Lockett v. The Board of Education of Muscogee County School District Record on Appeal

    IN' THE

mpreme (Eourt nf the United States
OCTOBER TERM, 1949

No. 248

J ohn H oward L awson,

vs.
U nited S tates oe A merica.

No. 249

D alton T rumbo,

vs.

U nited States op A merica.

Petitioner,

Petitioner,

on petitions por writs op certiorari to the court op
APPEALS POR THE DISTRICT OP COLUMBIA

MEMORANDUM OF THE AMERICAN JEWISH CONGRESS 
AND THE NATIONAL ASSOCIATION FOR THE ADVANCE­
MENT OF COLORED PEOPLE AS AMICI CURIAE IN 

SUPPORT OF THE PETITIONS

A merican J ewish  Congress, 
Amicus Curiae, by 

W ill Maslow, Attorney.
National A ssociation por the 
A dvancement op Colored P eople, 

Amicus Curiae, by 
T hurgood Marshall, Attorney.

S had P olier,
J oseph B . R obison,

of Counsel.



CASES CITED

PAGE
Chapman, In re, 166 IJ. S. 661 (1897)............................... 4

Harriman v. Interstate Commerce Commission, 211 
U. S. 407 (1908)__________________________________ 4

Interstate Commerce Commission v. Brimson, 153 
IT. S. 447, 478 (1894)........................................................  4

Kilbourn v. Thompson, 103 U. S. 68 (1881)...................  3, 4

McGrain v. Daugherty, 273 II. S. 135 (1927)...................  4

Sinclair v. United States, 279 U. S'. 263, 293 (1929)... 4



Supreme (Emtrl of %  ImtPii States
OCTOBER TERM, 1949

IN  THE

No. 248

J ohn H oward L awson,
Petitioner,

vs.
U nited States of A merica.

No. 249

D alton T rumbo, 

vs.
U nited States of A merica.

Petitioner,

on petitions for writs of certiorari to the court of
APPEALS FOR THE DISTRICT OF COLUMBIA

MEMORANDUM OF THE AMERICAN JEWISH CONGRESS 
AND THE NATIONAL ASSOCIATION FOR THE ADVANCE­
MENT OF COLORED PEOPLE AS AMICI CURIAE IN 

SUPPORT OF THE PETITIONS

The undersigned organizations respectfully urge that 
the petitions for writs of certiorari in the above cases he 
granted so that there may be a final determination of the 
issue whether a witness, subpoenaed before the House



2

Committee on Un-American Activities, may be punished 
for refusal to answer the question: “ Are you a mem­
ber of the Communist Party?” Counsel for petitioners 
and respondent have consented to the filing of this memo­
randum.

The American Jewish Congress was organized “ to safe­
guard the civic, political, economic and religious rights 
of Jews everywhere” and “ to help preserve, maintain and 
extend the democratic way of life in the United States.” 
The American Jewish Congress is, therefore, utterly op­
posed to totalitarianism because it is inconsistent with 
democracy. It is further opposed because it recognizes 
that totalitarianism, whether of the right or the left, is 
peculiarly the foe of Jewish survival. The former seeks 
and achieves the destruction of the Jew through degrada­
tion and persecution. The latter renders Jewish survival 
impossible by proscribing the free development of Jewish 
cultural and spiritual values without which Jewish exist­
ence cannot be maintained.

The National Association for the Advancement of Colored 
People is a membership organization which for forty years 
has dedicated itself to and worked for the achievement 
of a functioning democracy as well as equal justice un­
der the Constitution and laws of the United States.

A  great number of the motion pictures to the production 
of which petitioners contributed consistently showed the 
Negro minority group in a truer light than it had previously 
enjoyed. Par from being un-American in character, these 
pictures were among the first to portray an unstereotyped 
Negro. Therefore, the National Association for the Ad­
vancement of Colored People believes that the attack on 
petitioners is in part an attack on the basic struggle for 
equality of all people, regardless of race, creed, color or 
nationality.

We respectfully submit that the present petitions should 
be granted because, whether or not the Communist Party 
is dedicated to achieving some form of totalitarian govern­
ment in the United States, these cases involve the basic



3

question whether there are any constitutional limitations 
(apart from the privilege against self-incrimination) upon 
the Congressional power of investigation. The answer to 
that question will define the powers of Congress in impor­
tant respects.

In urging that an answer to this question be given, we 
do not minimize the importance or value of Congressional 
investigations. Only an informed Congress can wisely de­
cide whether legislation is needed and, if needed, what legis­
lation should be enacted to forestall, with due regard for 
the Bill of Bights, acts endangering our democratic sys­
tem of government. We recognize, too, that due respect 
for a coordinate branch of the Government must require 
the judiciary to weigh carefully anj  ̂ petition that it re­
strain the exercise of the Congressional power of investi­
gation. For we recognize that in most instances such 
restraint must come, if at all, from the political disap­
proval of the electorate.

