American Activities” ), Walter Gellhorn; 47 Col. 
L. Rev. 416; 37 Georgetown L. Journal 104; 1 Baylor L. Rev. 212; 
2 Rutgers Q. Law Rev. 125; 27 Neb. L. Rev. 608 ; 26 Texas L. 
Rev. 816; 15 Univ. of Chicago L. Rev. 544 ( “ Letter to President 
from Yale Law School Faculty” ) ; 34 A. B. A. J. 15; 22 So. Cal. 
L. Rev, 464.



-28—

1. The instant case and its companion, Tnmibo v. 
United States, are the first cases to reach this Court which 
squarely present the issue whether the House Committee 
on Un-American Activities has the power under our 
Constitution to summon before it individual Americans 
and require them to make compulsory disclosure to it of 
their political affiliations. The determination of this issue 
is essential, for not only has this agency of government 
claimed and exercised such power of compulsory disclo­
sure, but the precedent set by the agency of government 
has sired a host of similar claims to like power through­
out the length and breadth of the nation. In the wake 
of this assertion of official power, governmental agencies 
of every kind and character, local, state and federal, are 
presently asserting power, through various devices of 
compulsory disclosure, to require persons to render unto 
such bodies an accounting not only of their affiliation or 
non-affiliation with a given political party, but an account­
ing as well with respect to the newspapers, books and 
magazines they read, the causes, beliefs and ideas they 
embrace, the religion to which they adhere, and the 
associations into which they have entered whether transient 
or enduring.*

Standing alone this question presents constitutional 
problems of great importance the answer to which will 
have a great impact upon American life. Moreover the 
problem is so posed in this case that it presents a host of 
additional constitutional issues.

The court below recognized that the compulsory dis­
closure demanded by this agency of government invaded

*The consitutionality o f such a broad assertion of power is pres­
ently before this court for review in the case of Parker v. County 
of Los Angeles, October Term 1949, No. 49.



-29—

the area of opinion, speech and association. However 
directly contrary to what this Court has held in numerous 
cases the court below based its opinion on the proposition 
that the opinion, speech and association fell within the 
area of governmental power because the ideas involved 
were extremely important and because the medium of 
communication— the Motion Picture Industry— was very 
influential. A  statement of the law more directly opposite 
to the holdings o f this Court would be difficult to 
formulate.

The court below justified its ruling on the premise that 
ideas themselves may, because of their content, constitute 
“ danger” to the nation against which Congress may pro­
tect the people. It held that in probing for ways and 
means to afford protection against such “ dangerous 
thoughts”  Congress may require an individual to disclose 
his political associations. This concept in its entirety is 
utterly irreconcilable with the fundamental premise of 
democracy that the people, not government, shall hear and 
judge all creeds and ideas.

Moreover, the investigation here by an agency of gov­
ernment into the content of motion pictures and the dis­
closures of affiliations commanded by the Committee, as 
part of that investigation, were sustained by the court 
below without evidence whatever of any reasonable basis 
for belief by Congress that any given ideas were “ danger­
ous” or that the motion picture industry was in any way 
furthering any ideas which might, by any reasonable 
standards, be supposed to be “ dangerous.” Indeed, the 
petitioner was denied the right to prove the total absence 
of any reasonable basis for any such beliefs. If no basis 
need be laid by government and if a person affected may 
not even affirmatively disprove the existence of basis,



■30—

there is, then, unlimited right on the part of this agency 
of government to inquire into political beliefs and associa­
tions.

No such power has ever before been claimed by any 
agency of our government. Such assertion of power 
presents fundamental constitutional issues which this 
Court should determine.

Furthermore, the Committee used this broad and fear­
some power to censor the content of motion pictures and 
to purge from the motion picture industry alleged “dis­
believers” in the “ Americanism” to which the members 
of the Committee subscribed. In so doing it found 
“ heresy” in everything which displeased its members, from 
alleged membership in the Communist Party to belief that 
some Congressmen are not altogether honest.

Within the motion picture industry, in the hearings 
here involved, the Committee as an agency of govern­
ment used its powers to penalize individuals, including 
petitioner, because of their alleged beliefs and affiliations. 
The penalties imposed by such governmental action in­
cluded blacklisting, character assassination and incitement 
of public retribution. All this, it did, without any law 
authorizing the imposition of a penalty, for past conduct 
and without any of the procedural safeguards which are 
required for a fair hearing.

But that is not all! The petitioner asked, and was 
denied the opportunity to establish that this agency of 
government consistently construed and applied its powers 
under Public Law 601 as giving it the authority, not alone 
in the motion picture industry but in every industry, to 
range the entire area o f idea and association and to deter­
mine from every person whether he is or ever was “ Amer­
ican” or “un-American.” Petitioner was denied oppor­



•31—

tunity to show that this Committee repeatedly asserted 
that it was its function to drive all “ un-Americans”  out 
of every phase of American life. Whether or not the 
power claimed by this agency of government exists in 
law, this Court has never squarely determined. It now 
should.

2. In large part the fundamental issues referred to 
above were not passed upon by the courts below. They 
ruled and held that there is in a criminal case o f this 
type, a conclusive and irrefutable presumption, which 
petitioner could offer no proof to overcome, that the in­
vestigating committee in fact and in law did have juris­
diction over the subject matter of the inquiry, did not act 
in excess o f the lawful bounds of its power, and did not 
violate any fundamental rights of the witness; and in 
addition for all practical purposes the courts below treated 
the question of pertinence as established by matters of 
which the Court could take judicial notice without need of 
proof and without meaningful opportunity of counter- 
proof.

Contrariwise petitioner submits that it is the function 
and duty of the judiciary in such a criminal proceeding 
independently to review the assertion of governmental 
power by the investigating committee. The law is that a 
witness may rightfully refuse to answer, (a ) where the 
Committee has no jurisdiction over the subject matter;1 
(b ) where the subject matter is not proper for action by 1

1See Kilbourne v. Thompson, 103 U. S. 164; Matter of Barnes, 
207 N. Y. 108; Pacific Railroad Commission, 32 Fed. 241; and 
cf. argument of Senator Bayard in support of the original adop­
tion by Congress of the contempt statute (now 2 U. S. C. 192) 
set out in Congressional Globe, 34 Cong., 3rd Sess. 439 440 
Jan. 23, 1857.



32-

the Committee;2 (c )  where the Committee has acted in 
excess of the lawful bounds of its power;3 (d ) where the 
question is not pertinent to some subject matter properly 
before the Committee;4 and (e) where the Committee has 
asserted its power without due regard for the rights of 
the witness.5

While from the nature of the subject matter under 
investigation prima facie presumptions of legitimacy may 
sometimes arise, the presumption is never a conclusive 
one.8 Moreover, no such presumption is permissible within 
the area embraced by the First Amendment.

Congressional investigating committees can and do 
assert power over individuals, which power may be effec­
tuated by contempt proceedings utilizing the judicial proc­
esses. When the power of the Courts is so invoked, it is 
inconceivable to deny judicial review of the legislative 
power asserted. To do so not only refuses the individual

2Marshall v. Gordon, 243 U. S. 521; Greenfield v. Russell, 292 
111. 392.

®See cases cited supra; Jones v. S. B. C., 298 U. S. 1; Inter­
state Commerce v. Brimson, 154 U. S. 447; Boyd v. United States, 
116 U. S. 616; Harrimam v. Interstate, 211 U. S. 407; Ex Parte 
Frankfeld, 32 Fed. Supp. 915; Hearst v. Black, 87 F. 2d 68; see 
Frankfurter, “ Hands Off the Investigators," 38 New Republic 329 
(1924), and Dimock, “ Congressional Investigating Committees,” 
pp. 161, 162, 163.

4See cases cited supra.
5Sinclair v. U. S., 279 U. S. 747; McGrain v. Daugherty, 273 

U. S. 175, and cases cited 3 above.
6For instance, investigations so clearly within the realm of 

powers delegated by the people to the federal government as (a) 
investigations of the operations of executive branches of the gov­
ernment ( Sinclair and Daugherty cases, supra) ; (b ) investigations 
into the integrity o f the members of the House of Congress ( Chap­
man’s case, 166 U. S. 661; U. S. v. Norris, 300 U. S. 564) and 
(c )  investigations into the lobbying activities of corporations 
which dealt with or attempted to procure subsidies or other bene­
fits from the federal treasury. Hearst v. Black, supra.



-33-

affirmative relief against unconstitutional acts by the 
legislature, but actually sanctions the imposition of punish­
ment through the very judicial body which refuses to 
consider the constitutional rights of the accused. Judicial 
review of asserted usurpation or abuse o f power by the 
legislature in committee investigations is no more a strip­
ping of the congressional power to investigate than is the 
review of the constitutionality of statutes a stripping of 
congressional power to legislate. To deny such review 
in a criminal contempt proceeding is to establish as against 
the private individual that a Congressional investigating 
committee can do no wrong. Whether or not the judicial 
review presents delicate or difficult tasks the judiciary may 
not fail to act for such failure would be unconstitutional 
abdication of judicial power.

The suggestion that the only remedy for such asserted 
abuse of power is with the electorate and not the Courts 
is in vain. No man’s constitutional liberties may be made 
to turn upon the outcome of any election. ( West Virginia 
v. Barnette, 319 U. S. 624, 638.) Only this Court can 
undo the unconstitutional wrong visited upon petitioner. 3

3. In addition to the great issues of constitutional law 
involving the Committee’s assertion and use of govern­
mental power, this case presents a number of other issues, 
each of which, it is submitted, is sufficient grounds for 
the granting of this writ.

This case was decided by the court below before the 
decision of this Court in Christoffel v. United States 
(No. 528, Oct. Term 1948, decided June 20, 1949). The 
trial court herein in its instructions and rulings on matters 
relating to the existence of a legally constituted tribunal 
took away from the jury the questions of fact with 
respect thereto, committing error similar to, but more



— 34—

aggravated than, that which was the sole basis for the 
reversal in the Christoffel case.

With respect to governmental employees on the jury, 
this case presents essentially the same questions o f law 
which are involved in United States v. Dennis, certiorari 
granted June 27, 1949, No. 436.

This case presents for the first time for the considera­
tion of this Court novel and ingenious devices whereby 
persons in the District of Columbia who do not accept as 
fixed and unchangeable in its entirety our present form 
of government and those in the lower economic categories 
are discriminated against in the selection of prospective 
jurors. In the past this Court has used its supervisory 
powers to prevent abuses of a far less flagrant character 
in the method of jury selection.

The trial judge in effect instructed the jury that a 
failure to give a responsive answer or the giving o f an 
unclear answer, was a deliberate and intentional refusal 
to answer under the contempt statute. He refused to 
allow or sharply curtailed and cut off cross-examination 
on matters presented by the government and even on one 
question asked by the judge himself. He refused to per­
mit the petitioner to prove that in connection with the 
securing of the citation for contempt against petitioner 
the Committee did not present all of the facts to Congress.

4. What is most important here, however, is that in 
the constitutional issues respecting the powers of the 
Committee “ nothing less is involved than that which 
makes for an atmosphere of freedom as against a feeling 
of fear and repression for society as a whole. The dangers 
are not fanciful.”7

■•Frankfurter, J., dissenting, Harris v. United States, 331 U S 
145, 173.



— 35—

This Committee was, by its own solemn declaration, 
not seeking to get requisite information from the witness 
which it needed for any legitimate purpose; it was instead 
“ getting” the witness. And with the blessings of the 
trial court and the appellate court below, it succeeded.

And so this Court need not, out of deference to the 
customary amenities, sensitively turn away from this 
sorry spectacle o f congressional sinning. The cold record 
permits no such eye turning. Lawson was called here by 
this Committee, as it itself openly avows, to become the 
object of a gladitorial sport at which he would be given 
his “ day in court, so to speak” 8 so that he could be black­
listed, impaled and destroyed in full view of floodlights, 
motion picture cameras, still cameras, radio recorders, rep­
resentatives of the world’s press, etc., etc. Where the 
Inquisition once had its rack, the Committee has what its 
Chairman grimly describes as a “day in court, so to 
speak.” With the passage of the centuries we have thus 
changed our methods of torture. An advance in culture 
requires a refinement of methods— and this Committee 
unconstitutionally supplies it with a “ day in court, so to 
speak.”

8J. A. 546; defendants rejected Exhibit 11: “ Chairman Thomas: 
During the second week we subpoened before us those who had 
been accused of being Communists or having engaged in Com­
munist activities. They were subpoened because our investigation 
had disclosed that they were Communists or had long records of 
Communist affiliations and activities. * * * W e also wanted
these witnesses to have their day in court, so to speak, to answer, 
if they could, the allegations which had been made against them. 
* * * The reason these 10 individuals refused to answer the
question was because they were Communists. They knew that we 
had the evidence that they were Communists, and they knew we 
were in a position to expose their Communist activities, which they 
had been engaged in over a period of years.” (Emphasis supplied).



I.

— 36—

The Committee’s Utilization of Congressional Power, 
as an Agency o f Government, to Compel Dis­
closure of Private Political Opinion and Associa­
tion Is Forbidden: (a ) by the First, Fourth
and Fifth Amendments as Unwarranted Invasion 
Into the Private Rights of Individuals, and (b ) 
by the Ninth and Tenth Amendments as Un­
warranted Invasion Into the Area of Govern­
mental Powers Reserved Exclusively to the Sov­
ereign People.

It is petitioner’s position that no power exists in Con­
gress to compel a private citizen to answer, under compul­
sion o f contempt, the question: “ Are you now or have
you ever been a member of the Communist Party ?” This 
is so because of the confluence of principles hammered 
out by our history and conjoined as integral parts of the 
Bill of Rights.

A. The Committee’s Utilization of Congressional Power, 
as an Agency of Government, to Compel Disclosure of 
Private Political Opinion and Association is Forbidden 
by the First, Fourth and Fifth Amendments as Un­
warranted Invasion Into the Private Rights of Indi­
viduals.

When in the context of this investigation, the Commit­
tee sought to compel the petitioner to reveal his political 
beliefs and associations it was utilizing official power:

(1 ) contrary to the Fifth Amendment to revive 
the oath ex officio; and

(2 ) contrary to the First, Fourth and Fifth 
Amendments to carry on a forbidden search into 
belief and association.



( 1 )  T h e  O a t h  E x  O f f i c i o .

When the Committee sought to compel the petitioner to 
reveal his political beliefs and associations, it was attempt­
ing to revive the use of the oath cat officio, outlawed over 
300 years. In this case the Committee has declared that 
Communism is political heresy. Like the Inquisition, this 
Committee effectuates its objective of stamping out 
“ heresy” by the use of ex officio procedures.

The oath ex officio was originally conceived by the 
ecclesiastical authorities as an instrument to eradicate 
heresy. It was a method whereby the suspected heretic 
was put upon his oath and then compelled to answer ques­
tions touching upon his faith. Those who refused to 
answer were punished. The Inquisition1 owed its effec­
tiveness largely to the adoption of this method. (See 
Wigmore, 15 Harvard L. Rev. 615.)

Although, upon the Continent, the oath ex officio was 
received uncritically, its reception in England was much 
less favorable. In that island there already existed a 
deep-seated aversion to compulsory disclosures. In 890 
A. D., Alfred the Great had hanged a justice of the peace 
“ because he judged Olding to death for not answering.” 
( “ Mirrour of Justices,”  Horne (Washington 1903), Sec. 
108 (p. 245), Subsec. 10 (p. 246).)

The Court of High Commission in Causes Ecclesiastical 
was set up in 1558 by Elizabeth, as head of the Church, 
and in 1583, under the leadership of Archbishop Whit-

— 37—

1“ The duty of the inquisitor, moreover, was distinguished from 
that of the ordinary judge by the fact that the task assigned to him 
was the impossible one of ascertaining the secret thoughts of the 
prisoner. * * * The crime he sought to suppress by punish­
ment was purely a mental one.” (Lea, “ History of the Inquisi­
tion,”  p. 400, 405).



-38-

gift, the court started a crusade against heresy, effectuated 
by the examination o f suspected persons under the oath 
ex officio. However, these efforts met the resistance of 
the common law lawyers led by Sir Edward Coke, who 
granted prohibition against the use of the ex officio 
process by the High Court of Ecclesiastical Causes, de­
claring:

“ And so long as a man doth not offend neither in 
act nor in word any law established, there is no rea­
son that he should be examined upon his thought or 
cogitation; for it hath been said in the proverb, 
thought is free; * * ( Edward’s case, 13 Co.
Rep. 9, 77 Eng. Rep. 1421.)2

In 1637 the Court of the Star Chamber examined John 
Lilburn, “ Freeborn John,” an opponent of the Stuarts, 
on a charge of printing or importing certain heretical and 
seditious books. Lilburn refused to answer questions. 
The Council of the Star Chamber condemned him to be 
whipped and pilloried for his “boldness in refusing to 
take a legal oath,” without which many offenses might go 
“ undiscovered and unpunished.” (See 3 How. State 
Trials 1315, et seq.)

