Lawson v. United States of America Petition for Writ of Certiorari
Public Court Documents
October 3, 1949
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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