Nevertheless, this Court recognized as long ago as 1881 
that, in a constitutional democracy, it is essential that 
the judiciary have some supervision over attempts by 
Congress to enforce its power of investigation. In Kil- 
bourn v. Thompson, 103 U. S. 68 (1881), this Court con­
sidered at length the much debated question whether Con­
gressional Committees had power to conduct fact-finding 
investigations. Without deciding that question, and as­
suming that the power existed, this Court held that the 
power was subject to certain limitations which the courts 
could not ignore. Thus, it was held that the Senate or 
the House of Representatives could require testimony 
only “ in a matter into which that House has jurisdiction 
to inquire, and * * * that neither of these bodies possesses 
the general power of making inquiry into the private affairs 
of the citizen” (103 U. S. at 190), “ If they are proceed­
ing in a matter beyond that legitimate cognizance, we are 
of opinion that this can be shown * * * otherwise the 
limitation is unavailing and the power omnipotent” (id. 
at 197). When the power of a House to inquire is called



4

“ in question * * * it should receive the most careful 
scrutiny” (id. at 192, emphasis supplied).

These principles remain valid today. As recently as 
1929, this Court quoted with approval Mr. Justice Field’s 
statement that the Kilbourn case “will stand for all time 
as a bulwark against the invasion of the right of the 
citizen to protection in his private affairs against the 
unlimited scrutiny of investigation by a congressional com­
mittee.” Sinclair v. United States, 279 U. S. 263, 293 
(1929). See also Interstate Commerce Commission v. 
Brimson, 153 U. S. 447, 478 (1894); Harriman v. Inter­
state Commerce Commission, 211 U. S. 407 (1908); In re 
Chapman, 166 U. S. 661 (1897). In McGrain v. Daugherty, 
273 U. S. 135 (1927), this Court held that the Congressional 
power “ is a limited power, and should be kept within its 
proper bounds; and, when these are exceeded, a jurisdic­
tional question is presented which is cognizable in the 
courts” (273 U. S. at 166). Accordingly, it held that “ a 
witness rightfully may refuse to answer where the bounds 
of the power are exceeded or the questions are not per­
tinent to the matter under inquiry”  (id. at 176),

These cases establish that the Congressional power to 
investigate is limited and that when the power of a court 
is invoked to implement a challenged exercise of that 
power, it must determine “ for itself” whether the exer­
cise was proper. Kilbourn case, supra, 103 U. S. at 106. 
They indicate also that essentially different considerations 
apply where the issue is whether a witness may be punished 
because of his refusal to answer a question and where 
the issue is whether the inquiry itself may be enjoined. 
The cases establish that the former is justiciable, whether 
punishment is by criminal conviction or by imprisonment 
by vote of either House. The latter we conceive to be 
a matter for political redress and to present a political 
question outside the jurisdiction of the courts. Accord­
ingly, review and reversal of the convictions in these cases 
would not prevent the continued functioning of the House 
Committee on Un-American Activities, but would leave 
that matter to the wisdom of the House of Representatives.



Since the present cases do involve conviction and punish - 
ment, they raise the following questions, among others, 
which this Court has not yet decided:

1. May a private individual be punished for his refusal 
to answer questions about his political affiliations, put by 
a Congressional Committee, regardless of the relevance 
of the question to an appropriate function of that Com­
mittee 1

2. May a witness before a Congressional Committee 
be punished for refusing to answer a question the pur­
pose of which is solely to stigmatize and disgrace him and 
deprive him of his livelihood?

3. May a witness before a Congressional Committee be 
punished for his refusal to answer an inquiry concerning 
Ms conduct where the sole purpose of the inquiry is to 
deter that conduct and where the conduct is legal and 
may not be constitutionally declared illegal.

4. May a witness charged with contempt, in order to 
prove that Congress has transgressed the limit of its 
powers, resort to evidence outside the official records of 
Congress?

5. If a Congressional Committee uses its investigatory 
powers to further ends which Congress cannot constitu­
tionally achieve by legislation, such as interference with 
freedom of expression, may the courts lend their aid to 
such an abuse of power?

These important questions are not answered in the exist­
ing decisions of this Court. We believe that they are not 
satisfactorily answered in the decisions below in these 
cases or the earlier decisions of the Court of Appeals 
for the District of Columbia dealing with contempt of 
Congressional Committees.



6

To an increasing extent in recent years, Congressional 
Committees have investigated, publicized, and issued offi­
cial pronouncements upon the political activities of some 
of our citizens. The extensive discussion of this develop­
ment in the daily press, in journals of opinion, and in 
legal periodicals, reveals a widespread fear that our 
political liberties are endangered. We believe that that 
fear will prove unjustified and that the process of Con­
gressional investigation will prove fruitful if it is kept 
within reasonable limitations. If, on the other hand, Con­
gressional Committees are in effect freed of the Con­
stitutional limitations which restrict the substantive acts 
of all legislatures, the danger of repression will become 
very real.

For the reasons stated above, we respectfully submit 
that the petitions for writs of certiorari in these cases 
should be granted.

A merican J ewish  Congress, 
Amicus Curiae, by 

W ill Maslow, Attorney.

National, A ssociation for the 
A dvancement of Colored P eople, 

Amicus Curiae, by 
T hurgood M arshall, Attorney.

Shad P olier,
J oseph B. B obison,

of Counsel.

October 19, 1949.



The Hecla Press : : New York City
39