Lilburn was whipped, but the popular indignation that 
followed led to the downfall of the Court of the Star 
Chamber. In July, 1641, Parliament abolished the Court 
of the Star Chamber, the Court of High Commission for 
Ecclesiastical Causes, and provided by statute that no 
ecclesiastical court could thereafter administer an ex  
officio oath.

2See Maguire, “ Attack of the Common Lawyers on the Oath Ex 
Officio,” in Essays in History and Political Theory, Harvard (1936) 
p. 199.



— 39—

The ex officio oath had been the most hated instrument 
employed to create the unhappy plight of the Puritans and 
Separatists. In 1637, Charles I had directed the High 
Commission that if these dissenters refused to take the 
oath they were to be “ held and had as confessed and con­
victed legally.” As R. Carter Pittman said in 21 Virginia 
Law Reviewr 763, 771, “What more than this would be 
calculated to drive the Puritans and Separatists into either 
New England or insanity.”

One of the grievances leading to the American Revolu­
tion was the Crown’s extension to the colonies of the 
Vice-Admiralty jurisdiction together with its inquisitorial 
methods. The colonists “ saw in the trials before preroga­
tive judges without juries a threatened deprivation of all 
their rights as Englishmen among which was the right 
not to be dragged into an ‘Inquisitional Court’ for ex­
amination.” (Pittman, supra, p. 787.)

While in England the oath ex officio was used to ferret 
out political and religious dissent, the hated procedure 
was applied to all crime on the Continent. The framers 
of the Bill of Rights feared that the new Federal Govern­
ment might import into our system of law? the inquisitorial 
procedures known to the civil law? on the Continent.

The danger of direct self-incrimination, as we know 
it today, did not exist in 1787, because at that time and 
for nearly ninety years thereafter, the accused was not 
permitted to testify in his own trial even if he wanted to. 
( Wilson v. U. S., 149 U. S. 60.) It was the inquisitorial 
method and the oath ex officio that Patrick Henry sought 
to prohibit when he urged the adoption of the Fifth 
Amendment. ( I l l  Elliott’s Debates, pp. 445-449.)



40 -

This Court has said in respect to criminal cases:
“ Ours is the accusatorial as opposed to the inquisi­

torial system. Such has been the characteristic of 
Anglo-American criminal justice since it freed itself 
from practices borrowed by the Star Chamber from 
the Continent whereby an accused was interrogated 
in secret for hours on end.” ( Watts v. Indiana, No. 
610, Oct. Term, 1948.)

Certainly the same prohibition against the inquisitorial 
method applies to those who are suspect of political dis­
sent.

Since the demise of the oath ex officio, those who would 
compel'the disclosure of beliefs and associations turned 
to the “ test oath.” 8 Since a refusal to answer under the 
test oath requirement did not mean imprisonment but only 
the deprivation of the right to vote or to follow a calling, 
it was claimed to be lawful.

But this specious argument4 has never been adopted by 
American courts despite the many attempts to revive the 
test oath practice.

8Carl Joachim Fredrich “ Teacher’s Oaths” (1936) 172 Harper’s 
171.

4Following the decision in Cummings v. Missouri, 71 U. S. 277, 
see Argument of Charles C. Whittelsey, counsel, reported in the 
Murphy and Glover Test Oath Cases (1867 ) 41 Mo. 340 at 360; 
“ Not one of the oaths prescribed by the English statutes, that I 
have read, required the citizen to swear that he had never committed 
a crime or expressed a sympathy with rebellion— not one required 
that the officer or the citizen should purge himself of offense, and 
bear testimony against himself. That is a discovery reserved for 
our times and our country and a great invention it is. ‘Go to,’ said 
the Quaker to poor Tray, ‘I will not kill thee, but I will give thee 
a bad name,’ as he turned him into the streets with the cry of 
‘mad dog.’ and somebody else did kill Tray, and so do the provi­
sions of this new Constitution say: W e will not punish treason 
against the United States or this State, or any other offence men­
tioned in this long catalogue, but unless thou canst or wilt swear



-^ 1
But the danger has always lurked in the background 

(Reppy “ The Specter of Attainder in New York, 23 St. 
John’s Law Review 1-67, 243-290).

that thou has done none of these acts, we will deprive thee of thy 
means of living, and thy places of honor and profit held by thee 
of the gift of private individuals— thou shall not serve at the law, 
nor receive the profits of its profession— thou shall not minister at 
the altar of God, nor receive a salary from those worshipping 
thereat— thou shall not teach the young mind the truth, nor receive 
pay therefor— thou shall not direct the business of any private 
corporation, although its wealth be all thine own. W e will not 
punish thee— we are merciful! But go— we proclaim thee an out­
law, disabled from following thy past calling—-we forbid thee 
earth, fire and water, and commend thee to the charity of ' some 
other country in which we wish thee all success. * * * It is
indeed an ingenious punishment; it dispenses with statutes defining 
offences and providing penalties therefore; it dispenses with courts, 
with all their paraphernalia of indictments by grand juries and 
trial by petit juries, executing the law upon offenders; all that is 
needed, is, that a law be passed every year or two requiring every 
citizen to swear that he has never wronged or defrauded any one; 
that he has never slandered his neighbor; that he has never com­
mitted murder, burglary, larceny, adultery or fornication; and if 
he cannot thus swear, then forbid him to follow any profession, 
trade or calling, for that will not be a punishment inflicted upon 
him, but a mere regulation o f the trades, callings and professions 
in the State; and to provide such regulation, the State has a most 
perfect right; nay, more, it may prohibit them all to non-jurors, 
and still violate no provisions of the Constitution o f the United 
States, nor take away any inalienable right of the citizen. * * *
As the penalty does not reach to tangible property, nor actually 
touch the body, it is to be held no punishment, but a mere regula­
tion of the business affairs of the people. Sirs! ‘You take my life 
when you do take the means whereby I live.’ ‘Requiscat in pace’ 
was the parting benediction bestowed by the Inquisitors as they 
turned away from the brother whom they walled up alive in his 
death-cell. ‘Go in peace’ is the blessing bestowed upon those who 
may not swear by all the words of this new evangel of liberty.”



■—42— ■

Despite the Constitutional protection against inquisi­
torial procedures5 there have been attempts, particularly 
in times of postwar hysteria, to impose penalties of various 
sorts upon individuals who refused to disclose their past 
opinions and beliefs. In 1803 the Pennsylvania Tories 
were the target ( Respublica v. Gill, 3 Yates 429, discussed 
at 161 U. S. 633). Defeated partisans of the South 
retained their right to pursue their callings only by the 
action of this Court in Cummings v. Missouri, 71 U. S. 
277. Contemporary discussion of this opinion had much 
of the intemperate quality of some expressions of our own 
times (Swisher, “ Stephen J. Field, Craftsman of the 
Law,” (Wash. 1930) p. 152), but the case became a land­
mark of American liberty.

The idea dies hard. Only last year District Judge J. 
Waties Waring in Brozvn v. Baskin, 78 Fed. Supp. 933, 
had to enjoin a test oath required of voters in the South 
Carolina Democratic Primary to “ solemnly swear” that 
they believed in and would support “ the social and educa­
tional separation of races” and that they were “ opposed 
to the proposed Federal so-called FEPC law.”

Since the road of the test oath has been so effectively 
blocked by this Court, the Committee here has reverted 
to the oath ex officio in order to compel the petitioner to 
reveal his political beliefs and associations. This Court

5“ No purpose in ratifying the Bill of Rights was clearer than 
that of securing for the people of the United States much greater 
freedom of religion, expression, assembly, and petition than the 
people of Great Britain had ever enjoyed. It cannot be denied, for 
example, that the religious test oath or the restrictions upon assem­
bly then prevalent in England would have been regarded as meas­
ures which the Constitution prohibited the American Congress from 
passing.” (Emphasis supplied). (Bridges v. California (1941) 
314 U. S. 252 at 265). "



must thwart in limine the revival of this mediaeval pro­
cedure.6

( 2 )  T h e  R i g h t  o f  t h e  I n d i v i d u a l  t o  B e  L e t  A l o n e  

W i t h  R e s p e c t  t o  H i s  B e l i e f s  a n d  A s s o c i a t i o n s .

In every organized society in history, the individual has 
sought to establish for himself some areas of his life in 
which he had the right to say to his government, “ So far 
and no further.”  The right, as against one’s government, 
to be let alone is indeed a precious one.

In no organized society, however, is it possible for the 
individual to be completely free from governmental inter­
ference in his private life. It is possible, however, to 
establish areas in which the individual is entitled to a 
right of privacy— the right to be free from governmental 
meddling. Drawing upon the history of the 17th Century, 
the Bill of Rights was intended in part to delineate these 
areas.

The first ten amendments must be considered as an 
integrated design establishing the relation of the individual 
to his government in a free society. The very essence of 
this joint purpose is to protect the individual against the 
use of government power to invade “his indefeasible right 
of personal security, personal liberty and private property.” 
{Boyd v. U. S., 116 U. S. 616, 630.)

——43—

6In fact the committee’s practices suggest a revival of another 
medieval procedure— the peine forte et dure— 4 Blackstone 325- 
327. Compare: “ Congressmen lVfundt: Why did they refuse to
answer? Because if they said 'N o’ the laws of perjury are too 
rough, and the sentences they would have received would be greater 
than if they simply maintained silence and were cited for contempt. 
If they admitted the truth and said, ‘Yes,’ then, of course, they 
knew they would lose the lucrative jobs they had been holding- 
out in Hollywood.” (J. A. 547). ,



44

This Court has read the Fourth and Fifth Amendments 
together so that the search permitted by the former may 
not be used to obtain the self-incriminating evidence pro­
hibited by the latter. So, too, when the First, Fourth 
and Fifth Amendments are considered jointly, and par­
ticularly in their historical context, they spell out the right 
of the individual to be let alone with respect to his beliefs 
and associations. This right means that the individual 
may speak or keep silent as he chooses. The government 
may neither abridge his right to speak nor compel him to 
disclose the beliefs which he prefers to keep to himself.

The sanctity of a man’s home, protected by the Fourth 
Amendment, is extended to the realm of his mind by the 
First Amendment. The First Amendment having carved 
out a domain belonging to the individual, upon which the 
government may not trespass, the concepts underlying 
the Fourth Amendment prohibit the government from 
exercising its powers of search therein. It matters not 
whether the search be by the rumaging of a man’s papers 
or the conducting of an inquisition with respect to the 
contents of his mind not yet been put down on paper.

The Fifth Amendment reinforces this right to be let 
alone; for to compel a man to disclose his beliefs and 
affiliations, at a time when such disclosure may subject 
him to penalty of social sanctions, violates at least the 
principles and purposes underlying that Amendment.

Together, the First, Fourth and Fifth Amendments 
prohibit the government from prying into or otherwise 
interfering with the individual’s beliefs and associations. 
And it is well that they do, for there can be no true free­
dom of belief and association unless the individual is 
allowed to choose his own time and place to disclose them.



As Mr. Justice Brandeis said, dissenting, in Olmstead v. 
U. S., 277 U. S. 438, 478:

“ The makers of our Constitution undertook to 
secure conditions favorable to the pursuit of happi­
ness. They recognized the significance of man’s 
spiritual nature, of his feelings and of his intellect. 
They knew that only a part of the pain, 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 sen­
sations. 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.”

Even if the investigation here involved matters not 
within the realm of the mind, it would hardly be con­
tended that the power to inquire was an unlimited one. At 
the very least that power would be confined to necessity 
and would be subject to the requirement of reasonable­
ness, as are search warrants and subpoena duces tecum 
under the Fourth Amendment.

The power of the legislature to investigate is based 
upon the legislature’s need for information in order to 
enable it to act wisely and effectively in determining what 
legislation it should adopt. Such need arises only “where 
the legislative body does not itself possess the requisite 
information.” (McGrain v. Daugherty, 273 U. S. 175;
People v. Barnes, 204 N. Y. at 125; E x Parte Hague, 
150 Atl. 322; People v. Webb, 5 N. Y. Supp. 855.) 
Even where it inquires into matters not within the scope 
of the First Amendment, Congress may not demand in­
formation concerning the private affairs of a citizen, un­
less it is seeking and does not have information required 
in connection with the consideration of legislation or the 
need therefor.



Here the record demonstrates that this minimal test 
has not been met. For here every single Congressman 
before whom petitioner testified on October 27, 1947, as 
petitioner offered to prove, had publicly announced that it 
already possessed the very information sought to be 
elicited from the petitioner. Indeed, every single one of 
the Congressmen before whom petitioner testified on 
October 27, 1947, declared further:

1. That it would not believe any disavowal of 
Communist Party membership made by petitioner 
under oath; and

2. That it considered, for its purposes, that the 
very failure of petitioner to answer the question was 
proof of the fact o f membership, already satisfac­
torily known to it.7

defendant’s Rejected Exhibit No. 11. [J. A. 546, 547],
“ 1. Mr. Thomas (Cong. Rec. Nov. 24, 1947, page 10880) : 

‘During the second week we subpoened before us those who 
had been accused of being Communists or having engaged in 
Communist activities. They were subpoened because our in­
vestigation had disclosed that they were Communists or had 
long records of Communist affiliations and activities. * * *
We also wanted these witnesses to have their day in court, 
so to speak, to ans-wer if they could, the allegations which 
had been made against them. * * * The reason these 10
individuals refused to answer the question was because they 
were Communists. They knew that we had the evidence that 
they were Communists, and they knew we were in a position 
to expose their Communist activities, which they had been en­
gaged in over a period of years.

“ ‘After every one of these witnesses left the witness stand 
the committee staff immediately placed into the record their 
Communist Party registration card, along with complete re­
ports of their extensive Communist activities.

“  ‘Before I proceed any further, I should like to make this 
point clear. These 10 individuals were not chosen at random 
and brought in and asked, as they would have you believe, 
“ what is your political affiliations?” They were brought in, 
as I have previously stated, because of the overwhelming 
evidence which was before the committee that they were



— 47-

Where, the Committee, as here, was not seeking in­
formation, the right of privacy protects a witness even 
against disclosure of any of his private papers or activities. 
When a government agency in addition asserted the power 
to delve into matters of opinion, it sought to turn back and 
destroy the pages o f history in man’s struggle for in­
dividual freedom.

The right to keep one’s silence is ancient. It was 
known in Athens and Rome ( Coffin v. U. S., 156 U. S.

identified and active in a subversive and foreign-directed con­
spiracy which goes under the misnomer of the Communist 
Party of the United States.’

“ 2. Congressman Vail (Cong. Rec. Nov. 24, 1947, page 
10881):

“ ‘All through their brazen performance it was also clear 
that the conduct of each of those 10 witnesses was in full 
accord with standard Communist practice long established to 
which all of them obediently conformed. In other words, these 
men showed a slavish subservience to the instructions of those 
representing a foreign power and utter and calculated de­
fiance of a committee of the duly elected Congress of the 
United States. To indicate that the conduct of these wit­
nesses was not the brilliant inspiration of any single individual 
witness or the result of a remarkable meeting of minds of all 
o f them, I wish to cite the rules o f conduct laid down for all 
Communists by their leading spokesmen.’

“ 3. Congressman McDowell (Cong. Rec. Nov. 24, 1947, 
page 10886) :

“  ‘The ten witnesses who are all known to be veteran mem­
bers of the Communist Party, which, the committee holds, 
as does most of you, to be not a political party, not a political 
ideology, nor a political philosophy, but an international poli­
tical conspiracy, directed by an iron and militant hand in the 
capital of Soviet-Russia— Moscow.’

“4. Congressman Mundt (Gong. Rec. Nov. 24, 1947, p. 
10891):

“  ‘Why did they refuse to answer? Because if they said 
“No,”  the laws of perjury are too rough, and the sentences 
they would have received would be greater than if they simply 
maintained silence and were cited for contempt. If they ad­
mitted the truth and said, “ Yes,”  then, of course, they knew 
they would lose the lucrative jobs they had been holding out 
in Hollywood.’ ”  (Emphasis added).



48-

432). It was relied upon by Jesus Christ in his trial 
(Matthew, 26:33).

General searches had originated in the Star Chamber 
{Boyd v. U. S., 116 U. S. 616, 628) and they, along 
with compulsory self-accusation and inquisitorial investiga­
tions, “ were among those intolerable abuses of the Star 
Chamber which brought that institution to an end at the 
hands of the Long Parliament in 1640.”  {Jones v.
S. E. C„ 298 U. S. 1, 28.)

The inviolability o f political opinion and its counter­
part, political association, from Congressional search, was 
known and respected by Congress until the House Com­
mittee on Un-American Activities departed from this 
respected principle.

For example, in 1835, Thaddeus Stevens, then chair­
man of a committee of the Pennsylvania State Legislature 
to investigate the Masonic Order, issued subpoenas 
directed to prominent Masons, among them a minister, 
Rev. Dr. Sproal (Woodley, T. F., Thaddeus Stevens 
(Pennsylvania 1934)). Dr. Sproal, when called, refused 
to take the oath “ on the grounds that it would wound his 
conscience as a Christian” and violate “ his Constitutional 
rights as a man.”

Stevens applied to the House to hold the witness for 
contempt. Although his party, together with the Whigs, 
enjoyed a majority in the House, the legislature refused 
and he was discharged (Woodley, supra, p. 29).

The following year Stevens was similarly rebuffed by 
William H. Harrison, later President, when he asked the 
latter’s assistance in suppressing the Masons. Harrison 
replied that “ he was certain that there exists no such 
power, either in the whole Government of the United



49-

States or in any of its Departments, and that the attempt 
to exercise it would constitute a usurpation o f power, preg­
nant, if tolerated by the people, with mischiefs infinitely 
more fatal than those which it was intended to remedy.” 
(Woodley, supra, p. 38.)

On a number of occasions, the House of Representatives 
in contested election cases has had before it the problem of 
determining how a citizen voted. In these cases, of course, 
the issue was clearly presented: Has the legislature the
power to compel a citizen to disclose his vote? Has it 
the power to compel him to disclose his political affiliation ? 
The answer has been uniformly in the negative. From 
the numerous precedents, the following is one which 
enumerates in detail the reasons for the position uniformly 
taken by the House:

“ Where, as in New Jersey, the law allows o f voting 
by ballot, thus intending to enable the elector to with­
hold the knowledge of his choice from all, that law 
cannot so run counter to its own spirit as to compel 
him, on some other occasion, to unfold the secret. 
Hence, the necessity of resorting to a grade of evi­
dence, less direct, but which may be, and often is, no 
less certain than the oath of the voter. This position 
is supported by the decision in the election case from 
New Jersey, in this House, which was determined in 
1840. In that case, the majority of the Committee 
on Elections * * * laid down the following rule
as their guide. ‘Although in numerous instances the 
voter, being examined as a witness, voluntarily dis­
closed the character of his vote, yet in many cases 
he did not appear, or appearing chose to avail him­
self o f his legal right to refuse an answer on that 
point. In such cases, proof of general reputation 
as to the political character o f the voter, and as to



— 50—

the party to which he belonged at the time of the 
election, has been sufficiently demonstrative of the 
complexion of his vote.”  (Emphasis supplied.) (Rep­
resentative Jenkins, Congressional Globe, 29th Cong., 
1st Sess. 1845-46, App., p. 455.)

Recently there has been a growing awareness of this 
right. In Nutting, “ Freedom o f Silence: Constitutional 
Protection Against Governmental Intrusions in Political 
Affairs, 47 Michigan Law Review 181, at 221,”  it is said:

“ Turning to the area of belief or opinion as dis­
tinct from action, it should be concluded that the 
former matters are privileged against compulsory dis­
closure. In many circumstances it may be desirable 
for a legislative body to determine who a man is 
and what he does or has done. But unless he trans­
lates his beliefs into action, what he thinks should 
not concern the government. ‘The Devil himself 
knoweth not the mind of man’ and Congress should 
not attempt to out-do his Satanic Majesty. It is 
impossible to demonstrate a relation substantial 
enough to prevail against the individual’s desire for 
silence, between the public interest in disclosure and 
privately held views as to the form and function of 
government. For a court to allow the government 
to compel such disclosures would indeed amount to 
judicial approval of thought control.” 8

8“ The essence of our political theory,”  writes Mr. E. B. White 
(New York Herald-Tribune, December 2, 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 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 circumstances where, for security 
reasons, the temptation to modify it is great * * *. One need 
only watch totalitarians at work to see that once men gain power 
over other men’s minds, that power is never used sparingly and



—51
B. The Committee’s Utilization of Congressional Power, as 

an Agency of Government to Compel Disclosure of 
Private Political Opinion and Association, Is Forbidden 
by the Ninth and Tenth Amendments as an Unwarranted 
Invasion Into the Area of Governmental Power Reserved 
Exclusively to the Sovereign People.

1. P e t i t i o n e r ' s P o s i t i o n .

While the liberties of speech, thought and association* 9 
possess, of course, great value to the individual, the more 
fundamental constitutional significance attending those 
liberties is a societal one; they bear for the nation at large 
a value which is beyond all measure and which is derived 
directly from the function which they perform in the 
processes of a self-governing society. In our way of life 
the people play a role, and, indeed, the greatest role of

wisely, but lavishly and brutally and with unspeakable results. 
If I must declare today that I am not a Communist, 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.”

9 Affiliation, at least insofar as it is concerned with the holding 
and advocacy of doctrines, is but an inseparable corollary to a man’s 
right to freedom of speech and thought. Assembly, association 
and affiliation, being but the means whereby in a complex society 
an individual today may render his right to freedom of speech and 
thought meaningful, are as fully protected by the Constitution as is 
speech itself. ( Thomas v. Collins, 323 U. S. 516, 530; De Jonge 
v. Oregon, 299 U. S. 353; Bowe v. Commonwealth, 320 Mass. 
230, 252; de Tocqueville, Democracy in America, (N . Y. 1946), 
Vol. I, p. 196; Laski, Freedom of Association, V I Encyc. Soc. Sci., 
p. 449).

The Communist Party being a political association, affiliation 
with that Party is in effect but an expression of the individual’s 
right to think and speak freely in the political arena, and for those 
choosing so to do the right to affiliate with that Party or to espouse 
the ideas embodied in its program and platform is as immune from 
accounting to governmental authority as the right of other persons 
to affiliate with more popular causes or advocate more generally 
accepted views. (Bridges v. Wixen, 326 U. S. 135, Schneiderman 
v. United States, 320 U. S. 118). The view that ideas “ Communis­



- 52-

all, in their own government, and they do so through the 
liberties of the First Amendment.

The nation’s Constitution was not ordained and estab­
lished by the states, “ but emphatically, as the preamble of 
the Constitution declares, by ‘the people of the United 
States.’ ”  ( Martin v. Hunter’s Lessee, 1 Wheat. 304,
324.) In adopting the Constitution, the people granted 
certain powers to the federal government and certain 
others to the state governments, but beyond doing this, 
they reserved to themselves “ those sovereign authorities 
which they . . . [chose] . . . not to delegate to
either.” ( Martin v. Hunter’s Lessee, supra, p. 325.) So 
doing they made this nation “ emphatically, and truly, a 
government of the people.”  ( McCulloch v. Maryland, 
4 Wheat. 316, 405. They made all government answer- 
able in the ultimate to them for every deed undertaken 
and every policy established. ( Yick W o v. Hopkins, 118 
U. S. 356, 370; Newport Bridge Co. v. United States, 
105 U. S. 470, 482.)

At the very foundation of self-government by the people 
must be unfettered freedom of speech, thought and asso-

tic”  in character are protected by the First Amendment (as affilia­
tion therefore must be) was expressed by Mr. Justice Holmes in 
his now famous dissent in Gitlow v. New York, 268 U. S. 652, 
673, when he said:

“  . . . if, in the long run, the beliefs expressed in pro­
letarian dictatorship are destined to be accepted by the domin­
ant forces of the community, the only meaning of free speech 
is that they should be given their chance and have they way.” 

Brandeis, J., similarly expressed himself in his concurring opinion 
in Whitney v. California, 274 U. S. 357, 379. The views expressed 
in these opinions have many times been adopted by majority de­
cisions of this court. ( Bridges v. California, 314 U. S. 252, 262- 
263; Schneiierman v. United States, 320 U. S. 118, 137; Thomas 
v. Collins, 323 U. S. 516, 537; see also De Jonge v. Oregon, 299 
U. S. 353; Herndon v. Lowry, 301 U. S. 242; Cantwell v. Con­
necticut, 310 U. S. 296.



■53—

ciation within the area of matters of public moment. Free 
exercise by the people of these liberties is “ indispensable 
to the effective and intelligent use of the processes of popu­
lar government to shape the destiny of . . . society.”
( Thornhill v. Alabama, 310 U. S. 88, 103.)

For the Committee here to,assert authority to hold the 
people by and through compulsory disclosures account­
able to it with respect to their thought, speech and asso­
ciations fundamentally misapprehends the relation of 
people to their representatives in our nation. It is public 
officials who are accountable to the people for the ability 
and faithfulness with which they carry out the people’s 
will, not the people who are accountable for their opinions, 
thoughts and desires to the holders of office.

It is, therefore, improper, as a matter of principle alone, 
for this Committee or any other governmental body to 
seek to compel, by compulsory disclosure or otherwise, 
submission to it of the thoughts, speech and associations 
of the people. ( Thomas v. Collins, 323 U. S. 415, 539, 
et seq.)

Such submission could not be justified even though the 
burden placed on these freedoms were slight, for no re­
straint there can ever be deemed small when it is remem­
bered what is restrained. ( Thomas v. Collins, supra, 
p. 543; Murdock v. Pennsylvania, 319 U. S. 105, 108; 
Jones v. Opelika, 319 U. S. 103.) Even the possibility 
of injury to freedom of speech, thought or association 
is a risk with which the nation cannot gamble. This, 
because more important by far than the adoption of any 
single law or o f policy, however imperative it may appear 
to be, is the preservation in full working order of the 
“ processes of popular government”  ( Thornhill v. Alabama, 
310 U. S. 88, 103), whereby the people may apprehend



— 54—

and correct such errors o f state as must inevitably occur. 
Freedom of speech, thought and association make up the 
operative machinery of those processes; all else in law 
and government is but the products which those processes 
create, recreate, alter, modify or abolish as the people will. 
Preserve the processes of self-government and the remedy 
exists to repair damage to end products, but impair the 
processes themselves and the entire cycle is stilled and 
democratic government is ended.

Even those justices who have disputed the outer reaches 
of the foregoing principles, have never questioned the 
narrower proposition that at least where burden in fact is 
imposed by government action the state action must be 
stricken down. (See dissenting opinions: Murdock v.
Pennsylvania, 319 U. S. 105, 117, 118, 130, 134, 139. 
See also: Grosjean v. American Press, 297 U. S. 233;
Bridges v. California, 314 U. S. 252, 268, 569.) And 
burden there is in fact in the instant case— burden most 
severe in manner and degree. Compulsory disclosure was 
used by the Committee here to expose and stigmatize the 
inherents of minority ideas and thus to invite— indeed, 
incite— ruthless economic, social and other retaliation 
against them. Such use of governmental power obliterates 
the ideas attacked and drives them and their adherents 
from the marketplace of thought.10

Even this does not exhaust the vice of the use of govern­
mental power by this Committee to interfere with thought, 
speech and association. For here there is not merely inter­
ference attended by heavy burden but interference calcu­
lated and intended to coerce the people in their choice of

10This in the teeth of this court’s command that “ no State, nor 
all together, nor the nation itself”  can “ impede”  freedom of speech 
and association. Thomas v. Collins, 323 U. S. 516, 543.



•55-

ideas and their speech and association in furtherance there­
of. The Committee’s demand for compulsory disclosure 
places no general or random burden upon speech and 
thought, retarding the discussion and evaluation of all 
ideas equally and alike but rather a selective burden fall­
ing only upon some ideas and calculated to intimidate the 
people with respect to those ideas. The Committee’s 
action was thus calculated to coerce the people to speak 
and think, not according to their honest individual judg­
ment and conscience, but according to their judgment and 
conscience as modified by fear. This is the final subversion 
of self-government. Coerced people no more rule them­
selves than do people in overt bondage. The framers of 
our Constitution “ set up government by consent of the 
governed, and the Bill of Rights denies those in power 
any legal opportunity to coerce that consent. Authority 
here is to be controlled by public opinion, not public opinion 
by authority.”  ( West Virginia v. Barnette, 319 U. S. 
624, 641.)

2 . T h e  O p i n i o n  B e l o w .

In upholding the compulsory disclosures required by 
the Committee in the instant case, the Court of Appeals 
fully perceived that the central issue was the intrusion 
of government into the area of thought, speech and asso­
ciation. It sustained this intrusion on the ground that the 
thought, speech and association so burdened and abridged 
were important:

“ . . . No one can doubt in these chaotic times that 
the destiny of all nations hangs in balance in the 
current ideological struggle between communistic- 
thinking and democratic-thinking peoples of the 
world. Neither Congress nor any court is required



— 56—

to disregard the impact o f world events, however 
impartially or dispassionately they view them. It is 
equally beyond dispute that the motion picture in­
dustry plays a critically prominent role in the mold­
ing o f public opinion and that motion pictures are, 
or are capable of being, a potent medium o f propa­
ganda dissemination which may influence the minds 
of millions o f American people. This being so, it is 
absurd to argue, as these appellants do, that ques­
tions asked men who, by their authorship of the 
scripts, vitally influence the ultimate production of 
motion pictures seen by millions, which questions 
require disclosure of whether or not they are or ever 
have been Communists, are not pertinent questions.” 
(Emphasis added.) (Lawson v. U. S.— No 9871 
U. S. C. A .— D. C.)

This is complete approval, by the court below, o f gov­
ernmental preemption o f the marketplace of public opin­
ion. Petitioner’s freedom of thought, speech and associa­
tion, the lower court says, may be abridged— indeed, 
destroyed— because motion pictures are a potent medium 
for the dissemination of ideas reaching and influencing 
“ the minds of millions of American people” and because 
the questions propounded by the Committee respecting 
Communist Party affiliation were “pertinent”  to an 
“ ideological struggle” so grave in importance and sig­
nificance that “ the destiny of all nations hangs in bal­
ance.” Thus, the opinion holds, speech may be abridged 
whenever it relates to a vital subject matter or is expressed 
through an effective means of communication. The amend­
ment is to be preserved only for unimportant speech 
ineffectively communicated.



-57-

This court’s statement quoted below from Bridges v. 
California■, 314 U. S. 252, 269, was written for this very 
case:

. . It is therefore the controversies that com­
mand most interest that the decisions below would 
remove from the arena of public discussion.

“ No suggestion can be found in the Constitution 
that the freedom there guaranteed for speech and 
the press bears an inverse ratio to the timeliness and 
importance of the ideas seeking expression.”

The court below openly expresses fear lest the people 
be induced— not by force, fear and compulsion, but 
through the free competition of ideas in what it, itself, 
designates as an “ ideological struggle”— to favor one set 
of doctrines over another. Thus does that court abandon 
the root premise of democracy— faith in the judgment of 
the people as to the worth o f all ideas whatever. Now an 
idea in and of itself becomes a danger demanding- state 
suppression.

Under our Constitution no mere idea can be a danger. 
The “ present danger” test has never referred to the 
“ danger” of an idea. It has meant danger of conduct, of 
“ substantive evil” against which Congress has a right to 
protect the nation. Congress has no right to protect the 
nation from an idea.

“ . . . it cannot be the duty, because it is not the 
right, of the state to protect the public against false 
doctrine.”  (Thomas v. Collins, 323 U. S. 516, 545, 
Jackson, J., concurring.)

Additionally, laying the First Amendment entirely aside, 
the court below has upheld compulsory disclosure in the 
instant case upon a record which could not justify com­



•58—

pulsory disclosure even respecting personal affairs having 
nothing to do with freedom of speech, thought and asso­
ciation. Whatever the subject matter, Congress possesses 
no “general power of making inquiry into the private 
affairs of the citizen.”  (Kilbourne v. Thompson, 103 U. 
S. 168, 190.) Congress may not rummage at random 
through the papers, records or affairs of any person, 
firm or corporation merely “ in the hope that something 
will turn up.”  (F. T. C. v. American Tobacco Co., 264 
U. S. 298, 306, quoted, with approval in Sinclair v. United 
States, 279 U. S. 263, 294.) All persons as to all affairs 
have “ the right to be exempt from . . . unauthorized, 
arbitrary or unreasonable inquiries and disclosures.” 
(Sinclair v. United States, 279 U. S. 263, 292.)

Hence, even were the First Amendment not involved 
in the instant case, before Congress might investigate the 
personal affairs of petitioner, or any other member of the 
motion picture industry, respecting his or their participa­
tion in the production of pictures, reasonable basis and 
foundation for such investigation would first have to be 
established. The Frst Amendment aside, before Congress 
in the name of exploring the propagation of “ dangerous 
ideas” could investigate any communication industry and, 
as part of such investigation compel any or all o f the 
persons engaged therein to disclose their thoughts or 
affiliations, there would initially have to be shown some 
reasonable basis therefor. Here that means a reasonable 
basis for believing, first, that the ideas wdth which the 
investigation was concerned were “dangerous,”  and,



■59—

second, that the industry involved was in some manner 
furthering the propagation of such “ dangerous ideas.”

No such foundation existed in the instant case. In the 
first place there is no evidence in the record establishing 
the “ danger” of any idea, however “ danger” be defined. 
To the extent that the court below discovered any ma­
terial supposedly bearing on the issue, it was not ma­
terial extracted from any part of the record here, but 
consisted solely of matter judicially noted by another 
division of the court below in Bar sky v. United States, 
167 F. 2d 241, 247. The material related to the sup­
posed “ danger” o f the precepts and program of the Com­
munist Party in the United States and throughout the 
world. Yet this court has definitely held that judicial 
notice is unavailing to establish what ideas and precepts 
are in fact embraced by any political party-including 
particularly, the Communist Party of the United States, 
or any officer, member or supporter of that party— let 
alone to establish the “ danger” of whatever ideas might 
in fact be so embraced. {Schneiderman v. U. S., 320 U. S. 
118; Bridges v. Wixon, 326 U. S. 135.)

Second, even could judicial notice supply proof that 
certain specific ideas, however expressed or defined, were 
in fact invested with “ danger,” still here, there is a lack 
of reasonable basis for the investigation undertaken of 
the motion picture industry. This because the pictures 
created by the motion picture industry are not matters 
kept secret and clandestine, but are an open book; and 
petitioner affirmatively offered to prove at his trial that



in fact, and as a matter of common knowledge, no picture 
produced by the motion picture industry had ever 
furthered in any measure or manner any “ dangerous idea” 
under any conceivable, reasonable standards, defining 
such; and more petitioner offered to prove that, even were 
he so inclined, he, as a writer o f film scripts, was utterly 
without power or discretion under the practices of the 
industry to intrude into any picture support of any such 
idea.

Thus, in the instant case, the Committee has invaded 
the area of speech, thought and association in so unrea­
sonable and roughshod a manner that even were the First 
Amendment no longer a part of the Constitution, the 
Committee’s action would yet offend individual rights. 
And more important by far, so long as this court stands, 
the First Amendment retains life not only as a part of 
the Constitution but as the core and heart of free so­
ciety in America. As has been shown, the Committee and 
the court below have so misconceived freedom of speech, 
thought and association as to formulate and act upon the 
proposition that mere ideas may constitute dangers from 
which government rightfully may protect the nation. 
This proposition in its entirety must be stricken down. It 
is at war with liberty.



—61
II.

This Particular Inquiry Into the Hollywood Motion 
Picture Industry Lay Entirely Outside the Law­
ful Bounds of the Power of the House Committee 
Because It Constituted a Censorship of the Con­
tent of Motion Pictures and Thereby Violated the 
First Amendment.

Motion pictures enjoy the same protection under the 
First Amendment as the press and radio. Congress could 
not legislate a direct censorship of the contents of motion 
pictures. (17. S. v. Paramount, 334 U. S. 131, 166.)

The motion picture belongs in the category o f the free 
arts; it is, in a sense, a composite form in which the arts 
o f drama, painting, the plastic and graphic, as well as the 
visual and literary arts find expression.

“What is good literature, or has educational value, what 
is good art, varies with individuals as it does from one 
generation to another,”  but despite these wide variances, 
“ under our system there is an accommodation for the 
widest variety of tastes and ideas,” because the “ require­
ment that literature or art conform to some norm pre­
scribed by an official smacks o f an ideology foreign to our 
system.” ( Hannegan v. Esquire, 327 U. S. 146, 157- 
158.)

Motion pictures, like the play and the novel, offer us a 
medium for determining the truth of our existing concepts. 
They can point, on occasion, to the desirability of retain­
ing the status quo; on other occasions, to the wisdom of 
social change. These expressions are desirable and should 
be unhampered by any governmental action if our way of 
life is to endure. Any censorship of the screen deprives 
Americans of their right of a free discussion of ideas and



- 62-

concepts in the cultural field. The artist, the writer is just 
as much entitled to freely express his beliefs as the people 
are to receive them. To exercise censorship and restrict 
free communication of thoughts and beliefs from the 
artists to the audience is to “ impoverish the intellectual 
life of the community.” (Chafee, Free Speech, p. 529.)

Had the Committee used its asserted statutory power 
to investigate the content of American newspapers and 
had it demanded of a group of newspaper publishers that 
they abandon a particular editorial point of view and that 
they discharge and blacklist a group of editorial writers all 
associated with that point of view, the censorship in action 
would be crystal clear.

As applied to the motion picture industry the vice is 
the same.

The struggle for freedom from censorship, while cen­
tering around the press, was not limited to it. “ The evils 
to be prevented were not the censorship o f the press 
merely, but any action of the government by means of 
which it might prevent such free and general discussion of 
public matters as seems absolutely essential to prepare the 
people for an intelligent exercise of their rights as citi­
zens.” (2 Cooley, Const. Limitations, 8th Ed., p. 886, 
quoted in Grosjean’s case (297 U. S. 233).)

Both before and since its application by the Athenians 
to Socrates, censorship has been defined as “ the policy of 
restricting the public expression o f ideas, opinions, con­
cepts, and impulses which have or are believed to have the 
capacity to undermine the governing authority or social 
order which that authority considers itself bound to pro­
tect.” (See Laswell, “ Censorship,” in Vol. 3, Enc. Soc. 
Sciences, p. 290.)



It was precisely this policy of restricting the public ex­
pression of ideas, opinions, concepts and impulses which 
was carried on here by this Committee, and it is precisely 
that policy of restriction which this Court has found to be 
“ so abhorrent to our tradition that any use o f it by any 
government agency should be stricken down.”  ( Hannegan 
v. Esquire, supra.)

The argument that Congressional investigation is not 
censure or regulation is wide of the mark. The point is 
that such an investigation may in design and in fact be 
censure and regulation; petitioner here offered to prove 
that this particular investigation was precisely that, but 
the Court considered the proof immaterial.

Ordinarily, tax laws are not considered measures of 
censorship. But they may be— (Jones v. Opelika, 319 
U. S. 103; Murdock v. Pennsylvania, 319 U. S. 105), and 
where shown to be such by the private citizen involved, 
they are judicially declared void. (Grosjean’s case, infra, 
and cases cited.) This is so because “ the Constitution 
deals with substance, not shadows. Its inhibition was 
leveled at the thing, not the name.”  ( Cummings v. Mis­
souri, 4 Wall. 277, 325.)

In Grosjean v. American Press, 297 U. S. 233, the 
censorship was achieved indirectly by a circulation tax 
against Huey Long’s newspaper adversaries; the tax 
measure was stricken as a patent device to affect the cen­
sorship of a newspaper by circuity; in Hannegan’s case, 
supra, the proscribed censorship was likewise achieved by 
indirection through the process of an administrative order 
denying the second class mailing privilege to a magazine 
whose content displeased the literary tastes of the Post 
Master General; the roundabout method still led to the 
stone wall against censorship.



■64

And in this particular case, the censorship was achieved 
in two ways:

1. By the utilization of the governmental power of 
a Congressional investigation committee to strike directly 
at the content of films by, first, directing the industry to 
make certain kinds of pictures;1 by, second, directing the 
industry not to make certain kinds of pictures;1 2 by third,

1See Defendant’s Rejected Exhibit 10; the following few ex­
amples are typical of the many there set forth:

“ The Chairman: Well, has the industry the will to make 
anti-Communist pictures?

Mr. McGinnis: I think the industry is acquiring it.

The Chairman: Mr. McGinnis, will these public hearings
aid the industry in giving it the will to make these pictures?

Mr. McGinnis: It is my opinion that they will.” IT A 
487-488.]

* * * * * * * * : ( ; *
“ Mr. Nixon: Under those circumstances I would like to 

know whether or not Warner Bros, has made or is making 
at the present time, any pictures pointing out the methods and 
evils of totalitarian Communism as you so effectively have 
pointed out the evils of the totalitarian Nazis.

Mr. Warner: W e are preparing and will make one film, 
‘Up Until Now.’

Mr. N ixon: Under these circumstances, I think this Com­
mittee is glad to hear that Warner Bros, is contemplating for 
the first time now making a motion picture in which they point 
out to the American people the dangers of totalitarian Com­
munism as well as Fascism.”  [J. A. 486.]

2The industry was repeatedly attacked publicly and criticized 
publicly by the Committee for having made the picture, “ Mission to 
Moscow” [J. A. 489-490] ; for having made the picture, “ Song of 
Russia.”  [J. A. 490; cf. particularly J. A. 491.] :

“ Mr. Stripling: Now, Mr. Mayer, you stated that you
recently viewed the picture (Song of Russia) ?

Mr. M ayer: Yes, sir.
Mr. Stripling: Is it your opinion that there were no po­

litical implications in it whatsoever?
Mr. Mayer: I am convinced of that. I am under oath and

if I met my God I would still repeat the same thing” ; 
for having made the picture, “ North Star” [J. A. 494] ; for having 
purchased the story, “ Rachel” for motion pictures [J. A. 504] ; for 
having made the picture, “ None But the Eonely Heart”  [J. A  510]



—65
suggesting- standards and norms for the elimination of 
“ slanted lines” and verboten scenes;3 and,

3The particular content of the films was publicly and repeatedly 
censured for possessing “ slanted lines,” for allusions to bankers as 
“ heavys,” to Congressmen as “ crooks,” and to the Russians as 
“ somber and moody people” whose children, however, are depicted 
as “ smiling, happy children,”  and for the utilization of a gesture 
or the lifting of an eyebrow to convey a “ subversive” impression, 
Cf. Exhibit 10 and the following exemplars:

“ The Chairman: Don’t you think it would be very foolish
for a Communist or a Communist sympathizer to attempt to 
write a script advocating the overthrow of the Government by- 
force or violence ?

Mr. W arner: It would not only be foolish, it would be
something they could not get away with in the American motion 
picture industry in California, or anywhere else.

The Chairman: Exactly. So what would they do. They 
would put in slanted lines wherever they could, and that is 
what you have been trying to keep out?

Mr. W arner: That is correct.
The Chairman: That is why you have been doing exactly

the same thing in your business that we have been attempting 
to do in ours.

Mr. Warner: That is correct.” [J. A. SOS.]

“ Mr. Stripling: Can you tell the Committee whether or
not in the past there have been efforts to discredit certain 
institutions of the American Government by constantly refer­
ring to the members of Congress as being crooks and so forth 
in the pictures?”  [J. A. 506.]

“ Mr. Stripling: As a director, Mr. McCarey, what do you 
think the dangers are of permitting pictures to be made in 
which the institutions in this country are portrayed in a dis­
paraging light? In other words, if pictures are made which 
always have the banker as a heavy as it has been referred to 
in the testimony, and that picture is shown in foreign countries, 
and so on, what do you think the ultimate effect would be?

Mr. McCarey: Well, naturally it would give a very un­
favorable opinion of people who are successful in the United 
States.

Mr. Stripling: Do you think that is a dangerous practice
for the moving pictures to pursue?

Mr. McCarey: I think it is a very dangerous practice.”
[J. A. 510.]



2. By the utilization of the governmental power of 
congressional investigating committee to strike indirectly 
at the content of films by blacklisting the men who create 
films, thus keeping their ideas off the screen.

As the history of totalitarianism clearly reveals, there 
can be no more effective censorship of any media of com­
munication than a purge of the individuals identified, ac­
curately or inaccurately, with the ideas and points of view 
which the censors want to expurgate. In the conquest of 
ideas, the taking of ten hostages can approximate in effect 
the direct suppression o f ideas and points of view. This 
is precisely what Mr. Stripling had in mind (and realized) 
when he asked an employer spokesman for an industry, 
“ Don’t you think the most effective way of removing those 
Communist influences— and I say Communist influences; 
I am not saying Communists; I am not accusing them all 
of being Communists but don’t you think the best way 
is the payroll route?” [J. A. 517; Rejected Defendant’s 
Exhibit 10.] Seldom, if ever, has there been a more ex­
plicit statement of the censor’s strategy of terror.

Not only were ten men and their ideas taken as host­
ages, but all those who remained in the industry together 
with their creative ideas stood in like jeopardy. This 
situation illumines the wisdom of the rule: ‘It is not
merely the sporadic abuse of power by the censor but the 
pervasive threat inherent in its very existence that con­
stitutes the danger to freedom. (Near v. Minnesota, 283 
U. S. 697; Thornhill v. Alabama, 310 U. S. 97.)



— 67—

Nor can it be said that the investigators here were not 
imposing a censorship but were merely investigating to 
determine whether “ some clear and present danger” or 
some “ potential” threat thereof did in fact exist justifying 
some governmental concern and the resultant investigation 
into the Hollywood motion picture industry. In the first 
place, the investigation on its face reveals that this was no 
inquiry to determine the existence of any such clear or 
present or potential danger. Not only was the absence 
of any such danger apparent even to the Committee (which 
conceded as much before petitioner was called to the 
stand) but all of the investigators concurred in asserting 
the complete absence of any possible showing of such 
danger.

(C /. “The Chairman: Don’t you think it would
be very foolish for a Communist or a Communist 
sympathizer to attempt to write a script advocating 
the overthrow of the Government by force and vio­
lence?”

“ The Chairman: Exactly. So what would they
do? They would put in slanted lines wherever they 
could and that is what you have been trying to keep 
out?” ) [C f. Defendant’s Rejected 10.]

No person can seriously suggest that from “ slanted 
lines” which do not advocate overthrow of Government by 
force and violence, can there conceivably come to our 
country any substantive evil of such “extreme seriousness” 
possessing such a “ high degree of imminent danger,” as



— 68—

would be necessary to justify governmental intercession 
in the area of speech and opinion. (Cf.  Bridges v. Cali­
fornia, 314 U. S. 252.)

Not only is this patent, but over and above all this 
stands the fact that petitioner himself offered to assume 
the burden of showing first to the Committee and later to 
the Court, the absence of any such dangers, whether clear 
or present or real or potential or fancied. Deeming all 
such proof immaterial, both the Committee and the Court 
refused to allow it. [Rejected Defendant’s Exhibits 4, 5, 
6; J. A. 394-409; Rejected Defendant’s Exhibit 10; and 
see J. A. 335 and 336.] Thus did the Trial and Appellate 
Courts reverse the firmly established doctrine of this Court 
that an individual whose freedom of speech or expression 
is threatened by any governmental action may show the 
action to be excessive because no clear or present danger 
existed justifying the same, or because no reasonably rep­
resented potential threat thereof was shown, even assum­
ing the test of the Barsky case, infra.

The Trial and Appellate Courts placed the judicial seal 
of approval upon this particular governmental usage of 
power to effectuate censorship. It should be stricken 
down.



I I I .

The Committee as an Agency of Government Used 
Its Powers Under Section 121 of Legislative Re­
organization Act of 1946 to Impose a Black­
list Against the Petitioner and Other Named 
Individuals, and Thereby Placed Itself Above 
the Constitution and Disregarded the Ele­
mentary Requirements of Due Process o f Law in 
That: (1 ) It Usurped the Power to Legislate
Confided by the Constitution to the Concurrent 
Action of Both Houses of Congress and the Presi­
dent; (2 ) It Exercised Such Power in a Manner 
Prohibited Even to the Entire Legislature; (3) 
It Invaded the Area Delegated Exclusively to the 
judiciary; and (4) It Exercised Such Judicial 
Power in a Manner Prohibited Even to the Ju­
diciary.

On the grounds of “ immateriality,”  the trial court re­
fused to allow proof that the Committee used its processes 
as a governmental agency, including the hearing to which 
petitioner was subpoenaed, to initiate and effectuate a 
purge, through the establishment of a blacklist in the 
motion picture industry, of a group of named writers, 
directors and producers, including petitioner.1

The proof offered and refused was that the Committee, 
acting alone and without authorization of any law what-

1Also, instructions proposed by the petitioner, dealing with this 
point were rejected. See, for example, petitioner’s proposed in­
struction No. 25.

“ The jury are instructed that if they find upon all the evi­
dence that the sole and primary purpose of the investigation 
of the defendant, John Howard Lawson, was to cause him 
to be discharged from employment in the motion picture in­
dustry, and to be blacklisted therefrom, then such investigation 
would not be a lawful ‘question under inquiry’ within the 
meaning of the statute, and the jury should find the defendant 
not guilty” [J. A. 369-70].



-70—

ever, had established certain standards o f permissible and 
impermissible thought, speech and association;2 that of its 
own prerogative the Committee determined that persons 
offending against those standards of thought, speech and 
association for such transgressions be deprived of and 
forever barred from employment as writers, producers or 
directors in the motion picture industry; that it, as part of 
a national program aimed at every part o f American life 
and industry, had used its hearings to initiate and effec­
tuate a blacklisting by all employers within the industry 
aimed generally at all persons violating said standards3 
and specifically at certain named individuals, including 
petitioner,4 found by the Committee to have violated said 
standards.

So far from . being immaterial, such conduct by the 
Committee marks usurpation o f power and disregard of 
the doctrine of separation of powers and the arbitrary use 
of that assumed authority to destroy individual rights in 
a manner offensive to a host of constitutional principles

2Simply stated, these standards condemned and proscribed all 
speech or thought with which the Committee chanced to disagree. 
Proscribed and outlawed under these standards as “ communistic,”  
“ subversive” and “ un-American” speech and thought were such 
ideas, among others, as advocacy of “absolute social and racial 
equality” [J. A. 461], recommending dissolution of the British 
Empire [J. A. 454], favoring a “ planned economy” [J. A. 438] 
and questioning the divine origin of the rights of man [J. A. 461].

3Thus, for example, ex-Congressman Vail, then a member of the 
Committee, said during the course of the hearings: but,
of course, we have the problem of eliminating the communist ele­
ment from not only the Hollywood scene but also other scenes in 
America, and we have to have the full support and cooperation 
of the executives from each of those divisions.” [Committee Hear­
ings, p. 66, J. A. 518]. All of the members of the Committee 
agreed with the above statement and cooperated in using the Com­
mittees’ power to achieve the desired results [Ex. 10 for Ident 
J. A. 481, 513-18],

4[J. A. 481.]



— 71—

and completely inconsistent with the elementaries o f due 
process of law.5 In short, the Committee converted itself 
into a “purge agency,” thus assuming powers completely 
foreign to and forbidden by our constitutional system.

The essential concept of the Fifth Amendment is that 
no agency of the federal government shall deprive any 
person of life, liberty or property save by and through the 
regularly established and recognized processes of law.6 
This requires first the existence o f a law applicable to the 
situation concerned, a law duly and regularly enacted by 
the legislative organs established by the Constitution, the 
House of Representatives and the Senate, and approved by 
the President. The law so created and established must be 
free from substantive objection under the Constitution. 
Thus, it may not be a law imposing penalty upon past 
conduct, for such would be ex post facto legislation pro­
hibited by Article I, Section 9, Clause 3 of the Constitu­
tion. Nor may it impose penalties upon named persons or 8

8Man has never achieved a device better designed to destroy an 
individual, to deprive him of his liberty, his property and his dignity 
as a person, than a blacklist closing to him his chosen profession 
to which he has devoted a lifetime and from which he has secured 
a livelihood ( Cummings v. Missouri, 4 Wall. 277; United States 
v. Lovett, 328 U. S. 303.

6That the deprivation of liberty and property (employment, repu­
tation and career) was achieved by the Committee in the instant 
case by indirect and subtle use of governmental power rather than 
by formal criminal legislation imposing fine or imprisonment renders 
it more rather than less obnoxious. The command of the Consti­
tution is that no governmental body shall “deprive”  any man of 
liberty, property, or life without respecting and observing the 
limitations imposed by the Constitution. It matters not how gov­
ernment achieves the forbidden end. Whether by statute or by 
any other method or contrivance whatever, direct or indirect, no 
governmental agency has the right, authority or lawful power to 
deprive any person of liberty, property or life save through action 
consistent in all respects with the provisions of the Constitution. 
( United States v. Classic, 313 U. S. 299; Screws v. United States, 
325 U. S'. 91; Catlette v. United States (C. C. A. 4th, 1943), 132 
F. 2d 902; United States v. Trierweiler (1943 E. D. 111.), 52 
Fed. Supp 4.)



-72—

identifiable groups, nor upon any fraction of society what­
ever under standards not applicable equally and alike to 
all persons similarly situated, for such legislation would 
constitute special legislation and would offend the con­
stitutional prohibition against bills of attainder contained 
in Article 1, Section 9, Clause 3 of the Constitution. 
Finally, due process requires that penalty or punishment 
be imposed only upon a full hearing and determination of 
facts attended by those requirements of fair procedure 
traditionally recognized as essential to civilized justice.

The Committee here openly and flagrantly assumed 
power by “purge” to deprive petitioner of a lifetime’s 
career and to impose upon him what this court has char­
acterized as “ punishment, and of a most severe type,” 7 
without authority so to act of any kind, outside of all law 
and by and through processes established by its own fiat 
and conformable to no restraints save its own pleasure. 
This is the antithesis of due process. It is government by 
men where due process is government by law. If the 
Committee’s conduct here be sanctioned by this Court, 
then a short circuit device nullifying the entire Constitu­
tion has been conceived and like hated predecessors the 
Committee may proclaim, “ W e are the Constitution.” 8

7United States v. Lovett, 328 U. S. 303, 316.
8The Committee certainly so conceived itself. It considered itself 

not merely above the law and unfettered by the Constitution, but, 
indeed, immune even from criticism by common mortal. In its eyes, 
the fact that the American people engaged in “ criticizing individual 
members of Congress” is evidence of a “ widespread movement to 
discredit the legislative branch of our government,”  and this is 
“ the essence of totalitarianism” [Ex. 9 for Ident, J. A. 433], In 
its eyes, to oppose a bill authored by a member of the Committee 
is plainly “ un-American” Ex. 9 for Ident., J. A. 464] and to 
criticize the Committee as a committee is to necessarily reveal a 
“ red, sympathetic record” [Ex. 9 for Ident., J. A. 428], In fine, 
criticism of the Committee is outlawed [see, entire Ex. 9 for 
Ident., J. A. 249-53, 420 et seq.\.



73—

Our entire framework of constitutional law is based on 
the principle that no branch of our government may per­
form the functions delegated to any other branch. Dis­
regard of this essential long continued would render a 
single branch o f our government all-powerful; it would 
substitute an absolutist government for one of limited 
powers. Under our system, the legislative branch of 
government is granted only the power to establish stand­
ards of conduct operative in futuro and applicable equally 
to all persons. The application of such standards to spe­
cific individuals, the adjudication of guilt for violating 
the same and the imposition of penalties in consequence 
of violation are matters entrusted solely to the judicial 
branch of government. In the instant case, the Commit­
tee, as a mere fractional subdivision of one house within 
the legislative branch of government, had the power 
neither to establish standards for judging conduct nor 
to apply such standards to individuals suspected of violat­
ing the same. Yet this Committee did both. More— it 
established standards to be applied to past conduct, some­
thing not even the legislature as a whole might constitu­
tionally do. And it applied those standards to specific 
individuals and adjudicated the guilt of and imposed pun­
ishment and penalty therefor upon such individuals with­
out even affording such persons a full, fair or reasonable 
hearing, something not even a Court might constitutionally 
do.

In fine, the Committee made itself the State,— above the 
people and above the Constitution. The Committee made 
its own law. The Committee made its own adjudication 
of “ guilt.” The Committee made its own rules of pro­
cedure, evidence and hearing.



— 74—

Moreover, the procedure followed by the Committee 
cast aside every concept of procedural due process. The 
Committee predetermined petitioner’s “ guilt” 9 it acted as 
prosecutor and judge;10 it filed no charges; it confronted 
petitioner with none of the witnesses against him and 
denied cross-examination;11 it accepted from these wit­
nesses hearsay, rumor, gossip and reckless, unsubstanti­
ated charges, opinions and conclusions12 and coupled these 
with the doctrine of guilt by association to establish the

9Apropos the petitioner and nine similarly situated writers, di­
rectors and producers summoned before the Committee, Chairman 
Thomas stated before the Congress:

“ The reason these ten individuals refuse to answer the 
question was because they were Communists. They knew that 
we had the evidence that they were Communists, and they 
knew we were in a position to expose their communist activi­
ties, which they had been engaged in over a period of years” 
[Deft. Ex. 11 for Ident., J. A. 546],

10See Deft. Exs. 9, 10 and 11 for Ident., in whole, J. A. 420 
et seq., 480 et seq., and 546 et seq.

“ Before the Committee, petitioner’s attorney, Bartley Crum, Esq., 
specifically requested the right to confrontation and cross-examina­
tion, which requests were denied:

“ ‘Mr. Crum : May I request the right of cross-examination ?
I ask you to bring back and permit us to cross-examine the 

witnesses, Adolph Menjou, Fred Niblo, John Charles Moffitt, 
Richard Macauley, Rupert Hughes, Sam Wood, Ayn Rand, 
James McGuinness—

The Chairman: The request—
Mr. Crum : Howard Rushmore—
(The Chairman pounding gavel.)
Mr. Crum: Morrie Ryskind, Oliver Carlson—
The Chairman: The request is denied.’ ” [J. A. 214-15.]

“ Witness the following example:
“ Mr. Stripling: Has it ever been reported to you that cer­

tain members of the guild were Communists?
Mr. Reagan: Yes, sir; I have heard different discussions 

and some of them tagged as Communists.
Mr. Stripling: Have you ever heard that from any reliable

source ?
Mr. Reagan: Well, I considered the source as reliable at 

the time.” [Deft. Ex. 10 for Ident., J. A. 536.]



-75-

“ guilt”  of the individual accused;18 it refused effective aid 
of counsel ;14 it refused petitioner opportunity to defend or 
explain his thoughts and associations for which he stood 
“ accused.” 15

Cf. Nisnick v. United States (Mar. 7, 1949), 
C. C. A. 6, 173 Adv. F. 2d 328.

For refusal to answer questions in a proceeding aimed 
at him personally and designed to deprive him of liberty

13For example, on one occasion, the Committee extracted from a 
witness whom it, itself, termed the greatest expert on communism 
ever to appear before it, the three tests of “ guilt” indicated by the 
excerpt below:

“ ‘Mr. N ixon: You indicated that belonging to a Com­
munist front organization, in other words, an association with 
Communists, attending these planned meetings, making state­
ments in opposition to the capitalistic system are three of the 
tests you would apply.

Mr. Menjou: Yes, sir.
Mr. Nixon: Do you have any other tests from your ex­

perience you would like to give this committee?
Mr. M enjou: I don’t know of any better ones.’ ” [Deft. 

Ex. 10 for Ident., J. A. 530-31.]
14At the opening of the Committee hearings concerning the mo­

tion picture industry, in October, 1947, the following occurred:
“ The Chairman: Mr. McNutt, the Chair would like to in­

form you that it is the policy of this committee to permit 
counsel to advise his client, the witness here on the stand, of 
his constitutional rights, and only on the question of his con­
stitutional rights.

I would like to say to counsel that we hope you will bear 
with us in that and that it will not be necessary at any time 
to remind you of that.

Mr. McNutt: I understand, Mr. Chairman. Of course, I
should like to make a request to be permitted to cross-examine 
witnesses.

The Chairman: You will not have that permission. It is 
not the policy of the committee to permit counsel to cross- 
examine witnesses. You will only have the right, the solemn 
right, to advise your client, the witness, on his constitutional 
rights. Nothing else. You are no different from any of the 
other attorneys who have appeared before this committee this 
year in the many hearings that we have had.” [Tr. of Com­
mittee Hearings, Oct. 20-30, 1947, p. 7.]

15J. A. 188-189.



■76—

and property outside of the law and without even pre­
tense of compliance with or utilization of the due pro­
cesses of law, the government would punish petitioner for 
contempt. It is petitioner’s response that whenever gov­
ernmental officers or bodies presume to act under color 
of their authority and through the facilities of their o f­
fice to impose upon persons loss of liberty or property 
rights secured by the Constitution, such officers or bodies 
have no power to act outside of and above the law, but 
like all agencies of government whatever may lawfully 
act only by and through the due processes of law ( United 
States v. Classic, 313 U. S. 299; Screws v. United States, 
325 U. S. 91). Here the “ effect” of the Committee’s ac­
tion “ . . . was to inflict punishment without the safe­
guards of a judicial trial and ‘determined by no previous 
law or fixed rule.’ The Constitution declares that cannot 
be done either by a State or the United States.” ( United 
States v. Lovett, 328 U. S. 303, 316-317.)

It is a full defense to the charge against petitioner here 
seeking to punish him for contempt for his conduct in 
the course of the Committee proceedings here, that those 
proceedings were from beginning to end lawless, contrary 
to and outside o f the due processes of law and, accord­
ingly, beyond the jurisdiction of the Committee and void 
[Estep v. United States, 327 U. S. 114, 121; Niznick v. 
United Slates, 173 Adv. Fed. 2d 328; McGrain v. Dough­
erty, 273 U. S. 135, 176; Jones v. Securities and Exchange 
Commission, 298 U. S. 1, 25-26.)



— 77—

IV.
The Statute Creating the House Committee on Un- 

American Activities on Its Face and Particularly 
as Construed and Applied Is Unconstitutional in 
That (1), It Permits Investigation of, and as 
Construed and Applied Has Been Used to Inves­
tigate, the Content of Speech and Ideas, an Area 
in W hich No Legislation Is Possible Thereby 
Exceeding the Boundaries of Legislative Power 
Under Article I o f the Constitution, (2 ) It Per­
mits the Very Process of Investigation to Be 
Used, and as Generally Construed and Applied It 
Has Been Used, to Expose and Stigmatize the 
Content of Any and All Speech and Ideas Dis­
approved by the Members of the Committee, 
Thereby Impeding and Placing a Burden Upon 
Free Thought, Speech and Association in Viola­
tion of the First, Ninth and Tenth Amendments, 
and (3 ) -T h e Statute Is so Vague and Ambiguous 
That, as Applied in a Criminal Case, It Violates 
the First Amendment and the Due Process 
Clause of the Fifth Amendment.

Before considering the merits of the point here to be 
urged, it may appropriately be noted that the constitu­
tionality of the statute creating the Committee in the in­
stant case is properly before this Court on this petition. 
The legislative branch of the government has here in­
structed the executive branch to prosecute petitioner be­
fore the judicial branch. It has invoked the jurisdiction 
of the courts and has demanded that the petitioner be pun­
ished by and through the judicial process.

The creation and functioning of legislative committees 
may ordinarily be solely a matter o f legislative concern;



- 78-

but when the actions of a legislative committee affect the 
private rights and liberties of specific aggrieved individ­
uals and when such a committee undertakes to invoke the 
judicial process in aid of forfeiting those rights and liber­
ties, then of necessity the legality of the committee and its 
acts becomes a matter of judicial concern. Were the law 
otherwise, Congress, as this case bears witness, might act 
against named individuals, stigmatize their reputations 
and destroy their chance to earn a living, without oppor­
tunity existing anywhere for challenge or review of the 
legislative act. Not even out of deference to one of the 
other great branches of government has the Court suffered 
such unconstitutional wrong to stand without remedy. 
United States v. Lovett, 328 U. S. 303, 314. This Court 
and its subsidiary tribunals cannot become an accomplice 
to unconstitutional action depriving citizens of rights in 
violation of constitutional guarantees. Shelley v. Kraemer, 
334 U. S. 1.

Since the validity of the statute creating the Committee 
and defining its authority is properly before this Court 
in his case, it is petitioner’s position that the statute must 
be stricken as void and unconstitutional. The statute on 
its face will be considered first; later, it will be demon­
strated that the constitutional defects appearing on the 
face of the statute have been consistently manifested by its 
construction and application.

The core of the statute, Section 121(b) Legislative 
Reorganization Act of 1946, P. L. 601, Chap. 753, 79th 
Cong., 2nd Sess., 60 Stat. 828, amending Rule X I (1 )  (2 ) 
o f the Rules of the House of Representatives, authorizes 
the Committee to investigate “ propaganda” which is “ un- 
American” or “ subversive.” This patently authorizes in­



79—

vestigation into the content of speech and ideas as such,1 
Yet under the First Amendment Congress possesses in 
that area no power of regulation whatever. It matters 
not that Congress here has characterized the speech and 
ideas proceeded against as “ subversive” and “ un-Ameri­
can.” The Amendment protects the right of men to be­
lieve what they will and to speak out concerning their be­
liefs, whether the ideas involved be deemed either benefi­
cial or harmful by Congress. Congress may no more 
regulate speech because it choses to label it as “ un-Ameri­
can” or “ subversive” or as attacking “ the principle of the 
form of government as guaranteed by our Constitution” 
than it may regulate ideas by classifying them in any other 
manner. U. S. v. Ballard, 322 U. S. 78, 86-7; Thomas v. 
Collins, 323 U. S. 516.

The command of the Constitution is that as to all 
speech, Congress shall pass “ no law” regulating content. 
Even where the members of this Court have disagreed 
as to the applicability of the First Amendment there has 
been unanimous concurrence in the proposition that it 
prohibits all censorship or control of the content of speech. 
( Kovacs v. Cooper, 93 L. Ed. Adv. Op. 379.) The words 
“ un-American” and “ subversive”  used in the statute are 
so vague that their meaning can only be established by the 
opinions and prejudices of those interpreting and applying 
them. The effect of the statute is to authorize investiga­
tion into those matters of opinion which the members of

1That Congress here has described the subject of its action as 
“ propaganda,”  rather than “ speech,” is without consequence. Propa­
ganda is but an emotional synonym for speech and advocacy. In 
the words of the Court of Appeals for the Second Circuit, “propa­
ganda” may be defined as “ a plan for the publication of a doctrine 
or system of principles.”  (Leubuscher v. Commissioner, 54 F. 2d 
998, 1000; cf. Funk and Wagnalls International Dictionary (1935 
ed.), p. 1985.)



— 80—

the Committee, unhampered by any specific definition of 
their authority, may deem “ un-American”  or “ subver­
sive.” The statute insofar as it uses the terms “ un- 
American” and “ subversive” authorizes not only entry 
into the field of opinion, speech and association but a 
limitless and uncontrolled invasion thereof.

Nor is the statute aided by the authorization to investi­
gate “ propaganda * * * (that) attacks the principle
of the form of government as guaranteed by our Con­
stitution.” This phrase is hardly more specific than the 
words “ un-American” or “ subversive.”  Moreover our 
Constitution contemplates the possibility and the right of 
the people to make changes in our form of government—  
even fundamental changes affecting the important prin­
ciples of that form of government. Constitution, Article 
V. Congress may no more legislate with respect to the 
right to advocate ideas supporting basic changes in our 
government than it may regulate ideas supporting minor 
modifications. ( Schneiderman v. U. S., 320 U. S. 118.) 
There can be no valid legislation controlling the content 
of ideas respecting the form and organization of gov­
ernment.

An investigation into the content of speech cannot 
possibly relate to or be in aid of any valid legislative func­
tion.2 Where investigation by Congress cannot be related 
to nor made to subserve any permissible legislative object 
respecting such matter over which Congress is granted 
power of regulation, the investigation exceeds legislative 
right. In the words of this Court, the Government of

2True enough the statute speaks of investigations “ that would aid 
Congress in any necessary remedial legislation.’ ’ For the reasons 
stated, however, no legislation by Congress is possible in the area 
defined by the statute. Therefore the recitation of the legislative 
object is idle superfluity.



—81

the United States is a government o f “ delegated, limited 
and enumerated powers.”  ( United States v. Harris, 
106 U. S. 629, 635.) And in the words o f the Constitu­
tion, the authority of Congress is but authority to exer­
cise the “ legislative powers herein granted” 3 and no 
others. The powers expressly granted to Congress in 
Article I, Section 8, Clauses 1-18, together with such 
implied powers as may be found appropriate and essential 
to effective exercise of these powers, constitute the en­
tirety of Congress’ authority.

McCulloch v. Maryland, 4 Wheat. 316, 405;
Martin v. Hunter’s Lessee, 1 Wheat. 304.

The power to investigate not being an express power, 
then where investigation is attempted by Congress, the 
inquiry in each case must be “ whether it is properly an 
incident to an express power and necessary to its execu­
tion. If it be, then it may be exercised by Congress. If 
not, Congress cannot exercise it.”  ( United States v. 
Harris, 106 U. S. 629, 636.) Were it otherwise, the 
assertion o f the power to investigate or the use of im­
plied powers as ends in themselves would effectively nullify 
all constitutional limitations on Congressional jurisdic­
tion.

Kansas v. Colorado, 206 U. S. 46, 81;
United States v. Butler, 297 U. S. 1, 64;
Carter v. Carter Coal Co., 298 U. S. 238, 291.

In the instant case Congress and the Committee have 
defied these elementary principles. Under the statute the 
Committee has assumed power to “ investigate” for the 
purpose of “ exposure,” independent o f and unrelated to

3Article I, Section 1.



— 82-

any possible legislation or the need therefor.4 It claims 
that it may use its investigatory power generally to “ ex­
pose,” on the outright premise that “ exposure”  is a per­
missible end in itself.5

This is usurpation of power thrice multiplied. Investi­
gation is an implied power only, exercisable only as an 
incident to and in aid of legislative objects within the 
scope of Congress’ jurisdiction under the Constitution; 
and exposure is in turn but an incident of the limited 
and implied power of investigation.

M e Grain v. Daugherty, 273 U. S. 135, 160 et seq.;
Kansas v. Colorado, 206 U. S. 46, 89;
Scheckter v. United States, 295 U. S. 495, 528,

Were it to be conceded that in certain areas Congress 
should be indulged the power to investigate or expose,

4The statute scarcely purports to authorize the Committee to 
exercise such claimed power. By its terms it authorizes the Com­
mittee to “ make from time to time investigations.”  It says nothing 
about hearings for the purpose of exposure as distinct from investi­
gation. Furthermore, the investigations authorized are of (1) 
“ un-American propaganda activities” and (2 ) “ the diffusion . 
of subversive and un-American propaganda . . .” and (3 ) “ all 
other questions in relation thereto that would aid Congress in any 
necessary remedial legislation.”  Sec. 121(b), Legislation Reor­
ganization Act of 1946, P. L. 601, Chap. 753, 79th Cong., 2nd 
Sess., 60 Stat. 828. This indicates, that Congress authorized hear­
ings for the purpose of getting information “ that would aid Con­
gress in any necessary remedial legislation” and not for the purpose 
of exposure, as such. 6

6“ This Committee is the only agency of government that has the 
power of exposure . . . there are many phases of un-American 
activities that cannot be reached by legislation or administrative 
action . . .”  H. R. Rep. No. 1, 77th Cong., 2nd Sess., 16 
(1940). See, also, H. R. Rep. No. 2, 76th Cong., 1st Sess. 13 
(1939) ; H R. Rep. No. 2742, 79th Cong., 2nd Sess., 16 (1940).

The Chairman in his final statement at the close of the hearing 
on October 30, 1947, said: “ This hearing has concerned itself 
principally with spotlighting Communistic personnel in the industry. 
[J. A. 484, 485. See, also, Ex. 10 for Ident., J. A. 480-486.]



— 83—

free from requirement that the exercise of these powers 
bear reasonable relation to the gathering of facts useful 
to the task of legislating, assuredly no such concession 
may be tolerated within the area lying close to the First 
Amendment.

There is an obvious difference between exposure by 
Congress of the practices of governmental departments 
or its own membership and its exposure of the ideas and 
associations of private individuals. The former informs 
the sovereign people of the manner in which their servants 
perform their obligations and it is, therefore, consistent 
with our democratic institutions.6

The latter would give government an unprecedented 
power to exercise supervision and control over the people 
in the exercise of their sovereign liberties o f speech, 
thought and association, and thereby destroy the very core 
of our democratic institutions. This domain of the First 
Amendment is utterly denied to government and it is de­
nied for the most imperative o f reasons. It is denied 
because it is the deepest premise of our way of life that 
the people, and they alone— free from governmental inter­
ference— may determine what ideas they shall accept and 
what ideas they shall reject by and through the freest 
interplay of opinion and speech in the market place of 
ideas. ( Thornhill v. Alabama, 310 U. S. 88, 97-103;
Thomas v. Collins, 323 U. S. 516, 543; West Virginia

8Those who have urged that the power of exposure is an im­
portant one and should be broadly indulged have invariably dealt 
with exposure of the operation of government agencies— an area 
most definitely within the scope of legislative power. See, for 
example, such articles as Potts, Power of Legislative Bodies to 
Punish for Contempt, 74 U. Pa. L. R. 691, 811; Galloway, Investi­
gative Function of Congress, 21 Am. Pol. Sc. Rev. 47, 62; Cousens, 
Investigations Under Legislative Authority, 26 Georgetown L. J. 
905, 918; McGeary, The Developments of Congressional Investi­
gative Power, p. 104.



84-

State Board o f Education v. Barnette, 319 U. S. 624, 
641; Yick W o v. Hopkins, 118 U. S. 356, 370.) Here, 
the power of exposure which the Committee assumes for 
itself stretches the strong arm of government into that 
market place. This it may not do.

Thornhill v. Alabama, 310 U. S. 88, 97.

All of the foregoing is clear as a matter o f principle 
alone. But the record in the instant case illustrates and 
emphasizes the fundamental wisdom of the doctrine by 
revealing in practice what the principle comprehends in 
theory. Here the evils inherent in such a grant of power 
as is claimed by the Committee are revealed with naked 
clarity by the actual exercise of claimed power by the 
Committee. Exposure no longer has as its objective the 
providing of the legislature with requisite information. 
Exposure is used as the means o f depriving non-con­
formists of their means of livelihood and of inflicting 
other pains and penalties upon those who refuse to yield 
to the inquisitions of our times.7 The power to expose 
now means the power to punish— to punish without a law 
providing for punishment and without a trial in which 
“guilt” is determined— and all because men allegedly hold 
ideas and join in associations which this Committee has 
declared verboten.

The petitioner, through offers of proof and requests 
that the Court take judicial notice of certain facts, has 
made a record which reveals the extent of the thought 
control which this Committee would impose upon the 
American people. The offers establish that the Committee

7Thus, for example, during the hearings the Committee Chair­
man said, . . you persons high up in the industry can do
more to clean your own house than can anybody else, but you must 
have the will power, and we hope that by spotlighting these Com­
munists you will acquire that will.”  [J. A. 522.]



-8 5 -

construed and applied its authority to permit it to de­
termine without limit what opinion, speech and association 
is to be censured and then to utilize its powers to suppress 
what it has condemned. It has been used, not as an instru­
mentality to inform the Congress as to what legislation it 
should enact but rather as a means of determining for 
the people what ideas they might safely hold, express and 
associate to support. It has not deemed itself responsible 
to the people; instead it has held the people accountable 
to it. It has called many witnesses not for the purpose 
of getting facts from them; rather it has required wit­
nesses to appear in order to be instructed as to what 
they should do in their private lives and their private 
businesses.

The unlimited character of the investigatory power into 
thought and speech as it appears upon the face of the 
statute has been utilized by the Committee to the very hilt. 
The range of ideas upon which the Committee has sat in 
judgment and issued denunciations touches every con­
troversial subject in modern American life. The epi­
thets “ un-American” and “ subversive” have been hurled 
at advocacy of racial equality, adherence to the New Deal, 
support of rent control, opposition to cartels, action on 
behalf of the Geyer Anti-Poll Tax Bill, condemnation of 
denial of meeting places to Henry Wallace, etc., etc. More 
than 1,200 organizations and in excess o f 1,000,000 indi­
viduals have been cast outside the pale of Americanism 
by this Committee. Careers have been ruined, jobs lost, 
reputations besmirched by the utilization of claimed gov­
ernmental power by this Committee. Above all, it has 
hampered free speech and association in a manner and to 
an extent unequalled in our history.



— 86— ■

This Court is properly not concerned here with the 
wisdom of the views expressed or positions taken by the 
Committee and petitioner does not otherwise contend. For 
this Court has no greater right to censor or pass upon 
the political views of the members of the Committee than 
the Committee had to censor the opinions of private citi­
zens. What this Court is concerned with is the lawful­
ness and constitutionality of the Committee’s assertions 
of power and of the statute claimed to authorize the same. 
Whether a statute may create a congressional committee 
as the arbiter o f orthodoxy in the field of political, social 
and economic ideas presents a vital question which cries 
out today for determination by this Court.

It is petitioner’s position that however facile may be 
the spokesmen for such a committee in devising justifica­
tions for such action, such spokesmen can never escape 
the simple truth which stands forth in the record here 
with such tragic clarity— namely, that the statute here, 
upon its face and as generally construed and applied by 
the Committee, and as particularly applied in this inves­
tigation, has laid a fearful burden upon freedom of 
speech, press, thought and association, and is, therefore, 
unconstitutional, unlawful and void. ( Gr os jean v. Amer­
ican Press Co., 297 U. S. 233.) Indeed, the Court below 
concedes that the statute does burden speech but justifies 
such burden on the premise that it is laid upon a vital 
subject, and an important medium of communication.

Speech and association are not free if they may be 
exercised only under constant threat of official exposure 
and condemnation. Legislation which permits the impo­



■87—

sition of such burdens upon speech and association tres­
passes upon the express limitations of the First Amend­
ment. For a citizen to defy and challenge the exercise 
of power under such legislation can be no punishable o f­
fense, since it is but the performance of his sovereign 
duty as a citizen and as a man.

As for the contention that the power of investigation 
must necessarily be broader than the legislation possibly 
flowing therefrom, is it not apparent that “ civil liberties 
may not be abridged in order to determine whether they 
should be abridged” ?

Finally, and apart from considerations of freedom of 
speech, press, thought and association and the other con­
siderations heretofore discussed, the statute is separately 
unconstitutional on its face because the vagueness of the 
terms “ un-American” and “ subversive” and of the phrase 
“ the principle of the form of government as guaranteed 
by our Constitution,” employed in the statute render it 
so ambiguous and devoid of ascertainable meaning as to 
offend the due process clause o f the Fifth Amendment.

United States v. Reese, 92 U. S. 214;
Cline v. Frink Dairy Co., 274 U. S. 445;
Winters v. New York, 333 U. S. 507.

The statute manifestly can have only such meaning as 
the views and prejudices of the Committee members place 
upon it. Particularly where it enters the area of the 
First Amendment, such a statute when it is involved in a 
criminal case must be stricken as offensive to the due 
process clause of the Fifth Amendment.



— 88—

y .
The Trial Court Committed Numerous Prejudicial 

Errors and Denied Petitioner a Fair Trial Under 
the Sixth Amendment by Its Rulings, Instruc­
tions and Comments.

A. The Subcommittee Before Which Petitioner Appeared 
Was Not Shown to Be a Lawfully Constituted Tribunal, 
and the Trial Court Committed Prejudicial Error by 
Reason of Its Rulings and Instructions Which Prevented 
the Jury From Considering This Fact in Reaching Its 
Verdict.

The House Committee on Un-American Activities is 
a standing committee consisting o f  nine members, (Leg­
islative Reorganization Act o f 1946, 60 Stats. 812, Sec. 
121). Only eight members have actually been designated 
as members of the Committee by the House of Representa­
tives. [Govt, Ex. 3, J. A. 380.]

On the day petitioner testified only three of the mem­
bers of the Committee including the chairman were pres­
ent. The chairman announced that a sub-committee was 
present, consisting of himself and the other two mem­
bers. [J. A. 185-186, 197-198.]

Despite objections by the petitioner the trial court per­
mitted the chairman of the committee to testify first, 
that he had the authority to appoint a sub-committee, 
without stating when, where or how that authority had 
been obtained, and second, that he exercised this author­
ity on the day the petitioner testified by announcing that 
a sub-committee was present consisting of himself and 
the other two members of the committee in attendance. 
[J. A. 185-186, 197-198.] Aside from the testimony of 
the formation of the committee as a whole and the desig­
nation of its members by the House of Representatives,



-89-

this constitutes the entire proof in the record of the 
existence of a legally competent tribunal.1

The trial court did not even permit the jury to de­
termine for itself whether the chairman’s naked assertion 
concerning his power satisfied it that the authority claimed 
actually existed. Instead he instructed the jury that if 
it was established that the chairman designated a sub­
committee, then that proof, in and of itself, required the 
jury to find the existence of a validly constituted sub­
committee. [J. A. 355.] Thus the jury was in effect 
told that, as a matter of law, the chairman had the 
authority which he asserted.2

Nowhere in the statute creating the committee or in 
any other statute or provision of law is there any proviso

1These hearings were marked by the persistent absenteeism of 
members of the Committee. Only three members were present at 
the opening of the hearings October 20, 1947 [Comm. Tr. 1] ; 
four were present at the outset of the hearings on October 21 
[Comm. Tr. 91], on October 22, [Comm. Tr. 135] and on October 
23, [Comm. Tr. 189] on October 24, only two were present [Comm. 
Tr. 229]. Each morning the chairman announced that a sub­
committee was present, in each case indicating that the sub-com­
mittee consisted of those members who happened to be present at 
that time. On October 21, a 5th member of the Committee came 
into the hearings late and at that point the chairman said, “ I want 
to show that Mr. Wood is here. W e now have a quorum of the 
full committee.”  [Comm. Tr. 93.] Actually the committee acted 
through who ever happened to be present at any given time. Cer­
tainly it cannot be that a legally competent tribunal may have the 
number and composition of its membership determined upon the 
happenchance of who happens to be present at any given time 
without any continuity whatsoever of the personnel of the said 
tribunal. Nor is the situation bettered by calling who ever hap­
pens to be present either a committee or a sub-committee.

2It is submitted that the instructions, requested by the petitioner 
and refused by the trial court, to the effect that the committee 
must act through a quorum or through a sub-committee appointed 
or in some manner authorized by the full committee (petitioner’s 
proposed instructions Nos. 37-48, inclusive. [J. A. 372-375].) cor­
rectly state the law.



-90—

that the chairman may determine when sub-committees 
should sit or how they should be constituted. The House 
specifically delegated its powers to investigate to those 
8 named members of the committee [Govt. Ex. 3 J. A. 
380]. This delegated power then resided in a majority, 
i.e., a quorum, of these 8 members. This majority, in 
turn, could delegate its power insofar as any specific 
investigation was concerned, to a sub-committee, either by 
directly designating the sub-committee or by authorizing 
its chairman to do so [see Norris v. United States, 300 
U. S. 564, 569; United States v. Seymour, 50 Fed. 2d 
930],

But there is no evidence in this record that the ma­
jority of the committee ever so delegated its power. If 
it had, this would have been a fact incumbent upon the 
Government to prove before the jury, just as it proved, 
through its exhibit 3, the original delegation of power 
by the House to the committee.3

The government not only did not prove this fact, but 
when petitioner attempted to prove its non-existence by 
subpoenaing the records of the committee, the trial court 
completely thwarted his efforts by granting the Gov­
ernment’s motions to quash the subpoenas. [J. A. 344- 
346.]

Here the factual question as to the authority of the 
chairman to determine that a sub-committee should sit 
and to designate it, was taken from the jury— just as 
in the case of Christ off el v. United States, (No. 528, 
decided June 27, 1949). The question of the existence of

8In the case of Meyers v. U. S., 171 Fed. 2d 800, the committee 
ratified the appointment of a sub-committee by the chairman. This 
ratification, which took place several months before Gen. Meyers 
testified, had the same effect as an appointment on delegation of 
authority to appoint, made by the committee in the first instance.



■91—

a quorum was taken away from the jury. Moreover, in 
the Christo ffel case, the existence of a legally constituted 
tribunal, at the time the hearing was commenced, was 
conceded. Here the issue presented involves the far more 
serious question as to whether such a tribunal ever came 
into being.

Not only is there no support by statute rule or regula­
tion for the proposition that the chairman has the au­
thority here claimed, but the legislative history of the 
Legislative Reorganization Act of 1946, 60 Stat. 812, 
indicates that Congress intended no such grant of power. 
In the committee report regarding that Act the following 
appears:

“ Every chairman, even though he is the executive 
of the committee, should be bound by the decisions 
of its members as expressed in regular committee 
session.” [Report of the Joint Committee on the 
Organization of Congress-—pursuant to House Cong. 
Res. 18— Rep. No. 1011 in Section 1, subdivision 6 
thereof].

This indication of legislative intent is simply a restate­
ment of the familiar rule that in the absence of a delega­
tion of authority from the entire body, acting through a 
quorum, no minority thereof, let alone the chairman or 
any other single individual, may bind the majority or act 
on behalf of the entire body. [ United States v. Ballin, 
Joseph & Co., 44 U. S. 1 at 7],

Moreover by his instructions the trial judge also de­
termined for the jury the question of fact as to whether 
Chairman Thomas, by his assertion that a sub-committee 
was sitting, had designated a committee. Thereby every 
question o f fact concerning the existence of a legally 
competent tribunal was taken away from the jury.



- 92-

The judge charged the jury:
“ Evidence introduced during the trial has indi­

cated that the chairman of the committee . . .  on 
Oct. 27, 1947, convened a meeting of a subcommittee 
designated by him to be Congressman McDowell, 
Congressman Vail, and himself.” [J. A. 355]. 
(Emphasis added.)

He then went on to instruct the jury that in order to 
find that there was a validly constituted sub-committee, 
the jury need only determine that the chairman “ desig­
nated Congressman McDowell, Congressman Vail, and 
himself as a subcommittee.”  Thus the judge first told the 
jury that the chairman had designated a sub-committee 
and then informed the jury that if it found that the 
chairman did designate a sub-committee, it must find that 
there was a validly constituted sub-committee.4

To leave no doubt about the fact that he did not con­
sider the existence of a validly constituted tribunal an 
issue to be decided by the jury, the court charged:

“ If you believe, and believe beyond a reasonable 
doubt, that the defendant appeared before the com­
mittee— and that is not controverted by the defense 
— that he was sworn— and that is not controverted 
— and that he was asked some questions— and that

4That the trial judge intended to decide this question as a matter 
of law is indicated by the following discussion which took place 
when he granted the government’s motion to quash the petitioner’s 
subpoenas directed to records related to this issue:

“ The Court: Well, here it is very clear that Public Law 
601 authorizes the Committee on Un-American Activities to 
act as a whole or by subcommittee to investigate propaganda 
activities. It is undisputed that there was a Committee on Un- 
American Activities of the House, o f which J. Parnell Thomas 
was the chairman. It is also undisputed, because of the evi­
dence by Chairman Thomas and by the transcript of the 
record itself, that a meeting was held on October 27, 1947,



— 93—

is not controverted— and that he refused to answer 
questions, it is your duty under the law to return a 
verdict of guilty . . .  So that, as I say, if you 
believe beyond a reasonable doubt that the question 
was asked and the defendant did not give a re­
sponsive reply, it is your duty under the law to return 
a verdict of guilty.”  [J. A. 358.]

By these instructions the court informed the jury that 
the only issue which was controverted and which was 
before it was whether there was a refusal to answer.

In Fleishman v. United States (U.S.C.A.-D.C. No. 
9852, decided April 8, 1949, Govt, petition for cert., No. 
838, Oct. Term, 1948, still pending), a contempt convic­
tion was reversed because the question of whether the 
committee members present constituted a quorum, i.e., 
a legally competent tribunal, was decided by the trial 
court alone. The appellate court reversed, stating that the 
quorum issue was one of fact for the jury to decide, and, 
therefore, even if the evidence on that matter were con­
clusive, it should not be determined by the court as a 
matter of law.

Such a determination was made by the trial court here.
As has been noted above, the Christoffel case is deter­

minative of the issues presented here. However, the error 
here is more aggravated than that in the Christoffel case.

at which time the chairman of the committee designated Con­
gressman McDowell, Congressman Vail, and Congressman 
Thomas as the subcommittee to conduct those hearings. So I 
will rule that that is a validly constituted committee, and you 
may have an exception.

“ Mr. Kenny: Your Honor, I think, to make the record
clear—-

“ The Court: Oh. yes, I want the record clear, because if I 
am wrong, you can appeal it.

“ Mr. Kenny: You are granting the motion of the Gov­
ernment to quash?”

“ The Court: That is correct.” [ J. A. 346].



— 94—

There the Government established, as the opinion points 
out, that the hearing was before a legally convened Con­
gressional committee as appeared “ from the committee’s 
records.” Thus in the cited case, as distinguished from 
the instant case, the government’s proof was based on 
the Committee records. Here, however, the committee’s 
records, if any, were excluded by the court. There the 
Government relied on the best evidence; here the best 
evidence was kept out o f the record.

Section 133(b) of the Legislative Reorganization Act 
of 1946 requires that each committee “ shall keep a com­
plete record of all committee action.” Where a public 
body is required by law to keep records, it can only act 
by means of making a record [State ex rel School Dis­
trict o f A fton v. Smith, 336 Missouri 703, 80 Fed. 2d 
858; People v. Cleveland 271 111. 226, 110 N.E. 843]. 
The trial judge, by his rulings, refused to permit the 
petitioner to produce records which not only were the best 
evidence, but which were the only competent evidence on 
this issue.

This is not merely a technical point. Convictions for 
much more serious crimes involving moral turpitude have 
been reversed by this court where lack of authority was 
demonstrated in the officer or tribunal before whom the 
critical act took place. [See United States v. Curtis, 107 
U. S. 671, and cases cited in the annotation of said case 
at 27 L. Ed. 534.]

The question involved herein is not an “ intra parlia­
mentary controversy”  which this court has properly left 
to parliaments [Coleman v. Miller, 307 U. S., 456, 469]. 
The application of the rules of Congress properly be­
comes a judicial question when it affects the rights of 
a non-member [ United States v. Smith, 286 U. S. 6, 33].



-95—

B. The Charge of the Court That (a) a Non-Responsive 
Reply, or (b) a Reply That Seems Unclear to the Jury Is 
Per Se Conclusive Proof of a Refusal to Answer, and the 
Comments of the Court to the Effect That Petitioner Was 
Not Trying to Answer the Question Constituted Preju­
dicial Error.

The central, if not the only issue of fact which the 
Court permitted the jury to determine was whether there 
was proof of a refusal to answer. In its charge the Court 
said:

“ . . . I f you believe beyond a reasonable doubt
that the question was asked and that the defendant 
did not give a responsive reply, it is your duty under 
the law to return a verdict of guilty.”  [J. A. 358; 
emphasis added.]

The Court further charged:
“ . . . The nature of the activities of the de­

fendant is not an issue in this case, and it is your 
duty entirely to disregard any speculation on that 
subject. In other words, whether or not the defend­
ant is or was not a member of the Communist Party 
actually is not relevant to this case.”  [J. A. 356.]

“Now in testing whether or not you believe from  
the evidence that the defendant answered the question 
propounded by the Committee, you must decide for  
yourself whether or not the answers given by the de­
fendant satisfy you now as to whether or not he ever 
was or is a member of the Communist Party. I f  
you can come to a conclusion by the replies the de­
fendant gave to those questions . . .  i f  you can 
answer by those replies . . .  as to whether or 
not he ever was or is now a member of the Com­
munist Party, then, o f course, it is your duty to



— 96—

return a verdict o f not guilty. I f  you cannot, you 
must return a verdict o f guilty ”  [J. A. 359;* empha­
sis added.]

The error of these instructions consisted of (1 ) the 
equation of a failure to give a responsive answer with a 
refusal to answer, (2 ) the requirement that guilt be found 
if there were an unclear answer, which the Court thereby 
ruled was the same as a refusal to answer, (3 ) the ef­
fective determination as a matter o f law of the only ques­
tion purportedly submitted to the jury, resulting from the 
elimination from the jury’s consideration of the circum­
stances from which it might determine whether there had 
been a refusal to answer, and (4 ) the misleading and 
ambiguous language in the instructions which could only 
confuse the jury in determining whether there had been a 
refusal to answer.

1. The Court advised the jury that if the petitioner 
“ did not give a responsive reply” he was guilty. Thus the 
words “ did not give a responsive reply”  (i. e., failure to 
answer responsively) are substituted for “ refusal” (i. e., 
a deliberate and intentional act). By no conceivable test 
. . . whether it be the test laid down in Fields v.
United States, 164 F. 2d 97, 82 U. S. App. D. C. 354, 
which requires the Government to show the refusal to be 
deliberate, or the test in United States v. Murdock, 290 
U. S. 392, which requires the Government to show evil 
motive or bad purpose, as well as deliberateness . . .
has it ever before been suggested that a person is guilty 
of criminal contempt merely because the witness fails to 
or does not give a responsive answer.

*It is submitted that the law was correctly stated in petitioner’s 
proposed instructions Nos. 61 and 66, as well as Nos. 49-60 inch, 
and Nos. 62-66, inch, all of which were refused [J. A. 347 375-



— 97—

2. By instructing the jury that a conviction was re­
quired if the jury could not determine from the peti­
tioner’s answers whether or not he was a Communist, the 
Court declared an unclear answer to be the equivalent of 
a refusal to answer.

The offense defined by the statute is the deliberate and 
intentional refusal to answer a pertinent question. An 
unclear answer may be some evidence of a deliberate re­
fusal to answer; and perhaps the Court might have so 
instructed. But the fact that the jury might be unable to 
attribute a completely responsive meaning to a reply can­
not be accepted as conclusive proof of a refusal to answer. 
And not every non-responsive reply is necessarily crimi­
nally contumacious. If it were so, then few witnesses 
anywhere could escape the reach of Section 192.*

This charge directs guilt where a jury may have reason­
able doubt respecting the responsive or non-responsive 
quality of a reply to a question; customarily such reason­
able doubt demands a verdict of not guilty. Here, how­
ever, this doubt becomes paradoxically the hallmark of 
guilt.

*The confusion attending this instruction concerning responsive­
ness is increased by a consideration of the uncertainty as a matter 
of law of the meaning of a “ responsive”  answer and the uncertainty 
as to the legal effect of an assertedly non-responsive answer. Pro­
fessor Wigmore in his work on Evidence (3rd Ed., Par. 785), 
deals fully with the subject and states:

“ Paragraph 785. N on-R esponsive A nswers. Where the 
witness, either in a deposition or on the stand, goes beyond 
the scope of the question and makes an answer not responsive, 
there is here nothing per se wrong. . . . This topic of
responsiveness has somehow become in modern times beset 
with crude misunderstanding that tend to suppress truth and 
turn the inquiry into a logomachy. . . .  No party is owner 
of facts in his private right. No party can impose silence on 
the witness called by justice.”



— 98—

3. In determining whether there had in fact been a 
refusal to answer, as distinguished from a failure to 
answer or an unclear answer, the jury had to consider 
whether under all the circumstances shown there was 
such a refusal.

The evidence before the jury showed that Mr. Lawson, 
while on the witness stand, had made a number of re­
quests and statements, among which were (1 ) that he be 
allowed to read to the Committee a full statement of his 
position, as had witnesses who had preceded him, (2 ) that 
witnesses be called back for cross-examination to prove 
that they had perjured themselves when maligning him 
and calling for his discharge and to show what the Com­
mittee really was seeking to do, and (3 ) that the questions 
were in violation of his constitutional rights.

And the record shows that while in the middle of a 
response, and after much gavel pounding, the defendant 
was ordered from the stand by the Chairman’s command 
to the bailiffs— “ Officers, take this man away from the 
stand.”  In any and all events the Court should have 
directed the jury to weigh all of these circumstances in 
determining whether, assuming a failure to answer, it had 
been so deliberate and intentional as to constitute a re­
fusal.

Obviously, the jury could not tell from the petitioner’s 
answers whether or not he was a Communist. Therefore, 
the practical effect of precluding consideration of all other 
circumstances was to instruct the jury that there had been 
a refusal to answer.

4. At the very least the instructions are confusing, 
equivocal and misleading, first as to whether the test of 
refusal is the clarity or lack of clarity of the ..reply or 
whether it is the responsiveness or non-responsiveness of



— 99—

the answer, and, second, as to the extent to which the de­
termination by the jury of petitioner’s membership or non- 
membership in the Communist Party was relevant to the 
issues submitted to the jury. Instructions so framed con­
stitute prejudicial error.

Kraus v. U. S., 327 U. S. 614;
Bihn v. U. S., 328 U. S. 633.

5. The erroneous instructions were aggravated by the 
Court’s comment during argument to the jury wherein 
the jury was told by the trial judge that there “ was 
nothing in the record to indicate that he (petitioner) was 
trying to answer the question”  and that defendant’s state­
ment of his reason for objecting to the question “ is not 
in the case.” These comments were made despite the fact 
that the charge to the jury included the following:

“ The defendant takes the position, through its 
counsel, in arguing the case to you, from the evidence 
submitted by the government and the transcript of 
the case, that he was attempting to answer the ques­
tions; . . [J. A. 357.]

During the course of defense argument to the jury the 
following occurred:

“ Mr. Kenny (Counsel for Petitioner) : . . .  He
was trying to answer it in his own way.

Mr. Hitz (Counsel for the Government) : Just a
minute; I will have to object again. There is no 
evidence that Mr. Lawson was trying to answer the 
question.

Mr. Kenny: Isn’t that the question the jury has to
decide ?

The Court: There is nothing in the record to in­
dicate that he was trying to answer the question. You 
can refer to the record.



— 100—

Mr. Kenny: That is correct. That is what I
will argue at length, and in so answering he said he 
was trying to protect the rights of everyone regard­
less of politics or religion. . . .

Mr. Kenny: . . .  I say to you, Mr. Hitz, it is
right in the transcript. Mr. Lawson said— I will 
have to have a little more time if I have to argue this 
piecemeal— he said the right of immunity of Amer­
ican citizens will be prejudiced, Jews, Catholics, Re­
publicans, Democrats, or anyone else. That is what 
he was talking about when he was finally removed 
from the witness stand. He said, ‘You are trying to 
destroy'— ’ and the chairman said, ‘Officer, take this 
man away from the stand.’ He was in the middle of 
a sentence when he was ordered from the stand.

Mr. Hitz: I will have to object again. I think
the reason given by this man is not in the case.

The Court: No, it isn’t.”  [J. A. Lawson, 348-
349.]

These were critically important and unfair comments 
by the Court on the ultimate factual issue which was the 
jury’s to resolve and constituted prejudicial error.

Patton v. U. S., 281 U. S. 276;
United States v. Murdock, 290 U. S. 389, 392.

Certainly the trial court did not follow the rule of this 
Court that “ the decision of issues of fact must be fairly 
left to the jury” and that the trial judge must use great 
care that his expression of opinion should not be mislead­
ing or one sided.

Quercia v. United States, 289 U. S. 469;
Bollenbach v. United States, 326 U. S. 606.



— 101
C. The Trial Court Committed Prejudicial Error in Refusing 

to Permit Cross-Examination of the Principal Prosecution 
Witness, J. Parnell Thomas.

Aside from the introduction of formal documents (such 
as the resolution setting up the House Committee on Un- 
American Activities and the subpoena [Prosecution Ex. 
1 et seq. ] )  the testimony of Congressman J. Parnell 
Thomas was the only prosecution evidence. He testified to 
the questions put to the petitioner before the Committee, 
and he testified concerning the alleged refusal o f the peti­
tioner to answer. Without his testimony, no corpus delicti, 
no crime of any kind, was shown. Nevertheless, all effort 
effectively to cross-examine this witness was shut off by 
the trial court. To illustrate:

(a ) On direct examination, before the jury, the Court, 
itself, asked the witness the following question:

“ Q. With reference to those dates, Congressman, 
that you referred to on the cover of that transcript, 
what was the committee investigating at that time? 
A. W e were investigating Communist infiltration in 
the motion picture industry.

The Court: Very well.”  [J. A. 197.]

A  motion on behalf o f petitioner to strike the answer 
was denied [J. A. 197-198]. Nevertheless, the efforts of 
the defense to cross-examine the witness on this answer 
were prevented by the rulings of the Court [J. A. 202- 
203].

If cross-examination had been allowed, petitioner would 
have had the opportunity to establish his contention that 
the Committee was not actually investigating anything, 
but on the contrary was carrying on a proceeding de­
signed to blacklist the defendant and to censure the screen.



— 102—

If evidence as to what the Committee was engaged in 
doing was not admissible, it should have been stricken by 
the Court; if it were admissible, cross-examination should 
have been allowed. By its inconsistency, the Court com­
mitted error. This error was magnified by the Court’s 
charge to the jury:

“ You will recall that the testimony tended to show 
that the committee was investigating the infiltration 
o f communism in the motion picture industry. . . . ” 
[J. A. 355.]

(b ) The witness testified on direct examination re­
specting some of the things which happened while the 
petitioner was on the stand on October 27, 1947. The 
petitioner by cross-examination attempted to show the 
written statement which the defendant had tried to pre­
sent to the Committee while he was before it [J. A. 199] 
and the efforts of the defendant (made at the same time) 
to be allowed to question those Committee witnesses who 
had testified against him during that same hearing and 
prior to the defendant’s taking the witness chair [J. A. 
214-216], The defendant’s attempt to develop these mat­
ters by the cross-examination of Mr. Thomas was no 
more than the equivalent of an effort to get before the 
jury the whole of a conversation after a part o f it had 
been introduced.

Without knowledge of all the circumstances, the jury 
might have considered the petitioner’s responses deliber­
ately evasive, perhaps even offensive; on the other hand, 
had the jury been allowed to hear all of the attendant 
circumstances, it might have concluded that petitioner was 
raising reasonable objections and was not refusing to 
answer the question.



— 103—

The accused was entitled to the jury's determination of 
this issue, aided by all the light that might be brought to 
it through cross-examination.

The denial of cross-examination was prejudicial error, 
regardless of whether it should be concluded that there 
was sufficient evidence to support the jury’s finding. 

Arine v. U. S. (C. C. A. 9th), 10 F. 2d 778;

Bollenbach v. United States, 326 U. S. 615.

(c ) On direct examination on the issue o f pertinency, 
the witness read into the record certain of the testimony 
relating to the petitioner given at the Committee hearings 
prior to the time that the petitioner testified before the 
Committee [J. A. 188-197]. On cross-examination the 
defense sought to introduce other portions of the testi­
mony given at the hearing at the same time and on the 
same subject matter [J. A. 219-244], These attempts 
were cut short, apparently on the theory that the question 
put to petitioner was pertinent as a matter of law [J. A. 
207]. Accordingly, the defense moved to strike the evi­
dence offered by the government on the question of per­
tinency, but this motion was denied [J. A. 243-244],

The Court thus determined the question of pertinency 
on the basis of the prosecution’s evidence on pertinency 
(having refused to strike that testimony) while denying to 
petitioner the opportunity on cross-examination to ask 
questions concerning and to develop further precisely those 
matters brought out on direct examination and relied on 
by the prosecution.



104—

D. The Court Committed Prejudicial Error in Excluding 
Petitioner’s Evidence That the Committee Failed to Certify 
to the House of Representatives All of the Material Facts 
Relating to the Alleged Failure to Answer.

When a committee witness fails to answer a pertinent 
question, the “ fact of such failure” must be reported to 
the House of Representatives (Act o f June 22, 1938, c. 
595, 54 Stats. 942, U. S. C. Title 2, Sec. 194).

Petitioner contends that this requirement of Section 
194 is jurisdictional in a proceeding against a non-mem­
ber of the House, and that it was not complied with by 
the Committee in his case. He offered evidence to show 
that in its report to the House, the Committee suppressed 
his prepared statement, his motions to quash his subpoena, 
and his application to recall certain witnesses for the pur­
pose of cross-examination. This offer was rejected by 
the Trial Court [J. A. 215, 303-305],

This Court said in In re Chapman, 166 U. S. 661, 667: 
“ When the facts are reported to the particular 

House, the question or questions may undoubtedly be 
withdrawn or modified or the presiding officer di­
rected not to certify.”

The matters excluded by the Committee from the con­
sideration of the entire House were substantial. This 
Court can properly assume that the members of the 
House of Representatives share with other Americans a 
desire for fair play. If the Committee’s denial of peti­
tioner’s request to recall and cross-examine witnesses who 
had attacked him had been revealed to the members of the 
entire House, they might well have refused to certify the 
contempt charges. However, this Court is not required 
to speculate on what action the House might have taken, 
once the failure to follow the statutory requirement has 
been established.

Kwock Jan Fat v. White, 253 U. S. 454, 463.



105—

E. Utilization of Government Employees as Jurors in This 
Particular Case Involving the House Committee on Un- 
American Activities as the Governmental Agency Di­
rectly Interested in the Prosecution, Constituted Preju­
dicial Error.

This case presents essentially the same issues with re­
spect to the use of Government employees on the jury as 
is involved in the case of Dennis v. United States (cert, 
granted June 27, 1949, No. 436). The issue was pre­
sented to the Trial Court by motions for change of venue, 
by challenges for cause directed to Government employees, 
and by requests for additional peremptory challenges after 
the exhaustion o f those allowed by the Court, all of which 
the Court denied.

Out of thirty persons on the jury panel from which the 
trial jury was selected, fifteen were Government employees 
[J. A. 138-140], six others had immediate members of 
the family who were Government employees [J. A. 142] 
and one other had a mother on Government pension [J. A. 
143]. The jury as finally constituted included five Gov­
ernment employees, one juror who was receiving a pension 
from the Government and one whose mother was on a 
Government pension [J. A. 142, 143, 167-168],

In support of his position, the petitioner showed the 
predominance of Government employees on jury panels; 
the interest of the House Committee on Un-American 
Activities in the prosecution ; the public announcements of 
the Committee that it would seek the discharge of all 
Government employees whose loyalty was in doubt, in­
cluding those who expressed sympathetic association with



■106-

members of organizations designated as subversive by the 
Committee; the fact that the Committee had widely pub­
licized its claim that the petitioner was a member o f many 
of the organizations denounced as subversive by the Com­
mittee; the existence on the part of Government em­
ployees of fear that any action which did not meet the 
Committee’s approval would lead to discharge from Gov­
ernment employment, the fact that this fear was intensi­
fied by Executive Order 9835, which was particularly 
applicable in this case because the petitioner had publicly 
supported organizations placed upon the outlaw list pur­
suant to said order; and the fact that prominent persons 
connected with Government had been pilloried for less 
sympathetic association with condemned individuals or 
organizations than might be deemed manifested by a vote 
of ‘not guilty’ in petitioner’s case [j. A. 13-25],

In such a strained setting can it reasonably be urged 
that Government employees could dispassionately and im­
partially sit as jurors on a case wherein the activity of this 
Committee was involved and was being sharply challenged 
by a citizen who had long opposed the standards set up by 
this Committee and who, in his testimony before the 
Committee on October 27, 1947, had repeatedly criticized 
it particularly where this testimony was the heart of the 
criminal contempt case which the Government employee- 
juror was to pass upon?

The prejudicial effect of the presence of Government 
employees on the jury was aggravated by the limitations 
placed upon voir dire examination designed to elicit actual



107-

bias. The defense, as distinguished from the prosecution, 
was required to submit its questions on voir dire in writ­
ing; many appropriate questions were disallowed; others 
were modified. Defense counsel was censored for repe­
tition of questions, even where it was done at the request 
of veniremen. The prospective jurors under interrogation 
were not placed in the jury box and the physical set up 
was such that effective observation of the jurors ques­
tioned was impossible [J. A. 100-138],

Thus the petitioner was tried by a jury composed largely 
o f Government employees, in a case in which Government 
employees might well believe that their jobs would be 
jeopardized if the defendant was acquitted, and without 
adequate opportunity to determine the actual bias of the 
jurors. This case presents a situation equally entitled to 
review as that involved in the case of Dennis v. United 
States, pending before this Court. See also Crawford v. 
United States, 212 U. S. at pages 193-196.



108—

F. The Trial Court Erred in Denying Petitioner’s Challenge 
and Motion to Dismiss the Jury Panel in That (1) the Use 
of Questionnaire Containing the Question Whether the 
Prospective Juror Holds Any “Views Opposed to the 
American Form of Government’’ Was Improper and In­
validated the Jury Panel, Particularly in the Present Case, 
and (2) the Petitioner’s Right to an Impartial Jury Drawn 
From a Cross-Section of the Community Was Abrogated 
by the Establishment of Qualifications for Jury Service 
Other Than Those Required by Statute and Which Lim­
ited the Representative Character of the Jury.

All prospective jurors were required to fill out a ques­
tionnaire which included the following question:

“ Have you any views opposed to the American 
form of government?”

Its purpose was indicated by a Jury Commission as to 
test “ whether a person was a good and lawful citizen”
[J- A. 87],

Nowhere in the statute establishing the qualifications 
for jury service (Title II, Section 1417, of the District of 
Columbia Code) is there any reference to a person’s 
views, unless it be deemed that the phrase “good and 
lawful person” found in the statute refers to a person’s 
ideas or beliefs. It is submitted that this phrase is in­
tended to deal with a person’s conduct and not his views, 
and that it was not the intention of Congress to make 
eligibility for jury service dependent upon a complete and 
unqualified belief that the American form of government 
is so perfect as to require no change whatsoever.

It can hardly be doubted that in the City of Washington 
there are many persons who would hesitate to answer the 
question concerning his views, and who therefore would ' 
either not answer it in the first instance or would fail to 
return the questionnaire because of the presence of this



question. The fact that the question is apparently made 
a test for jury service inevitably instills in the minds of 
the prospective juror the concept that it is his responsi­
bility not merely to sustain the Constitution in accordance 
with the instructions o f the Court, but that a person who 
does not believe that the present form of government 
should continue completely unchanged is to be condemned. 
The prejudicial effect o f this question in the instant case, 
where the charge is that the defendant refused to answer 
a question as to whether he was or ever had been a mem­
ber o f the Communist Party, cannot be doubted.

Cf. Gideon v. United States (C. C. A. 8th, 1931), 
52 F. 2d 427.

For the purpose of determining whether a juror has 
sufficient “ intelligence” to qualify as a juror, the Jury 
Commission examined the quality o f the handwriting on 
the questionnaires, any striking out of words, other 
“ messy” conditions and any misspelling [J. A. 65-82], 
The Jury Commissioner explained “ It is merely a question 
of how I interpret a form as to intelligence and ability to 
serve on a jury”  [J. A. 77],

The Jury Commissioner testified that he knew of no 
case in which a person in a high economic classification 
was disqualified because of bad handwriting or because of 
the manner in which the questionnaire was filled out, ex­
cept one man whose handwriting indicated he had palsy 
and who was therefore physically disqualified [J. A. 89- 
90]. All the persons disqualified because of the Jury 
Commissioner’s interpretation o f a form “ as to intelli­
gence and ability to serve on a jury” were in the lower 
economic brackets. In explanation of this circumstance 
the Jury Commissioner testified that the fact that a man 
is a “ cafeteria worker” or a “ houseman” effects the dis-

— 109-



— 110-

qualification only “ incidentally”  and “ only indirectly”  [J, 
A. 82-84]; that when eligibility is considered, occupation 
“ is one of the last things I look at in reviewing these 
cases” ; that it is given consideration “ finally . . . 
but not in the initial stages”  [J. A. 89-90], The only 
“ intelligence” requirement for jury service in the District 
o f Columbia is the ability “ to read and write and to under­
stand the English language,” Yet persons who were 
obviously able to read, write, and understand were dis­
qualified because they had not met the alleged intelligence 
standards arbitrarily applied by the Jury Commission.

It may be that minor technical departures from the 
method of jury selection prescribed by statute should not 
invalidate a jury panel. However, where the departure 
is not merely technical but is such that it renders the jury 
panel less representative than it would be if the statute 
were followed, the result is prejudicial and it should not 
be allowed.

Glasser v. United States, 315 U. S. 60, 85;
Thiel v. Southern Pacific Co., 328 U. S. 217.

Nor is it o f any significance that the discrimination is 
allegedly based upon standards of intelligence. The im­
portant fact is that persons with relatively similar ques­
tionnaires were treated differently solely because of dif­
ferences in their economic status.

As this Court said, in Smith v. Texas, 311 U. S. 128:
“ If there has been discrimination, whether accom­

plished ingeniously, or ingenuously, the conviction 
cannot stand.”

In this case, the Jury Commissioner did not apply the 
same standard in determining the qualifications o f persons 
in higher economic brackets that he applied to those in 
lower economic brackets. Regardless of motive and



— I l l

whether the system of selection be denominated ingenuous 
or ingenious, the result is th e same —  discrimination 
against those in the lower economic groups— a method of 
selection contrary to statute and not calculated to obtain 
a jury truly representative of the community-—a method 
of selection not consistent with our concepts of the demo­
cratic process.

The method of jury selection used in the District of 
Columbia, at the very least, presents a substantial and 
serious question of constitutional law which should be 
considered by this Court.

Respectfully submitted,
R o b e r t  W . K e n n y ,

629 South Hill Street,
Los Angeles 14, California 

O f Counsel: Attorney for Petitioner
C h a r l e s  H. H o u s t o n ,

Washington, D. C.
B a r t l e y  C . C r u m ,

New York, N. Y.
M a r g o l i s  a n d  M c T e r n a n ,

By Ben Margolis and William Murrish 
Los Angeles, California

C h a r l e s  J . K a t z ,
Los Angeles, California

M o r r i s  E. C o h n ,
Los Angeles, California

W o l f , P o p p e r , R o s s  a n d  W o l f ,
By Martin Popper 
New York, N. Y., and 
Washington, D. C.

S a m u e l  R o s e n w e i n ,
New York, N. Y.





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

8-8-49— 200